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Milan Petrovic’s testimony

In the City of Westminster Magistrates’ Court 70 Horseferry Road, London, SW1P 2AX Wednesday 14th July 2010

before

SENIOR DISTRICT JUDGE WORKMAN

GOVERNMENT OF SERBIA

– v –

DR EJUP GANIĆ

Transcribed from the official Tape Recording

MR J LEWIS QC & MR B WATSON appeared on behalf of the PROSECUTION

MR E FITZGERALD QC & MR J JONES appeared on behalf of the DEFENDANT

———

DAY FIVE – PROCEEDINGS

———

 

[At 10.25]

MR FITZGERALD: I understand that the interpreter is sick and that in those circumstances my learned friends would wish the embassy interpreter to interpret.  Sir, we have no objection on one condition, that if the answers could be spoken out loud so that those who can speak the language can check that it is being accurately interpreted.  For example, I understand there were one or two mistakes.

JUDGE WORKMAN: Yes; I’m quite content with that if you are, Mr Lewis.  If there is a difficulty we’ll have to make arrangements for somebody else to come in.  I wonder whether the interpreter could be sworn though.

[INTERPRETER AFFIRMED]

JUDGE WORKMAN: Thank you very much for stepping into the breach.

EVIDENCE OF MILAN PETROVIC continued

Cross-examination by MR FITZGERALD continued

MR FITZGERALD: Mr Petrovic, I want you to have a copy in Cyrillic of the request.  I have one available here if necessary.  Sir, the only marking is just to show the page number.  [Handed] The relevant passage is marked.  You’re obviously familiar, Mr Petrovic, with the contents of the request, are you not?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes.

MR FITZGERALD: Is this right, that in that request when dealing with the events of May the 2nd and May the 3rd you make no mention of President Izetbegović’s position when he was held at Lukavica on the 2nd?

MR PETROVIC: [speaks Serbian].

MR FITZGERALD: Sir, you can follow it; it’s at page 8 of the request, starting from May the 3rd.

INTERPRETER: Sorry?  Page 8 – because what you have…

MR FITZGERALD: No; in the English language it’s page 8; it starts ‘On May the 3rd around’.  You make no mention, do you, of the fact that President Izetbegović was held at Lukavica on the 2nd?  Look at page 19.

MR PETROVIC: [speaks Serbian].

MR FITZGERALD: Look throughout the request if you like.

INTERPRETER: Yes.  On this page, which is marked B19, I do not mention that fact regarding Izetbegović in this paragraph that you marked.

MR FITZGERALD: And you don’t mention it anywhere in the request that he was held at Lukavica on the night of the 2nd?

MR PETROVIC: [speaks Serbian].

INTERPRETER: It’s right I do not mention it here in this text but I think there is no need to mention that because this part of this extradition request speaks of something else.

MR FITZGERALD: You said when you gave evidence that President Izetbegović was transferred to Lukavica?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes, I did mention that fact in talking about the wider context of the events, and I think it’s correct.

MR FITZGERALD: The truth is he was kidnapped, wasn’t he, by the JNA?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Well, that word ‘kidnapping’ doesn’t respond to the real account of the events because on the airport there was nobody from the presidency to meet President Izetbegović.

MR FITZGERALD: The JNA detained him at the airport, didn’t they?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes.

MR FITZGERALD: They held him and his daughter against their wills over night, didn’t they?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes.

MR FITZGERALD: And they used them as hostages then to get a deal in relation to the JNA in negotiations that day and the next day.  They used them as hostages, didn’t they?

MR PETROVIC: [speaks Serbian].

INTERPRETER: I wouldn’t use the expression ‘hostages’.

MR FITZGERALD: Do you accept that to hold the head of state and his innocent daughter against their will is a crime?

MR PETROVIC: [speaks Serbian].

INTERPRETER: It is a criminal act.

MR FITZGERALD: Why haven’t you done anything when you’ve got all the people there?  Why haven’t you done anything to prosecute anybody for that crime which you admit?

MR PETROVIC: [speaks Serbian].

INTERPRETER: That criminal act specifically that would be the responsibility of now the late General Kukanjac and others from his headquarters.

MR FITZGERALD: You accept that there was a criminal act for which no one has been prosecuted?

MR PETROVIC: [speaks Serbian].

INTERPRETER: That criminal act was done only during the time when President Izetbegović was driven in UNPROFOR vehicles from Lukavica to Bistrik and he was accompanied by UNPROFOR.  When he left Vukavica barracks then the criminal act stopped.

MR FITZGERALD: Do you accept that President Izetbegović was held hostage, was held in captivity, over night of the 2nd and the 3rd with his daughter against his will?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes.

