070115ED

Page 47

1 Monday, 15 January 2007

2 [11 bis motion hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.49 a.m.

6 JUDGE ORIE: Good morning to everyone. Madam Registrar, will you

7 please call the case?

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

9 IT-05-88/1-PT, the Prosecutor versus Milorad Trbic.

10 JUDGE ORIE: Thank you, madam registrar. First the Chamber

11 apologises for the late start, but that's due to the fact that a

12 confidential filing of last Friday reached us only 20 minutes ago, and

13 there the Chamber considered it wiser to first get an impression of what

14 was written in the French language.

15 Before we continue, could we have the appearances? Prosecution,

16 first.

17 MS. SOMERS: Good morning, Your Honours, counsel. Susan Somers

18 for the Prosecution. To my immediate right, Janet Stewart, case manager;

19 to my left, Mr. Aleksandar Kontic; behind me to my right, Mr. Kweku

20 Vanderpuye; and to my left behind me, Mr. Peter McCloskey, senior trial

21 attorney.

22 JUDGE AGIUS: Thank you. For the Defence.

23 THE INTERPRETER: Microphone, please.

24 MR. PILETTA-ZANIN: [Interpretation] Good morning, Mr. President,

25 good morning, Your Honours. Mr. Piletta-Zanin on behalf of the Defence.

Page 48

1 JUDGE AGIUS: Mr. Trbic, I would just like to verify whether you

2 can hear me in a language you understand.

3 THE ACCUSED: [Interpretation] Yes, Your Honour, I can hear it.

4 JUDGE ORIE: Thank you. Then I turn, because we are in a video

5 link with Sarajevo, I turn to those present in Sarajevo to introduce

6 themselves.

7 Could I have the appearances on behalf of the government of Bosnia

8 and Herzegovina?

9 MS. POPADIC: [Interpretation] Good morning from Sarajevo. The

10 delegation of Bosnia and Herzegovina is grateful to the Referral Chamber

11 of the ICTY for enabling us to participate in this hearing via videolink.

12 JUDGE ORIE: Could I ask for the assistance of the technicians for

13 the following reason. The volume of the words spoken in Sarajevo are such

14 that I failed to understand the translation.

15 Yes, I see. I could have done it myself. May I invite you to

16 reintroduce yourself in Sarajevo.

17 MS. POPADIC: [Interpretation] Good morning from Sarajevo. On

18 behalf of the delegation of Bosnia and Herzegovina we would like to thank

19 the Referral Chamber of the ICTY for enabling us to participate in this

20 hearing via videolink.

21 The delegation of Bosnia and Herzegovina comprises to my right,

22 Ms. Natasa Vukovic, registry office for section I and II of the court of

23 Bosnia and Herzegovina. To my left is Mr. Emir Neradin, registry office

24 for section I and II for Bosnia and Herzegovina. Mr. Kwai Hong Ip

25 representing the Prosecutor's office of Bosnia and Herzegovina. My name

Page 49

1 is Milana Popadic, Ministry of Justice of Bosnia and Herzegovina.

2 Although Mr. Ibro Bulic was announced, he was unable it attend, and he

3 also works for the Prosecution's office of Bosnia and Herzegovina.

4 JUDGE ORIE: Thank you, Ms. Popovic. I suggest to the parties

5 that we proceed in the following way: I first give an opportunity to both

6 Prosecution and Defence and the government of Bosnia and Herzegovina to

7 make any submissions in addition to what has already been submitted in

8 writing. I also draw the attention of the parties and the government of

9 Bosnia and Herzegovina to the fact that some of the written submissions

10 were filed confidentially, which might cause a need to go into private

11 session or closed session. Whenever there is any need to do so, please

12 inform me and we will proceed upon the basis of a decision of such a

13 request.

14 Ms. Somers, may -- before I invite you to make any further

15 submissions, have you received the latest Defence filing, the confidential

16 filing of last Friday that was filed at three minutes past 4.00?

17 MS. SOMERS: Yes, Your Honours, we received it, we haven't

18 received any form of translation so as to be able to discuss it amongst

19 ourselves. But those of us who read some French have gone through it, but

20 I cannot say it has been studied as we would have like to have done.

21 JUDGE ORIE: Yes, Ms. Popadic, may I ask you, whether you received

22 this last filing in the French language, which is of course one of the

23 official languages of this Tribunal.

24 MS. POPADIC: [Interpretation] I have just seen the filing for the

25 first time now. I had no occasion to see it earlier, and I don't think

Page 57

1 telegram with completely unclear contents, and visits of half an hour or

2 40 minutes. I have all these telegrams here, and from them my attitude to

3 11 bis is quite clear. You may see them, Your Honours. I was very

4 surprised by the threats made to me about the threats to my personal

5 security. These are letters I received on the 6th of November and 21st of

6 November, and it was also confirmed to me orally during the visit of the

7 23rd of November. He is probably doing this based on information he has

8 or in order to intimidate me, but I refuse to accept any kind of

9 intimidation or blackmail. All this shows what kind of legal assistance I

10 am getting from my counsel. I have all the evidence before me, and it is

11 available for your inspection.

12 Your Honours, the crucial point I wish to draw attention to are

13 the threats concerning my fitness to stand trial and my mental health. I

14 wish to say that I am in good health, and that I am able to follow any

15 proceedings before any court against me. So there is no justification in

16 linking this with my case. Doctors are superficial, in my case. Please

17 refer my case under 11 bis. Let me be tried there, if I am guilty. Thank

18 you for your understanding and your patience.

