1 THE PRESIDING JUDGE: Good morning, everyone. We have been in recess

2 for three weeks. I suppose we do not have to re-introduce

3 ourselves, do we? We look like the same people! We are here

4 to hear oral arguments on the Defence motion on dismissal of

5 charges. We will hear from the Defence first. Are you ready to

6 proceed, Mr. Wladimiroff?

7 MR. WLADIMIROFF: Yes, your Honours.

8 THE PRESIDING JUDGE: Let me tell you, Mr. Wladimiroff, as well as

9 Mr. Niemann, we have carefully read the submissions of the

10 parties and we have read all of the transcripts of witnesses'

11 testimony which is implicated by the motion, so do not just

12 reiterate what is said.

13 MR. WLADIMIROFF: Right. We did trust you would, so I am not going

14 to repeat.

15 THE PRESIDING JUDGE: So my point is that we have very carefully

16 looked at the submissions and the transcript and read every

17 word. So we would like to hear from the parties this morning,

18 but we do not want you just to reiterate what is said. You may

19 proceed, Mr. Wladimiroff.

20 MR. WLADIMIROFF: Thank you, your Honour. Indeed, instead of

21 repeating arguments expressed in our motion, I rather prefer to

22 address straight ahead the discussion raised by the Prosecution

23 in their response to our motion. Before doing so, I want to

24 emphasise that our motion will not, as the Prosecution suggest,

25 result in a delay of the trial process. On the contrary,

26 I would say that a dismissal of the charges will certainly

27 reduce the number of issues to be tried and reduce the length of

28

1 the trial, the time spent by all the parties, including the

2 Court, in dealing with those matters during evidence, arguments

3 and deliberations will be reduced.

4 Let me move to the first assertion of the Prosecution,

5 that is, there is no provision in the Statute or the Rules for a

6 no case to answer or no prima facie case submission to be made

7 at the trial or for any type of intermediate consideration of

8 the charges in the case. As a matter of fact, they say that the

9 Rules provide that the Trial Chamber is to receive all possible

10 evidence prior to considering the criminal responsibility of an

11 accused for any charge, and that the only Rule which addresses

12 deliberations, Rule 87, states that the Trial Chamber shall

13 deliberate when both parties have completed their presentation

14 of the case.

15 Let me focus on Rule 87. This Rule actually states:

16 "When both parties have completed their presentation of the

17 case, the Presiding Judge shall declare the hearing closed, and

18 the Trial Chamber shall deliberate in private". The Rule does

19 not state, as it seems in the argument of the Prosecution, that

20 the Trial Chamber may only deliberate after both parties have

21 completed their presentation of the case. It is certainly not

22 the case that Rule 87 bars our motion.

23 The next argument of no provision in the Rules is also

24 invalid. The Rules were not designed to cover every possible

25 detail of court procedures. Where the Rules only deal with

26 basic aspects of the proceedings, a lot is left to the

27 discretion of the Judges. The general provision of Rule 54 is

28

1 an excellent example of this.

2 Given this character of the Rules, it is not

3 significant that the Rules do not provide specifically for a

4 type of motion as we filed. As a matter of fact, we are in very

5 good company, your Honours. Morris and Sharf state in their

6 textbook, An Inside Guide to the International Criminal Tribunal

7 for the Former Yugoslavia, page 257, I quote:

8 "Since the burden of the proof is on the prosecution,

9 the defence may want to hear all of the evidence and then decide

10 whether to argue that the prosecution has failed to meet its

11 burden of the proof and make a motion to that effect or to go

12 forward with the defence. There is no provision in the Statute

13 or the Rules expressly authorising the defence to bring a motion

14 to dismiss the charges based on insufficient evidence at the

15 conclusion of the prosecution's case. However, this type of

16 motion may be considered to be included in the general right of

17 the defence to bring a motion for appropriate relief or ruling

18 under Rule 72."

19 It seems to me that your Honours share the same view.

20 Why would you otherwise enquire whether the Defence would

21 consider such a motion as it appears on August 7th, pages 3134

22 up to 3135?

23 Let me move to the other arguments, that is, the

24 assertion that the motion is unknown in civil law

25 jurisdictions. If we look to the response, we see that with

26 reference to the unique character of the international

27 jurisdiction of the Tribunal and the concomitant requirement to

28

1 consider principles of the divergent justice systems, the

2 Prosecution also asserts that a motion for dismissal is unknown

3 in civil law jurisdictions.

4 This argument may look right, your Honours, but it is

5 not correct in daily practice. The principle of "burden of the

6 proof" for the Prosecution, of course, also applies in civil law

7 jurisdictions. Under this principle, accused persons in civil

8 law jurisdictions may move for an acquittal during the trial and

9 before its closure.

10 When I, for example, anticipate on the basis of the

11 file in a Dutch case that the Prosecution will not meet the

12 burden of the proof during the trial, I may decide not to call

13 Defence witnesses. I will certainly move for an acquittal after

14 the presentation of insufficient evidence by the Prosecution,

15 and argue that if the Court rejects that motion, the Court

16 should allow the Defence by interlocutory decision to call

17 Defence witnesses. So we can easily do that in our system.

18 But, even assuming that the motion for dismissal is

19 unknown to civil law jurisdictions, this argument is not

20 relevant because the proceedings before this Tribunal are

21 certainly not based on the inquisitorial system of civil law

22 jurisdictions. Part 6 of the Rules dealing with proceedings

23 before the Trial Chamber is, undoubtedly, derived from the Bench

24 Trials of common law jurisdictions.

25 Bassiouni and Manikas write in that textbook, The Law

26 of the International Criminal Tribunal for Former Yugoslavia, at

27 page 863: "The vision of the Tribunal's proceedings, as it

28

1 emerged from the Secretary General's Report, is clearly that of

2 an adversarial system reflecting the common law tradition. This

3 is markedly different from the traditional Roman-Civilist

4 approach referred to as the inquisitorial system. The Rules

5 enacted further develop the adversarial features of the

6 Tribunal."

7 Where these authors state: "On occasion, however,

8 particular provisions may be found which incorporate elements of

9 contemporary European civilist systems", there is no reason to

10 believe that they had in mind that as a consequence of these

11 elements a motion of dismissal would not be allowed during the

12 trial. I would say, on the contrary, Bassiouni and Manikas

13 emphasise that, "On the whole, the process, procedures and rules

14 evidence developed are clearly marked by the American

15 experience. In fact, many of the Rules may be viewed as

16 counterparts or parallels of US Federal practices."

17 In common law countries the Judge may, at a certain

18 resting place during the trial, be called on to say whether the

19 condition of the evidence is such that the case may be disposed

20 of without running the full course. Juries also may return

21 verdicts of acquittal before a case has concluded, if they

22 consider they have heard enough evidence.

23 Again, following your enquiry about the motion of

24 dismissal on August 7th, it seems to me that your Honours share

25 the view that the filing of such motion is consonant to the

26 adversarial character of part 6 of the Rules of Procedure and

27 Evidence.

28

1 Although the Prosecution acknowledge different types

2 of prima facie cases, their main legal argument is that the

3 standard of a prima facie case as it emerged from Rule 47(A)

4 should be applied to determine our motion.

5 In the development of their argument the Prosecution

6 ignores, however, that Rule 47 is designed for pretrial

7 proceedings and not for proceedings before the Trial Chamber.

8 The purpose of Rule 47 is to provide for a safeguard against

9 unreasonable or unwarranted action on the part of the prosecutor

10 before nailing a person as an accused in public.

11 In a pretrial procedure before a confirming Judge, the

12 test of a prima facie case is limited to written material

13 supplied by the Prosecution to the confirming Judge. That

14 material is not evidence according to section 3 of part 6 of the

15 Rules as it has not been examined, for example, on reliability

16 before a Judge.

17 In this pretrial procedure, the Prosecution does not

18 have the burden of proof as required before the Trial Chamber,

19 but a legal burden before the confirming Judge that the material

20 shown to him points to facts and circumstances that would

21 justify a reasonable and ordinary prudent man to believe that a

22 suspect has committed a crime.

23 Before the Trial Chamber, though, the rules of

24 evidence apply and any information or material brought before

25 the Judges is subject to both cross-examination of either party

26 and questions of the judges. In this context, it is significant

27 that (as in domestic adversarial systems) the sequence of case

28

1 presentation before the Trial Chamber is that the Prosecution

2 has to start with presentation of evidence. The consequence of

3 the burden of proof in an adversarial criminal proceeding is,

4 therefore, that the Prosecution will have to discharge itself of

5 that burden, regardless of case presentation by the Defence.

6 This implies that the evidence should meet the burden

7 of proof after the conclusion of the Prosecution's case. That

8 burden is met when the Prosecution has established that the

9 Trial Chamber in the absence of other evidence could properly

10 convict the accused. Such a prima facie case has been

11 established when the evidence admitted has reached the standard

12 of Rule 87(A).

13 So the proper standard for this kind of prima facie

14 case is, therefore, proof of guilt of the accused beyond

15 reasonable doubt.

16 Which factors should be taken into account then? If

17 your Honours are going to decide our motion on the basis of the

18 standard of a prima facie case under Rule 47, as the Prosecution

19 suggest, it would certainly not make sense to take into account

20 factors such as the reliability of witnesses, consistency of

21 previous statements with testimony given in Court and the

22 strength of identification evidence, whereas the test of a

23 prima facie case under Rule 47 is limited to information,

24 regardless of its weight as evidence after examination.

25 We trust that will not be the case here. I am

26 confident that your Honours will decide our motion on the basis

27 of the proper standard of a prima facie case under Rule 87 by

28

1 determining whether, by absence of other evidence, the weight of

2 the evidence submitted is sufficient or not. Weighing the

3 evidence consonant with Rules 89 up to 98 implies that general

4 factors related to reliability, consistency, collaboration and

5 identification should be taken into account, as well as specific

6 factors related to the nature of the conflict.

7 If I now proceed to an analysis of the evidence?

8 THE PRESIDING JUDGE: May I just ask you a question? What do you

9 mean by "related to the nature of the conflict"?

10 MR. WLADIMIROFF: The distinction between an ordinary crime under the

11 jurisdiction of the Tribunal.

12 THE PRESIDING JUDGE: Specifically, there was no mention in your

13 motion, nor in the response, regarding whether this is an armed

14 conflict in an international setting or an internal setting.

15 MR. WLADIMIROFF: You are right.

16 THE PRESIDING JUDGE: You are not talking about that; are you saying

17 that instead the evidence must show that the acts were committed

18 in the context of an armed conflict as opposed to whether it was

19 international or internal?

20 MR. WLADIMIROFF: We did not raise that point in the context of the

21 difference between an ordinary crime and a crime under the

22 jurisdiction of the Tribunal. We raised this point as a factor

23 to be taken into account because that could influence the way

24 people express themselves as a witness in court, being a part of

25 that conflict.

26 THE PRESIDING JUDGE: So, in your submission you said that the

27 witnesses were all of a different ethnicity and, therefore, had

28

1 a desire or a motive, I suppose, to perhaps embellish on their

2 testimony at the very least. That is what you are talking about

3 in this context?

4 MR. WLADIMIROFF: That is right, yes.

5 THE PRESIDING JUDGE: Yes.

6 MR. WLADIMIROFF: As a matter of fact, it was under No. 6 of our

7 motion and that is the reason why I refer to that.

8 Your Honours, the factual comments of the Prosecution

9 to our scrupulous analysis of the evidence are really not

10 inviting for a useful debate. The essence of the response of

11 the Prosecution to our evaluation of the discharge of the

12 evidential burden is more or less dressed up, "Yes, we have",

13 where we have argued, "No, you have not". I do not think that a

14 factual elaboration along the same lines will help your Honours

15 much further.

16 In our motion we have set out in detail and per

17 allegation the contradictory and flawed evidence that has

18 undermined the claim of the Prosecution that all charges will be

19 proved beyond reasonable doubt. Where witnesses gave

20 conflicting accounts, false allegations or tenuous

21 identifications, we have shown that there is no case to answer.

22 Here I would like to cite Cross and Tapper On

23 Evidence, edition 1995 at page 192, where they write:

24 "Questions of the sufficiency of evidence are usually

25 raised on a submission that there is no case to answer. The

26 Judge must rule in favour of the submission if there is

27 insufficient evidence to prove an essential element in the ...

28

1 case, or if the evidence which has been adducted is so tenuous

2 that no jury properly directed could convict upon it. It is not

3 enough when any weakness in the ... case depends on matters

4 within the exclusive jurisdiction of the jury, such as

5 reliability of witnesses." They also write: "While honesty of

6 a witness should properly remain to be decided by the jury,

7 there are situations, such as identification, where the evidence

8 even of an honest witness might be regarded as tenuous."

9 Another issue ----

10 JUDGE STEPHEN: Could you repeat the page in Cross and Tapper?

11 MR. WLADIMIROFF: That is page 192.

12 JUDGE STEPHEN: Thank you.

13 MR. WLADIMIROFF: Your Honour, another issue I would like to

14 elaborate a little bit further is the requirement of

15 corroboration of evidence. Different to common law

16 jurisdictions where one witness is sufficient in all cases, most

17 civil law jurisdictions maintain the unus testis nullus testis

18 rule. Bearing this in mind, it seems significant to me that

19 Rule 96(i) states expresses verbis that "no corroboration of the

20 victim's testimony shall be required" in the context of a rape

21 case.

22 This requirement would not make any sense if

23 corroboration of evidence would not be required at all. A

24 reasonable interpretation a contrario, therefore, is that in

25 other cases the corroboration is indeed required. This

26 interpretation is consistent with Rule 89(B) that stipulates

27 that a Chamber shall apply rules of evidence which will best

28

1 favour a fair examination of matters before it and are

2 consonant with the spirit of the Statute and the general

3 principles of law.

4 In this connection, I would like to mention that the

5 Court heard evidence from one witness only on counts 12, 13 and

6 14.

7 Talking about the spirit of the Statute and general

8 principles of law, I emphasise that a fundamental tenet of civil

9 law jurisdictions is that in order to amount to corroboration,

10 the evidence has to emanate from a source independent of the

11 witness to be corroborated or, in a still extreme form, from a

12 different type of source from the witness to be corroborated.

13 More in general I note that where the indictment

14 contains a number of similar counts reflecting a succession of

15 different incidents related by common factors, of course each

16 count will have to be considered separately.

17 Citing Cross and Tapper again at page 168 up to 169,

18 I may reflect the opinion of the Court of south Australia in the

19 R. v. Van Beelen case responding to the question if there can be

20 satisfaction beyond reasonable doubt of guilt of the accused

21 when there is no such satisfaction with regard to any of the

22 evidentiary facts. On this, the Court expressed itself as

23 follows:

24 "There is a clear distinction between drawing an

25 inference of guilt from a combination of several proved acts,

26 none of which by itself would support the inference, and drawing

27 an inference of guilt from several facts whose existence is in

28

1 doubt. In the first place, the combination does what each fact

2 taken in isolation could not do; in the second case the

3 combination counts for nothing. "

4 Finally, I would like to recall that Article 7 of the

5 Statute holds a person responsible, who planned, instigated,

6 committed or otherwise aided and abetted in the planning,

7 preparation or execution of a crime. The indictment, though,

8 alleges that Tadic participated in the crimes.

9 The Defence takes the position that participation

10 within the criminal responsibility of the Statute requires an

11 active involvement in the execution of a crime. It is not

12 enough to be present whilst a crime is committed, if the accused

13 takes no part in it and does not act in concert with those who

14 commit it, unless he watched for his companions in order to

15 permit the commission of the crime. The evidence does not meet

16 this standard.

17 If I may conclude my arguments, your Honours? The

18 removal of allegations not proven, and the stigma attached, at

19 the earliest possible opportunity is a prime objective of any

20 criminal justice system. The deliberate retention (as the

21 Prosecution wishes) of unsubstantiated allegations that may be

22 removed at an appropriate stage would be a clear breach of

23 Article 7 of the International Covenant, which provision,

24 although not strictly binding, should guide the Trial Chamber in

25 this matter.

26 We trust that the Trial Chamber will find that the

27 allegations as discussed in our motion are indeed

28

1 unsubstantiated. We request you to dismiss these counts against

2 Dusko Tadic. Thank you.

3 THE PRESIDING JUDGE: Thank you. Mr. Wladimiroff, just a few

4 questions: Are you saying that if there are multiple witnesses

5 who testify with respect to a particular count, let us say three

6 witnesses, and if the testimony of one of those witnesses is

7 sufficient to satisfy the elements of the offence as charged in

8 the count, that that testimony alone is not enough to withstand

9 the motion of dismissal of that particular count?

10 MR. WLADIMIROFF: If it is not -----

11 THE PRESIDING JUDGE: Are you saying instead we must have at least

12 two witnesses?

13 MR. WLADIMIROFF: There should be any form of independent

14 corroboration, that is the argument.

15 THE PRESIDING JUDGE: That is true, that is what is required in

16 96(i), that is for sure, and it requires that there is no

17 corroboration. You, perhaps, could look at it this way, that

18 the specific reference in 96(i) to the requirement of

19 corroboration is an indication that with respect to other crimes

20 there is no requirement of corroboration, otherwise why put that

21 in 96(i)?

22 MR. WLADIMIROFF: That is the way you read it.

23 THE PRESIDING JUDGE: One could read it that way.

24 MR. WLADIMIROFF: Yes. I have been referring to 96. Let me go to

25 your reference then. Could you repeat it, please?

26 THE PRESIDING JUDGE: 96(i) says, "No corroboration of the victim's

27 testimony shall be required". The preceding, though, phrase is

28

1 "in cases of sexual assault". So there is a premise.

2 I suppose it is recognised by some jurisdictions that if there

3 is a specific reference that something is not required, that

4 specific reference is necessary to indicate that it is not

5 required in that particular incident.

6 MR. WLADIMIROFF: Exactly what I have been arguing.

7 THE PRESIDING JUDGE: And it is not required in cases of sexual

8 assault. That is why it is in that particular Rule.

9 MR. WLADIMIROFF: Right.

10 THE PRESIDING JUDGE: But if it were not required with respect to

11 other crimes that are charged under the Statute, there would

12 have been no need to make this specific reference in cases

13 dealing with sexual assault. Having participated in the

14 drafting of the Rules, I suggest that it is a possible reading.

15 MR. WLADIMIROFF: What I argued was that it is a requirement of the

16 Rules that there should be a corroboration but not in cases of

17 sexual assault.

18 THE PRESIDING JUDGE: Right. No corroboration in sexual assault.

19 MR. WLADIMIROFF: Yes.

20 THE PRESIDING JUDGE: Exactly. That was put in there to make it very

21 clear that in those cases no corroboration should be required.

22 So what I am suggesting is that that may not, therefore,

23 indicate that corroboration is required in other cases, but

24 instead there was a specific focus on this particular type of

25 offence.

26 MR. WLADIMIROFF: As I argued, it may not have been in the mind of

27 the Judges when they drafted these Rules, but I have been

28

1 arguing that in civil law jurisdictions you have this Rule.

2 THE PRESIDING JUDGE: Of what?

3 MR. WLADIMIROFF: Of unus testis nullus testis.

4 THE PRESIDING JUDGE: Does that require more than one witness?

5 MR. WLADIMIROFF: Yes.

6 THE PRESIDING JUDGE: More than one witness to testify?

7 MR. WLADIMIROFF: Right, and that is the position that we have taken,

8 it is a very stiff position, at least I argued a middle position

9 that there should be any form of corroboration because that

10 could also be read within the Rules, although you may not have

11 thought about it.

12 THE PRESIDING JUDGE: We may have thought to the contrary.

13 MR. WLADIMIROFF: Yes, but it is not expressed in the Rules. The

14 Rules leave the matter open.

15 THE PRESIDING JUDGE: Again, I refer (and we do not need to extend

16 it) there is this proposition, at least in terms of Statutes,

17 when you draft a Statute, this is not a Statute, this is a Rule,

18 that when the drafters find it necessary to make a specific

19 reference to something, then by implication what they are saying

20 is that it is required here but not in other instances, but we

21 can differ on that.

22 MR. WLADIMIROFF: As a matter of fact, we have taken the view that

23 the Tribunal did not draft technical rules on evidence. You

24 made general provisions and a lot to be left for the Judges to

25 decide.

26 THE PRESIDING JUDGE: Exactly.

27 MR. WLADIMIROFF: So, within that system it is possible to do what

28

1 I suggest to you, because it is not in the Rules that there

2 should be a corroboration and it is not in the Rules that there

3 should not be a corroboration, although you expressed it in

4 Rule 96.

5 THE PRESIDING JUDGE: Yes, intentionally.

6 MR. WLADIMIROFF: It is an open question, as a matter of fact. It

7 may have been in your mind, but it is not in the Rules.

8 THE PRESIDING JUDGE: It is not in the Rules that there is a

9 corroboration. What you have indicated is that with respect to

10 part 6, which governs our trial proceedings, that, according to

11 Bassiouni and a number of writers have said, "This comes from

12 the common law system". Now what you have done is to ask us to

13 look at a civil law system to require that there be more than

14 one witness as to each of -----

15 MR. WLADIMIROFF: As to corroboration. Corroboration might be

16 something other than a witness too.

17 THE PRESIDING JUDGE: That is for sure. Then corroboration of each

18 crime charged in the indictment, because you have indicated that

19 is the system in the civil law, that you have told us that part

20 6 comes from the common law system ---

21 MR. WLADIMIROFF: Yes.

22 THE PRESIDING JUDGE: -- as indicated by persons who have been so

23 kind as to write about what we intended and what we did.

24 MR. WLADIMIROFF: I know the feeling.

25 THE PRESIDING JUDGE: OK, but in any case I understand your position,

26 I think.

27 MR. WLADIMIROFF: But, anyhow, I may recall that also Bassiouni wrote

28

1 that there are elements of civil law jurisdictions adopted

2 within the Rules.

3 THE PRESIDING JUDGE: Yes.

4 MR. WLADIMIROFF: I am suggesting here that within the Rules this

5 element of civil law jurisdiction should be considered, because

6 it is not expressis verbis forbidden. It is not a settled

7 matter. It may have been one of your reasons why you phrased it

8 as you did but, if you read it, it is not a choice here. It is

9 an open question.

10 THE PRESIDING JUDGE: So that, for example, what you are saying is

11 that if nothing is not specifically in the Rules, that does not

12 mean that we, as Judges, cannot import that or make that a

13 requirement?