MR FITZGERALD: And do you accept that General Kukanjac said that when they travelled in the UNPROFOR vehicle he would have shot him if he’d tried to escape?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Considering that I think that escape was impossible, similarly I think this threat was given pro forma to justify giving[?] General Kukajac, more than it was actually a serious threat to Izetbegović.

MR FITZGERALD: Why – to appease him?

MR PETROVIC: [speaks Serbian].

INTERPRETER: To appease the members of the JNA; actually, it was more given because of them than…

MR FITZGERALD: You accept that he said live on television on May the 2nd – President Izetbegović – ‘Because they won’t let me leave because they brought me to Lukavica under duress.’ That’s what he said live on television on 2nd of May?

MR PETROVIC: [speaks Serbian].

INTERPRETER: He said that.

MR FITZGERALD: And why didn’t you mention the fact that he was held captive over night on the 2nd and held captive on the 3rd in the request?

MR PETROVIC: [speaks Serbian].

INTERPRETER: It was not mentioned in relation to the events that happened on 2nd of May – the officers’ club, hospital, and those events on 2nd of May – because they don’t have any relevancy to those events.  Taking Mr Izetbegović was not either the motive or the cause of the events that happened on the 2nd of May.

MR FITZGERALD: Let’s go to the 3rd of May.  You say, do you not, that the president of the presidency, Alija Izetbegović, was personally willing to be the guarantor of the peaceful moving of the column – okay?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes, I did say that and Mr Alija Izetbegović did say that.

MR FITZGERALD: And he was under duress when he said it, wasn’t he?

MR PETROVIC: [speaks Serbian].

INTERPRETER: According to the evidence and my relation of the evidence I think that Mr Izetbegović was not under duress and Mr MacKenzie’s statement speaks in that favour, who asked Mr Izetbegović whether he was under duress and he said no.

MR FITZGERALD: No.  MacKenzie says the exact opposite; he says he was in a box, Kukanjac was in a box and Izetbegović was the key.  That’s right, isn’t it?

MR PETROVIC: [speaks Serbian].

INTERPRETER: So, Mr MacKenzie was actually thinking about the time when Izetbegović was in Lukavica and not after he was brought to Bistrik and when he was filmed by the camera.

MR FITZGERALD: President Izetbegović was at no stage free to leave if he wished to, was he?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Well, I wouldn’t accept that proposition because I think that Mr Izetbegović could have left, especially in the time when he was only with the members of UNPROFOR and when he left Lukavica.  There were no members of the JNA in the escort of Izetbegović on that occasion.

MR FITZGERALD: Do you accept that you should have mentioned the fact that President Izetbegović was at all stages under duress in this request?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Well, I do not consider that that fact is so relevant in relation to the war crimes that are in this request and upon which there is the responsibility of Mr Ganić.

MR FITZGERALD: Do you accept that if someone, that if you rely on someone’s consent and in fact they are under duress that is a legally relevant factor for a court?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Those are assumptions and I wouldn’t accept those assumptions in this context and in this case.

MR FITZGERALD: Let’s go on.  Is this right: on the procedural history – I just wanted to move on to the procedural history – the file, the file…?

INTERPRETER: Now you are talking still about this?

MR FITZGERALD: No, no; we can leave that document, Mr Petrovic.  The file from the Belgrade military tribunal was referred to the ICTY in 2002 through the Republika Srpska authorities?

INTERPRETER: Two thousand and two?

MR FITZGERALD: Yes; it was in fact 2002.

MR PETROVIC: [speaks Serbian].

INTERPRETER: Well, as I said, I didn’t see the full Rules of the Road file, I mean the specific file, so it’s hard for me to say first whether the whole military file was even given to or managed to reach the Rules of the Road unit.

MR FITZGERALD: Just help us on this.  The military tribunal got the Republika Srpska to refer this matter to the Rules of the Road inquiry, didn’t they?  The Belgrade military tribunal got the Republika Srpska authorities to refer this matter to the Rules of the Road inquiry?

MR PETROVIC: [speaks Serbian].

INTERPRETER: I wouldn’t put it that way, or I actually cannot confirm because I think it’s more a question of international assistance in criminal matters between the military court and the district prosecutor office in the area.

MR FITZGERALD: But the military tribunal knew that the Republika Srpska had put their materials to the ICTY Rules of the Road inquiry?

MR PETROVIC: [speaks Serbian].

INTERPRETER: I can maybe assume that they knew but I cannot confirm now.

MR FITZGERALD: Let’s work on that assumption.

MR PETROVIC: [speaks Serbian].

INTERPRETER: I’d just like to clarify one thing.  In order to be of some assistance in criminal matters, international assistance between district prosecutor office in [inaudible] and the military court in Belgrade a pre-condition would be that the same case was also in existence in the district, or the prosecutor’s office in the area.  So, I couldn’t confirm that you can put that, you can say the case files are the same as the military court in Belgrade and that file that eventually ended up in the Rules of the Road unit in the ICTY[?].