19 JUDGE ORIE: Thank you, Mr. Trbic.

20 [Trial Chamber confers]

21 [Trial Chamber and legal officer confer]

22 JUDGE ORIE: I do understand that although the submissions of the

23 18th of May and the 1st of June were not ex parte but were confidential,

24 that they were not communicated to the representatives of the government

25 of Bosnia and Herzegovina, and the Chamber instructs the Registry at this

Page 58

1 moment to communicate these filings as well to the representatives of

2 Bosnia and Herzegovina, still being confidential filings, but that the

3 representatives should be aware of the content of it.

4 Therefore, at this moment, we have three series of documents. The

5 first the May/June submissions by the Registry to be communicated to

6 Bosnia and Herzegovina. Second category is the request and the response

7 by the Registry for further submissions of November 2006 to be

8 communicated to the parties and to the representatives of the government

9 of Bosnia and Herzegovina. And finally, the submission filed on Friday,

10 the 12th of January by counsel to -- well, it is available already to the

11 parties, but they should try to get acquainted with the context -- content

12 of this submission written in French as soon as possible.

13 Could I just ask Ms. Somers, how much time would you consider you

14 would need to make yourself acquainted with this material?

15 MS. SOMERS: Your Honour, I have reviewed the French language

16 filing of my learned counsel opposite, but I have not had a chance to

17 study the submissions. Yes, I would be grateful for that. And perhaps --

18 JUDGE ORIE: Yes, until 11. Of course I gave a short summary of

19 it, but of course I fully understand that you would like to read it and

20 not rely on any summary provided by the Chamber. Until 11.00, would that

21 do?

22 MS. SOMERS: Yes, thank you, Your Honour. I would be grateful for

23 that.

24 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President, I'm very

25 sorry, but I am supposed to be in Geneva, I am being expected there and

Page 59

1 French is one of official languages in this Tribunal. In other words,

2 Mr. Trbic said "yes" three times, maybe rightly or wrongly, but I am

3 driving back to Geneva, I would like not to have to drive all night

4 because simply somebody can't read one of the official languages of the

5 Tribunal. It's very strange. You were kind enough to convey to me a

6 decision dated 24th November 2006. I was given this in English. Can I

7 ask for a French version of it? That would be very helpful. Failing

8 this, well, that would be just another case of having no translation; that

9 wouldn't be a problem. But 11.00, that's a long time to read a few

10 pages. I am quite willing to translate them to the Prosecution if they

11 want to.

12 JUDGE ORIE: Nevertheless you're asking for a French version at

13 the same time you are offering a French-English translation to the

14 Prosecution. Mr. Piletta-Zanin, it is not the first time we meet each

15 other. I am aware that you are mastering of the English language is such

16 that even without a French version of this document you would be well in a

17 position to be acquainted with the content and just as you expect from the

18 Prosecution to be able to read a French document, one of the official

19 languages, isn't it true that when you are able to read and to speak

20 English, that you could work on the basis of an English document?

21 MR. PILETTA-ZANIN: [Interpretation] Of course, Mr. President, and

22 you are aware of it. This is a question of principle. It is not up to

23 me, maybe there is in my staff people who are only French speaking and

24 that's not the problem, and you know that very well. You too are quite

25 master of the French language, and that's fine. But simply everybody has

Page 60

1 to take into account everybody else's interest. I came by car this time

2 and, for once, I would like the Prosecution to be kind enough not to waste

3 time uselessly.

4 JUDGE ORIE: Okay. Mr. Piletta-Zanin, I take it you --

5 [Trial Chamber confers]

6 JUDGE ORIE: We will shorten the time a bit, but not until after

7 I've asked Sarajevo, because they still have to be -- the documents still

8 have to be communicated to Sarajevo, which might take a bit more time than

9 communication here in The Hague.

10 MS. SOMERS: Your Honour, may I just let the Chamber -- referral

11 bench be aware, it is not the French language issue that requires for us

12 the chance to study it, it is simply the Registry documents. We are well

13 able to go through the French submission. Thank you.

14 JUDGE ORIE: Yes. Madam Registrar, could you give us any

15 impression on how much time it would take to communicate the relevant

16 documents to Sarajevo?

17 [Trial Chamber and registrar confer]

18 JUDGE ORIE: Yes. Then we will adjourn until -- on the basis of

19 the understanding that most of the documents have been already

20 communicated to Sarajevo, we will adjourn until 10 minutes to 11.00 and

21 then we'll hear from the parties whether they are sufficiently prepared.

22 We stand adjourned.

23 --- Break taken at 10.27 a.m.

24 --- On resuming at 10.55 a.m.

25 JUDGE ORIE: Before we continue, the Chamber would like to go into

Page 67

1 THE REGISTRAR: Your Honours, we're in open session.

2 JUDGE ORIE: Thank you, Madam Registrar.

3 Mr. Piletta-Zanin, I would like to give you an opportunity first,

4 since the Prosecution has asked the Chamber to consider it a practical way

5 of proceeding whether you would like to make any additional submissions in

6 addition to what you have submitted already in writing to the Chamber in

7 respect of the 11 bis request.

8 MR. PILETTA-ZANIN: [Interpretation] Your Honour, you know how fond

9 I am of principles. Before I can answer, maybe we should have asked the

10 representatives of the government whether they've been able to have access

11 in a language they understand to my filings of yesterday. Because if they

12 have had access to these filings, we would gain a lot of time. If it's

13 not the case, then I would make a brief summary that would be translated

14 for everyone including those who do not master the French language

15 perfectly. And then we would move quicker.