14 MR. WLADIMIROFF: It is to your discretion, that is what I am saying.

15 THE PRESIDING JUDGE: But I recall the position that you took with

16 respect to the Prosecutor's motion for disclosure of witness

17 statements of the Defence, your main argument, or one of the

18 arguments, was that it is not in the Rules and so, therefore,

19 they are not entitled to it. I thought you were asking us to

20 focus on these Rules -----

21 MR. WLADIMIROFF: That is a different issue, your Honour.

22 THE PRESIDING JUDGE: It is a different issue, that is for sure.

23 MR. WLADIMIROFF: Absolutely, because we are dealing here with

24 principles. If we just forget about the Rules and we go back to

25 what is at stake here, disclosure provisions should always be in

26 balance with the evidentiary burdens. I mean, in civil

27 procedure, for example, the evidentiary burden is fairly

28

1 distributed between the parties; in criminal cases, they are

2 not. They are simply all on one side. They are on the burden,

3 it is the burden of the Prosecution.

4 From that principle it follows that the accused has no

5 obligation to say or to do anything. He just waits and sees

6 what the Prosecution is doing, will they discharge itself of

7 their burden or not? In that balance, you just sit there and

8 listen and they have to prove. The disclosure obligation should

9 be in a logical position in this balance, because you cannot

10 require the Defence to provide the Prosecution with all kinds of

11 information in order to allow them to discharge themselves of

12 their burden of the proof.

13 So, it is a principle here. It may not be in the

14 Rules, but it follows from that principle that it is not a

15 matter that should be decided specifically in the Rules. Again

16 it is for you, as Judges, to decide the matter on your

17 discretion following this principle, and that is what you did.

18 THE PRESIDING JUDGE: Of course, if Bassiouni says that our

19 Rules come primarily, very strongly at least, they are based on

20 US Federal Rules, in the US Federal Rules there is a requirement

21 that the Defence provide its witness statements to the

22 Prosecution after ---

23 MR. WLADIMIROFF: I know.

24 THE PRESIDING JUDGE: -- after the witness testifies.

25 MR. WLADIMIROFF: Yes.

26 THE PRESIDING JUDGE: So it seems to me that -----

27 MR. WLADIMIROFF: That system functions in -----

28

1 THE PRESIDING JUDGE: In the civil law system, of course, the

2 investigating judge prepares -- you know more about this

4 witness statements for the Prosecution, witness statements for

5 the Defence, and then gives it to the lawyers.

6 MR. WLADIMIROFF: Right, but I have no obligation to disclose

7 anything on my part.

8 THE PRESIDING JUDGE: I understand, but the investigating judge in

9 the process may have statements of the Defence and these would

10 go to the Prosecutor. All I am suggesting is that it is

11 difficult to have it both ways, I suppose.

12 MR. WLADIMIROFF: Absolutely, I agree.

13 THE PRESIDING JUDGE: Sometimes -- the Prosecution does it too -- the

14 Prosecution will say, "Well, you know, the Rules do not say

15 this, or the Rules say that", and whatever. Of course, they say

16 that, obviously, as advocates when it suits their purpose.

17 I suppose I am just raising this with you to let you know the

18 concerns that we have, because you are right, our Rules are

19 derived from common law and civil law systems, but many writers

20 have said that they are based primarily, as is the Statute, on

21 an adversarial system.

22 So then we, in applying these Rules, say to ourselves,

23 "Well, do we look then to the adversarial system as these great

24 writers have told us, perhaps, that we ought to do?" But now

25 I hear you tell us that with respect to the quantum of proof

26 required, which again is something that would fall under part 6,

27 we should look to corroboration. Then, of course, your other

28

1 argument is that Rule 96(i) does provide for corroboration in

2 sexual assaults.

3 MR. WLADIMIROFF: Right.

4 THE PRESIDING JUDGE: I understand your position on that. One last

5 question, it has to do with Article 7(1) of the Statute. That

6 is an aiding and abetting provision. We received pretrial briefs

7 from counsel some months ago, very lengthy pretrial briefs,

8 where all of the crimes charged were discussed, or many of them

9 at least, and elements were set forth and then the Defence took

10 a position with respect to the elements that must be

11 established, but no one mentioned -- the Prosecutor did not

12 mention, you did not mention either -- Article 7(1).

13 Now it seems to a great extent, perhaps, this motion

14 may turn on our application of 7(1). I guess my question is

15 that the parties wanted us to rule on the matters that you

16 raised in your pretrial brief because you considered that you

17 needed guidance in how to conduct this trial, and that you were

18 pushing us very hard to make a ruling to the extent that there

19 were differences in your position, which we found there were not

20 that many differences, but in any case no one suggested that we

21 should be looking at Article 7(1).

22 MR. WLADIMIROFF: From our point of view, that seems quite logical

23 because you have to see the evidence first before you can judge

24 what your position might be. That is the reason why I raise it

25 now.

26 THE PRESIDING JUDGE: I am happy you have raised it now and that was

27 the Judges' position as well, that what we do is we consider the

28

1 evidence as it comes in and then we will apply the law to the

2 evidence that is adduced, but you were attempting to give us

3 some guidance as to what elements formed a part of each of the

4 laws that we were applying. Now you are saying that it is not

5 enough for aiding and abetting to be a part, but that instead

6 you have to be present.

7 So what I want to ask you then is, if it can be shown

8 that an accused was part of the transaction and if there is a

9 transaction charged in a count, need it be shown that the

10 accused physically participated in each of the acts charged in

11 the count, or was even present when it was being carried out?

12 MR. WLADIMIROFF: I have phrased it very carefully, and that is the

13 reason why I have written it down.

14 THE PRESIDING JUDGE: OK, help me again.

15 MR. WLADIMIROFF: Active involvement in the execution of the crime,

16 and it is not enough to be present whilst the crime is committed

17 if the accused takes no part in it and does not act in concert

18 with those who commit it, unless he watched for his companions

19 in order to permit the commission of the crime." That is the

20 phrasing I used. That was very carefully drafted.

21 THE PRESIDING JUDGE: The Prosecution must show that he watched for

22 them for the purpose of showing that it was committed. The

23 Prosecutor need not show that he was present, is that what you

24 are saying then?

25 MR. WLADIMIROFF: That is what I am saying. That is a very relevant

26 position in this case, I would say.

27 THE PRESIDING JUDGE: You need not show that he desisted from this

28

1 participation. Like in a conspiracy -- are conspiracy matters

2 considered in civil law systems? I know Mr. Kay is familiar

3 with these.

4 MR. WLADIMIROFF: As a matter of fact, that point might be an issue

5 to be discussed in count 1, but we are not dealing with count 1

6 in this motion, are we not?

8 for dismissal of charges. But, in any case, your position then

9 is that he must be present, but you must then show that he

10 actively participated, when you say "actively", if there is a

11 charge of beating, that he was one of the persons who actually

12 did the beating or that he directed those persons at that time

13 in the beatings.

14 MR. WLADIMIROFF: Yes, we even took a more simple position, acted in

15 concert with.

16 THE PRESIDING JUDGE: What does that mean?

17 MR. WLADIMIROFF: It is more than directing; it could be any position

18 that enables the others to do what they did.

19 THE PRESIDING JUDGE: Like form the group and being the first --

20 MR. WLADIMIROFF: Being a part of the group is not enough because

21 members of the group may do things I was not aware of being a

22 part of that group.

23 THE PRESIDING JUDGE: Whose burden is to show that an act that was

24 done by a group that was formed was not in furtherance of the

25 plan of the group?

26 MR. WLADIMIROFF: I would say the Prosecution will have to prove that

27 there was any active involvement or a commitment of the accused

28

1 to what the group actually did.

2 THE PRESIDING JUDGE: Actually participating, hitting is a beating.

3 MR. WLADIMIROFF: That is a very easy one. But I would say the

4 Prosecution would have to prove that being in that group there

5 was a commitment of the accused that he acted in concert, he did

6 something that enabled the group to act as it did.

7 THE PRESIDING JUDGE: "Or giving approval", Judge Vohrah says.

8 MR. WLADIMIROFF: Yes, for example. It should be any activity on the

9 part of the accused on the basis of which the Prosecution can

10 show from that activity it is proven that he participated.

11 THE PRESIDING JUDGE: Could it be construed -----

12 MR. WLADIMIROFF: Just standing there and doing nothing is not

13 enough.

14 THE PRESIDING JUDGE: Let us focus on what Judge Vohrah just said,

15 "giving approval": Could it be construed that the failure on

16 the part of a member of the group to speak out and attempt to

17 stop what was going on is constructive approval?

18 MR. WLADIMIROFF: I would say not because the passive acquiescence is

19 contrary to our position that there is an active participation.

20 You cannot simply suppose that someone had in his mind an idea

21 and, therefore, you say, "Well, you had to do anything". No, it

22 is not a matter of you had to do anything; the problem is you

23 did something and, therefore, you are the accused.

24 THE PRESIDING JUDGE: Let me give you an example. A group of us are

25 engaged in an activity, we will say beating, of a group of

26 people. The beating involves four or five people, some of whom

27 die. I actively participate and the group is composed, for the

28

1 purposes of our Statute and in this context as you have spoken

2 about, of a group of Serbs, who are inflicting on a group of

3 Muslims or Croats. It starts at X hour, and I engage in the

4 beating of a couple of those people, perhaps even a killing of

5 some of those people. It goes on, the transaction goes on, and

6 one more is beaten, but I did not actually do the beating ---

7 MR. WLADIMIROFF: Of that last person?

8 THE PRESIDING JUDGE: -- of that last person, yes, but I did do the

9 beating of the others, some of the group of Muslims and perhaps

10 Croats who were beaten, but I did not do the beating of the last

11 one. I can only do so many. I did not actually do the

12 inflicting on the last one, but I was there and I never

13 disassociated myself from that beating; that would not be

14 enough?

15 MR. WLADIMIROFF: If you phrase it that way, that would be enough.

16 THE PRESIDING JUDGE: OK. Leave out "I did not disassociate myself",

17 would it be enough if I was just there when that last beating,

18 we will say, occurred or the next to the last?

19 MR. WLADIMIROFF: I would say whilst being in the group not actively

20 been involved by doing anything and then disassociate myself

21 from the group and later on -----

22 THE PRESIDING JUDGE: Leave out "disassociation". I think you do not

23 want to deal with that, that is too much, you say, is required.

24 MR. WLADIMIROFF: Yes.

25 THE PRESIDING JUDGE: OK. Leave that out; you do not disassociate

26 yourself affirmatively; you are just standing there.

27 MR. WLADIMIROFF: As long as you are in the group and you do not do

28

1 anything yourself, you are just there, that is not sufficient.

2 THE PRESIDING JUDGE: Considering that this is one -- that is another

3 proposition you may not want to accept -- transaction, but a

4 series of beatings that occurred on the same day, I actively

5 participate in one or more of those, but then when we get to the

6 last or next to last I am just there, I do not actually do the

7 infliction, that is not enough?

8 MR. WLADIMIROFF: I would not say that. If a group is active at the

9 place and you take an active part in what the group does, it is

10 not relevant to me what happened, let us say, five minutes

11 later, because you support by your own actions what the group

12 does. What we are saying here is, if you are just there

13 standing, looking, that is not enough. If you are just there

14 standing, looking, and you do not prevent others in their

15 actions, it is not enough. If you are just there, you are not

16 actively involved and later on, separate from that group, you do

17 things that had nothing to do with what the group did, you did

18 not participate in the group.

19 THE PRESIDING JUDGE: But keep in mind now -- I want to make sure

20 that you are following my example -- a group of people were

21 beaten with the ethnicity set, I actively beat, I myself beat,

22 one or more of those people, the beatings continue, I do not,

23 however, actively beat one of those persons, but I am there when

24 that beating occurs, is that enough?

25 MR. WLADIMIROFF: That is not enough.

26 THE PRESIDING JUDGE: What is missing?

27 MR. WLADIMIROFF: You are not actively involved because you do not

28

1 beat yourself or you do not encourage others to beat. You are

2 not enabling them to beat.

3 THE PRESIDING JUDGE: OK. So you then actually have to physically

4 beat each of the persons, even though the beating was conducted

5 by a group?

6 MR. WLADIMIROFF: No. If you enable the others to beat, separate

7 from beating yourself, you may enable others to beat by

8 encouraging them, by advising them to do so, or commanding them

9 to do so, because that is an activity that shows that you agree

10 with what they do.

11 THE PRESIDING JUDGE: I see.

12 JUDGE STEPHEN: Can I ask you briefly about corroboration in the

13 civil law -- assuming, perhaps incorrectly, that all systems of

14 civil law are the same, but at least if you can tell me the

15 system that you are familiar with -- take the case of a shooting

16 which results in death witnessed by only one person: would I be

17 right in thinking that there is no difficulty about conviction

18 on the evidence of one person with corroboration being,

19 I suppose, the discovery of the revolver, the tracing of the

20 bullet as having come from that gun, and the dead body lying

21 there? Would that be sufficient corroboration?

22 MR. WLADIMIROFF: I am afraid not because you need a link with the

23 accused.

24 JUDGE STEPHEN: So that the fact that a thoroughly creditworthy

25 witness says: "Yes, I saw that man discharge the revolver and

26 the deceased fell down dead", that could not result in a

27 conviction?

28

1 MR. WLADIMIROFF: May I give you another example that may elaborate

2 this problem? If someone is shot and the accused says: "I was

3 there but I did not shoot him", his statement that he was there

4 but he did not shoot him will do the trick, because that is an

5 independent source which corroborates with the death of the

6 victim. So, little may be enough, but it should be from an

7 independent source.

8 JUDGE STEPHEN: The independent source is not the identification of

9 the gun in question as perhaps belonging to the accused?

10 MR. WLADIMIROFF: You are right, that is an independent source as

11 such, but it does not link the event to the accused. The

12 evidence should show that there is a link and that evidence

13 should be corroborated. That is the position I have been taking

14 here.

15 JUDGE STEPHEN: That, you say, is the position in Dutch law, for

16 instance?

17 MR. WLADIMIROFF: There are, as usual, exceptions, for example, in

18 rape cases and in other types of cases, but as a general

19 rule ----

20 JUDGE STEPHEN: The general rule I am thinking of.

21 MR. WLADIMIROFF: --- the unus testis nullus testis rule is firmly a

22 rule in Dutch law. As a matter of fact, as far as I informed

23 myself on this, it is a principle that is applied to other civil

24 law jurisdictions too, though there are differences of course,

25 but the bottom line always is you need corroboration. You could

26 not simply link someone to an event if there is only one

27 source.

28

1 JUDGE STEPHEN: Thank you.

2 THE PRESIDING JUDGE: We will stand in recess for 20 minutes. Then

3 we will hear from the Prosecution.

4 (11.00 a.m.).

5 (Short Adjournment)

6 (11.25 a.m.)

7 THE PRESIDING JUDGE: Who will present argument for the Prosecution?

8 Mr. Niemann?

9 MR. NIEMANN: Yes, your Honour. Your Honours, in our submission,

10 I will deal with the matters raised by Mr. Wladimiroff first and

11 then I will just make a very few short comments about general

12 matters following that. Your Honours, dealing firstly with the

13 question of the fact that there is no provision in the Rules,

14 which I believe was the first matter raised by Mr. Wladimiroff,

15 it is our submission that this is a very significant aspect of

16 the Rules that there is no provision contained in it for dealing

17 with the no case to answer submission at the end of the

18 Prosecution case.

19 In our submission, the fact that there is very

20 carefully laid out in the Rules the procedures to be followed at

21 trial by a number of the Rules, and in particular but not

22 limited to Rules 86, 87 and in particular 85, all carefully

23 setting out the procedures to be followed, it is not just a

24 matter of saying: "Oh, this is something that your Honours may

25 rule under Rule 54". In my submission, Rule 54 should be

26 interpreted in such a way that it gives the Court very wide

27 discretion to make orders in relation to the preparation or

28

1 conduct of the trial. But, in so doing, our submission is your

2 Honours should have regard to the other Rules that are contained

3 in the Rules of Procedure and Evidence and to be careful to

4 ensure that this particular Rule, Rule 54, is not interpreted in

5 such a way that other matters which are specifically and

6 expressly provided for in the Rules are not ignored.

7 In relation to that, your Honours, if one looks at

8 Rule 86, one sees: "After the presentation of all the evidence,

9 the Prosecutor may present an initial argument, to which the

10 Defence may reply", namely, closing addresses and so forth. In

11 our submission, this is a provision which expressly provides

12 that the Prosecution may present such an argument, and if there

13 was a no case submission raised at this stage and dealt with by

14 the Court and the matter was dismissed -- let us assume there

15 was only one count in the indictment -- then that Rule would not

16 be satisfied it would be done so by general provisions such as

17 Rule 54.

18 When the issue of there being no rule relating to

19 disclosure of Defence material was raised by your Honours,

20 Mr. Wladimiroff responded that this was an issue that dealt with

21 burden. In our submission -- I just quickly wish to dispose of

22 this -- it does not only relate to burden at all. It is a

23 question which goes to other matters which may assist the

24 conduct of the trial. This was our original submission.

25 For example, if the Defence made disclosure of a

26 particular point, the Prosecution could stipulate to that point

27 rather than need to call evidence. It also assists in conduct

28

1 such as an ability to immediately release the witnesses because

2 the Prosecution does not know what is coming and at the end of

3 evidence of the testimony of the witness there may be

4 outstanding matters which could occur from other witnesses later

5 in the trial, and the Prosecutor may say: "Well, we ask that

6 these witnesses not be released because we cannot be sure what

7 is coming up in the future".

8 So these are the sorts of matters which arise when no

9 statements are provided to the Prosecution and it does not go to

10 questions of who has the burden of proof at all. It goes to the

11 questions of the orderly conduct.

12 Your Honours, Mr. Wladimiroff also seemed to place

13 some -----

14 THE PRESIDING JUDGE: Excuse me, I do not understand. So these are

15 the sorts of matters which arise when no statements are provided

16 to the Prosecution -- what do you mean by that?

17 MR. NIEMANN: Your Honours, when no statements are provided to the

18 Prosecution, it must deal with the matter blind. It does not

19 know what is coming forward. It may be that there are matters

20 which the Prosecution may say: "Look, this is not in contest;

21 if you wish to have a stipulation to this particular point,

22 proceed and do so". But if we have no statements, we have no

23 idea what the evidence is, we can never do that.

24 So, I am saying these are matters which go to orderly

25 and efficient conduct of proceedings as to be distinguished from

26 the fact that we have the burden of proof from beginning to end,

27 which is the point that Mr. Wladimiroff was making. It also

28

1 goes to the issue of whether or not witnesses can be released,

2 because if we do not know what is coming, we say: "Well, we are

3 reluctant to have this witness released because we do not know

4 whether or not we may need to call back the witness at a later

5 stage because of something that surprises us further down".

6 I am only raising these as illustrations of why such disclosure

7 goes to matters other than simply the burden of proof.

8 Your Honours, Mr. Wladimiroff placed some emphasis on

9 the basis that your Honours enquired as to whether there would

10 be a no case submission. Very quickly I would suggest to your

11 Honours that you should place no weight on that at all. Your

12 Honours can ask a number of questions throughout the course of

13 proceedings and in no way does that represent an indication of

14 the existence of a provision or otherwise.

15 Your Honours, dealing with the Rule 47 test which was

16 raised by Mr. Wladimiroff, the test that is provided in Rule

17 47(1), it is our submission this is the only test that comes

18 near to defining what is a prima facie case before this

19 Tribunal. The word "prima facie case" appears in the Statute in

20 Articles 18.4 and 19.1, 19 subsection 1, but there is no

21 provision in there to tell us what it means. On a cursory

22 glance of the provision, one may well conclude that it is a

23 reference to a prima facie case as we know it at the common

24 law. Also, in addition to that, prima facie case as we know it

25 at common law at least in some common law jurisdictions is the

26 same test that is applied at the committal hearing as is applied

27 at the end of the trial.

28

1 So, in our submission, because the reference to Rule

2 47, the test to be applied there when the Prosecutor is

3 satisfied that he can submit an indictment, is similar to the

4 situation that existed at the end of a committal hearing or at

5 the end of a preliminary hearing where the same test at common

6 law applies, it is our argument that the same test should be

7 applied at the end of the Prosecution case at trial, if any test

8 is to be applied at all. I will come back to that because it is

9 our submission that no such test should be applied at this stage

10 of the proceedings.

11 But, in any event, Rule 47 makes a specific reference

12 to the necessity for evidence, and it is a sufficiency test. It

13 reads: "In the course of the investigation the Prosecutor is

14 satisfied that there is sufficient evidence". It is not as high

15 a test as we have set out in detail in our submissions as the

16 prima facie case, but it is a sufficiency evidence test.

17 Mr. Wladimiroff also suggested to your Honours that

18 the test that should be applied at this stage is the test that

19 is set out in Rule 87(A) of the Rules. That simply cannot be

20 right, in my submission. Rule 87(A), in the second sentence of

21 that, provides: "A finding of guilt may be reached only when a

22 majority of the Trial Chamber is satisfied that guilt has been

23 proved beyond reasonable doubt". Surely, that cannot be the

24 test because otherwise your Honours would be able to find the

25 accused guilty of the crime now without the necessity of hearing

26 from the Defence, which no one would be suggesting is the case,

27 in our submission. There is no support for that anywhere that

28

1 we can find, at the common law or anywhere else, that the test

2 to be applied at the end of the Prosecution case is the test of

3 proof beyond reasonable doubt. It is a sufficiency of evidence

4 argument.

5 Indeed, in some jurisdictions there has been an issue

6 relating to this about unsafe and unsatisfactory evidence. In

7 those circumstances, it has in the past been held in some

8 jurisdictions that if the resultant conviction would amount to a

9 conviction which is based on unsafe and unsatisfactory evidence

10 which would be overturned on appeal, then the Court at that

11 stage could by its own motion dismiss the case. That has been

12 held in a number of jurisdictions not to be the position, because

13 it is a matter for the Appeal Court, and even though a Judge may

14 see evidence which appears to be unsafe and unsatisfactory at

15 this particular stage of the case, then it is our submission

16 that the state of the law on that is that the matter should

17 still go through to determination by the Jury.

18 Mr. Wladimiroff made reference to the case of Van

19 Beelen in South Australia. I do not have the decision with me

20 and my recollection of it is somewhat poor, but I understand it

21 to be a case dealing with similar fact evidence and that a

22 failure to be able to prove each of the similar facts beyond

23 reasonable doubt in proof of an event is a failure to prove the

24 whole case. I think it has been overturned, if I remember.

25 Dealing your Honours with Rule 7(1).

28

1 I just have a few questions, if I may.

2 MR. NIEMANN: Yes, your Honours. The standard to be applied, i.e.

3 the test that should be applied -- is that what your Honours are

4 saying? The test to be applied if there is to be a ----

5 THE PRESIDING JUDGE: The test, whatever word, the test or what

6 standard should be applied. Rule 87 says, it is prefaced by

7 saying: "When both parties have completed the presentation of

8 the case", and then it goes on to provide that there will be

9 deliberations and that there must be a finding of guilt that can

10 be reached only when a majority of the Trial Chamber is

11 satisfied that guilt has been proved beyond reasonable doubt.