MR FITZGERALD: Now, you said on Monday that the Serbian authorities were told by Mr Alcock that the ICTY Rules of the Road inquiry had said that there was no case to answer, no sufficient evidence.  You were told, the Serbian authorities were told, by Mr Alcock that the Rules of the Road had found no sufficient evidence.

MR PETROVIC: [speaks Serbian].

INTERPRETER: No; Mr Alcock didn’t speak to us in the War Crimes Prosecution Office in that context or in that regard about that case.  It was not me actually who talked to Mr Alcock but my colleague who was unofficially introduced by Mr Alcock by some of the markings in that case, so he didn’t officially send us information.

MR FITZGERALD: Yes, but unofficially you knew that the marking was B; that’s to say, no sufficient evidence?

MR PETROVIC: [speaks Serbian].

INTERPRETER: My colleague told me that Mr Alcock said that they were both markings A and B in relation to this, I mean different persons.

MR FITZGERALD: But you knew that in the case of Mr Ganić it was B – sufficient case?  You told us that on Monday.

MR PETROVIC: [speaks Serbian].

INTERPRETER: No.  He was actually not speaking about specific persons, names.

MR FITZGERALD: You told us on Monday that you knew that Dr Ganić was B from what Mr Alcock told you? 

MR PETROVIC: [speaks Serbian].

INTERPRETER: Not in that context.

MR FITZGERALD: In what context?

MR PETROVIC: [speaks Serbian].

INTERPRETER: The context of the answer – sorry.

MR FITZGERALD: Well, did you learn that Dr Ganić had been marked B, no sufficient evidence, by the Rules of the Road?  Did you discover that?

INTERPRETER: Discovered that he hadn’t?

MR FITZGERALD: Yes.  Did you discover that from Mr Alcock?

MR PETROVIC: [speaks Serbian].

INTERPRETER: I think that Mr Alcock said to my colleague that he was speaking in general terms about persons but not names of the persons and that some had marking A and some marking B.

MR FITZGERALD: Did you ever ask the ICTY for their findings after these discussions?

MR PETROVIC: [speaks Serbian].

INTERPRETER: No.

MR FITZGERALD: You knew they’d investigated Dr Ganić.  Why didn’t you say, ‘What did you find?’

MR PETROVIC: [speaks Serbian].

INTERPRETER: Well, I wouldn’t agree when you say that the tribunal investigated.  I think that basically what the tribunal did was evaluate the evidence that they received so they didn’t investigate his case or that of his wife.

MR FITZGERALD: Their evaluation was that there was no sufficient evidence.  You accept that now?

MR PETROVIC: [speaks Serbian].

INTERPRETER: ‘Not enough evidence’; I heard about that expression, but the context of the opinion, I think, was that there is a need for further investigation and collecting additional evidence.

MR FITZGERALD: No.  You’ve seen what they say about Dr Ganić now, haven’t you?

MR PETROVIC: [speaks Serbian].

INTERPRETER: In the Rules of the Road file?

MR FITZGERALD: Yes.

MR PETROVIC: [speaks Serbian].

INTERPRETER: Well, the Rules of the Road file, the complete Rules of the Road file, was received by the War Crimes Prosecutor’s Office from here 10 or more days ago and it’s completely in English, so we didn’t manage to translate it.

MR FITZGERALD: Yes, but do you know what it says is: ‘The evidence is insufficient by international standards to provide reasonable grounds for the belief that Dr Ganić may have committed the above serious allegations’?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Well, if I accept that sentence that you read, I mean I didn’t manage to read all of the Rules of the Road file, as I said.

MR FITZGERALD: You’ve been aware of this since March, haven’t you, when there was a bail application and the fact of the Rules of the Road was mentioned?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Not from March but later.

MR FITZGERALD: You said ’10 days ago’.  That’s absolute nonsense, isn’t it?  You’ve known…

MR LEWIS: He said ’10 days or earlier’.

MR FITZGERALD: Are you saying that the first you saw of the Rules of the Road findings was 10 days ago?

INTERPRETER: If I could clarify just so we don’t have a… The findings or the file?

MR FITZGERALD: The findings.

INTERPRETER: Just the findings?

MR FITZGERALD: Yes, the findings.

MR PETROVIC: [speaks Serbian].

MR FITZGERALD: He said ’10 days or so’.

MR LEWIS: Just as a point of information and so there’s no misunderstanding, they had the findings but I’m told the CPS didn’t supply the file till 10 days ago.  The actual findings were supplied earlier but Mr Gibbins[?] didn’t send the file in English to the Serbian authorities till about 10 days ago.

MR FITZGERALD: You had the findings in March, didn’t you?