16 JUDGE ORIE: During the break the Chamber has considered the

17 importance of the representatives of the government to be fully informed

18 because much of your submission is a reference to what the government

19 submitted itself. So therefore it doesn't give much new information. And

20 the point which is not of extreme relevance for the government is that

21 Mr. Trbic himself would like to be referred as soon as possible, and I

22 mentioned that before. So you may proceed at this moment, but I will

23 certainly ask at a later stage the government whether they had an

24 opportunity to read your submission.

25 Please proceed.

Page 68

1 MR. PILETTA-ZANIN: [Interpretation] Thank you, Your Honour. I'm

2 going to be rather brief.

3 The problem we are faced with is not the person of Mr. Trbic when

4 you consider his quality as a subject of law, as a subject of law who

5 might be transferred. Because everybody here agrees that Mr. Trbic was

6 not a member and is not a member of the group called the most senior

7 leaders. And if you consider his rank, because he was not even an

8 officer, he was under the orders of a lieutenant. And if you also look at

9 the facts, that his acts, his participation, his effective participation,

10 according to the text usually applied here, obviously Mr. Trbic is a

11 subject of law who can be transferred, and he has repeatedly asked to be

12 transferred.

13 As counsel I have taken note of the position of the government,

14 including in the Popovic case, because right from the beginning Mr. Trbic

15 requested this case not to be severed, he wanted to take part right from

16 the beginning. Personally I asked for the case to be suspended. But I

17 take note of the fact that the ad hoc commission, that the government and

18 the government itself believe that this case, because of the very nature

19 of the crime involved, this case is not -- cannot be referred,

20 transferred.

21 We have a situation where the crime itself, the genocide and the

22 joint criminal enterprise, have not been resolved by any authority, by any

23 referral bench in this Tribunal. Undeniably genocide is such a grave

24 crime that the question now has been posed, and obviously the answer

25 cannot be an easy one. However, it is also obvious when you read the

Page 69

1 latest report of Mr. -- of the president of the Tribunal, Mr. Pocar, it is

2 obvious that the Tribunal will close by the year 2010, and the best things

3 in life have to have an end at some point, everybody will go home then.

4 But we are not certain, we cannot be certain when we look at the calender,

5 that the Tribunal will have the means, will have -- will lead the

6 necessary policy to try this man, although he should have been tried with

7 other people, but that's the remit of the Prosecution. So the question

8 that is being asked is a practical question. It's not a legal question.

9 What are we going to do with this man when you consider one of the most

10 fundamental principles, which is not only that of a fair trial but that of

11 the expeditious trial. Because according to my information -- I repeat,

12 according to my information, apparently he could not be tried here before

13 two -- two years, two years, that's 2008 if there is no delay, maybe 2009.

14 Is that a not normal situation? It is up to you to give an answer to

15 that question.

16 Furthermore, if -- if, and I insist on the word "if" because

17 Mr. Trbic has always said he is in perfectly good mental health. But

18 if -- if we were in a situation where an accused was not fully fit

19 mentally speaking, then as far as I understand in Bosnia and Herzegovina

20 and in Sarajevo, there is no organisation, there is no institution that is

21 able to deal with such a matter. I was also given to understand that

22 there is no will to have someone who is prosecuted for genocide being made

23 to work for -- being made to do community work.

24 In both cases we -- because this case was disjoined -- or severed

25 from the Popovic case, we are placed today in an impossible situation. If

Page 70

1 you grant the referral that is being requested by Mr. Trbic and, as his

2 lawyer, I cannot do anything else, then you will go against the

3 jurisprudence because of the gravity of the crime involved. If you decide

4 against the referral, then there will be very few solutions available.

5 As a result, and as I have said before as Defence counsel, I

6 cannot -- I can only -- as a lawyer I can only refer you to the

7 application of the principles that govern the referral of a case when you

8 are dealing with two matters, the first being the genocide and the second

9 being the fact that this genocide is alleged to have been committed as

10 part of a general criminal enterprise. Obviously I cannot rule on that

11 myself, as otherwise technically speaking Mr. Trbic is an acceptable

12 candidate for a referral. If you look at his place in the structure

13 involved and if you look at his participation in the crime, but let me add

14 that he has always denied and rejected the charges brought against him.

15 Therefore, the position is very clear.

16 JUDGE ORIE: If you allow me to interrupt you. First of all, most

17 what you said is not in addition to your written submission, but repeats

18 your written submissions. I now see that since you are revisiting the

19 genocide and joint criminal enterprise and participation in the joint

20 criminal enterprise, that it is not only in your written submission, you

21 dealt with it at an earlier stage of your submission today, and now you

22 are revisiting that matter. So there are three times. Could you please

23 wind up and come to a conclusion?

24 MR. PILETTA-ZANIN: [Interpretation] Yes, but I was -- I was -- I

25 just concluded.

Page 71

1 JUDGE ORIE: Thank you, Mr. Piletta-Zanin.

2 Then I would like to turn to you, Ms. Popadic. First of all, did

3 you have an opportunity to -- to read, and if not personally, to have

4 explained what is found in the submissions I referred to earlier, that is

5 May, June, November, and last Friday, the 12th of January submission by

6 Mr. Piletta-Zanin?

7 MS. POPADIC: [Interpretation] Thank you. During the break we

8 received all three of these submissions. The ones from May and June we

9 studied in detail and the one that was filed on Friday we only had the

10 contents of it briefly explained to us so that the delegation of Bosnia

11 and Herzegovina, after becoming acquainted with these filings, remains by

12 its written reply submitted in our earlier filing. If necessary today we

13 can provide additional clarifications or additional responses to some

14 other questions. And if we are unable to answer any of the questions

15 today, given the filings we received during the break, we reserve the

16 right to provide written answers at a later stage.