12 That is the only Rule that appears at least in part 6

13 with respect to the quantum of evidence or the standard or the

14 test. So, the question becomes, (1) if we assume that this

15 motion will lie at this time, where do we pick up the test?

16 What you are saying is that the mention in Rule 87 of "beyond a

17 reasonable doubt" is in the framework of both parties having

18 completed their presentation of the case?

19 MR. NIEMANN: Yes.

20 THE PRESIDING JUDGE: OK. Now we then go back to Rule 47, of course,

21 which deals with the confirmation of a review of the indictment

22 by a confirming Judge, should he decide to confirm. That is

23 when we then say "reasonable grounds" in the Rule. The Statute

24 however says "prima facie case". This is neither of those

25 situations, where we are now. We are neither at the

26 confirmation stage, because the indictment has already been

27 confirmed by a Judge not in our Trial Chamber, but we are

28

1 neither at the presentation -- we are neither at a point when

2 all evidence has been presented.

3 MR. NIEMANN: Yes, your Honour.

4 THE PRESIDING JUDGE: You say, of course, we do nothing, we do not

5 even hear this motion, but assuming that we do, what standard do

6 we apply? What test do we apply?

7 MR. NIEMANN: The argument I make on that, your Honour, is this, that

8 the word "prima facie case" appears in the Statute. There is

9 nothing in the Statute at all to instruct us as to what that

10 means. One, looking at it, could say, presumably, it is

11 applying to prima facie case as is understood at common law.

12 However, in the application of that prima facie test, as it is

13 reflected in the Rules, the reflection of it appears in Rule

14 47(A). So we there for the first time get some assistance in

15 what the word "prima facie case" means, so far as the

16 jurisdiction of this Tribunal is concerned. We see in Rule

17 47(A) "there is sufficient evidence to provide reasonable

18 ground", etc. That is to be distinguished from prima facie case

19 test at common law when one compares a number of jurisdictions.

20 The test of common law is a higher test.

21 It is our submission that because the equivalent

22 situation at common law is that the test to be applied at the

23 time of filing an indictment is the prima facie test, which is

24 the similar circumstance as that set out in Rule 47(A), and that

25 that same test, prima facie case, which is applied at the time

26 of filing the indictment, is exactly the same test that is

27 applied by the trial Judge when the Prosecution has finished its

28

1 case at trial, then our argument is that the Rule 47 test should

2 apply in these proceedings at the time of the submission of the

3 indictment and the time that the Prosecution closes its case,

4 should your Honours determine that such an application is

5 appropriate at this stage.

6 We support that by saying that even though the Rule 47

7 test is, in fact, and can be argued to be, a lower test than the

8 prima facie case test at common law, both tests are tests based

9 on sufficiency of evidence, and because of sufficiency of

10 evidence, then if your Honours are seeking or searching for an

11 appropriate test to apply, it is our argument that, consistent

12 with the common law practice, the definition that you have

13 devised of a prime facie case should be applied in both

14 instances, that is, at the time the Prosecutor submits his

15 indictment where a sufficiency evidence test is devised and at

16 the end of the Prosecution case.

17 We say that your Honours are also safe in doing this

18 because it is done by one of your brother Judges. It is one of

19 your brother Judges who, presumably, has the training, expertise

20 and skill to evaluate and assess the matter to ensure that when

21 the matter proceeds to trial the accused is not going to be

22 subjected to a prosecution where there is no merit.

23 So, because it is a sufficiency evidence test, that is

24 the standard that should be applied at the end and it also deals

25 with the same issue, because the whole of the basis of this, in

26 our submission, is that it is unfair to an accused to either

27 indict him or to allow the matter to proceed after the

28

1 Prosecution case if the Court says: "Well, there is no evidence

2 of this, you have made this allegation in the indictment that

3 this accused has committed this crime, we have heard all your

4 evidence, you tell us that is all the evidence, but there is no

5 evidence; you cannot get a conviction based on this evidence",

6 that is because there is no evidence.

7 If your Honours find there is no evidence, then it is

8 our submission that you can and should dismiss. Indeed, one

9 could go further and say that the Prosecutor has an interest in

10 ensuring there is a fair trial. One could say it is incumbent

11 upon the Prosecutor to simply seek to withdraw it because there

12 is no evidence and it is unfair for the case to go forward. So

13 that the Court should simply intimate to the Prosecutor:

14 "Mr. Prosecutor, what are you doing about this? There is no

15 evidence to support this charge at all. Why are you proceeding

16 with this case any further?" So it could be even be shifted

17 back to that.

18 THE PRESIDING JUDGE: You are defining two, I think, considerations

19 -- I think; maybe I am mishearing you. Judge Sidhwa (and you

20 have cited this in your papers), in his review of an indictment

21 under Rule 47, which requires reasonable grounds, said that

22 "reasonable grounds, therefore, point to such facts and

23 circumstances as would justify a reasonable or ordinary prudent

24 man to believe that a suspect has committed a crime". OK.

25 There is the standard that you would suggest, that is a standard

26 that is imported from our Rule 47.

27 The next question, though, becomes that in applying,

28

1 as is true with most situations, you set out the Rule and then

2 you have to apply it, when you say "reasonable grounds

3 therefore", your position would be reasonable grounds would be

4 evidence, some evidence that would justify allowing the Defence

5 to go forward, that is, denying the Defence's motion for

6 dismissal of charges or their motion that says that there is no

7 case, reasonable grounds.

8 But, then in looking to determine whether there are

9 reasonable grounds, you do not look to whether the defendant

10 should be convicted but whether he can be lawfully convicted,

11 that is, the question is not whether on the evidence as it

12 stands at the end of the Prosecution case the accused ought to

13 be convicted, but whether he can be lawfully convicted. In

14 doing that, you say you do not look at the credibility of

15 witnesses' inconsistencies; instead you look to see whether or

16 not he could be lawfully convicted.

17 My question then is there seems to be a split from

18 listening to Mr. Wladimiroff's presentation when he says that he

19 could only be lawfully convicted if there was evidence of

20 corroboration, that is, testimony that the accused committed the

21 act and then evidence of corroboration. Then he has explained

22 to us what he means by corroboration. Can you respond to that?

23 MR. NIEMANN: We submit that Mr. Wladimiroff is wrong.

24 THE PRESIDING JUDGE: I am not surprised if you say that.

27 such law. There is certainly no such law at common law anyway.

28

1 There is no such law dealing with that being the prima facie

2 test. Clearly, the prima facie case test is not whether the

3 accused should be convicted at this stage or should be acquitted

4 at this stage, but it is a question of, can he legally be

5 convicted at a later stage?

6 That is a separate test, because bear in mind, if your

7 Honours please, that the whole basis of all of this comes from a

8 situation where you have the Judge as the Tribunal of law and

9 the Jury as the Tribunal of fact. The Judge never decides the

10 issue on a question of fact ever at any stage. The Judge merely

11 looks at the question of law, and makes a determination at that

12 stage. The determination is, is there any evidence on which a

13 jury could convict?

14 They are not saying, based on the evidence a Jury

15 should convict. That is not the question. It is, could they,

16 and it is a legal question. That is why I mention the unsafe

17 and unsatisfactory evidence, because there was a period of time

18 in some jurisdictions where Judges sitting on a trial said to

19 themselves: "If this matter goes on appeal, the Court of Appeal

20 hearing this evidence is going to say: 'The evidence is unsafe

21 and unsatisfactory'." A classic example is a situation where

22 you have identification evidence, a fleeting glance. The Judge

23 sitting on the trial says: "The jury may convict on it, there

24 is evidence that says: 'Yes, I saw the accused run across the

25 road, I did see it', so there is evidence there". But the trial

26 Judge says: "But this would be unsafe to convict on this".

27 Trial Judges, in those circumstances, historically in

28

1 the past for a period of time said: "We are going to direct the

2 Jury, I will direct the Jury, to acquit because I know what will

3 happen, that once this goes on appeal, this evidence is unsafe

4 and unsatisfactory and the Appeal Court will overturn the

5 verdict. Because we do not want to waste any more time, we do

6 not want to put the accused to any more pain of having to go

7 through the proceedings right up to an appeal to reach that

8 stage, a fair trial dictates that the case should be dismissed

9 at this stage on that basis".

10 That has been overruled in numerous jurisdictions and

11 is no longer the law. The position is that, notwithstanding

12 that is the probable consequence of a Jury's conviction based on

13 that evidence, the Tribunal of law must allow the issue to go to

14 the Tribunal of fact so that it may determine the question.

15 In my submission, that is why issues such as

16 corroboration, issues such as the basis upon which a person is

17 guilty of the charge, Rule 7(1), are not matters for

18 consideration at this stage at all.

19 THE PRESIDING JUDGE: In your submission you say that this whole

20 notion of a motion for dismissal of charges, as the Defence has

21 characterised it, or a motion for a directed verdict or a motion

22 for judgment of acquittal, as you refer to it in your

23 submission, is something that is peculiar to a jury system. But

24 you know, and if Mr. Bassiouni is correct, that many of our

25 Rules are based on US Federal law, you know that Federal judges

26 may at the close of the Prosecution -- or Mr. Tieger knows, as

27 you know about Australian law and, perhaps, American law -- case

28

1 in chief a judge in a non-jury criminal case may rule and grant

2 a motion to dismiss if the judge finds that there is no evidence

3 that the crime or crimes have been convicted. At that point may

4 not the judge assess the totality of the evidence offered and

5 say: "There is no evidence, there is something missing"?

6 MR. NIEMANN: In my submission ----

7 THE PRESIDING JUDGE: An element that is missing, but that is a

8 legal -----

9 MR. NIEMANN: In my submission, if you reach that point that I am

10 saying that is something -- it is not so much a prima facie case

11 submission, which is again a different matter. In a situation

12 where the Prosecution says that the accused did something --

13 indeed, imagine the following situation: The Prosecutor submits

14 an indictment to the confirming Judge based upon a statement of

15 a witness. That is the only evidence there is. It is submitted

16 that way. The confirming Judge confirms the indictment. It

17 comes to trial. At trial, the witness does not come up to proof

18 or, indeed, the witness does not appear at all. At the end of

19 the case, if that is all that there was ever in the case, one

20 would expect the Court to say: "There is no evidence at all

21 that supports this count. Is it not unfair that the accused

22 should continue on with this matter for a minute longer in

23 relation to that count where there is absolutely no evidence?

24 In our submission, that is a different situation to

25 the prima facie case test which we have set out in the Rules

26 because it talks about a sufficiency of evidence test. There is

27 a legal determination to be made. The legal determination to be

28

1 made is, could a legal conviction result as a consequence of the

2 evidence?

3 THE PRESIDING JUDGE: If a legal conviction could result on the basis

4 of one witness's testimony, whose testimony addresses each of

5 the elements ----

6 MR. NIEMANN: That is the end of the matter.

7 THE PRESIDING JUDGE: --- that are necessary, then that, you say,

8 would be sufficient ----

9 MR. NIEMANN: That is the end of the matter.

10 THE PRESIDING JUDGE: --- without the need for corroboration?

11 MR. NIEMANN: Absolutely not.

12 THE PRESIDING JUDGE: What do you say about the fact that in Rule

13 96(i) there is a requirement of no corroboration in sexual

14 assault cases, and Mr. Wladimiroff says that is an indication

15 that there should be corroboration in all other cases. In many

16 common law systems, I gather, but unlike the civil law system,

17 as Mr. Wladimiroff seems to have told us, there is a requirement

18 of corroboration in sexual assault cases. By putting that in

19 the Rules -- it is not really important, Mr. Wladimiroff; in

20 many common law systems there is a requirement of corroboration

21 in sexual assault cases -- explicitly, what the Tribunal has

22 said is that in this Tribunal no corroboration is required. Can

23 you draw from that, though, the implication that in some

24 draftings when you put something in specific, "no", it perhaps

25 is interpreted that it is "yes" in other situations, if you

26 understand what I mean?

27 MR. NIEMANN: Yes. No, in our submission, the answer to that is that

28

1 in the calendar of crimes that even our jurisdiction deals with,

2 clearly, there is no support, certainly at common law, that

3 requires corroboration. If corroboration is required for all of

4 the crimes, it is our submission that that would have to be so

5 specified. The fact that it is not so specified means that the

6 issue is left open. I mean, in some jurisdictions there is

7 legislation specifically saying: "Proof of this crime will

8 require corroboration". It specifically and expressly deals

9 with it. Sometimes that is developed as a process of the common

10 law, but what is generally or what has been historically

11 generally applicable is corroboration in rape cases.

12 THE PRESIDING JUDGE: Is required?

13 MR. NIEMANN: Generally speaking.

14 THE PRESIDING JUDGE: Yes.

15 MR. NIEMANN: So, in my submission, when your Honours drafted your

16 provisions, your Rules, what we would be met with if there was

17 no such provision as Rule 96(i) would be, obviously, when you

18 look at the totality of the law in all the national

19 jurisdictions, you must come down in favour of corroboration.

20 Unless there was a specific provision saying that no

21 corroboration is necessary, it is likely that your Honours would

22 be so overwhelmed by the weight of all national law dealing with

23 this that you would proceed to impose an obligation for

24 corroboration in relation to rape.

25 Clearly, it is our submission that when this was

26 drafted it was intended to make it very clear that in rape

27 cases, which are overwhelming cases where corroboration is

28

1 required, that your Honours want to make an exception. That

2 certainly, in our submission, cannot then be extended to an

3 argument to say, every crime, an assault, a beating, a

4 deprivation of property, such offences which are in our Rules,

5 also require corroboration, when in most common law

6 jurisdictions certainly that I know of there is no such

7 requirement. In our submission, that argument has no

8 foundation.

9 THE PRESIDING JUDGE: You say there is no corroboration, one witness

10 is enough, the standard should be whether there is no evidence

11 to convict. Suppose we hear in this Tribunal from one witness

12 who we just think is -- what is the word -- not being candid at

13 all? One witness, we are not saying there is corroboration, but

14 we just look at this witness and for a number of reasons -- you

15 know, it is so difficult to assess looking at a witness -- for a

16 number of other reasons, cross-examination, impeachment, that

17 may result in impeachment, or in any case we make this

18 determination -- can we make that determination, I guess, is my

19 question. One witness, and we look at that witness, and based

20 upon cross-examination which the Defence did not have an

21 opportunity to do when the indictment was confirmed, and we say:

22 "There is no evidence" because maybe from the testimony it is

23 clear that the witness was not even there. He testifies, but it

24 appears that he was somewhere else and that may be brought out

25 on cross-examination. Can we not then say that the accused

26 could not be lawfully convicted on that evidence?

27 MR. NIEMANN: In our submission, the situation there would be that if

28

1 the evidence is so contradictory, so unreliable and so

2 incredible as to amount to no evidence, not a question of

3 whether there is some evidence and it is unreliable or

4 unpredictable or whatever, in a situation where you conclude

5 that this is not evidence, it is so contradictory, so totally

6 unreliable and unbelievable as to be the product of a disorderly

7 mind, you might then say there is no evidence.

8 But, in our submission, unless you get to that point,

9 the matter should go on. It should go on, in our submission, in

10 the absence of any provision for this procedure at all in the

11 Rules and in the face of a specific rule which sets out the

12 procedure at trial. There is, in our submission, a community

13 expectation that once evidence is produced that the trial will

14 go through to its conclusion and either side will make their

15 submissions, the Tribunal of fact and law will retire and then

16 return with its decision after all that process has been

17 followed.

18 If one were merely to interrupt the proceedings at

19 this stage without the benefit of submissions from each side

20 without hearing evidence from the Defence or hearing anything

21 from the Defence as to what their position is, then, in our

22 submission, there is an added element to this. The added

23 element is that the community itself is not satisfied and that

24 these proceedings would fail the community in that respect.

25 It is not a question of the Prosecution expecting,

26 hoping, relying on information coming from the Defence side

27 which is going to assist it in its case. That is not the case

28

1 at all. The Prosecution must prove its case beyond reasonable

2 doubt from beginning to end and it must do it on its own

3 evidence, and it cannot expect any assistance from the Defence.

4 But the community does have an expectation. When the community

5 hears the evidence, then the community position on that is that

6 that evidence should be dealt with by the whole process of the

7 trial, and should be subjected to the benefit of submissions

8 from either side. That is a community expectation which, in our

9 submission, is an appropriate one for your Honours to have

10 regard to.

13 MR. NIEMANN: If your Honours please, the scale of justice has two

14 sides to it. When evidence is presented that something

15 happened, there is an expectation that will be weighed. In the

16 weighing process, the whole procedures of parties appearing

17 before the Court and making submissions in relation to that

18 evidence are factors to be taken into consideration when the

19 determination of guilt or innocence is decided.

20 To make a decision now, "We heard this witness and we

21 do not believe that he is reliable and, therefore, we are going

22 to dismiss the case" does not allow that process to run its

23 course. In our submission, there is a disappointment by the

24 community because that has not occurred.

25 We submit that unless your Honours can say: "There is

26 no evidence at all. In the absence of any evidence, you have no

27 right being here", then, of course, if there is to be a fair

28

1 trial of the accused, the case should be dismissed.

2 JUDGE STEPHEN: Can I ask you something? Assuming for the moment,

3 distasteful as it may be to you, that it is appropriate for this

4 Chamber to apply a no case submission procedure, we are in the

5 unusual situation that we do not have a jury. It is not a

6 question of is this sufficient to go to the jury or not, because

7 ultimately it comes back to us, as judges of fact.

8 Add to that what may or may not prove to be the case,

9 namely, that there may be no evidence at all called by the

10 Defence other than alibi evidence, so that we are left with

11 nothing more than the evidence that we have already heard from

12 the Prosecution, and assuming that it is appropriate to have no

13 case procedures, is there any different test to be applied at

14 this stage from the test that we will ultimately apply in

15 determining guilt and innocence after we have heard the evidence

16 of the Defence?

17 MR. NIEMANN: Yes, your Honours. If your Honours were to apply the

18 prima facie test, that, in our submission -- this is the common

19 law prima facie case test ----

20 JUDGE STEPHEN: Yes.

21 MR. NIEMANN: --- forgetting Rule 47, if your Honours were to apply

22 that test, that is a legal determination. It is not a question

23 of deciding the facts. So it is a question of, can a person

24 lawfully be convicted based on this evidence, and that is a

25 sufficiency of evidence test. There is another test, if I may

26 call it that, rarely ever seen happen, but a Jury of its own

27 volition can take upon itself immediately following the

28

1 Prosecution case the decision and simply say: "There is no

2 evidence here and on that count or on the whole charge we

3 acquit". Without any intervention from the Judge whatsoever,

4 the Jury is entitled to do that.

5 JUDGE STEPHEN: I am not supposing for the moment that we are

6 reaching that sort of extraordinary situation, but I am simply

7 asking you, normally, if one is determining whether or not to

8 leave something to the jury, one gives to the jury the right to

9 determine the view they form as to the reliability of particular

10 witnesses.

11 MR. NIEMANN: Yes.

12 JUDGE STEPHEN: Therefore, the test that one applies at the no case

13 stage is one more favourable, if anything, to the Prosecution

14 than the jury may subsequently take. When we are both judges of

15 law and also of fact, are there two different criteria that we

16 apply, one at the no case stage and one at the ultimate

17 conclusion stage?

18 MR. NIEMANN: Yes, your Honours. In my submission, there is no

19 foundation that we can see in any jurisdiction for applying the

20 ultimate test, proof beyond reasonable doubt, Rule 87, I think,

21 that Mr. Wladimiroff spoke of. There is no law to support that

22 anywhere that we can find which would be the test that you are

23 applying at the end of the day when you are dealing with the

24 evidence and deciding it as an issue of fact. As I come back to

25 all the time, the only time you can do it, in our submission, is

26 when there is no evidence and you can do it then.

27 But, in our submission, Rule 87 clearly follows the

28

1 common law and clearly envisages that that test that your Honour

2 spoke of, being unsettled about the evidence of a witness or

3 whatever, is one that you deliberate on at the end of the case

4 when you take into account the totality of all the evidence

5 presented to you and the submissions of the parties. At that

6 stage you make that decision.

7 Yes, you are carrying the case forward to that period,

8 to that point in time. Presumably, the Defence would argue:

9 "Well, that is unfair". But, whether it would be unfair or

10 not, the issue is there is nothing in any of the jurisdictions

11 that we can point to or, we would submit, the Defence can point

12 to to say that they are entitled to that determination being

13 made at this stage in the proceedings.

14 THE PRESIDING JUDGE: So that in the United States system where there

15 is a provision in non-jury criminal cases for a judge to

16 conclude at the end of the Prosecutor's case in chief that the

17 case should be dismissed, that in doing that the judge does not

18 make a determination that the Prosecution has failed to prove

19 its case beyond a reasonable doubt, because in that instance the

20 judge is the trier of fact and law. The judge does not make

21 that -- you ask one of the American lawyers.

22 MR. NIEMANN: I understand that is the law in the United States.

23 THE PRESIDING JUDGE: So you do well with Australian, we have Dutch

24 and British, so it is really very nice, not very limited -- but

25 as the trier of fact and the trier of law, the judge would then

26 be determining whether or not there is no evidence to justify a

27 conviction in this case -- is that what you are saying -- but

28

1 not be determining whether or not the Prosecution has proved its

2 case beyond a reasonable doubt.

3 MR. NIEMANN: Yes.

4 THE PRESIDING JUDGE: In no evidence, what the Court would be looking

5 at is whether or not, considering the elements of the offence,

6 there is no evidence to prove that those have been met?

7 MR. NIEMANN: Yes. The decision of absolutely no evidence, of

8 course, can be made right at the end of the Prosecution case.

9 It can be done so without invitation. Your Honours can just

10 decide it yourselves, in my submission. You do not need the

11 Defence to make any submission to you. You do not need to

12 decide yourselves in first instance, in my submission.

13 THE PRESIDING JUDGE: Before the Defence presents its case -- no?

14 MR. NIEMANN: Yes. At the end of the Prosecution case, if you decide

15 there is no evidence on a particular point, you can do two

16 things; you can dismiss the case there and then, or you can

17 simply direct to the Prosecutor and say: "Why are you

18 proceeding with this matter?"

19 THE PRESIDING JUDGE: Why can the Defence not file a motion to that?

20 MR. NIEMANN: Presumably, they could.

21 THE PRESIDING JUDGE: You are saying they cannot.

22 MR. NIEMANN: No, I am saying they do not have to. I am saying they

23 do not have to. Your Honours can do it of your own ----

24 THE PRESIDING JUDGE: We can do it on our own motion.

25 MR. NIEMANN: Yes.

26 THE PRESIDING JUDGE: The Defence can interrupt the proceedings

27 because of Rule 87.

28

1 MR. NIEMANN: It is not because of Rule 87.

2 THE PRESIDING JUDGE: 85, 86, 87.

3 MR. NIEMANN: In my submission -- no -- it goes to, in fact, the

4 right of a fair trial, that it is unfair in the absence of any

5 evidence whatsoever to allow the proceedings to continue.

6 THE PRESIDING JUDGE: OK.

7 MR. NIEMANN: So it goes to the Articles themselves and the right of

8 the accused to have a fair trial.

9 Another matter I just wish to raise, if I may, your

10 Honours, and that is it is hard for us to know or to predict

11 that Benches in this Tribunal made up of common law Judges are

12 going to deal with the matter differently to Benches made up of

13 civil law Judges, but it is our understanding that -- it was our

14 understanding -- there was no provision for a formal no case to

15 answer submission to be made at civil law. We understand that

16 cases may be dismissed where there is no evidence type

17 situation, but we understood that there was no procedure for

18 prima facie case.

19 It seems to us, your Honours, that the bringing in of

20 this procedure when there are no Rules whatsoever to

21 specifically provide for it in the Rules may create

22 complications for civil law Judges, for your brothers who are

23 civil law Judges, who are not accustomed to such a practice.

24 Unless there are any other matters, your Honours, that is our

25 submission.

26 THE PRESIDING JUDGE: What do you say about the position of the

27 Defence that with respect to Article 7(1) of the Statute which

28

1 makes it a crime to aid, abet -- "a person who planned,

2 instigated, ordered, committed or otherwise aided and abetted in

3 the planning, preparation or execution of a crime referred to in

4 Articles 2-5 of the present Statute shall be individually

5 responsible for the crime". So, it is planning, preparation or

6 execution.

7 You did not address this in your pretrial brief, so

8 even if we had told you what we thought about it -- well, we

9 would not have because you did not ask us, but anyway that is a

10 particular concern of mine. The Defence, if I understand its

11 position, says that you have to show that, of course, the act

12 was committed; you have to show that the person was there and

13 the Prosecution have to show that the accused actively

14 participated in that act, but by active participation you do not

15 have to show that the accused actually inflicted the blow, if

16 that is what it is, but that he somehow at that time acted to

17 further the commission of the assault and the beating in that

18 instance. What do you say to that?

19 MR. NIEMANN: Our position on that ----

20 THE PRESIDING JUDGE: Because your whole argument in your submission

21 is that, well, you have charged persons with having committed

22 these things, and it is true, in all of the counts you say -- I

23 do not have it; I have the indictment but I have misplaced all

24 my papers; no, I have very orderly put it in my book -- the

25 first one that is the subject of the motion, you say: "During

26 the period between June 1st through 31st July 1992, a group of

27 Serbs, including Dusko Tadic, severely beat numerous prisoners,

28

1 including Emir Karabasic, Jasmin Hrnic, Envir Alic, Fikret

2 Harambasic and Amir Beganovic, in the large garage building or

3 hangar of Omarska camp.

4 "The group forced two other prisoners, G and H, to

5 commit oral sexual acts on Harambasic and forced G to sexually

6 mutilate him. Karabasic, Hrnic, Alic and Harambasic died as a

7 result of the assault. By his participation in these acts,

8 Dusko Tadic committed", then count 5 you say grave breach,

9 recognised Article 2(A), wilful killing, and 7(1) of the Statute

10 of the Tribunal". Then, of course, counts 6, 7, 8, 9, 10 and

11 11, other allegations are made with respect to Articles 2 and 3

12 of the Statute as well as 7(1). So, you charge that a group of

13 Serbs beat prisoners and a group of Serbs required individuals

14 to sexually mutilate and commit oral sexual acts on a prisoner.

15 So, what do you mean by that?

16 MR. NIEMANN: Your Honour ----

17 THE PRESIDING JUDGE: What do you consider is your burden at this

18 stage when the Defence has filed a motion for dismissal of the

19 charges?

20 MR. NIEMANN: Our position at this stage, your Honour, is that,

21 firstly, it is not a matter that the Tribunal need consider at

22 this stage.

23 THE PRESIDING JUDGE: Unless we decide to do it on our own?

24 MR. NIEMANN: Yes, but we submit that any possible theory of

25 liability is sufficient for you at this stage; you do not have

26 to concern yourself with finally determining the issue. It is a

27 matter that, we would submit, is a matter for the final

28

1 addresses anyway, and perhaps in opening address it could be

2 mentioned in different circumstances.

3 But, notwithstanding that, a reading of Article 7(1)

4 makes it very clear how broad. It is instructive, if I may, to

5 just remind your Honours of the wording of it when it says that

6 a person who planned -- a person who plans does not have to be

7 present; you can be quite remote from the scene if you plan

8 something -- again was instigated -- you may or may not be

9 present and participate -- ordered -- you could be quite remote

10 from the scene if you ordered it -- committed -- yes, one would

11 suggest that you would probably have to be present but there may

12 be even arguments about that -- otherwise aided and abetted --

13 one gets into a number of jurisdictional differentiations in

14 relation to that; some jurisdictions say aiding and abetting

15 requires you to be present, others say that you do not. It

16 goes, "Aided and abetted in the planning", so you do not even

17 have to directly have planned, "preparation or execution". So

18 these words are so wide, in our submission, that it is only if

19 you came to a conclusion that under no theory of liability was

20 the accused guilty, and there is no evidence, the two factors,

21 you might be minded to dismiss, but, in our submission, the

22 wording is so broad in itself that that could not possibly be

23 the case based on the evidence that you have heard in any event.

24 THE PRESIDING JUDGE: So you say when you have charged in the

25 indictment that persons committed these acts, then it is your

26 position that the accused need only be one of the persons?

27 MR. NIEMANN: Acting in concert or acting alone, either by a process

28

1 of direct involvement or in some other way, such as planning,

2 instigating, ordering or otherwise. We say that your Honours do

3 not have to decide that now, but come the final addresses, yes,

4 your Honours would expect to hear very clearly from the

5 Prosecution what its theory of liability is based on its

6 indictment.

7 THE PRESIDING JUDGE: If we find that there is evidence to meet 7(1)

8 of the Article, would not either at this stage, well, at the

9 conclusion of the trial, at least, certainly by a preponderance

10 of the evidence, the accused also be guilty of the substantive

11 offences, or am I asking you to go too far since you had not

12 addressed that for us initially?

13 MR. NIEMANN: We would say yes, that is open to your Honours.

14 THE PRESIDING JUDGE: It is similar to a conspiracy.

15 MR. NIEMANN: Yes.

16 THE PRESIDING JUDGE: Conspiracy, as an individual count, you would

17 be guilty of conspiracy, but you would also be guilty, would you

18 not -- or not, I do not know, you tell me -- of the underlying

19 offences?

20 MR. NIEMANN: You could be both guilty of the conspiracy and the

21 substantive offences. Both theories of liability could

22 apply. Finally, perhaps I would have said, your Honours, under

23 any test that can be applied the evidence is clearly sufficient,

24 and there is no justification whatsoever, in our submission, for

25 dismissal of any of the charges at this stage.

26 THE PRESIDING JUDGE: Let me ask you about counts 18 through 20. You

27 discussed it in your papers and, of course, the Defence pointed

28

1 it out in its motion for dismissal of charges. But, considering

2 the standard that the Prosecution would want the Chamber to

3 apply, is there any evidence that -- well, it is charged in the

4 second paragraph, paragraph 9, the second sentence, "As the

5 victims were removed in a wheelbarrow, Tadic discharged the

6 contents of a fire extinguisher into the mouth of one of the

7 victims. By his participation in these acts", it also refers to

8 some acts that preceded this sentence, "Dusko Tadic committed",

9 and then it is a grave breach, violation, crime against humanity

10 as well as Article 7.1 of the Statute. Is there any evidence

11 that the fire extinguisher was discharged? If so, point it to

12 us in the transcript which we have read carefully.

13 MR. NIEMANN: Your Honours, with that, it is our submission that

14 whether or not emptying the fire extinguisher or whether the

15 person was alive or dead or whatever is one in a number of acts

16 that are particularised in the indictment. The fact that there

17 may not be evidence as to one particular that has been pleaded

18 does not in anyway suggest that there is no evidence.

19 There may be no evidence of that particular incident,

20 but that does not of itself mean to say that the offence has not

21 been proved because it is merely one of the particulars. So,

22 if, for example, you had a charge of causing great suffering or

23 whatever, the person was hit on the head, dragged behind a motor

24 vehicle along a gravel road and then thrown into a pond, for

25 example, it was pleaded, and at the end of the case the throwing

26 into the pond aspect of the pleadings was not proved by the

27 Prosecution, your Honours would not dismiss it. You would say

28

1 that particular has not been proved.

2 It may be that if it was a particularly egregious act,

3 your Honours would take it into account in sentencing and say:

4 "Well, it has been alleged that this happened, it did not, and

5 that seemed to us to be the most serious aspect of the offence",

6 so, therefore, when it comes to sentencing you would take a

7 different view than what you would if it was shown that the

8 person was thrown into the pond. In our submission, that is how

9 this should be dealt with at this stage.

10 THE PRESIDING JUDGE: That is based on your assumption or your

11 proposition, the correctness of the proposition, that you have

12 asserted in your submission that this was all one transaction,

13 and that Mr. Tadic was part of the first sentence, that is,

14 causing persons to drink water like animals from puddles in the

15 ground, jumping on their backs and beating them until they were

16 unable to move -- you do not say "dead", unable to move -- but

17 then when we get to the next sentence which deals with the fire

18 extinguisher, as I recall the testimony, the witness was

19 specifically asked: "Was the person in the wheelbarrow dead or

20 alive?" The witness said: "No".

21 But the witness was never asked whether the accused

22 discharged the contents of the fire extinguisher into the mouth

23 of one of the victims. Whether that victim be dead or alive,

24 the point is there was no evidence that he discharged the

25 contents.

26 Is this a discrete charge, the second sentence, or is

27 it part of the same transaction? Do we need to find that there

28

1 is evidence that Tadic either directly participated in the first

2 sentence, or that it meets your version of the meaning of 7(1),

3 and then disregard the second sentence that there is no evidence

4 that the contents of the fire extinguisher was discharged? When

5 I say "disregard the second sentence", having read the

6 transcript, there is no evidence. There is not a word mentioned

7 about it, so what do we do with that?

8 MR. NIEMANN: In our submission, your Honours, what you do is you

9 look at the whole charge, in our submission, and have regard to

10 all of the matters particularised in the charge. Certainly, had

11 there been evidence of the discharge of the contents of the fire

12 extinguisher, we would be arguing that that is a matter to go to

13 proof of the offence. But we do not only rely on that. If that

14 was the only particular and it was the only thing we could rely

15 on, yes, there would be no evidence. But that is not the case.

16 We have the evidence of the accused being present. We

17 have the evidence of the general event and the circumstances

18 that happened. We say that the absence of just one component of

19 the particulars does not in any way mean that there is no

20 evidence in relation to the commission of the offence. It

21 merely means that one particular has not been proved.

22 JUDGE STEPHEN: Can I take up that point? On a no case submission,

23 assuming that that is going to happen, is there any advantage or

24 is it at all proper when you have a charge such as the one that

25 has just been discussed which contains two quite distinct

26 elements, as it were, at least to narrow the issue that has to

27 be dealt with by the Defence by indicating that the second of

28

1 those elements is one which need not be disposed of because

2 there is no evidence relating to it?

3 THE PRESIDING JUDGE: May I just add to that approach, if it is

4 charged that persons were beaten with steel bars, wires with

5 balls, metal balls at the end, etc., and the last one is with

6 wooden planks and there is no evidence that they were beaten

7 with wooden planks, should we narrow the issue and say, you do

8 not need to defend against wooden planks because not a word was

9 mentioned about that.

10 MR. NIEMANN: In our submission, your Honours, that is not necessary

11 at this stage. Clearly the Defence know what the state of the

12 evidence is. There is a transcript and they can see that.

13 THE PRESIDING JUDGE: We would not be here if you two agreed on the

14 state of the evidence. We would be hearing a witness

15 I suppose -- but anyway, I am sorry.

16 MR. NIEMANN: But there is no notion that goes to the issue of

17 whether or not the accused can or cannot have a fair trial based

18 on whether there are particulars at this stage of the

19 proceedings it looked like that they have not been either

20 supported by evidence or proved.

21 If I can move from the specific example to the more

22 general example, you may have a situation where the Prosecutor

23 has some theory of liability which would say that the accused is

24 still implicated in this other particular which has been alleged

25 in the indictment, notwithstanding that the accused was not

26 present or participated in that event itself. So there may be

27 other theories of liability which would be advanced. I am

28

1 talking in a hypothetical situation. For that reason, it is our

2 submission appropriate to leave it to the end of the day. What

3 should, in our submission, motivate your Honours is where you

4 have a situation, what I was speaking of earlier, where there is

5 just no evidence of this ever happening.

6 JUDGE STEPHEN: Can I take up your excellent example about the motor

7 car and the dragging along the road and then the throwing into

8 the pond? There is a no case submission, and in fact it turns

9 out from examination that there is no evidence at all about

10 throwing into the pond. Is it (A) useful, (B) proper for the

11 Court to say: "Well, as far as throwing into the pond is

12 concerned, there is no evidence and the Defence need not trouble

13 with that. As to the other two elements, yes, there is a case

14 to answer"? Is that improper or is it useful?

15 THE PRESIDING JUDGE: It would not result necessarily in the

16 dismissal of a count.

17 JUDGE STEPHEN: No.

18 THE PRESIDING JUDGE: But we what we are talking about is narrowing

19 the evidence. This is just one incident, but in terms of the

20 efficiency of the trial why should the Defence be put to the

21 task of trying -- they would not even be put to the task -- to

22 dissuade of something when there has been no evidence. They

23 might even, if they choose, be prejudiced if they were forced to

24 deal with that inadvertently, but it would not happen because of

25 very competent counsel, offering evidence that might help the

26 Prosecution to overcome this lack of evidence. But that would

27 not happen. Mr. Kay says, God forbid! So why do that? Why not

28

6 the case for the Prosecution, this is not a matter that arises

7 at that stage. What happens is that the judge considers the

8 issue of law and says: Is there any evidence to go to support

9 this count? If the judge says, yes, there is, the jury are

10 never informed of the fact that a no case submission has been

11 made. So the indictment is not amended at that stage. But when

12 the judge is summing up to the jury he might well say, and

13 properly should say: "Ladies and gentlemen of the jury, the

14 prosecutor in his indictment you have before you has alleged

15 that this event happened. We have both sat here and listened

16 attentively to the evidence and we have not heard any evidence

17 of that. So clearly, you cannot rely on any inferences, draw

18 any inferences" or whatever he might say, "from the fact that it

19 may have happened, it could have happened, it should have

20 happened or whatever, you have heard no evidence of it." Then

21 he would deal with it at that point, but that is dealt with at

22 the conclusion of the case after the submissions have been

23 made.

24 In my submission, if your Honours are to truly apply

25 the no case to answer submission as it is understood, then, no,

26 it is not appropriate at this stage to require an amendment to

27 the indictment.

28

1 THE PRESIDING JUDGE: Thank you, Mr. Niemann. Mr. Wladimiroff,

2 rebuttal?

3 MR. WLADIMIROFF: Thank you, your Honour. I will try not to repeat

4 myself and confine it to some issues, if you do not mind.

5 THE PRESIDING JUDGE: As you wish, Mr. Wladimiroff. You may respond

6 to any of the points that the Prosecutor raised.

7 MR. WLADIMIROFF: It seems to me, your Honours, that the whole debate

8 comes down to the question: What would happen if we would have

9 rested our case? Then the evidence submitted by the Prosecution

10 should be sufficient, according to the standard of Rule 87,

11 would it not? We have not informed you that we will rest our

12 case. We have informed you that we will present our case and we

13 have informed the Prosecution that we will present our case in

14 the context of alibi witnesses. So, as a matter of fact, by not

15 resting our case but by presenting our case in the context of

16 alibi witnesses, still the standard is: Did the Prosecution by

17 submitting the evidence meet the standards of 87?

18 Discussing the standard here, it seems that the Prosecution

19 has a lot of trouble with accepting that the standard of Rule 87

20 should be applied here, and they argue that 47 is the correct

21 standard here. As we see it, what would be the sense of

22 repeating the standard of Rule 47 at this stage of the trial?

23 We feel it would not add anything to what has already been

24 applied at the stage of presenting material to the confirming

25 Judge. It seems logical to me that after the material has been

26 presented to confirming Judge, and if that material was

27 sufficient, then in trial it may appear that the witnesses do

28

1 not say the same things as they said in the interviews. That is

2 what the confirming Judge had seen. He saw material which has

3 not been said under oath in court or examined by either party.

4 So in court you may have quite different situations

5 there. The witnesses might not repeat what they have said in

6 the interviews shown to the confirming Judge. So the test could

7 not be the same in court. It would not make any sense to repeat

8 that test of 47.

9 What then should be the test in court? Here we have

10 some confusion about the term "prima facie case" because the

11 Prosecution simply wishes to use that term in the sense as it

12 has been used in the Statute. But that term as it has been used

13 in the Statute is confined to the pretrial stage. It has

14 nothing to do with the standard that should be applied in trial

15 at the stage where we are now.

16 Then he is arguing about the term "prima facie case"

17 and that common law has a different understanding if you deal

18 with that in a trial. Then he explained how it works with a

19 jury. Indeed, the judge will instruct the jury on the basis of

20 the law. In that context the term "prima facie case" appears

21 again. But here we do not have a jury, so the term "prima facie

22 case" cannot simply be transported into the proceedings of this

23 Tribunal. It may have its own meaning in the context of your

24 Rules, because you are not only the Tribunal of the law, you are

25 also the Tribunal of the fact. There is no jury to instruct.

26 You instruct yourselves.

27 So we feel that here the standard would be the

28

1 standard that a judge dealing with the law and dealing with the

2 facts should apply. The only standard you can apply dealing

3 with those aspects is the test of 87. Again, that makes sense

4 because you would have to apply that standard when we had rested

5 our case.

6 So once again, we feel that the only proper standard

7 here is the standard of 87: Did the Prosecution fulfil their

8 obligation to prove their case?

9 Going into that test, there is a lot of discussion possible

10 on the issue, did they or did they not, and we have set out in

11 our motion why on certain aspects they did not. We suggested to

12 your court by applying that standard that you should also take

13 into account specific aspects of civil law.

14 THE PRESIDING JUDGE: Before you move on to that, let me ask you two

15 questions dealing with the first two points you made. You have

16 indicated that you would just be presenting alibi testimony. In

17 fact, at least from your witness list now, we are going to be

18 hearing, maybe today, from a policy witness and we will be

19 hearing -- I do not have the list before me -- from several

20 witnesses. I do not know what they will testify to, but they

21 are going to talk about the events. So I do not know that even

22 based on the witnesses you have listed, they are only dealing

23 with alibi.

24 MR. WLADIMIROFF: You are right.

25 THE PRESIDING JUDGE: But the other thing, though, is that the

26 witness list, as for the Prosecutor, has been supplemented.

27 They had actually a "will call" list and then a "may call"

28

1 list. So it may appear as this fluid trial proceeds that you

2 may wish to add additional witnesses, and that is something we

3 would have to consider. I do not know at this point whether

4 that is going to be the case, one, based upon the witnesses whom

5 you have already listed and then there again may be some

6 change. Even if it is alibi witnesses, I do not know what

7 exactly the extent of that will be and I do not even want you to

8 tell me. Will it be that the accused was not there or some

9 other kind of alibi, like there was a witness who saw what

10 happened and that is not what happened? I do not know at this

11 point whether the evidence that you are going to offer will not

12 get into the occurrences, the actual occurrences, as opposed to

13 the witnesses simply not being there. I understand what you

14 say, but it is fluid. Can you address that first question?

15 Then I have one more.

16 MR. WLADIMIROFF: Yes, I will. What I am saying here is in the

17 context of those charges in the counts as addressed in our

18 motion. So I am not dealing with count 1. When I say that we

19 will represent present only alibi witnesses on that issue, you

20 will recognise that in the motion we did not touch the specific

21 elements that make an ordinary crime a war crime or a crime

22 against humanity.

23 THE PRESIDING JUDGE: Also you did not address 29 through 34.

24 MR. WLADIMIROFF: Yes. So when I am saying "alibi witnesses" I am

25 not referring to expert witnesses because they deal with those

26 expert specifications which are not in our motion. The motion

27 only deals with behaviour: Was he participating or was he not?

28

1 If he was participating, we did not touch on the issue of what

2 does it mean in terms of: is that an ordinary crime or a crime

3 under your jurisdiction? So when I say "only alibi witnesses",

4 I am referring to those witnesses who deal with the charges in

5 the motion, who will deal with the allegation that he

6 participated.

7 Indeed you are right when you say we may have two

8 classes of witnesses: those who were there and say, "I have seen

9 what" happened, but no Dusko Tadic was there", or if I am

10 cynical, "He did not beat them with the left hand as the

11 witnesses said, but he did with his right hand." We are not

12 going to present this class of witnesses. We will present

13 witnesses who will testify about where was he at that time, not

14 there at least.

15 THE PRESIDING JUDGE: Except as to count 1 and counts 29 to 34?

18 that discussion while presenting our case.

19 THE PRESIDING JUDGE: Not having heard the witnesses testify, I do

20 not know that we can say with certainty what they will testify

21 to. Good lawyers always talk with their witnesses and discuss

22 their potential testimony, but as we have seen thus far some

23 witnesses go way off field and, particularly with the language

24 problems we have had, many other things are gotten into. I do

25 not know that we can be so certain about what is going to

26 transpire during your case as opposed to what you would hope

27 would transpire. That is a concern that I have.

28

1 MR. WLADIMIROFF: I appreciate that, your Honour, but as you already

2 said, and you were certainly not joking, the Defence will not

3 submit additional evidence to the allegations of the Prosecution

4 by presenting witnesses in court. So what is the relevancy of

5 our witnesses testifying perhaps on other things than alibi?

6 THE PRESIDING JUDGE: Exactly. Well, I do not know. My real

7 position is that I do not know. I just know that I wish the

8 trials were held the way that was written in black and white

9 with all of the periods and everything, but unfortunately it

10 does not happen and we as Judges and lawyers have to accept it.

11 But I understand what you have said. The other thing, though,

12 I guess relates to what witnesses have said that was different

13 in their prior statements than what they say under oath. You

14 say that the test should not be the same. Why is that?