17 Once again, I would like to emphasise that in view of the

18 government of Bosnia and Herzegovina, this particular case would not be

19 suitable for referral to the authorities of Bosnia and Herzegovina for two

20 reasons. The first being the criteria of the gravity of the crime which

21 is not in compliance with the provisions of Rule 11 bis of the Rules of

22 Evidence and Procedure, and its implementation so far. The second reason

23 is this: If the accused became mentally ill following the commission of a

24 crime or if the crime was committed when the accused was of unsound mind

25 or was temporarily insane, that would be another reason.

Page 72

1 When it comes to the first reason the position of the government

2 of Bosnia and Herzegovina is such that the crimes that this particular

3 accused is being charged with fall into the category of the most grave

4 crimes. We heard that the Defence shares this view, and in our opinion

5 this does not comply with the criteria envisaged in Rule 11 bis.

6 MS. SOMERS: Excuse me, Your Honour, I apologise for interrupting

7 our colleagues in BiH, but we request that this be in open session, as

8 opposed to closed session, if we're still in closed. I'm not clear. Are

9 we in open?

10 JUDGE ORIE: As far as I am aware, we are -- we are in open

11 session.

12 MS. SOMERS: If you can confirm that, thank you very much.

13 JUDGE ORIE: Yes.

14 Ms. Popadic, the Prosecution wanted to verify whether we are in

15 open session. May I invite you to continue.

16 MS. POPADIC: Thank you. Since this case has been severed from

17 the Popovic et al case, we believe that it needs to be assessed in

18 comparison with the case from which it was severed. The Popovic case in

19 the pre-trial stage -- or, rather, the Popovic case is in the trial stage

20 now, and this accused stands accused for the same facts as those in the

21 indictment in the Popovic case. The government of Bosnia and Herzegovina

22 believes that the crimes that this accused stands indicted for in the

23 confirmed indictment taken within their legal qualification from the

24 indictment do not fall in the category of crimes under Rule 11 bis and, as

25 such, they make this case inappropriate for referral under Rule 11 bis.

Page 73

1 Furthermore, when it comes to the responsibility of the accused,

2 the government of Bosnia and Herzegovina believes that this particular

3 case could be referred to the authorities of Bosnia and Herzegovina

4 because this particular accused does not fall in the category of the

5 perpetrators at the highest levels who are most responsible for crimes

6 falling under the jurisdiction of the ICTY. We saw that the Defence

7 shares this view.

8 As for the second reason, which goes against the possibility of

9 referring this case, is the mental health of the accused. The government

10 of Bosnia and Herzegovina believes that if the accused suffers from a

11 mental illness or rather started suffering from a mental illness after the

12 crime was committed or started suffering in the course of the trial, the

13 courts of Bosnia and Herzegovina in both of these instances would refer

14 this case to the competent social work or social services centre, in which

15 case the court of Bosnia and Herzegovina would no longer have the

16 jurisdiction over this case, and the competent social services within the

17 relevant entity would gain the jurisdiction over this case.

18 The social services centre, as it stands now, are faced with a

19 situation where there is -- where there are significant difficulties with

20 medical facilities and their resources. We do have adequate mental

21 facilities in Bosnia and Herzegovina, we do have some, but they do not

22 have all the necessary resources in order to deal with these cases. The

23 government of Bosnia and Herzegovina thus believes that this particular

24 case is not suitable for referral to the authorities of Bosnia and

25 Herzegovina under Rule 11 bis. Thank you.

Page 74

1 JUDGE ORIE: Thank you, Ms. Popadic.

2 Ms. Somers.

3 MS. SOMERS: Your Honour, this case is not complicated. Any

4 complications that have been brought or allegedly brought before this

5 Referral Bench are creations based on speculation and I must say

6 contradictory positions to former submissions both by BiH and failure to

7 look at the correct state of the jurisprudence. First, working backward,

8 the issue of mental health is at best speculative. It has been raised in

9 a way that has not forced any formal hearing. The issues which have been

10 considered essential for assessment of capacities, based on the Strugar

11 decision, to the extent the accused was willing to undertake them in

12 examination are addressed, and I would draw Your Honour's attention to

13 those. I think they're very telling. The observations which were relied

14 on also in the Strugar decision by the demeanour of the accused in

15 proceedings, I think, are also very telling. So although none of us

16 professes to have the ability to be a mental health worker, we are

17 suggesting that there is really no issue but speculative matters that have

18 spun out of control and have now become used as a basis for effectively

19 shirking responsibility that any national system would have to undertake

20 if it were to conduct trials seriously in the criminal law.

21 What we are hearing is that should a -- an accused before a state

22 court judge, find himself in a state of unfitness, even after commencement

23 of trial, that that would paralyse the system. This is highly unlikely in

24 light of the international standards that have been accorded or the

25 recognition of having international standards that have been accorded to

Page 75

1 the state court. We remind -- which I'm sure we don't need to remind, the

2 Bench is well aware that the Detention Unit has been certified as meeting

3 international standards in BiH. So all of this suggests that either there

4 is some problem that was not dealt with, or that it may be inconvenient,

5 but we take our accused as we find them in all systems, whether the

6 incapacity, which is not in any way, not only not confirmed, but has not

7 gone beyond the level of mere speculation, were to eventualise, or before

8 a trial, before a referral, or during the course of trial.

9 Secondly, and perhaps importantly, I will avoid at this moment the

10 issue of -- issues that have to go into private session, but the documents

11 that we read over the course of the break in no way change the position.

12 In fact, speculative. The Chamber heard from the accused on the issues,

13 and there was nothing of any concrete nature. If the Referral Bench

14 wishes to hear from any other member of the Prosecution as to these

15 issues, they are present and can certainly offer input rather than have

16 counsel speak for his feeling about what the Prosecution may or may not

17 hold as its position.

18 Importantly, the level of the accused all agree is proper.

19 Defence, the accused, and the Prosecution agree that the case should go to

20 BH. BH's assertion now, as to the arguments of gravity are simply

21 disingenuous. BH is trying cases now concerning the Srebrenica material,

22 the counts, the allegations in Srebrenica, and I would find it very

23 difficult to accept that should we have never, in the Tribunal, should

24 this institution never have asserted its primacy, that the Bosnians are

25 now saying that they would not have undertaken to try genocide cases,

Page 76

1 given that genocide has been a crime on its books, even dating back to the

2 socialist codes and currently is a crime. In fact, they are trying

3 Srebrenica cases now. The jurisprudence in no way bars a referral. If

4 one were to look at even at the language of, let's say, a Dragomir

5 Milosevic denial, that does not say that you have to have both, it talks

6 about a balance. And in fact, Ademi Norac involved a brigadier and a

7 colonel. The balance that is struck by examining the totality, not in

8 isolation, but the totality of what is before the Bench in the indictment

9 governs. The actual Security Council resolutions do not talk -- 1503 and

10 1534 do not address severity they address all -- indicted before this

11 Tribunal are by definition serious violations of international and

12 humanitarian law and, yes, they include genocide and, yes, Bosnia can

13 avail itself equally well Krstic adjudicated facts and find itself not at

14 all disadvantaged.

15 The actual addressed points are the level of the accused, mid --

16 I'm sorry, intermediate to lower level. In fact, I remind this Chamber of

17 its very well reasoned decision in Mejakic, which was a joint criminal

18 enterprise indictment which represents one of the most horrific crimes

19 ever to have taken place, a series of crimes ever to have taken place in

20 the territory of Bosnia and Herzegovina, or anywhere for that matter, and

21 that case is being tried in the state court of Bosnia-Herzegovina. In

22 fact, it involved enormous numbers of human beings, it involved a period

23 of time, and it also involved what was a joint criminal enterprise, and

24 that has been no bar.

25 In this instance, given, as the Chamber -- as the Bench will look

Page 77

1 at all factors, the level which we agree is appropriate, and the -- I'm

2 sorry, the -- yes, the level which is appropriate and the gravity which

3 Bosnia itself undertakes to try, there can be no question but that it can

4 and should be sent down.

5 Again, there is absolutely no basis for giving this case any more

6 concern than any other case where there are issues raised. For example,

7 in the extreme, on mental health issues, that is something Bosnia will

8 have to deal with if it expects to be a player in the international

9 community and it has so far demonstrated it can. It is on notice that it

10 must do what it has to do. Again, it is unlikely that in connection with

11 this accused that will arise, from on things we've seen. But should it,

12 in order for it to be considered seriously for referrals, it will have to

13 comport with all international standards. It is simply inconceivable that

14 a sovereign system would rule out not just the possibility but given a

15 sovereign system in a formerly war-torn area, the possibility of any

16 incapacity, particularly one resulting allegedly from any mental issues in

17 its scheme.

18 Excuse me just a minute, Your Honour.

19 We are not in agreement with the submission of the Registrar to

20 the extent that there can be confirmation of the level of general

21 protection, then it may be appropriate for further discussions. But in no

22 institution is there an absolute guarantee -- in no institution is there

23 an absolute guarantee of security, even in this one. In no institution is

24 there a guarantee of a person retaining his or her balance at all times.

25 I do draw the attention of the Chamber, by the way -- to the Referral

Page 80

1 things are equal when there is nothing unusual that has been raised in

2 this case that should bar referral, including the gravity.

3 As time progresses toward our conclusion, it is clear, unless

4 Bosnia is saying it is not prepared to handle genocide cases or any

5 allegations, then that has to be dealt with by its own sovereign

6 structures and their responsibility to their people to tell them that they

7 are not prepared to do that.

8 At this point, we feel that we have made well the case for

9 referral, that should there be any further questions that the Bench might

10 wish to put to my colleagues, we are prepared to answer them. And we

11 thank you and urge that the case be referred.

12 JUDGE ORIE: Thank you, Ms. Somers.

13 [Trial Chamber confers]

14 JUDGE ORIE: Judge Kwon has a comment.

15 JUDGE KWON: A brief question, Ms. Somers. My question is related

16 to the severance of Mr. Trbic which is pending before the Appeals Chamber.

17 Do you think or argue that referral can be ordered irrespective of the

18 outcome of the Appeals Chamber's decision?

19 MS. SOMERS: If I may take a moment to speak with Mr. McCloskey as

20 to the status of that. Thank you.

21 [Prosecution counsel confer]

22 MS. SOMERS: I appreciate it, I was trying to get up to speed on

23 what the status is. It is unclear why, quite frankly an issue of

24 severance is taking so long. So it would be prudent to resolve it so that

25 we that this is, in fact, the indictment. But a request, certainly 11 bis

Page 81

1 matters are fast-track appeals matters and perhaps because it has such a

2 close link to 11 bis, it may be a matter that the bureau may find wishes

3 to ask for resolution. It would seem wise, and certainly helpful for

4 clarity, so that all know exactly what indictment we are proceeding on, to

5 have it done. But again, that is a matter sadly outside of our hands.

6 We -- but we would urge any remedy that may be available through --

7 through Your Honours.

8 JUDGE KWON: What I wanted to hear from you is that as a matter of

9 law that whether referral can be ordered without severance at all.