15 MR. WLADIMIROFF: It cannot be the same, because what the confirming

16 Judge saw was material based on the interviews, excerpts,

17 sometimes the interview itself perhaps, what the witness told

18 the interviewer. Judging that, it is just a reasonable grounds

19 test, nothing more than that. But when the witness appears in

20 court giving his evidence under oath being examined and

21 cross-examined, the quality of that information is quite

22 different. Then the test is a different one for that reason.

23 You cannot simply say: Is there reasonable ground for listening

24 to the witness? The test then will be: Is there good reason to

25 believe that the evidence he is giving is right and truthful?

26 THE PRESIDING JUDGE: As he also looks at the Judges too I hope that

27 that changes his approach, and having prepared in advance with

28

1 the Prosecutor or the Defence his testimony might be very

2 different and of a different quality when he comes to court.

3 MR. WLADIMIROFF: Absolutely.

4 THE PRESIDING JUDGE: That is what we should be looking at.

5 MR. WLADIMIROFF: Yes. I would say then indeed it is evidence before

6 the confirming Judge. Although the Rules use the word

7 "evidence" it is not evidence. It is material given to the

8 confirming Judge and the status of that material is different to

9 what you have heard in court. That is evidence.

10 I have a little problem with the approach of the

11 Prosecution that the Court should address community

12 expectations. I would say that, on the contrary, the Court is a

13 filter against community expectations. The Court is not here to

14 please the community. The Court is here to decide whether Dusko

15 Tadic is guilty or not, and that is the test we ask you to

16 apply. So I am not really impressed by the argument. I think

17 it is highly invalid. You should certainly not decide the

18 matter on the basis of what will the public say if we dismiss or

19 limit the charges to a certain extent, because that is not the

20 point. The point is: is there a case to answer? That is

21 exactly the standard you will apply on the basis of Article 87.

22 THE PRESIDING JUDGE: I thought what Mr. Niemann may have been

23 referring to was the right of the Prosecutor to receive a fair

24 trial, and the Prosecutor representing -- I suppose in this

25 Tribunal we had much discussion about what we would even call an

26 indictment, but we decided the Prosecutor versus the accused.

27 So the Prosecutor represents someone. I thought he was

28

1 referring to Prosecutor's right to have a fair trial, but I can

2 assure you we are not concerned with community expectations, as

3 you have described them.

4 MR. WLADIMIROFF: You raise an interesting point. Does the

5 Prosecution have the right to a fair trial? I am not going into

6 that matter. Let me just see from my notes if there is anything

7 left which I should address. No, otherwise I will repeat

8 myself. I think I have said what I should say.

9 THE PRESIDING JUDGE: If the Trial Chamber decides to accept this

10 motion and rule on it, is that appealable, Mr. Wladimiroff?

11 MR. WLADIMIROFF: From my memory I say that part (B) of 44 -- no, it

12 is not 44. It is 72. A very tempting question, your Honour,

13 because you changed the Rules in the meantime, did you not?

14 THE PRESIDING JUDGE: Yes. Well, 73 deals with preliminary motions

15 but there is a new Rule with respect to appeal.

16 MR. WLADIMIROFF: Yes, I learned about these changes later.

17 THE PRESIDING JUDGE: There is a new Rule with respect to appeal.

18 MR. WLADIMIROFF: It might be an idea to have these changes sent to

19 the Defence and the Prosecution right away so we are aware of

20 what is at stake here.

21 THE PRESIDING JUDGE: I must admit I do not have a copy of it here

22 either, but I will get it.

23 MR. WLADIMIROFF: So I cannot answer because it may depend on those

24 amendments you have made.

25 THE PRESIDING JUDGE: What the Rule -- well, you have it -- Rule 72

26 sub-rule (A) remains unchanged.

27 MR. WLADIMIROFF: But (B) may have been changed.

28

1 THE PRESIDING JUDGE: Yes. Then (B) reads now: "The Trial Chamber

3 interlocutory appeal, save, (i) in the case of dismissal of an

4 objection based on lack of jurisdiction, where an appeal would

5 lie as of right; (ii) in other cases where leave is granted by a

6 bench of three Judges of the Appeals Chamber, upon serious cause

7 being shown, within seven days following the impugned

8 decision."

9 MR. WLADIMIROFF: I am not quite sure what means "a serious cause",

10 you see. It is a new Rule and we did not quite study that. As

11 I said, we just stumbled over it. We were not aware that you

12 changed it. So I am not able to address that problem now.

13 THE PRESIDING JUDGE: It is leave by a bench of three Judges of the

14 Appeals.

15 MR. WLADIMIROFF: We might test that. As a matter of fact, it is an

16 issue we do not need to address now.

17 THE PRESIDING JUDGE: As a Judge I am always kind of looking ahead

18 and trying to plan.

19 MR. WLADIMIROFF: No Judge wants a notice of appeal on his or her

20 decision.

21 THE PRESIDING JUDGE: It will not make any difference in terms of our

22 decision, that is for sure, but just in terms of the schedule.

23 MR. WLADIMIROFF: To be frank with you, I have no idea.

24 THE PRESIDING JUDGE: That makes sense. Is there anything else,

25 Mr. Wladimiroff?

26 MR. WLADIMIROFF: No, thank you very much.

27 THE PRESIDING JUDGE: Mr. Niemann, what do you think about the recent

28

1 amendment to Rule 72(B): "In other cases where leave is granted

2 by a bench of three Judges of the Appeals Chamber, upon serious

3 cause being shown, within seven days following the impugned

4 decision"? If you do not know either, you can say so.

5 MR. NIEMANN: I really think, your Honour, it boils down to perhaps

6 what is a preliminary motion, but because it is the final

7 disposal of the matter it may be -- if it was against the

8 Prosecution it was decided that the charge was dismissed, it may

9 amount to final disposal of the matter. But I would really like

10 to take this matter and consider it before answering your Honour

11 in detail on that.

12 THE PRESIDING JUDGE: If a charge were dismissed I presume

13 then -- I can say this with certainty -- that the Defence would

14 not offer evidence on that. Then if it were carried with an

15 appeal, should there be an appeal after the trial, the only

16 issue then before the Trial Chamber -- I am thinking out

17 loud -- the only issue before the Appeals Chamber would be

18 whether or not the Trial Chamber erred in granting the motion to

19 dismiss charges, applying the standard that we would apply and

20 then we would see whether the Appeals Chamber would accept the

21 same standard. But in the absence then of any evidence by the

22 Defence, would there be a new trial or what about double

23 jeopardy? In our Tribunal Rules, unlike the common law system,

24 the Appeals Chamber may take new evidence, which is absolutely

25 foreign I suppose to our common law system and I do not know

26 whether that problem might be cured that way to avoid any double

27 jeopardy, that is something we really have not talked about.

28

1 I wanted your opinion. It is not really necessary. We will

2 Rule and then you lawyers can decide and the Appeals Chamber, if

3 it is applicable, can decide.

4 MR. NIEMANN: I might just say, if it is of any assistance, your

5 Honour, that the wording of Article 25 has always been a bit

6 curious in terms of what the Prosecutor's rights of appeal are.

7 Just dealing with Article 25, it specifically deals with persons

8 convicted in relation to the Defence, but the Prosecutor's

9 position may be different because it goes on and says, "From the

10 Prosecutor on an error of law invalidating the decision" and so

11 forth. Possibly there is a difference there, but I think

12 I would assist your Honours better if I had some time to

13 consider it and come back with a more reasoned decision on that.

14 THE PRESIDING JUDGE: Yes, Mr. Wladimiroff?

15 MR. WLADIMIROFF: If I may draw your attention to Rule 115. It seems

16 to me the only additional evidence might be submitted that was

17 not available to it at the trial. So following your thoughts

18 about the risk, what happens if you rule on the matter in

19 appeal, I would say it is a limited issue then.

20 THE PRESIDING JUDGE: The question then is what is the meaning of

21 "not available", because our other Rule on review -- well, 115

22 deals with additional evidence and that is dealing with the

23 appeal.

24 MR. WLADIMIROFF: Yes.

25 THE PRESIDING JUDGE: But we have another Rule.

26 MR. WLADIMIROFF: 119.

27 THE PRESIDING JUDGE: We have another Rule which deals with request

28

1 for review which then says that where a new fact has been

2 discovered which was not known to the moving party at the time

3 of the proceeding before a Trial Chamber or the Appeals Chamber,

4 etc., etc., then you make a motion and you would then go before

5 the Chamber and present evidence. So the question is, since 119

6 says, "A new fact has been discovered which was not known to the

7 moving party", then should you look at 115 and assume that the

8 words "not available" mean "not known", because "not known" is

9 dealt with in 115. So "not available" could possibly be

10 interpreted as ----

11 MR. WLADIMIROFF: The only suggestion I want to make is that it is a

12 limited problem. Does it mean that the whole trial in all its

13 extensive aspects will have to be repeated?

14 THE PRESIDING JUDGE: Is there anything else with respect to the

15 motions?

16 MR. WLADIMIROFF: No, your Honour.

17 THE PRESIDING JUDGE: The Chamber will accept your submissions and

18 take this matter under advisement and rule as quickly as

19 possible, perhaps by tomorrow, certainly the next day.

20 I understand this week you have only been able to present this

21 one witness. I received your letter that went to

22 Miss Featherstone. In the future, please, if you would send

23 your communications to the Registrar with a copy to the

24 Prosecution rather than Miss Featherstone. But it was brought

25 to our attention and we understand that you have a problem with

26 your witnesses just in terms of their availability because your

27 other expert witnesses have to be somewhere else as expert

28

1 witnesses are.

2 But, as we told the Prosecutor very forcefully, please

3 do not require that we have any dead time. We are very anxious

4 to move as efficiently as possible, so tell your expert

5 witnesses that I know they have other things to do but we are

6 anxious ----

7 MR. WLADIMIROFF: Normally, it would not be a problem because we

8 would have filled the gap with our witnesses of fact.

9 THE PRESIDING JUDGE: I understand about the election and you could

10 not bring them forward, but I am referring to the expert

11 witnesses. But, having been in that situation, I know sometimes

12 you have difficulties with them, but impress upon them our

13 desire to move forward.

14 But, as I indicated, we will rule on your motion for

15 dismissal of charges as quickly as we can, perhaps tomorrow,

16 certainly by the following day. The only witness you have this

17 week is an expert witness, so I do not think that his testimony

18 will be impacted by the motion pending.

19 MR. WLADIMIROFF: No, your Honour.

20 THE PRESIDING JUDGE: Good. Then we will rule as quickly then as we

21 can. You will then be ready, Mr. Wladimiroff, to proceed with

22 that witness at 2.30?

23 MR. WLADIMIROFF: Fine. No problem whatsoever. I have some

24 logistical issue, though, relating to the video link. I am not

25 sure whether we can deal with that in open court or closed

26 court. It may have to do with how we are going to execute

27 that. I prefer to deal with it in closed session so we can

28

1 talk freely about it.

2 THE PRESIDING JUDGE: That might be good and it might be helpful if

3 we even have the Registrar present because I know there have

4 been comments ----

5 MR. WLADIMIROFF: So if we start this afternoon, perhaps, with that.

6 THE PRESIDING JUDGE: Yes, if you would like to do that? That is OK.

7 We will stand in recess until 2.30. At 2.30 we will be in

8 closed session and we will then discuss those issues. How long

9 will that take? Maybe 15, 20 minutes?

10 MR. WLADIMIROFF: Yes, nothing more than that.

11 (1.00 p.m.)

12 (Luncheon adjournment)

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1 (Open Session)

2 THE PRESIDING JUDGE: Who will be handling the testimony of your

3 first witness?

4 MR. ORIE: I will be, your Honour.

5 THE PRESIDING JUDGE: Mr. Orie?

6 MR. ORIE: The Defence calls Robert McBeth Hayden.

7 MR. ROBERT McBETH HAYDEN, called.

8 THE PRESIDING JUDGE: Sir, would you please take the oath that has

9 been handed to you.

10 THE WITNESS: I solemnly declare that I will speak the truth, the

11 whole truth and nothing but the truth.

12 (The witness was sworn)

13 THE PRESIDING JUDGE: Thank you. You may be seated. Mr. Orie, you

14 may proceed.

15 MR. ORIE: Thank you, your Honour. Would you please state your full

16 name sir?

17 A. Robert McBeth Hayden.

18 Q. Mr. Hayden, were you born on 19th January 1950?

19 A. That is correct.

20 Q. Where were you born?

21 A. In Hertford, Connecticut, United States.

22 Q. Could you please tell the Court what position you hold

23 presently?

24 A. I am now an Associate Professor of Anthropology at the

25 University of Pittsburg.

26 Q. Do you have any degrees from universities?

27 A. I hold a law degree from the State University of New York at

28

1 Buffalo and a PhD in Anthropology also from the State University

2 of New York at Buffalo.

3 Q. Mr. Hayden, what position did you have before joining the

4 University of Pittsburg?

5 A. I was a Project Director at the American Bar foundation in

6 Chicago.

7 Q. Could you please tell the Court, Professor Hayden, what your

8 professional work focuses primarily on?

9 A. My professional work focuses primarily on laws, constitutions,

10 politics and culture in the former Yugoslavia and its successor

11 republics.

12 Q. Since when have you done research on these subjects, Professor

13 Hayden?

14 A. I began doing research on these subjects in 1981.

15 Q. Did you ever live in the former Yugoslavia?

16 A. Yes, I lived for more than four years in the area of the former

17 Yugoslavia beginning in 1981 when I held a Fulbright Fellowship

18 for two years.

19 Q. Did you live on later moments in that or just in 1981 to 1983?

20 A. I have gone very frequently to the former Yugoslavia since

21 1981. As I say, I have spent more than four years in the

22 country since then, in the area since then.

23 Q. Professor Hayden, do you speak the language or the languages of

24 the former Yugoslavia?

25 A. I speak what I learned as Serbo-Croatian which is now called

26 Serbian Croatian and Bosnian otherwise, but I still speak

27 Serbian Croatian. I am not a native speaker by any means but

28

1 I am quite fluent in the language.

2 Q. Professor Hayden, could you tell us something about your

3 publications on the issue?

4 A. I have been publishing on these topics in the former Yugoslavia

5 since the mid 1980s. My earliest work was on the

6 self-management court system, and I actually published a book on

7 the Yugoslav self-management court system. I am probably the

8 only expert in the world on that topic.

9 However, as events began to develop in the former

10 Yugoslavia in the late 1980s, things began as constitutional

11 crises, and I switched the focus of my work to the

12 constitutional crises and the political and cultural issues that

13 drove them. I published a number of articles in professional

14 journals since then on these topics.

15 Q. What is your present research focusing on?

16 A. At the moment, I am engaged on a project on, essentially, the

17 retreat from democracy in Serbia and Croatia since 1980, since

18 the democratic elections in 1990.

19 Q. Could you tell the Court, Professor Hayden, how your research

20 was financed?

21 A. My work has been financed by grants that I have obtained in

22 competitions, nationwide competitions, in the United States

23 through such funding agencies as the National Council Facility

24 of East European Research, the International Research and

25 Exchanges Board, the American Council of Learned Societies and

26 Social Science Research Council and the Fulbright Commission.

27 I have also held a Fellowship from the Guggenheim Foundation.

28

1 Q. How do you follow at this moment the events and how did you

2 follow during the last couple of years the events going on in

3 the former Yugoslavia, Professor Hayden?

4 A. I followed the events in part by going to the former

5 Yugoslavia. Since 1990, since December 1990, I have gone there

6 -- I was there for four months in 1990/91, was not there in 92,

7 went briefly in 93, went for several months in 1994, made two

8 separate trips in 1995 and I have just returned from two months

9 there. I also followed events in the former Yugoslavia through

10 the Yugoslav media which I receive in Pittsburg and also, of

11 course, through the Internet which is an extraordinary resource

12 of information.

13 Q. Professor Hayden, have you ever been consulted by any government

14 or by any government official?

15 A. I have been consulted by agencies of the United States

16 government. I was also a consultant to Mr. Milan Panic at the

17 time of the London conference on Yugoslavia in August '92 for a

18 total of five days.

19 Q. Did this give you extra access to information and documents?

20 A. I certainly, yes, did get access to information at that time

21 that I would not have had as an academic.

22 Q. Professor Hayden, have you read the transcript of the Tribunal

23 that contains the testimony given by Dr. Gow in the Tadic case?

24 A. Yes, I have.

25 Q. Could you please explain, in addition to what you have said

26 already, what the sources are of your knowledge and of your

27 expertise?

28

1 A. I have, of course, in the course of my research gathered a great

2 deal of material, some of it from published sources, from the

3 media, some of it government documents and other unpublished

4 materials. Of course, I have gathered a great deal of

5 information through my discussions, through formal interviews

6 and informal discussions with people in the various parts of the

7 former Yugoslavia.

8 Q. You have also consulted legal texts?

9 A. I have also consulted legal texts and, of course, I do quite a

10 lot of reading of the works of my academic colleagues.

11 Q. Professor Hayden, could you please give us an explanation of

12 what the word "narod" means in Serbo-Croatian?

13 A. "Narod"?

14 Q. "Narod".

15 A. "Narod" is usually translated as "nation" and occasionally as

16 "people". It is related, closely related, to the

17 verb "rodati" which means "to give birth".

18 Q. I would like to be shown Prosecution Exhibit 19 to the witness.

19 (Handed) Professor Hayden, Exhibit 19 has been introduced by

20 the Prosecution as the text of the federal constitution of

21 1974. I assume that you agree with this?

22 A. Yes, yes, this is the constitution -- the English translation of

23 the constitution of 1974, yes.

24 Q. Yes. Could you please explain to us how the sovereignty is

25 structured, to whom belongs the sovereignty under the federal

26 constitution of 1974?

27 A. OK. I think that in looking at sovereignty decision, it is

28

1 important to consider what the state is there to do, to whom

2 does the state belong? For example, the United States is

3 considered to be a state of equal citizens, and this is implied

4 in the preamble, "We, the people". When we look at the Yugoslav

5 federal constitution of 1974, we find a form of dual sovereignty

6 in which the state is there to serve, to advance the interest,

7 to represent the interests of, on the one hand, the nations and

8 nationalities of Yugoslavia and, on the other hand, the working

9 class and all working people, remembering that this is very much

10 of a socialist constitution. It is designed to set up a

11 socialist state and a socialist state is there to serve the --

12 to advance the interests of the working class and all working

13 people.

14 Q. If you refer to the nations and nationalities of Yugoslavia,

15 could you please explain to us how this relates to the

16 expression you just explained to us of the word "narod"?

17 A. "Narod" has the connotations that are in the English

18 word "ethnic group". This is why I say it is related to the

19 verb "to give birth". So that the phrase "nations and

20 nationality", "narodi, narodnosti", is universally taken, simply

21 understood to mean, on the one hand, the "narodi", the "narods",

22 the state forming nations, the Croats, Serbs, Slovenes, Muslims

23 Montenegrins and -- who did I miss -- and, on the other hand,

24 the "narodnosti" which would be minority groups in English

25 parlance, such as Albanians, Hungarians, peoples who had a state

26 of their ethnic group outside of Yugoslavia.

27 Q. Are you talking about state forming nations, do I understand

28

1 well if these are basically ethnical groups?

2 A. We would certainly define them that way in English. One is a

3 Serb through birth or a Croat through birth or a Slovene through

4 birth.

5 Q. Professor Hayden, does or perhaps I should say did the 1974

6 constitution contain any provisions on the equality before the

7 law of all citizens?

8 A. It does, but I -- would it be useful if I were to take a look at

9 some of the clauses in the federal constitution that indicate

10 the .....

11 MR. ORIE: Perhaps I will first ask your Honours: Professor Hayden

12 has some of the Exhibits already in front of him and made some

13 notes in order to find easier his way through. I do not think

14 that would be a problem, but if it would, I would like to know.

15 THE PRESIDING JUDGE: Those are exhibits that have been offered by

16 the Prosecutor?

17 MR. ORIE: Mainly exhibits offered by the Prosecution, but in order

18 to find his way through rather complicated exhibits that will be

19 presented later on, he will have copies of these exhibits as

20 well.

21 THE PRESIDING JUDGE: There is no problem with him referring to

22 notes. I suppose if he is going to refer to an exhibit, though,

23 that is not in evidence, he should tell us that and then it

24 should be marked and admitted as an exhibit.

25 MR. ORIE: No, no, it is just finding his way through numbers, etc.,

26 perhaps dates. (To the witness): Could you tell us in what

27 provisions you find these equality provisions?

28

1 A. The equality provisions of the federal constitution, I believe

2 article, as I recall, I think it is 154, "Citizens shall be

3 equal in their rights and duties regarding their nationality,

4 race, sex, language, religion, education and social status. All

5 shall be equal before the law", and I believe 249, if I can find

6 it .....

7 THE PRESIDING JUDGE: Dr. Hayden, we have the same problem going

8 through mounds of exhibits we have, so take your time.

9 THE WITNESS: 244, 245, I am getting close, 249. Right, "Yugoslav

10 citizens shall" ----

11 MR. ORIE: Professor Hayden, if you read these parts I hear that some

12 people here at least have some problems in following you because

13 of the speed.

14 A. Right, I am sorry. It is also particularly a problem for the

15 translators, I know. "Yugoslav citizens shall have a single

16 citizenship, that of the Socialist Federal Republic of

17 Yugoslavia. Every citizen of the Republic shall simultaneously

18 be a citizen of the Socialist Federal Republic of Yugoslavia",

19 but I think most importantly in this context, "Citizens of a

20 Republic shall on the territory of another Republic have the

21 same rights and duties as the citizens of that Republic", of the

22 said Republic.

23 Q. Professor Hayden, were any substantial amendments adopted to

24 this 1974 constitution?

25 A. Yes, a number of important amendments were made to the 1974

26 constitution. In 1988, what happened was that throughout the

27 1980s the Yugoslav Federation was going through a period of

28

1 protracted economic crisis that brought about a crisis of the

2 peculiar, certainly unique, system of socialist self-management

3 that had been created in Yugoslavia and embodied in the 1974

4 constitution.

5 I would prefer not to give a lecture on Yugoslav

6 self-management today, but I would simply say that the 1974

7 constitution contained a great deal that was devised of many

8 provisions, many articles were there to structure the socialist

9 self-management economy. In 1988, amendments were passed and

10 there were two sets of issues. One of such issues had to do

11 with the nature of socialist self-management. The other set of

12 issues had to do with the nature of the relations within the

13 Yugoslav Federation. There had been a certain amount of

14 academic writing and some political discussion about the

15 inefficacy of the Yugoslav Federation which did not, for

16 example, have anything comparable to the commerce clause of the

17 US constitution.

18 So that, on the one hand, there was seen to be a need

19 to revise the constitution, to remove the structure of Socialist

20 self-management -- and, of course, many laws would be amended in

21 this way too -- and, on the other hand, there was a need felt by

22 some analysts and politicians to strengthen the structure of the

23 Federation as a Federation. It was a very weak Federation in

24 constitutional terms.

25 In 1988, a quite massive set of amendments was passed

26 to the federal constitution. I think there were approximately

27 30 amendments, and they mainly had to with -- in fact, they

28

1 almost exclusively had to do with removing the socialist

2 self-management system that was seen to be a failure in economic

3 terms. Proposed amendments to the strengthen the federation did

4 not at that time pass.

5 One of the effects of the amendments was to drop many

6 references, all of the references, I think, in fact, to the

7 working class and the working people that had been strewn

8 throughout the 1974 constitution. If I may show you a bit of

9 what I mean? I have brought a marked up copy of the

10 constitution, but I would like to refer -- this is Exhibit

11 19 -- to show what you mean about the ways that sovereignty, the

12 point that the state was divided ----

13 Q. Perhaps, Professor Hayden, if you are referring to one of the

14 Exhibits, and we are talking about ----

15 A. About 19.

16 Q. --- Exhibit 19, perhaps it could be put on the screen and if you

17 point at any particular part out of it that we see it on the

18 screen so that it is better ----

19 A. Would anyone like to help me with this?

20 THE PRESIDING JUDGE: I think so. Professor Hayden, with respect to

21 the socialist self-management, are you referring to the

22 management by the individual republics that was occurring under

24 so as to have more control over the republics, and give the

25 republics less autonomy?

26 THE WITNESS: Well, no, not exactly. The socialist self-management

27 system -- you know, we could go into this very deeply but I am

28

1 not sure that you would want to.

2 THE PRESIDING JUDGE: You said you did not want to -- no.

3 THE WITNESS: The socialist self-management system was Yugoslavia's

4 unique contribution to socialist theory. This was what set

5 Yugoslavia off conceptually from the East European communist

6 countries, and immediately after Stalin in 1948 the idea was to

7 take seriously the view that workers should manage their own

8 affairs under self-management. It was a very curious system.

9 Business organisations were broken up into basic organisations

10 of associated labour, which might be one workshop in a factory

11 might be a basic organisation of associated labour and another

12 workshop would be another basic association of associated

13 labour. They would form a combined organisation of associated

14 labour, and within these basic organisations the workers would

15 meet, would have workers' meetings, that was a Workers' Council,

16 and they would discuss matters. It was a quite extraordinary

17 system that I do not think has been matched anywhere else, and

18 the conclusion was reached in the 1980s that it did not work.

19 Is that enough?

20 THE PRESIDING JUDGE: I think that is enough. I was focusing on

21 something else. I may be wrong then about the effect of the 74

22 constitution.

23 A. Well, for these purposes ----

24 MR. ORIE: Professor Hayden, I think you were at a point of

25 indicating to us, perhaps giving just a few examples, of how

26 these amendments would change the constitution.

27 A. Well, I have marked quite a few, and maybe I do not have to,

28

1 this is actually a photocopy of Exhibit 19 that I have made.

2 The reason I did so was that I marked certain passages so that

3 they would be easy to find.

4 Q. If you could give just a few examples instead of having another

5 Exhibit. The text is the same?

6 A. It is the same, and if you would look on page 6 of Exhibit 19.

7 Q. Could page 6 be shown?

8 A. Put page 6 on. If we look here you will see: "The working

9 people and the nations and nationalities shall exercise their

10 sovereign rights". Now, this is a type of formulation that we

11 find strewn throughout the document, "the working people and the

12 nations and nationalities". Similarly, in the next paragraph:

13 "The working people, nations and nationalities". These are

14 examples of what I meant by the dual sovereignty.

15 If we turn to page 15 of this -- and I really will not

16 go through all the ones that I marked -- here: "In the

17 Socialist Federal Republic of Yugoslavia all power shall be

18 vested in the working class in alliance with all working people

19 in towns and villages". This is a very ideological

20 constitution.

21 Similarly, page 21, right under VI, the Roman VI:

22 "The working people and citizens, nations and nationalities of

23 Yugoslavia are determined to", so this is an expression of who

24 was the principal political -- who are the principal political

25 actors in this state.

26 Similar constructions are found throughout this

27 constitution. I can point them out, if you wish. What happened

28

1 with the amendments, among other things, the amendments in 1988

2 was that these references to the working class and all working

3 people were dropped from the constitution to remove the

4 socialist ideological structure from the constitution.

5 Q. Apart from these references to the working class, you mentioned

6 two aspects, the other one was some political attitude changing,

7 change in political positions. could you relate this in any way

8 to the -- let me first ask were these changes in the minds of

9 politicians of a nationalistic character or not?

10 A. Yes. Throughout the 1980s, what began as an economic crisis, in

11 the early 1980s, came to be a political crisis. There was

12 increasingly the perception that the economy was failing, not

13 only because the socialist self-management system was cumbersome

14 and inefficient, but of course European socialism was undergoing

15 profound crises at the time. Yugoslavia, while not officially a

16 one party state, effectively was one under the League of

17 Communists of Yugoslavia, and there was increasing discussion

18 throughout Yugoslavia in the 1980s of the need to reform the

19 political system.

20 What began in the early 1980s as demands for the

21 reform of the political system -- I could cite books by

22 well-known scholars and others who argued for this -- came as

23 the 1980s progressed to be increasingly demands for moving away

24 from the one party system under the control of the League of

25 Communists of Yugoslavia.

26 I should say, by the way, that in the 1974

27 constitution the leading role of the League of Communists of

28

1 Yugoslavia had been pointed out. This was also removed in

2 1988. What would follow communism? What would follow state

3 socialism? There was a tendency in the western world to look,

4 to take seriously primarily those who said that they wanted to

5 replace communism with a civil society and western style

6 democracy. However, throughout this period increasingly

7 opponents of socialism were putting forth nationalist ideas.

8 Q. Could I please ask you, talking about nationalist, could you

9 please explain what you understand exactly under these

10 circumstances under nationalism?

11 A. The basic principle of nationalism, as I am using it here, is

12 the idea that each nation, ethnically defined, should have a

13 state. You might view the nation as the group, the state as the

14 territory and the government. This is a classic central

15 European formulation since for the last 200 years this nation

16 state idea does not work very well in English, in part because

17 we have a different emphasis on the word "nation". For example,

18 in American terms, if we say the president addresses the nation,

19 he is addressing all the citizens of the country. But if we

20 say, the President of Croatia, for example, is addressing the

21 nation, he is addressing Croats and he makes this very clear in

22 his form of address.

23 The idea of nationalism is that the nation, the Croats

24 or the Slovenes or the Serbs or the Macedonians or the

25 Montenegrins should have the state, that they should be

26 sovereign in their own state.

27 Q. Was this development only on the federative level or would you

28

1 find the same in the republics as well?

2 A. Well, it was not really on the federative level, and this was

3 why you did not get amendments to the federal constitution in

4 1988 that would have given any authority to the federal

5 government to regulate, for example, economic transfers.

6 Part of the nationalist idea was that this group, this

7 nation -- and when I am using "nation" here, it has the ethnic

8 connotation -- that this ethnic group would be sovereign in its

9 own state, and sovereignty was interpreted as meaning that it

10 could not be subordinated to any other structure specifically

11 and including specifically the federal structure of Yugoslavia.

12 Q. Professor Hayden, I would like to present a document to you

13 together with an English translation of this document.

14 THE PRESIDING JUDGE: How is that marked, Mr. Orie? Is that going to

15 be an exhibit of the Defence?

16 MR. ORIE: I would like to tender that document after Professor

17 Hayden has explained what it is, your Honour.

18 THE WITNESS: Right. This is -- it is called "The Hero". It is in

19 Slovenian and it is a photocopy of the Journal of the Assembly

20 of the Socialist Republic of Slovenia and the Assembly of the

21 Socialist Federal Republic of Yugoslavia for parliamentary

22 groups and delegations. In other words, it is a Slovenian

23 parliamentary document.

24 Q. I tender that document as exhibit D41. I would like to tender

25 it as D41A and the translation as D41B, your Honour.

26 THE PRESIDING JUDGE: Any objection?

27 MR. NIEMANN: Excuse me, your Honour. We do not have the

28

1 translation, your Honour.

2 THE PRESIDING JUDGE: B is the English translation?

3 MR. ORIE: B is the English translation, your Honour.

4 MR. NIEMANN: No objection, your Honour.

5 THE PRESIDING JUDGE: No objection. Defence Exhibit 41A and B will

6 be admitted.

7 MR. ORIE: Your Honour, I would like to explain the translations were

8 ready only at a very late stage. That is the reason why there

9 might be some difficulties in providing the Prosecution with the

10 translations, although the original ones have been presented to

11 them earlier.

12 THE PRESIDING JUDGE: That is fine. Maybe at the recess at 4.00 you

13 have some English translations.

14 MR. ORIE: Yes, then we will give them to the Prosecution.

15 Perhaps, Professor Hayden, could you explain whether

16 in this Exhibit these nationalist thoughts have been reflected

17 in this constitution?

18 A. OK. Let me say that you can see the date on the document. On

19 the translation it says 17th July 1989, and these are proposed

20 draft amendments to the constitution of Slovenia. This was done

21 because the federal constitution had a clause that said that

22 Republican constitutions could not be contrary to the federal

23 constitution, unless when the federal constitution was amended

24 it became necessary to amend the Republican constitutions, all

25 of which had contained the socialist self-management structures

26 that had now been taken out of the federal constitution.

27 This was part of the process of amending the Slovenian

28

1 constitution. What we have here is several aspects of these

2 amendments, and I think we will cover some of them later, that

3 could be seen as nationalistic, but part of what is interesting

4 here is this amendment 43(C) as presented in this document.

5 Q. Perhaps we could have that on the screen, if possible?

6 A. This was a very curious provision at the time that it was

7 introduced. You see, it refers to the Italian and Hungarian

8 minorities as autochthonous, if I pronounce that correctly,

9 autochthonous minorities.

10 In the late 1980s in Slovenia, the idea of

11 nationalism, that Slovenia should be a state for Slovenes, often

12 took the form of expressions of hostility to the roughly 12 or

13 14 per cent of population of Slovenia who were not ethnic

14 Slovenes and who were from other parts of the former

15 Yugoslavia. Politely, they were referred to by the German term

16 of Gastarbajteri, gas workers, or as southerners, Juznjaci.

17 There were much less complimentary terms used for them. You

18 might regard it as being comparable in many ways to the types of

19 disparaging comments that are made about Turks, for example, in

20 Germany.

21 It was very curious when the Slovenes amended their

22 constitution that they would suddenly proclaim autochthonous

23 minorities. This was a phrase that was certainly new to

24 Yugoslav constitutional discourse to proclaim a group of people

25 to be autochthonous minorities and, on that grounds, to

26 guarantee them the right freely to use their language, express

27 and develop their natural culture, etc. etc.

28

1 This document, as you see, goes on and there are

2 justifications about this. What is interesting about it is that

3 by distinguishing between the autochthonous minorities and other

4 minorities within Slovenia, this provision seemed to give

5 superior rights to these autochthonous minorities to the

6 detriment of minorities who were not of the Italian and

7 Hungarian groups.

8 I should say that, in terms of numbers, the Italian

9 and Hungarian minorities in Slovenia are (and were in 1989 and

10 are now) of minimal importance. You are talking, I do not know,

11 perhaps 20,000 or maybe 30,000 people out of a population of

12 approximately 2 million. So that there was a great deal of

13 symbolism involved in this. It was thus interpreted by the

14 members of other Yugoslav nations living in Slovenia, not

15 Slovenes and not Italian and Hungarian autochthonous minorities.

16 It suddenly seemed to be put in a rather ambiguous and

17 anomalous, in terms of the federal constitution, provision.

18 Q. Do you say that this was not in concordance with the federal

19 constitution and could you explain that more precisely?

20 A. Well, certainly the federal constitution, if you recall, there

21 was Article, was it, 249 that said that citizens of one Republic

22 on the territory of another Republic would have equal rights to

23 the citizens of that Republic. You did have these equal

24 protection clauses, and this seemed to be brought into question

25 by the political discourse going on in Slovenia at the time

26 which was, frankly, growing increasingly hostile to

27 non-Slovenes, and by this sudden constitutional effort to

28

1 privilege the minimal autochthonous minorities as composed --

2 I am sorry, as compared with whom, well, as compared with the

3 other non-Slovenes in Slovenia.

4 Q. Professor Hayden, you earlier referred to Article 246. In your

5 reference you just made to 249. Was this a mistake or did you

6 really intend to refer to another Article than you did before?

7 A. You know, I would have to bring back Exhibit 19 and clarify it,

8 but I was referring to the Article, the second Article, that I

9 read under equal protection, the one that dealt primarily with

10 citizenship, but that also said -- we had both Articles, we had

11 an equal protection clause and that is 154 and then we had -- it

12 has been my professional misfortune to have to deal with the two

13 longest constitutions in the world, that of Yugoslavia and that

14 of India, both of which were amended many times.

15 Q. The question was 246 or 249?

16 THE PRESIDING JUDGE: He said 249.

17 MR. ORIE: He said 249, but his earlier reference was 246, I think.

18 THE WITNESS: Well, yes, 246, I may well have referred to (or should

19 have) because 246 which is, fortunately, on the same page or

20 facing, referring to "... the languages of the nations and

21 nationalities and their alphabet shall be equal throughout the

22 territory of Yugoslavia". This principle on the equality of

23 languages, and then we have 249: "Citizens of Republics shall

24 on the territory of another Republic" ----

25 Q. You might have a different idea of speed, Professor Hayden, but

26 I have some difficulties in following you when reading.

27 A. I am sorry. OK. 246 is, I believe, relevant because it does

28

1 refer to a provision for equality of the languages and alphabets

2 of the nations and nationalities as being equal throughout the

3 territory of Yugoslavia. We may see a bit later that some of

4 the Slovenian amendments had to do -- potentially violated this

5 provision as well. Then, of course, Article 249, that "Citizens

6 of a Republic shall on the territory of another Republic have

7 the same rights and duties as the citizens of that Republic".

8 This seemed to be brought into question in Slovenia with the

9 arrival of this amendment, 43(C).

10 Q. Professor Hayden, I would like to show you another document.

11 THE PRESIDING JUDGE: One of our French interpreters is from

12 [Redacted] so I know that he is keeping up with the witness,

13 unless he is having a problem with his northern accent.

14 MR. ORIE: Could you please tell us what this Exhibit is, what this

15 document is, Professor Hayden?

16 A. This document is the constitution of the Socialist Republic of

17 Croatia of 1974.

18 Q. In which language?

19 A. It is in Serbo-Croatian or Croatian.

20 Q. Is there a translation attached to it?

21 A. There is a constitution -- there is a translation accompanying

22 it, yes.

23 Q. I am afraid I gave you all four or five copies?

24 A. You gave me everything, yes.

25 Q. Would you just take the original text and the translation and

26 please return the other ones.

27 A. All right. Yes, there is a translation, the

28

1 constitution -- well, this is from a volume that was simply the

2 collected constitutions of the Socialist Federal Republic of

3 Yugoslavia and of the Republics and of the autonomous

4 provinces. It was published in Belgrade in 1974. We have a

5 translation of Article 1 of the constitution of Croatia of

6 1974.

7 MR. ORIE: I tender that document as Exhibit 42A for the original

8 language and B for the translation of Article 1, your Honour.

9 THE PRESIDING JUDGE: Mr. Niemann, do you have 42B yet, the English

10 translation?

11 MR. NIEMANN: No, your Honour, we do not have the English

12 translation.

13 THE PRESIDING JUDGE: Usher, would you come, please, and pick up one

14 of the English translations? (Handed).

15 MR. ORIE: I would like to present another document to you. It is in

16 the English language, so no problem with translation.

17 MR. NIEMANN: We have no objection, your Honour.

18 THE PRESIDING JUDGE: No objection? Defence Exhibit 42A and B will

19 be admitted.

20 MR. ORIE: Professor Hayden, could you tell us what document this is

21 in the English language?

22 A. Right. This is the preamble and the first four Articles of the

23 constitution of Croatia of 1990. It comes from a volume

24 published by the Parliament of the Republic of Croatia, the

25 Sabor, that I obtained in Zagreb from officials of the

26 government of Croatia.

27 MR. ORIE: I tender that document, your Honour, as Exhibit 43,

28

1 Defence Exhibit 43.

2 THE PRESIDING JUDGE: Any objection?

3 MR. NIEMANN: No, your Honour.

4 THE PRESIDING JUDGE: Exhibit 43 will be admitted.

5 MR. ORIE: Professor Hayden, could you explain to us, reading these

6 Articles, how the 1974 constitution of Croatia was changed in

7 1990?

8 A. Yes. If you look at Article 1 of the 1974 constitution ----

9 Q. Perhaps it could be shown on the screen?

10 A. You will see the -- do you have it -- you see the normal

11 rhetoric of Yugoslav constitutions in 1974 at the time of

12 self-management socialism: "The Socialist Republic of Croatia

13 is a state based on the sovereignty of the people, the authority

14 and self-management of the worker class and all working people,

15 is a socialist self-management democratic community of working

16 people and citizens in equal nations and nationalities".

17 The next line is of interest. It says: "The

18 Socialist Republic of Croatia is a national state of the

19 Croatian people" -- and "Croatian people", this is a translation

20 of "Hrvatski", which is Croat, "Narod", a term that I

21 have discussed earlier -- "a state of the Serbian people in

22 Croatia and a state of the nationalities living within it".

23 This formation recognises the importance to the Serbs

24 of Croatia, who were the largest group in Croatia who were not

25 ethnic Croats, and who regarded themselves or wished to be

26 regarded as having a status equal to that of Croats in a

27 political sense. So they are included here ahead of the

28

1 nationalities. This also reflects the Yugoslav structure at the

2 time between the state forming nations, the narodi, narods -- if

3 I can put an English plural on a Serbo-Croatian word -- and the

4 narodnosti, the nationalities, and it is clear that,

5 constitutionally, the narodi, narods, are privileged in a sense,

6 political sense, over the nationalities.

7 If we would look at the next document, the

8 constitution of the Republic of Croatia of 1990, I should say

9 that immediately after taking power in 1990, the frankly

10 nationalist Croatian government that was elected in 1990, the

11 government of the Croatian Democratic Union, or HDZ (as I think

12 it has been identified in documents here), amended the

13 constitution to put Serbs on the level of the other minorities.

14 That was in, I believe, June or July of 1990, but since a whole

15 constitution was passed in December 1990, it brought a new

16 constitution.

17 This preamble is rather interesting. It is the

18 longest preamble, I think, in the Republics of the former

19 Yugoslavia. It is an interesting history lesson that also

20 establishes the identity of the state. If you look at these

21 historical foundations, the milliennia national identity of the

22 Croatian nation, Hrvatski narod, Croat narod, continuity of its

23 statehood, if you read down this, these historical foundations

24 had to do with the Croat nation.

25 If I may remove it for a minute, it is a little hard

26 to -- right, it figures, it is at the bottom of the page which

27 barely fits here. OK. The last paragraph here, "Proceeding

28

1 from the above presented historical" -- well, look in the

2 paragraph above that: "The historic turn point marked by the

3 rejection of the communist system and changes in the

4 international order in Europe, the Croatian nation" -- this is

5 the narod, this is Hrvatski narod, "reaffirmed at the first

6 democratic elections by its freely expressed will" -- this is

7 the will of the Croatian nation, the Croat narod -- "its

8 millennia statehood and resolution to establish the Republic of

9 Croatia as a sovereign state", and then: "Proceeding from the

10 above presented historical facts, in referring to the right of

11 the Croatian nation, Hrvatski narod, Croat narod, to

12 self-determination in state sovereignty, the Republic of Croatia

13 is hereby established as the national state of the Croatian

14 nation and a state of members of other nations" -- going down

15 the page -- "and minorities who are citizens, Serbs, Muslims,

16 Slovenes" etc. and others "who are guaranteed equality with

17 citizens". But this was considered to be an important symbolic

18 change.

19 The preambles in these constitutions have enormous

20 symbolic value. Even though lawyers tend to regard preambles as

21 not been being in the operative parts of constitutions, they

22 have enormous symbolic value. One of the ways that you see

23 this, of course, is that the right to self-determination in the

24 Yugoslav federal constitution of 1974 (which was discussed when

25 Dr. Gow testified) was mentioned only in the preamble. It was

26 not part of the operative sections of the constitution, but it

27 had enormous symbolic value. There is a great deal of symbolic

28

1 value here in taking the Serbs from a position that is a bit in

2 front spatially and politically of the minorities in putting

3 them into this same rung.

4 Q. Professor Hayden, I would like to present another document to

5 you.

6 THE PRESIDING JUDGE: That preamble also noted that there was a right

7 of secession. Are you going to talk about that at some point?

8 THE WITNESS: Well, I certainly can. You see this being asserted in

9 the Croatian constitution. Yes, it is at the bottom of the

10 left-hand column.

11 MR. ORIE: I am afraid that you are now quoting from the document

12 that has just been given to you -- no, sorry. I am mistaken,

13 your Honour.

14 THE WITNESS: No, I am referring to the Republic of Croatia. Yes,

15 including "the inviolable right to secession and association".

16 The association here was taken to mean association with other

17 nations. That is what "association" here means. Yes, this is

18 being proclaimed in the Croatian constitution. Now, remember,

19 in the federal constitution it is a very disputed issue because

20 the right to secession is mentioned only in the preamble, and in

21 the operative part there is a provision that says that the

22 external borders of Yugoslavia could be changed only with the

23 unanimous consent of all the republics.

24 So, is this in accordance with the federal

25 constitution? Well, it is hard to tell, but I think when we are

26 looking at these preamables we are looking at symbolic

27 statements that in many ways overtake in importance the

28

1 operative parts of the constitutions themselves.

2 MR. ORIE: Professor Hayden, if you would look at the document I just

3 presented to you, could you first tell us what it is?

4 A. Yes, it is a copy of one page in an American journal called

5 "Problems of Post Communism", page 26 of the edition of

6 September/October 1996.

7 MR. ORIE: I tender that document, your Honour.

8 THE PRESIDING JUDGE: What Exhibit number?

9 MR. ORIE: That is Exhibit 44, if I am not mistaken.

10 THE PRESIDING JUDGE: Any objection?

11 MR. NIEMANN: We do not have it, your Honour.

12 THE PRESIDING JUDGE: 44 will be admitted.

13 MR. ORIE: Professor Hayden, without going through the whole left

14 part of the page, could you please tell us what it represents,

15 what it contains?