10 Mr. McCloskey.

11 MR. McCLOSKEY: Thank you, Judge Kwon. That is, I think, a legal

12 issue that we're not -- we don't know. The -- me reaction would be that

13 we should wait. That if the work of the appellate chamber is to be viewed

14 as serious, we should wait. Though the practical situation, as we -- as

15 you and I both know, the case that it -- that he would be sent back to

16 has -- has put on so much evidence that it would be hard to imagine a --

17 in a practical sense, a rejoinder of that case. So I think legally we

18 don't know the answer to your question, but I would think common sense

19 tells us we shouldn't do anything until the appeals is through.

20 JUDGE KWON: The practical problems is that the Appeals Chamber's

21 procedures are suspended pending the competency issue.

22 MS. SOMERS: May I address that, Your Honour? That -- that should

23 not have been a basis, in my submission, for suspending any provision.

24 Competency can certainly move forward. Appeals can go; competency may or

25 may not, particularly where 11 bis is concerned. It does not have the

Page 82

1 impact of preventing a referral. So if the bench has not been

2 sufficiently concerned to -- and I don't mean this Bench, if the Trial

3 Chamber has not felt the need to resolve the issue immediately of

4 competency, which is a matter of hearing, of course this Chamber, under 11

5 bis H is fully empowered to hear the issue of competency, as it can hear

6 any matter before a Trial Chamber, should that really be what is at issue.

7 It should not -- again so many things become interrelated where if they

8 would just be dealt with in order, it would be helpful, but the competency

9 per se should not affect the issue of severance, and competency does not

10 affect the issue of referral.

11 JUDGE KWON: Thank you.

12 JUDGE ORIE: If I may put a follow-up question there. What if the

13 severance issue had never been raised? I mean, 11 bis request was prior

14 to the severance request, isn't it?

15 MR. McCLOSKEY: No, Mr. President, I believe it was first severed

16 and then 11 bis.

17 JUDGE ORIE: We'll check that. I thought it was the other way

18 around.

19 MR. McCLOSKEY: Yeah, it always helps to check, but I'm -- I'm --

20 well, I see --

21 JUDGE ORIE: It seems that Mr. Piletta-Zanin will assist us in

22 finding answers to the question.

23 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President, in

24 relation to this answer, it is in my request that it was severed because I

25 said then there can be no talk of a referral without a prior severance.

Page 83

1 So that was the chronology, indeed.

2 JUDGE ORIE: So my chronology was the right one.

3 MS. SOMERS: Your Honour, may I also remind you that for example

4 in situations -- not in this case, but in a general situation where a plea

5 is involved, one can have a plea agreement with -- even though an accused

6 is part of a greater group of accused, and then a severance would

7 certainly be appropriate at the time the cases are severed.

8 In this instance, the timing - and I am grateful to my colleague

9 for clarifying that - should not be a bar, and in fact if the Chamber

10 wants to have anything examined it would certainly request -- I think it

11 would probably be the most appropriate inquiry as to if it believes it

12 should move forward with the Appeals Chamber to so make the request I

13 mentioned earlier.

14 JUDGE ORIE: We are not suggesting anything at the moment, but

15 from what I understand, the request dates from the 4th of May of this year

16 [sic], whereas the severance motion of the OTP was of the 16th of June and

17 the severance was I think decided on the 26th of June.

18 What you said, Mr. Piletta-Zanin, I leave that open at this moment

19 who specifically asked for the severance, whether it was the Prosecution

20 or the Defence. But at least it seems to be clear that a referral request

21 was there, but there was no mentioning anything -- no mention at all about

22 severance.

23 MS. SOMERS: It might be tidier, but I don't know that it's

24 legally necessary.

25 JUDGE ORIE: That's at least -- then -- yes, Mr. Piletta-Zanin.

Page 84

1 MR. PILETTA-ZANIN: [Interpretation] Mr. President, do you allow me

2 to say a few words, because I did not --

3 JUDGE ORIE: I have in mind to complete the questions of the bench

4 and then to give a new round, five to six minutes, to make any additional

5 submissions the parties would like to make, also in relation to the

6 questions posed by the Bench.

7 I would like to briefly address you, Ms. Popadic, on the following

8 issue: You said that if an accused turns out to be mentally ill, that he

9 would then be within the jurisdiction of the social care authorities.

10 Which suggests that they would not be within the jurisdiction of the state

11 court anymore. I think that's what you said. Isn't it true that if

12 someone recovers from a mental illness that he would then return into the

13 jurisdiction of the state court, so for purposes of trial he would always

14 be in the jurisdiction of the -- under the jurisdiction of the state

15 court?

16 MS. POPADIC: [Interpretation] If there is any doubt or if there

17 is -- if there are grounds to suspect that an accused cannot participate

18 in a trial because of mental illness, forensic medical opinion will be

19 sought. If it is established by forensic medical examination that the

20 accused became mentally ill after the commission of the crime, and that he

21 therefore cannot follow the proceedings, the court will interrupt the

22 proceedings and will refer the accused to the appropriate social welfare

23 authorities according to his place of residence.

24 When the accused's mental health improves to such an extent that

25 he is fit to take part in criminal proceedings, the criminal proceedings

Page 85

1 will continue. During the time when the proceedings are interrupted,

2 during this suspended proceedings, the mentally-ill accused is provided

3 with health care under the law under the protection of mentally ill people

4 in the Republika Srpska or under the law of the protection mentally

5 disturbed persons under the protection of the Federation of

6 Bosnia-Herzegovina. These laws provide for the measure of forcible

7 detention and forcible commission to a mental health institution, and the

8 competent entity court can issue these measures in non-trial proceedings

9 if the person's health, life, or safety are at risk, or if the health or

10 life or safety of others is at risk. The time during which the mentally

11 ill person is detained cannot be longer than one year in the Federation of

12 Bosnia-Herzegovina or six months in the Republika Srpska.

13 During the time when health care is being provided, the health

14 care institution will regularly submit reports to the court and the time

15 limit can be extended by the court in its decision pursuant to a motion by

16 the health care institution. There is another situation. If the accused

17 committed a crime in a state of reduced competency, the court may hand

18 down the security measure of mandatory psychiatric treatment along with

19 some other legal sanction.