16 A. OK. I should say that this is actually a page from an article

17 of mine that was supposed to appear on 1st September and had not

18 appeared, and so that this was actually sent to me by the

19 publisher at my request. What we are interested in are the

20 materials in the box on the left-hand side of the page and these

21 are -- are we OK?

22 MR. NIEMANN: Your Honour, I indicated I did not have a copy of it.

23 Your Honour, in due course might the Defence provide us with the

24 entire article rather than just the page?

25 THE PRESIDING JUDGE: I think so. You should provide them with the

26 entire article. But it is two minutes before 4.00, we normally

27 recess at 4.00, so we will recess now and, Mr. Orie, would you

28

1 provide the Prosecution, please, with a copy of all of the

2 Exhibits that you intend to offer to this witness, if you have

3 them? If they are just missing the English translation, give

4 them that, but if you are going to offer one page of an article,

5 they should have the entire article.

6 MR. ORIE: Your Honour, specifically I will try to have all documents

7 in full detail. This is, as a matter of fact, just, I do not

8 know how to say it in English, it is just quoting from several

9 constitutions, a survey. I will not go into the text of the

10 article, but I will just refer to that part that gives

11 quotations of all constitutions of the Republics rather than

12 going into the line of reasoning in the article.

13 THE PRESIDING JUDGE: If you are going to use a part of a document,

14 it seems to me that the opposing side is entitled to the entire

15 document. I do not think it should be a problem. I am sure

16 Professor Hayden has it with him.

17 THE WITNESS: Actually, your Honour, I am afraid I do not. This was

18 the problem. I had sent back the page proofs. They had assured

19 me that the issue would appear. The issue did not appear. All

20 that I am going to discuss -- I use this because it put in one

21 easily accessible place the preambles to the constitutions. So,

22 literally, all we are going to discuss are these constitutional

23 excerpts. We are not going to discuss the insides of the page

24 which I wrote and it will not be discussed.

25 MR. NIEMANN: In that event, we have no objection.

26 THE PRESIDING JUDGE: No objection. Exhibit 44 will be admitted and

27 we will stand in recess for 20 minutes.

28

1 (4.00 p.m.)

2 (Short adjournment)

3 (4.20 p.m.)

4 THE PRESIDING JUDGE: Mr. Orie, you may continue.

5 MR. ORIE: Thank you, your Honour. Professor Hayden, after having

6 pointed out to us that this nationalist tendency was reflected

7 in the amendment to the Slovenian constitution and the

8 amendments to the Croatian constitution, could you please put on

9 the screen the document I just gave to you -- you said it was an

10 article of yours that has not yet been published -- and explain

11 to us, perhaps, by pointing to a few examples, what is on the

12 left-hand side of that page?

13 A. OK. What I have done here is make a selection of the text from

14 the current constitutions or, at least, at the time that I wrote

15 the article they were current, excerpts from the constitutions

16 of the post Yugoslav republics, looking at the formulation of

17 whose state it is. You will see there is a common pattern.

18 Again we can see with Croatia, the inalienable right to

19 self-determination and state sovereignty of the Croatian nation,

20 Hrvatski narod. Macedonia refers to the heritage of the

21 Macedonian nation and their struggle for the creation of their

22 own state. Montenegro, the right of the Montenegrin nation to

23 its own state. Serbia, the struggle of the Serbian nation for

24 independence and the determination to establish a democratic

25 state of the Serbian nation. It continues. You see similar

26 formulations for Slovenia, the right of Slovene nation to

27 self-determination and the fact that they have established their

28

1 own statehood. Finally, the Republic of Serbian Krajina in the

2 1991 constitution, referring to the right of the Serbian nation

3 to self-determination and establish a democratic state of the

4 Serbian nation on its own historical and ethnic space, and a

5 similar formulation in the Republika Srpske or Serbian Republic

6 from 1992.

7 So, there is a pattern here consistently in these

8 constitutions. The formulation is that the state belongs to the

9 narod, which is, in American terms, an ethnic group. This is a

10 formulation that may seem symbolic and in most or if not all of

11 these constitutions there are passages in the operative parts

12 that refer to equal rights etc.

13 However, if you could envision a situation in which

14 the preamble of the American constitution would be amended so

15 that instead of reading "We, the people of the United States",

16 it were to read "We, the white protestant people of the United

17 States", or the constitution of India to be amended so that the

18 preamble would read, instead of "We, the people of India", it

19 would read, "We, the Hindu people of India", and imagine the

20 interpretations that would be given to an equal rights clause by

21 governments that would make such a change, I think you may have

22 a better grasp of the symbolism involved in these constitution

23 formulations.

24 Q. Professor Hayden, I do not see the Bosnia-Herzegovina, we might

25 go into that later perhaps more in detail, but I do not see it

26 in there.

27 A. Yes, the problem in Bosnia and Herzegovina in this regard has to

28

1 do with the nature of Bosnia and Herzegovina. In all of these

2 other examples, you do have a majority narod in Slovenia,

3 Croatia, Serbia, Montenegro, Macedonia, but in Bosnia and

4 Herzegovina there was no majority narod. By 1991, the largest

5 group were the Muslims and Muslim here is a narod. It is not

6 simply a religious affiliation. It is a narod in Yugoslav

7 terms. 44 per cent followed by Serbs as, I think, 31, Croats at

8 17, Yugoslavs and others. So there is no majority narod here to

9 whom you can assign sovereignty.

10 Q. I will go into that perhaps later on in more detail, Professor

11 Hayden.

12 THE PRESIDING JUDGE: Can I just ask one question, please, regarding

13 this?

14 MR. ORIE: Yes, of course, your Honour.

15 THE PRESIDING JUDGE: You say Muslim is a narod, but then you

16 describe "narod" as "given birth to". Earlier you said that,

17 for example, people who were given birth to in Serbia would

18 considered themselves Serbian; is that not so?

19 THE WITNESS: It is not quite so, your Honour, because one may be an

20 ethnic Serb, no matter where one is born. I mean, one may be an

21 ethnic Serb and be born in Chicago or Botswana, if one is born

22 to Serbian parents and, specifically, a Serbian father.

23 Q. Meaning a father born in Serbia?

24 A. No, meaning a father who is, in American terms, an ethnic Serb.

25 This is ascribed identity, just as one may be an ethnic German,

26 of ethnic German parentage, in Romanija for 500 years, a group

27 in Romanija called Saxons, or Germans in Solezia(?) in Poland.

28

1 This European concept of nation is a bit different from the

2 American concept and it makes it a bit hard to talk about.

3 Just if I can try one more example: We now have in

4 Germany the second, third, maybe even fourth, generation of

5 Turks who are born -- maybe born in Germany, may in fact be

6 monolingual speakers of German, but are not considered by the

7 German to be German. They are considered to be Turks. In

8 Yugoslav terms, they would be members of the Turkish narod, as

9 opposed to the German narod.

10 Q. But "narod" means nation, occasionally a people, but most

11 closely to the verb meaning "to give birth". So that if Muslim

12 is narod, you say that Muslim is a narod, how can you determine

13 that then? Were not the Muslims given a state earlier and is

14 that a possible way to consider Muslims as an ethnic group as

15 opposed to a religion?

16 A. The religion in this case identifies the ethnic group. This is

17 not unusual in Yugoslavia. In fact, by now the definitive

18 division between Serbs and Croats is that Serbs are orthodox

19 Christians. One does not have to be a believer, of course. I

20 mean, if your parents are Serbs, you are a Serb. If your

21 parents are Muslim, you are a Muslim. Whether or not you go to

22 church or go to the mosque is really irrelevant. This is an

23 ascribed status. It is not unique in the former Yugoslavia.

24 Muslim as an ethnic group in this sense could be found, for

25 example, in Sri Lanka with a largest group are Sinhalise

26 followed by Tamils, but there is a group of Muslims who are

27 actually speakers of Tamil, but are not regarded by the Tamils

28

1 as being Tamil.

2 The population that speaks what I learned as

3 Serbo-Croatian is divided among Serbs, Croats and Muslims

4 primarily and these are, in American terms, ethnic groups. The

5 Muslims as a narod did not have that constitutional status until

6 1971, as I recall.

7 Q. The constitutional status then came from what, the fact that

8 they were recognised as a state in a constitution?

9 A. No, they were recognised as a constituent nation, as one of the

10 narodi of Yugoslavia. This is a Yugoslav constitutional

11 distinction that I think Professor Gow also talked about. It is

12 the distinction between the narodi, narods, and narodnosti,

13 nationalities. The narods are the groups, the Serbs, Croats,

14 and after '71 Muslims, Slovenes, Montenegrins, Macedonians, who

15 are the state-forming people. The narodnosti are minorities

16 whose, if you will, mother state or the state of their narod

17 group is another state. Hungary, for example; the Hungarian

18 minority in Serbia or in Slovenia would be a narodnos because

19 there is a Hungarian state.

20 Much of central Europe has to grapple with these

21 questions of having what are, in Yugoslav terms, narod, denarods

22 and narodnosti, and some of the tensions in central Europe come

23 from this. For example, several years ago the President of

24 Hungary said that he was not only President of Hungary, he was

25 President of all Hungarians. Well, there are a substantial

26 number of Hungarians in Romanija and the Romanijan government

27 was not overly pleased with this pronouncement by the President

28

1 of Hungary.

2 Q. I apologise for asking so many questions. I guess, Professor

3 Hayden, you have come to testify after so many months and we

4 have heard testimony about whether it is religion or ethnicity.

5 There has been some literature to suggest that all are the same

6 ethnicity, that is, Slavs. But I think that what you are saying

7 is that it is a state-forming people, at least narod, and in

8 that respect you can consider Muslims to be a separate ethnic

9 group?

10 A. Yes, very much so and, of course, they all consider themselves

11 to be of these groups. As I say, one is born into this group,

12 and whether or not one is a practising Muslim or believing

13 Muslim is absolutely irrelevant to one's identity as a member of

14 the Muslim narod. Obviously, questions arise when you have

15 mixed marriages and those questions do arise. That is also in

16 many ways a quite modern phenomenon.

17 JUDGE STEPHEN: Could I ask you a question? I do not know whether

18 you know the answer to this. But, identification cards, do they

19 customarily or did they customarily in 1990, for instance,

20 indicate the particular ethnic group or narod?

21 A. I do not believe that the identification cards at that time did

22 so. You will see later that, however, in Bosnia and Herzegovina

23 the status of narod was extremely important in a constitutional

24 sense, so that the candidates for the elections in Bosnia in

25 1990 were all identified by their status as narod.

26 I should say that one would declare this. You could

27 declare -- you would declare your own identity at the time of

28

1 the census, for example. So that you could declare yourself to

2 be a Serb or a Croat or a Muslim or a Yugoslav, and it was these

3 self-ascribed identities that were listed in the Bosnian

4 elections in 1990. But, as you will see later, these

5 identifications have constitutional importance in Bosnia and

6 Herzegovina.

7 Q. Then following that up, if someone had no religious beliefs, as

8 certainly was the case with a number of the population of

9 Yugoslavia in 1990, was there any difficulty at all in

10 transforming yourself from a Muslim to a Serb, assuming that you

11 were moving to a different part of Bosnia-Herzegovina; the

12 language would be identical, in every respect you would appear

13 to be one of an undifferentiated mass, would you not?

14 A. Well, not necessarily exactly. For one thing, personal names

15 are often indicative. In terms of languages, dialects of any

16 language are primarily regional, so that everyone from Sarajevo

17 would speak a Sarajevo dialect, Serbs, Croats and Muslims, you

18 would be identified as a Bosnian. But it would have been

19 unlikely that one would take, if one were a Muslim, that one

20 would then present oneself as a Serb. It would be much more

21 likely that if one did not feel oneself to be a Muslim that you

22 would take the -- proclaim the identity of Yugoslav. In fact,

23 this was one of the options on the census forms and the number

24 of self-identified Yugoslavs rose through the census of 1981 and

25 then dropped dramatically in the census taken at the beginning

26 of April in 1991 when it suddenly did not seem very wise to

27 declare oneself as a Yugoslav.

28

1 Q. Then what of Bosniacs? If you were a Muslim, it was fashionable

2 to call yourself Bosniac?

3 A. Actually, no, and you will see in the materials that will be

4 presented later, which is an excerpt from the Official Gazette

5 of Bosnia and Herzegovina, the identification of the candidates

6 for elections -- can I talk about this, if it has not been

7 presented?

8 THE PRESIDING JUDGE: I do not know. It is up to -- Mr. Orie does

9 not seem to mind.

10 THE WITNESS: We will present it later. It is simply that you will

11 see ----

12 THE PRESIDING JUDGE: You will get to it later if you want, I do not

13 know, but answer Judge Stephen's question.

14 THE WITNESS: The identification would be Serb or Yugoslav or Croat

15 or Muslim. The term "Bosniac" did not come into common use

16 until 1994. It is actually an older term. It is an English

17 pronunciation of the word Bosnjak, which was a term coined in

18 the Austro-Hungarian Empire in an attempt to provide an identity

19 for the residents of Bosnia that would not differentiate them,

20 that all of them could call themselves Bosnjaci. Bosnjak is the

21 singular, Bosnjaci is the plural. It never caught on. You can

22 refer to someone from Bosnia as a Bosanac as opposed to Bosnjak,

23 you see? If I am speaking Serbo-Croatian, I refer to someone

24 from Bosnia, I will say, "He is a Bosanac", and that can be

25 anyone from Bosnia. You can tell by the accent, for example.

26 But Bosniac was not used until the time of the --

27 essentially, the time that the United States crafted the

28

1 Croat/Muslim federation in March of 1974 (sic), and rather than

2 call it the federation of Croats and Muslims, they used the

3 term "Bosniac" Bosniacs.

4 I do not think that the term has got great currency

5 amongst the people of Bosnia themselves. I just had a student

6 returned from there, and one of her assignment was to see if

7 people were calling themselves "Bosniacs"; they are not, but it

8 is a political label that is very useful to identify this

9 population, but if you refer to "Bosniacs", they are Muslim.

10 MR. ORIE: If I may just an additional question? You have just

11 referred to 1974 as a time when the federation of Croats and

12 Muslims was ----

13 THE WITNESS: Did I say 74?

14 THE WITNESS: I am sorry, 94. It was 1994. I misspoke. It is

15 called the Washington Agreement and it was the -- it was signed

16 in Washington in March of 1994. If I said '74, it was a pure

17 misspeak.

18 Q. I understand that. Professor Hayden, I would like to present to

19 you another document. Could you explain to us, first, what it

20 is before I tender it as an exhibit?

21 A. Yes, this is a copy of an article from the journal Radio Free

22 Europe Radio Liberty Research Report published at that time in

23 Munich, Germany, by Radio Free Europe Radio Liberty. It is by

24 an analyst who worked and I think still works there called Stan

25 Markotich and it is called "Ethnic Serbs in Tudjman's Croatia".

26 It is dated 24 September 1993.

27 MR. ORIE: I tender that document, your Honour, as Defence Exhibit

28

1 45A because I will tender another document that is closely

2 linked to it.

3 THE PRESIDING JUDGE: Is there any objection?

4 MR. NIEMANN: No objection.

5 THE PRESIDING JUDGE: 45A will be admitted.

6 MR. ORIE: Professor Hayden, does this document reflect the opinion

7 of Dr. Tudjman, President of Croatia at that time, about the new

8 constitutional situation in Croatia? If you refer to parts of

9 the article, would you please then put them on the overhead

10 projector so that we all can follow you?

11 A. So that I can follow it. OK. In the article, and this is only

12 part of the article that I will actually refer to, it is

13 not the words of Mr. Markotich, although he did translate them,

14 he included in this article an excerpt from a speech by Franjo

15 Tudjman, President of Croatia, the President who was elected in

16 1990 and whose government immediately amended the Croatian

17 constitution. If you can see the quote there on page 30,

18 I believe, of the article which is now on the screen, these are

19 the words of President Tudjman and says:

20 "The Serbs in Croatia cannot become a ruling people.

21 We have arranged our affairs in democratic Croatia the way the

22 Serbs in Serbia, the Slovenes in Slovenia, the Macedonians in

23 Macedonia and every people the world over have arranged their

24 affairs. Here in Croatia the Croatians are sovereign", and

25 I will say that I checked the original and he says "Hrvatski

26 narod", the Croat nation, is sovereign, "and to the Serbs are

27 accorded all the rights of a national minority and all

28

1 individual rights, but it cannot be asked that about eight per

2 cent of the population, the Serbs, who found themselves here as

3 a result of historical developments should be sovereign in the

4 country of Croatia because nowhere in the world could such an

5 arrangement exist".

6 Now, the formulation, and he identifies it, as have

7 I, in the boxed text -- I have forgotten the Exhibit, 44, that

8 had the various constitutional excerpts -- he clearly identifies

9 who is sovereign and you will see that the Serbs are excluded

10 from the sovereign body in Croatia.

11 Q. Professor Hayden, I would like to present another document to

12 you in relation to your remark that you checked your original

13 language. (Handed) Could you tell us what this document is and

14 what it contains in this respect?

15 A. This document is a photocopy of an article from the Croatian

16 News weekly magazine, Danas, from June, and I do not know if it

17 is June or not, I cannot quite read it, it is the 2nd of

18 something, 1993. This is actually the article that was used as

19 a source by Mr. Markotich for the quote by Franjo Tudjman that

20 I just read. I did not do this translation; Markotich did and

21 so I wanted to check the original and the original is contained

22 here.

23 MR. ORIE: I tender that document as Exhibit 45B, your Honour. I am

24 aware that it is not a full document but it is only the quote

25 that I would like to refer to and Professor Hayden ----

26 THE WITNESS: The complete article is there. The article in the

27 magazine was only two pages.

28

1 THE PRESIDING JUDGE: Any objection to 45B?

2 MR. NIEMANN: No, your Honour.

3 THE PRESIDING JUDGE: 45B will be admitted.

4 MR. NIEMANN: Your Honours, is there a translation of this document?

5 MR. ORIE: The reason why, it is the quote that was in the English

6 text and of which Professor Hayden has told us that he verified

7 it in the original language. Therefore, I provided also an

8 article giving the original language of this quote.

9 Professor Hayden, having gone through all these

10 amendments to the constitutions of the republics, more in detail

11 the Slovenian constitution, the Croatian constitution and the

12 opinion about sovereignty by Dr. Tudjman, could you tell us

13 whether the western world -- I am referring especially to the

14 European Union and the United States -- did interpret these

15 developments correctly?

16 A. I would say not. The position of the western world and the

17 United States, the European Community in particular, ignored

18 these formulations of sovereignty, of whose state it is, quite a

19 lot, virtually entirely.

20 Q. Could you be ----

21 A. Well, formulations -- the position of the western world that it

22 was republics that had the right to secede was flatly in

23 contradiction to what these Yugoslav politicians were telling

24 their own people. For example, the extract from the 1990

25 Croatian constitution clearly referred to the right of the Croat

26 nation to secede as, of course, the constitution of Yugoslavia

27 of 1974 in its reference to secession, which was only in the

28

1 preamble, had referred to the right of the narodi, narods, to

2 secede, not of the republics.

3 So that the politics of the nationalist movements

4 within Yugoslavia were based on the premise of creating the

5 state, the territory and the government belonging to the narod,

6 and not in any sense a body of undifferentiated citizens. The

7 position of the western world that what was at stake was the

8 right, as I think the German government put it, a limited right,

9 to self-determination, meaning the right of the citizens within

10 the borders of the existing Yugoslav republics to determine

11 whether they would secede was a reasoning that was at flat

12 variance with that of the Yugoslav political leaders themselves

13 and the constructions that had, in fact, won in 1990, and that

14 drove the political movements.

15 The formulation of the western world seemed premised

16 on a policy of equal citizens. The political movements that

17 have succeeded in Yugoslavia with the free and fair elections of

18 1990 have not posited polities of equal citizens.

19 Q. Thank you, Dr. Hayden. I would like to go now to a different

20 subject. I would like to speak with you about the dismantling

21 of the Yugoslav Federation. I would like to be shown to you

22 Exhibit 21 before I put any questions to you.

23 THE PRESIDING JUDGE: Professor Hayden, let me ask one more

24 question. If you say that the federal constitution of 1974

25 recognised the right of narods ----

26 A. Narod.

27 Q. --- to secede but did not speak in terms of republics, that they

28

1 spoke in terms of narods ----

2 A. That is right.

3 Q. --- then the various constitutions of the Republics in 1990

4 identified themselves as states consisting of narods?

5 A. Well, narods and others, but the narod, the majority narod, is

6 sovereign in the state.

7 Q. Exactly. We have seen, at least, the Croatian preamble allowed

8 for a right to secede. Then if you put the two together, would

9 you say that the 1974 federal constitution, if read together

10 with the 1990 Republic, the constitutions of the various

11 republics, would allow for the right of secession? Do you

12 understand what I am trying to ask? I may have it confused.

13 A. I believe I do, but the question is to whom does the right

14 belong? Does it belong to the Republic or does it belong to the

15 narod? Actually, the Croatian constitution of 1990 is

16 consistent with a preamble of the federal constitution of 1974

17 by giving the right to secession to the narod, not to the

18 Republic, but to the narod.

19 Q. What does it say about who the state consists of?

20 A. I am sorry, which document?

21 Q. The 1990 constitution, Croatia?

22 A. Yes, the 1990 constitution defines Croatia. It justifies

23 Croatia on the basis of ----

24 Q. The Croatian people?

25 A. --- the Croatian people, yes, but there are others in Croatia.

26 This is the problem. There were more others in Croatia then

27 than there are now. The problem here is that none of the

28

1 Yugoslav republics were homogenous, even in Slovenia which was

2 generally regarded as the most homogenous, by the 1991 census, I

3 think, 14 per cent of the population were not ethnic Slovenes.

4 In Serbia, about 65 per cent of the population are ethnic

5 Serbs.

6 This is the problem that I know was going through in

7 Dr. Gow's testimony, that the Yugoslav constitutional structures

8 of 1974 referred to -- as I said, they had the dual sovereignty

9 of the narods and the workers. When that is removed, you have

10 only the narods, but here you have a problem because then the

11 Republican constitutions give superior rights within each

12 Republic to the one narod.

13 Q. The Republican constitutions may be wrong by saying in the

14 preamble that it is a state consisting of Croatian people, but

15 they make that judgment, whoever was able to write the

16 constitution. If they say that, right or wrong, but if they say

17 that, and then you read that together with the federal

18 constitution, would it not be reasonable for a Croatian reading

19 this preamble to say: "Well, our preamble says that we are a

20 state of Croatian people, a narod, a Croatian people. The 1974

21 federal constitution allows for secession of narods. Thus, we

22 can secede". They were wrong, you would say, in their preamble

23 in 1990 saying that it was a state of Croatian people, because

24 there were many, many other people in significant minorities in

25 terms of numbers.

26 A. As a practical matter, it is likely to work that way in a state

27 where you have a pronounced majority narod. Your problems come

28

1 in the portions of states where, for example, one of the

2 minorities is a local majority and say, "We are a narod, we have

3 the right to secede", or in Bosnia and Herzegovina where there

4 is no majority narod and where, for example, where the Croats of

5 western Herzegovina, for example, proclaimed their own mini

6 state within Bosnia and Herzegovina on the grounds of the right

7 to self-determination and self-determination of the narod, which

8 is the constitutional structure.

9 JUDGE STEPHEN: I thought that in those excerpts from most, but not

10 all because Bosnia-Herzegovina was not included, of the

11 republics there was a careful inclusion in the statement of who

12 the people were, not only of the majority narod but also of

13 others that was recognised, and they were recognised as being

14 citizens, were they not?

15 A. Citizens but not part of the sovereign body which is -- well, it

16 is not a state of equal citizens. There may be citizens of the

17 state, but they are not part of the sovereign body. If one

18 reads the speeches and the position and papers of the various

19 political leaders, they are very clear about this. This is not

20 a type of structure that we are used to thinking about, because

21 we would like to posit a polity of equal citizens. This is the

22 modern meaning of democracy. Here, though, only one part of the

23 citizenry is sovereign.

24 Q. Although that does not in fact emerge, does it, from those small

25 portions that you quote? You have to look at what the leaders

26 say?

27 A. This is true. I find the formulation, though, in the preambles

28

1 of the constitution to be extremely indicative of what it is all

2 about and then prefer Dr. Tudjman's speech to actually state the

3 point perhaps more clearly than I have. I might draw a rather

4 different parallel. The point of the socialist state was to

5 serve, to represent, not the entire population, but only part of

6 the population, the working class and the working people, which

7 is what the state is there for constitutionally defined, legally

8 implemented. What succeeded state socialism in the former

9 Yugoslav Republics was another form of a state in which the

10 state is there, constitutionally defined and legally

11 implemented, to serve one part of the population and that is the

12 majority narod.

13 THE PRESIDING JUDGE: As you said, if we had a constitution which

14 said, "We, the white Protestant", cross out even males ----

15 THE WITNESS: Could be that as well.

16 THE PRESIDING JUDGE: "in order to form a more perfect union."

17 THE WITNESS: Yes.

18 THE PRESIDING JUDGE: Then you go on to mention some other people,

19 you wonder who are the narods?

20 THE WITNESS: Particularly when the amendment is made from the

21 all-inclusive "we, the people" and then suddenly amendments are

22 inserted that say, "We, the white Protestant male people and

23 others.".

24 THE PRESIDING JUDGE: Mr. Orie, you say you have listed this witness

25 for two days and if this continues -- so we will be quiet.

26 I will be quiet.

27 MR. ORIE: I think we will manage, your Honour. I am still

28

1 optimistic that we will manage.

2 THE PRESIDING JUDGE: We have heard so much testimony. Obviously, as

3 we have said, we have read through these transcripts and we are

4 now at the point of trying to resolve in our minds some

5 questions. One of them had to do with ethnicity.

6 Unfortunately, Professor Hayden, you came ----

7 MR. ORIE: Your Honour, I will tell you that I will not cover in the

8 testimony of Dr. Hayden questions concerning all the issues

9 dealt with by Dr. Gow. So we will concentrate on certain

10 issues.

11 THE PRESIDING JUDGE: OK.

12 MR. ORIE: Professor Hayden, could you please have a look at Exhibit

13 21 that is presented to you, as I understand?

14 A. Yes, I am holding it.

15 Q. Could you just tell us what you understand it is?

16 A. Well, it is a photocopy of the memorandum, the famous

17 memorandum, of the Serbian Academy of Sciences and Arts of

18 1986. It is from the Zagreb magazine Nase Teme from 1989 and it

19 has attached a translation, it has attached an English

20 translation.

21 Q. Dr. Gow has testified on this memorandum. Could you please tell

22 us whether this memorandum was unique to Serbia, such a

23 document?

24 A. The memorandum discusses the problems of the Serbs in

25 Yugoslavia, and as a document discussing the problems of one of

26 the nations of Yugoslavia the memorandum was certainly not

27 unique at the time that it was written and not published. It

28

1 was never adopted by the Serbian Academy, and in fact it was not

2 published until it was pirated into a Zagreb magazine, a

3 Croatian magazine in 1989, but it was by no means the only such

4 document in Yugoslavia in the late 80s.

5 Q. If you say it was not the only document, this memorandum, could

6 you point to similar documents that have been prepared and

7 discussed elsewhere within the federation?

8 A. The primary document that I would think of would be something

9 called the Slovenian National Programme which was a set of

10 articles drafted by Slovenian intellectuals in approximately

11 1986/87, in other words at the same time that the group of --

12 they were literally identified on the cover as a group of

13 intellectuals of the Serbian Academy. The Slovenian National

14 Programme was published in Slovenia in a journal called Nova

15 Revija, New Review, in 1987.

16 Q. Could you tell us have you ever seen that document, the

17 Slovenian National Programme?

18 A. I have seen the document, yes, I have held the document, yes,

19 when I was in Slovenia in 1989. It was a magazine that had been

20 openly for sale.

21 Q. It was published?

22 A. Oh, yes, it was published in the magazine Nova Revija, New

23 Review, which was a magazine which I think itself came into

24 existence in the 1980s in Slovenia and was, essentially, the

25 magazine of Slovenian nationalist intellectuals.

26 Q. Professor Hayden, did you obtain a copy of the document?

27 A. No. At the time when I was in Slovenia in 1989 I saw it at a

28

1 friend's home. My friend had it. I could see it, but I was not

2 able to acquire a copy then. I have to say I did not, it did

3 not occur to me, well, it occurred to me but making a copy then

4 of the entire journal, I figured I would get it elsewhere.

5 Making photocopies in Yugoslavia at that time was expensive and

6 I thought I would get it, but I never did.

7 Q. I would like to present to you another document, Professor

8 Hayden, because I would like to ask you some questions on

9 whether this document really existed.

10 A. This is a photocopy of actually two articles that appeared in

11 consecutive issues of a weekly newspaper in Belgrade called

12 Nedeljni Telegraph or Weekly Telegraph, the issue of 24th July

13 1996, the issue of 31 July 1996. It is an article about a

14 meeting between Serbian intellectuals and Slovenian

15 intellectuals in 1985.

16 Q. Could you please -- unfortunately, your Honour, we have not been

17 able to have a translation made of this document. First

18 I tender this document as an Exhibit.

19 THE PRESIDING JUDGE: That will be 46?

20 MR. ORIE: That will be 46, your Honour, yes.

21 THE PRESIDING JUDGE: Any objection? It is only in Serbo-Croatian?

22 THE WITNESS: Yes.

23 THE PRESIDING JUDGE: Are you asking the witness to read a portion of

24 it?

25 MR. ORIE: Yes. I will ask the witness to read portions of it. The

26 main reason why I am doing this is since we cannot present, as

27 you have heard, Slovenian National Programme, I would like to

28

1 establish that this document did exist and some support of the

2 memory of Professor Hayden as to the existence and the content

3 of the document he saw at that time.

4 THE PRESIDING JUDGE: Mr. Niemann, any objection?

5 MR. NIEMANN: No, your Honour.

6 THE PRESIDING JUDGE: Very good, 46 will be admitted.

7 THE WITNESS: Perhaps I should say that I had first heard of the

8 meeting of Serbian intellectuals and Slovene intellectuals that

9 is reported in this document from Professor Markotic who is

10 listed as author and whose picture is on the front page.

11 I heard about this from him in a conversation that I had with

12 him in January 1991 in Belgrade five years ago and six years

13 after the event.

14 MR. ORIE: Yes. Would you please point at the relevant parts of this

15 article, and perhaps read slowly those parts that are referring

16 to this movement, this meeting, and this Slovenian National

17 Programme?

18 A. Was this given to the translators as well?

19 Q. We have given the relevant parts to the translators in order to

20 facilitate a quick translation.

21 A. Well, what I would like to do is read several passages from

22 here. I prepared myself a photocopy in which I marked the

23 passages so that I could find them easily. I believe that a

24 similar copy was given to the translators so that they would be

25 able to follow it.

26 Q. If you could perhaps also indicate those parts on the overhead

27 projector where the original Exhibit is.

28

1 A. Right. Starting here with the words Slovenci, and I am afraid

2 the translators will have to put up with my accent in

3 Serbo-Croatian, but then you will listen to the translation

4 instead of me and you will be better off. For the translators

5 this would be the excerpt marked No. 1 on the copy they have.

6 [In translation] "Today the Slovenians feel that the

7 idea of belonging of Slovenes in Yugoslavia is dead or if

8 nothing else dying. People feel disappointed and disillusioned

9 and deceived in their expectations. We have nothing to expect

10 any longer. We do not feel that we are in our own country. As

11 a state product Yugoslavia is dead in the minds of the

12 people."

13 The speaker is Bucar, later the President of the

14 Slovenian National Assembly.

15 If we go further down the page, and there is no real

16 easy way to do this.

17 Q. Perhaps you could get some help.

18 A. Do I have to show it on the screen as well as read it?

19 Q. I think perhaps it is easier, especially since Dr. Gow is there,

20 if you indicate what part you are reading.

21 A. OK. The speaker is still Bucar and where my finger is -- yes,

22 beginning with the words -- the pointer is on it. Can you get

23 it over to there. I see it but I do not see the pointer.

24 Q. You should perhaps move the document a bit so that the pointer

25 is in the picture as well.

26 A. It is right here beginning with the word "Yesu" which is still

27 not on here.

28

1 THE PRESIDING JUDGE: If you put your highlighted copy on the

2 overhead and then turn, if they will turn that towards you,

3 Mr. Usher, see if you can turn it over.

4 THE WITNESS: We want passage No. 2.

5 THE PRESIDING JUDGE: You can turn the elmo towards the witness.

6 THE WITNESS: OK. It is the point marked No. 2 and outlined and

7 highlighted in pink. Again I think the speaker is Bucar.

8 [ In translation] "Are the Serbs nationalists? If

9 they are, good for them. Unfortunately, there is a major

10 difference between the Slovenians and Serbs as nationalists. To

11 our mind, the idea of Yugoslav-hood is of secondary importance.

12 To you it is of primary importance. We want autonomy and for

13 you Yugoslavia has been and still is the road to the solution of

14 the Serb question. What interest could we have in common then?"

15 No. 3, the speaker here is Yanez Urbancic with whom I am

16 not actually familiar.

17 [In translation] "The fundamental thing for me is that

18 I am a Slovene, that I love my people and my language, and

19 I want to remain that. I have no visions about future

20 Yugoslavia. The most important thing is that this fundamental

21 national identity of mine ought to be inviolate and respected in

22 it."

23 From the second article -- no, I missed one. Again, I am

24 sorry, we have not had these translated. The Translation

25 Service was not able to do this. I would like to see four.

26 I believe the speaker is still Urbancic. This is again No. 4.

27 [In translation] "Nevertheless, the principal

28

1 contradiction between the view that the people with a fatherland

2 is the vital thing and the universalists or even Marxist theory

3 that there are more important things from the national

4 determination. A whole movement has two meanings. On the one

5 hand, integration of Europe includes universalism. On the

6 other, on the opposite side is the movement for the

7 manifestation of national rights. Nonetheless, the people

8 cannot be a tool of anything else, socialism, communism. A

9 people is a means, a purpose unto itself."

10 From the second article 31 July, the speaker here is Tone

11 Hribar who, as I recall, was editor of Nova Revija. Perhaps

12 I should explain here because he makes a reference to something

13 called the Yavnosti. Yavnost was supposed to be a magazine in

14 Serbia that was going to be begun by opposition intellectuals,

15 opposition to the regime, the Communist regime, and it was not

16 in fact begun. The state did not permit it to exist, but the

17 comparison here is between Nova Revija, the Slovenian journal,

18 and Yavnosti, the Serbian one that was going to be initiated by

19 the Serbian participants in this discussion.

20 [In translation] "I need to say that the initiative to

21 start Nova Revija was started here as early as 1980, slightly

22 before Yavnost. Yavnost attempted to be a Yugoslav journal and

23 we thought that it ought first to assert itself as a Serb

24 journal and then the integration could come about."

25 Just a couple more, if you will bear with me. The speaker

26 in No. 5 is Taras Kermaner who was and is a Slovenian writer.

27 [In translation] "How different it is with Serbs for

28

1 whom Yugoslav is an objective interest and need because they are

2 torn and discordant. If Yugoslavia were to break apart Serbs

3 would lose almost half of the population." This is Yugoslavia

4 in World War II (?)

5 [In translation] "Avner (?) Yugoslavia promoted

6 brotherhood and unity which was a substitute for the autonomy

7 and civil society, but brotherhood always means terror and

8 demagogy and unity means homogenization".

9 I should add that "Bretsvo Jedicstvo" brotherhood and

10 unity, was one of the primary ideological bases of the

11 Yugoslavia that existed under Tito and until 1991. The

12 constitution of 1974 makes fairly frequent references to Bretsvo

13 Jedicstvo, brotherhood and unity.

14 Finally, the speaker is again France Bucar.

15 [In translation] "The Serbs need to follow their own

16 national interest. We are for confederalism. However, the

17 solution to the problem is not within the categories of

18 federalism or confederalism. I respect your nationalism but it

19 comes into conflict with the Slovenian national concept."

20 Thank you. As I said, these intellectuals, among others,

21 wrote a Slovenian national programme that was published in Nova

22 Revija in 1987, as it indicates here. Bucar had a certain

23 political success in Slovenia later. I can say that other

24 contributors to Nova Revija also had political success in the

25 elections in 1990 in the victory of the nationalist coalition

26 that won then and has governed the governments of Slovenia since

27 1990.

28

1 Q. Professor Heyden, do I understand well that this political

2 language was used far before the memorandum was drafted, the

3 memorandum which was Exhibit 21?

4 A. Yes, this meeting took place in 1985 and the memorandum was

5 written or begun in 1986. I also remember that one of the

6 people whose words I read here, Taras Kermaner, had quite

7 shocked the Serbian intellectual public in I think it was the

8 summer of 1985 or 1986 with a so-called "letter to my Serbian

9 friend" first published in Slovenia and then republished in

10 Serbia. That was very much of an anti-Yugoslav polemic and in

11 many ways an anti-Serbian one as well.

12 Q. Professor Hayden, I would like you to be shown now Prosecution

13 Exhibit 24.

14 JUDGE STEPHEN: I think I should say that I do not follow at all what

15 all this comes to. Perhaps I am not intended to at this stage,

16 but to me it is meaningless the last 20 minutes.

17 MR. ORIE: Your Honour, I will try to explain to you what it is all

18 about. A lot of attention has been paid by the Prosecutor to

19 sovereignty, the right to secession, where it all started. What

20 the Defence intends to do is to give a different picture, first

21 of all, to clarify a few constitutional issues, then to make

22 clear that the statement of Dr. Gow, that it all started -- and

23 that is one of my next questions -- were compared and the

24 conclusions drawn by Dr. Gow, especially from Exhibit 24,

25 confront this witness with it and see if he comes to the same

26 conclusion, the main conclusion of Dr. Gow being that this

27 nationalistic movement mainly arose in Serbia, in the Belgrade

28

1 areas, and to see whether this is also the opinion of Professor

2 Hayden. The relevance of it I think stems from the relevance

3 attached to it by the Prosecution. That is the reason why we do

4 not want to have it unanswered, and the relevance for the whole

5 case of course still has to be considered later on.

6 Professor Hayden, Exhibit 24, could you please bring

7 into our mind what Exhibit 24 is?

8 A. 24 is an English translation of the constitution of the Republic

9 of Serbia from 1990.

10 Q. I would like to take you to a part which, as I understand, is not

11 exactly the text of the constitution itself, on pages 10, 11,

12 small numbers, which is a part written, as far as I understand,

13 by a certain Mr. Markotich.

14 A. Yes.

15 Q. Could you please give your comment on that part, the last part?

16 A. Referring to the last paragraph?

17 Q. Yes.

18 A. It says: "Due to the present constitutional status of Serbia,

19 the question may arise as to whether Serbia with the new

20 constitution has turned its back to the Federal Yugoslavia. By

21 the new constitution Serbia has only made more precise the

22 character of its link with Yugoslavia. Serbia has entirely

23 recognised the primacy of the federal constitution until

24 Yugoslavia continues to have the federal order." I suspect the

25 translation is wrong and it should have said, "while Yugoslavia

26 continues to have a federal order". "Some other non-Federal

27 Yugoslavia is beyond the political and state interest of Serbia

28

1 precisely because of that and due to the tendency of squandering

2 the Federal Yugoslavia" which is now visible "Serbia had to

3 include in its constitution the 'defensive clause' to a

4 violation of the federal constitution that the detriment of

5 Serbia entitles Serbia to self-defence in such cases, namely,

6 republic authorities shall issue acts in order to protect the

7 interests of the Republic of Serbia."

8 Q. Professor Hayden, this constitution has been used as I think the

9 basis for the opinion of Dr. Gow that this was an illustration,

10 it was showing that Serbia was preparing for the dissolution of

11 Yugoslavia. Would you agree with that opinion of Dr. Gow?

12 A. I am not sure what he meant by preparing for the dissolution of

13 Yugoslavia. It certainly comes up in the context in which the

14 constitutional order of Yugoslavia has been threatened, but not

15 in this particular set of concerns by Serbia.

16 Q. So it was not Serbia but the other republics?

17 A. Specifically Slovenia.

18 Q. Specifically Slovenia. May I draw your attention perhaps

19 because it might be one of the relevant articles of this

20 constitution, Article 135 of that constitution contained in

21 Exhibit 24.

22 A. OK. It is Chapter 8 the relationship to the constitution of the

23 Federal Republic of Yugoslavia.

24 Q. Could you please tell us what the first paragraph of Article 135

25 is about?

26 A. Actually I cannot. As printed it does not make sense.

27 Q. Could you please -- it is on the screen. So you do not

28

1 understand it?

2 A. No, this sentence is meaningless to me, "The rights and duties

3 vested under the present constitution in the Republic of Serbia

4 which is part of the socialist Federal Republic of Yugoslavia,

5 violate the equal terms of the federal constitution are to be

6 exercised in the federation." Grammatically it is wrong. It

7 does not scan.

8 Q. Could I then please provide you with the original text of

9 Article 135. I tender the original text as an Exhibit, your

10 Honour.

11 A. OK, yes, this is a photocopy of the constitution of the Republic

12 of Serbia in Serbian, dated Belgrade 1990, and Article 135.

13 Q. Then I would like to present to you a text which is supposed to

14 be a translation of Article 135.

15 A. Actually, I have to get the original back.

16 MR. ORIE: I tender this document as well, your Honour, as Exhibit

17 47.

18 THE PRESIDING JUDGE: Any objection?

19 MR. NIEMANN: No, your Honour.

20 THE PRESIDING JUDGE: Exhibit 47 will be admitted.

21 MR. ORIE: I would like to have ----

22 THE PRESIDING JUDGE: Excuse me one minute, Mr. Orie. I was just

23 thinking, Mr. Orie, I gather where you are going is that this

24 witness, whoever translated it, will offer a different

25 translation than what we received from the Prosecutor in Exhibit

26 24 for Article 135 which we will, if there is no objection,

27 receive that. But we have encountered so many difficulties with

28

1 interpretation -- not so many but some -- we, perhaps, would

2 want the Serbo-Croatian then to be put on the screen after we

3 see this and have our interpreters translate it and then see

4 among the three what we come up with.

5 MR. ORIE: Yes. You see, your Honour, there was no attention paid to

6 Article 135 in the Prosecution's case, so that is the reason why

7 we did not notice at that moment that on this part, in our view,

8 the translation was incorrect. But I have some difficulties

9 asking Professor Hayden questions about a part of an article

10 that is totally un-understandable for him.

11 THE PRESIDING JUDGE: I understand your point and 47 is admitted.

12 Let us see what his translation is. I suppose I am just

13 curious, if it does not take too much time, to see what we might

14 get as a third. So here it is.

15 THE WITNESS: Well, clause 1: "The rights and duties that the

16 Republic of Serbia which is within the Socialist Federal

17 Republic of Yugoslavia has under this constitution and which by

18 the federal constitution are realised within the federation will

19 be realised in accordance with the federal constitution."

20 THE PRESIDING JUDGE: Is that the ----

21 THE WITNESS: That is clause 1, this is in Serbian.

22 THE PRESIDING JUDGE: That is Serbo -- that is in Serbian? Excuse

23 me.

24 THE WITNESS: Well, I speak Serbo-Croatian but ......

25 THE PRESIDING JUDGE: It is there. I do not know that the

26 interpreters have it. Can you read it well enough to interpret

27 it? OK. Let us see. This is now the interpreters' translation

28

1 of Article 135 of Prosecutor's Exhibit 24 and we have the

2 English translation in Defence Exhibit 47.

3 THE INTERPRETER: "The rights and duties of the Republic of Serbia

4 being a part of the Socialist Federal Republic of Yugoslavia

5 enjoys under this constitution, and which are to be exercised at

6 a federal level under the or according to the federal

7 constitution shall be exercised" -----

8 THE PRESIDING JUDGE: Do we have the channel 4?

9 THE WITNESS: I did not. I now do.

10 THE PRESIDING JUDGE: If you could begin again, please?

11 THE INTERPRETER: "The rights and duties which the Republic of Serbia

12 being a part of the Socialist Federal Republic of Yugoslavia

13 enjoys under this constitution and which pursuant to the federal

14 constitution are exercised or enjoyed at the federal level,

15 rather, in the federation, at the federal level, shall be

16 exercised in conformity or in accordance with the federal

17 constitution.

18 "When acts of federal agencies or acts of agencies of

19 another Republic in contravention to the rights and duties which

20 that Republic which it has, which that Republic enjoys under the

21 constitution of the Socialist Federal Republic of Yugoslavia

22 violate or infringe upon the quality of the Republic of Serbia",

23 and we cannot see the rest of the text -- "infringe upon",

24 whatever, "rights of the Republic of Serbia" -- I am sorry, I

25 have forgotten -- "or threatens its interests, or infringes upon

26 its interests in any other way without providing a compensation

27 or indemnity for it, then the Republican agencies shall adopt

28

1 acts to protect the interests of the Republic of Serbia."

2 THE PRESIDING JUDGE: Thank you very much.

3 MR. ORIE: Professor Hayden ----

4 THE PRESIDING JUDGE: I am sorry. We were so interested, we just

5 wanted to go on, but we will adjourn until tomorrow at

6 10 o'clock.

7 (5.35 p.m.)

8 (Adjourned until 10.00 a.m. tomorrow morning)

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