20 I wish to mention that at present in Bosnia and Herzegovina there

21 are no properly equipped health institutions able to implement the

22 measures of forcible detention and commission to a health care institution

23 or a mental institution in cases where the person represents a serious

24 threat to his own life, health, or safety, or the life, health, and safety

25 of others. Efforts, however, are being made to resolve this issue. In

Page 86

1 the past year the government issued a decision to form a unit to implement

2 a project to this effect, funds have been set aside, steps have been taken

3 to solve this problem.

4 JUDGE ORIE: Thank you for that answer, Ms. Popadic. So if I

5 understand you well, finally, for purposes of trial, the jurisdiction

6 would always be under the state court, although meanwhile an accused may

7 be in detention somewhere else.

8 What -- you may have noticed that the Prosecution has -- may have

9 just -- perhaps I will just finish my question and then invite you to

10 answer it. You may have noted that the Prosecution expressed its -- it

11 was surprised that no facilities would be there. I would like to ask you,

12 the situation where an accused becomes mentally ill and has to be detained

13 because he may create a risk for himself or for others, is not unique for

14 any ICTY case, is it. So therefore is it -- when do you think that the

15 matter will be resolved and how are you dealing at this moment with

16 similar cases?

17 MS. POPADIC: [Interpretation] There are medical facilities in

18 Bosnia and Herzegovina, to which such persons are admitted; however, those

19 institutions are not properly equipped. And that is the reason why, in

20 July 2006, the government of Bosnia and Herzegovina issued a decision to

21 form a unit which will then implement the project of renovation of the

22 psychiatric clinic Podromanija Sokolac. We have undertaken serious steps

23 in that regard and there are expectations that there is going to solve

24 this issue once and for all. The issue of the persons who have to be

25 detained pursuant to the court decision on those grounds.

Page 87

1 JUDGE ORIE: Is there any expectation in terms of time as when

2 this facility will be available?

3 MS. POPADIC: [Interpretation] I think that I really couldn't give

4 you a -- specific dead-lines here. We are aware of the gravity of the

5 issue, and the government is currently undertaking all necessary steps in

6 order to resolve the issue as soon as possible.

7 JUDGE ORIE: Thank you for that answer.

8 Then, Ms. Somers, I have one, and that will be my last question.

9 One question for you. You referred -- you expressed some concern or some

10 big surprise that if no Tribunal would have been there that you could not

11 accept that Bosnia and Herzegovina would not have undertaken to try

12 genocide cases. Is that, in your view, perfectly fair to the government

13 of Bosnia and Herzegovina, because since there is a Tribunal and since

14 there is a Rule 11 bis, the question is not whether Bosnia and Herzegovina

15 would have undertaken any genocide cases if there would have been no

16 Tribunal, but that the government of Bosnia and Herzegovina will give its

17 view on how to interpret Rule 11 bis, Rule 11 bis with -- together with

18 the Security Council resolutions, makes a destination between cases

19 including genocide cases, which preferably should be heard by this

20 Tribunal or could be referred to the states of the former Yugoslavia.

21 MS. SOMERS: Your Honour, I do not think that Rule 11 bis or any

22 of the resolutions underlying Rule 11 bis say that. Rule 11 bis and the

23 resolutions that have given it power, are urging that cases and certainly

24 there could be hundreds of persons like the accused who participate in the

25 crimes that go into the cases that are tried here. We are trying the

Page 88

1 highest level of people here. And while we have the life in us, we will

2 do that. But this is exactly the kind of situation that will be faced

3 over and over again in the future, and in fact they have -- Bosnia has

4 undermined its own position, it has undertaken the Kravica warehouse

5 cases, where they have thousands of persons murdered. The fact that it is

6 part of their criminal law indicates that they can. And I have not

7 studied the history of criminal Prosecutions in Bosnia, but if it is on

8 the books, it must have been at some point invoked and it should not be

9 selectively rejected for inconvenience. In fact, this is a very make or

10 break threshold issue now for the future of referrals. After all, this

11 institution is not indicting anymore.

12 What also strikes me, if Your Honour will allow me to piggyback on

13 to this, is since my learned friend opposite has indicated the situation

14 that would arise should, let's say for the sake of argument, the severance

15 were not granted it would be putting everyone back at square zero because

16 it would be years, if at all, and perhaps the issue of --

17 JUDGE ORIE: That's a different issue, it's not related to my

18 question.

19 MS. SOMERS: I'm sorry. I just wanted to raise the fact that you

20 had asked me earlier about the issue of the pending motion for

21 severance -- or self advance issue in the appeals. Because counsel has

22 indicated a relative -- I would say statement of agreement, perhaps -- and

23 this is of course within counsel's providence -- province, but perhaps

24 they are considering a withdrawal of the appeal if the position is exactly

25 what he represents the position to be, which in our view would be a wise

Page 89

1 move, it would end up effectively moving the case forward, there would be

2 nothing gained by the appeal being heard at this point in time, I will

3 agree assuming that the bench accepts that the gravity is well within what

4 can be tried and what is contemplated, the level at this point, and again

5 the balances, if Your Honours review your own excellent jurisprudence, you

6 will see there is nothing to prevent it. You don't have to have perfect

7 balance of both, but things are not looked at in isolation. So I'm sorry,

8 I did piggyback on that, and I apologise, but I hope that helps a little

9 bit.

10 JUDGE ORIE: I would like to give an opportunity to the

11 representative of the government of Bosnia and Herzegovina and the parties

12 to make final submissions each to stay within five minutes' time.

13 JUDGE KWON: Before that, can I hear the answer raised by

14 Ms. Somers from Mr. Piletta-Zanin because that was the very question I was

15 about to put to you. If your position, as you submitted in your final

16 submission, your position -- the position of yours and your client is to

17 favour the referral as quickly as possible, then would it not be only

18 natural for you to withdraw the appeal in relation to the severance

19 decision?

20 MR. PILETTA-ZANIN: [Interpretation] Thank you, Your Honour, for

21 asking the question. First of all, I do not wish to answer because it's a

22 matter of principle, because the question is put by somebody of whom I

23 know not whether she is the author and accomplice to the denunciation

24 concerning my client. So I would like to put the question to the

25 Prosecution who is at the basis of the situation causing problem and

Page 90

1 threat. I want to know whom I'm talking to, and then I would gladly

2 answer the question.

3 What I have never ceased saying, to be brief, is that we should

4 have staying or suspension in the first order. The first staying depends

5 on others and that is the answer to be given as to the mental state. Why

6 do I give you this answer? Because this is the answer that will condition

7 the quality on the merits I will receive -- of instructions given by my

8 client. I think you follow me. The question put to me is a treacherous

9 one, and I cannot give you an answer, given to my obligation. I can only

10 answer when I have a very clean answer as to the mental state. Then I can

11 answer all the questions you may have, and I would gladly have an answer

12 to my question: Who gave to the media the name of Mr. Trbic.

13 JUDGE KWON: Thank you. I think that's the farthest we can get.

14 JUDGE ORIE: Then for the final submissions.

15 [Trial Chamber confers]

16 JUDGE ORIE: For the final submissions, not taking more than five

17 minutes each, I'd like to invite Ms. Somers, you to first address the

18 Referral Bench. If there is nothing in addition to be said, you don't

19 have to fill the five minutes.

20 MS. SOMERS: The Prosecution has requested of this Bench is to

21 refer the indictment to BH. Based on its being a jurisdiction which is

22 able to handle the matter, and that ability has been emphasised repeatedly

23 in other cases involving referral. And it is our sincere hope that its

24 abilities will continue along those veins.

25 The -- there is no issue about level, it is agreed between the

Page 91

1 parties certainly and with Bosnia that it is appropriate. Again, only

2 should the Chamber wish to go back into its own jurisprudence and to look

3 carefully into what is in the Security Council resolutions, the Chamber

4 can rest comfortably knowing that Bosnia has undertaken very serious cases

5 that even if not qualifying the crimes as genocide, is taking those facts

6 which are also tried here and presumably will very ably handle them.

7 There is simply no reason that it cannot do so with this accused today.

8 The issue of fitness is at best speculative, and it is, based on

9 what we have heard today from BH, evident that BH, if for any accused in

10 its system should this matter arise in the -- certainly in the war crimes

11 domain, it will have to find some resolution, even if a permanent one is

12 not found, it will have to use its mighty powers to find some resolution

13 in that no one can guarantee the permanent fitness of any person who is

14 charged.

15 There has been no evidence and certainly no indication from what

16 has been undertaken by forensic individuals that there is an issue.

17 Again, repeating, and not overly repeating, but today's interaction

18 between Your Honours and the accused confirm the suggestions that were --

19 the conclusions that were drawn in the report. The Registry intervention

20 we deem not founded, and should there be concerns along this line, this is

21 part of the criminal system. That is simply the way it is. And every

22 jurisdiction, including this one, has to find a way to deal with it.

23 There is no suggestion that BH cannot -- in fact, it's not clear at all, I

24 don't think it has even suggested in its responses that it cannot be dealt

25 with. Again, for the reasons gone into private session, it is a

Page 92

1 non-issue. We are hopeful that the procedural quagmire that we find

2 ourselves in with the delay of what may or may not be a valid appeal, and

3 again whether or in the competency were at issue has no impact on whether

4 an indictment should be referred. The framework, the laws, the

5 provisions, which is the Chamber, this Bench required in Kovacevic, the

6 provisions are in the law, it is now up to the sovereign state to find a

7 way of implementing them and I am sure that it will do so if the need were

8 ever to arise, but it is certainly not evident at all anything we have

9 seen, heard or read that need arises in this case.

10 Again, there should be no obstacle in ordering a referral of this

11 case to Bosnia and Herzegovina. Thank you.

12 JUDGE ORIE: Thank you, Ms. Somers.

13 I'd now like to give an opportunity to you, Ms. Popadic, to give

14 any further submissions in the next five minutes.

15 MS. POPADIC: [No interpretation]

16 JUDGE ORIE: I do not receive translation.

17 THE INTERPRETER: The interpreter cannot hear the link from

18 Sarajevo at the moment. The link is back.

19 MS. POPADIC: [Interpretation] Thank you. The government of Bosnia

20 and Herzegovina has closely followed the debate today. We remain faithful

21 to our response filed in the written form. And we also stand by

22 everything that we have said today. I want to emphasise that the view of

23 the government, as formulated in its written submission and today in oral

24 submission, pertains only to this particular case. It does not in any way

25 affect the readiness of Bosnia and Herzegovina to prosecute war crimes.