MR PETROVIC: [speaks Serbian].

INTERPRETER: I again say I haven’t read the whole conclusion and everything.

MR FITZGERALD: You knew full well the conclusion was there was insufficient evidence of reasonable grounds to suspect a crime?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Well, even if I knew that there is additional evidence that I gathered which actually supports my decision because new evidence was gathered and speaks in favour of the conclusion of the responsibility of Mr Ganić.

MR FITZGERALD: I’m just testing whether you’re telling the court the truth.  You said you first knew about it 10 days or so ago.  On the 8th of March 2010 Mr Vuković wrote a letter to the prosecutor, Mr Cadman[?], referring to the fact that the assessment was label B, meaning insufficient evidence.

MR PETROVIC: [speaks Serbian].

INTERPRETER: Well, I don’t know about that information and in that time I don’t know whether the information was correct.  It’s possible that he has information on that day and that he received that information from Mr Barašin, the chief prosecutor in Bosnia.

MR FITZGERALD: Well, let me just tell you… Just have a look at it; there it is.  Have a look at the last sentence.  By all means translate it.

INTERPRETER: You don’t have it in Serbian by any chance?

MR FITZGERALD: Originally it was written in English.  [Handed] It’s the last sentence.  Just look at the last sentence.  I’m sure your interpreter can help.  Sir, it’s in vol 9, the June the 11th core bundle, and it’s the 8th of March letter, tab 4.  Do you have that?

JUDGE WORKMAN:  I don’t, but I’ll find it.  [Pause]

MR FITZGERALD: So, you knew full well on the 8th of March…

MR PETROVIC: [speaks Serbian].

INTERPRETER: That’s what I said.

MR FITZGERALD: You knew that it was label B?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Not me personally.

MR FITZGERALD: You mean you didn’t even discuss it with Mr Vuković?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Not on the subject of B.

MR FITZGERALD: You’re in charge of this case; you’re trying to get a man locked up in England in prison and you don’t even bother to inform yourself of what the ICTY have found; you didn’t even bother?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Well, the Rules of the Road, sadly, do not apply at all and they’re not…

MR FITZGERALD: No, no, no; that’s not the question; you’re not answering the question.

MR PETROVIC: [speaks Serbian].

MR FITZGERALD: No, no; he can’t finish his answer.  The question was: why didn’t you inform yourself before seeking to have this man denied bail of what the ICTY had found?

MR PETROVIC: [speaks Serbian].

INTERPRETER: There was no need.

MR FITZGERALD: So, it’s irrelevant that the ICTY has found no evidence?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes, it’s relevant.

MR FITZGERALD: Can we go on?  You said in your evidence that during the years 2006 and 2007 your team fully co-operated with Mr Alcock.  Is that right?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes.

MR FITZGERALD: Now, can I just ask you to look at the cross-examination bundle, tab 11?  This is a statement by Mr Vekarić.  Sir, do you have the cross-examination?

JUDGE WORKMAN: I do, yes, thank you.

MR FITZGERALD: Tab 11: Vekarić.  Do you have that, Mr Interpreter?

INTERPRETER: Yes.

MR FITZGERALD: I’m just going to read what it says there.  It’s dated the 4th of March 2009 and you see a picture of Mr Vekarić there, do you?  He’s the spokesman for the War Crimes Prosecution Office, is he?  And what he says there in March 2009 is: ‘Serbia has initiated the investigation and issued international warrants for members of the BH war presidency Ejup Ganić and another 18 individuals.’ Do you see that?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes.

MR FITZGERALD: Do you see it says there that the War Crimes Prosecution Office decided to initiate the process after realising that the BH, the Bosnia Herzegovina, prosecution obstructed the case?  Do you see that, or do you understand that?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes.

MR FITZGERALD: When did they obstruct the case?

MR PETROVIC: [speaks Serbian].

INTERPRETER: It’s not possible from 1992 until 2009 to initiate the proceedings against any individual for the war crimes; and the evidence was more available in the BH than in Belgrade.

MR FITZGERALD: Are you saying that they obstructed the case because they didn’t charge Dr Ganić?

MR PETROVIC: [speaks Serbian].

INTERPRETER: No.

MR FITZGERALD: Then what was the obstruction?

MR PETROVIC: [speaks Serbian].

INTERPRETER: In 2006 and 2007 we have helped the prosecution in Bosnia Herzegovina as much as we can to initiate this case.  I think it would be correct to inform us at least in one sentence, not having [a feeling of outlook?] nor any other from the public prosecutors informed us about anything.

MR FITZGERALD: So, did you ever ask them?

MR PETROVIC: [speaks Serbian].

INTERPRETER: We actually tried to examine some individuals who were in Bosnia Herzegovina, but we didn’t find any bona fide relations from them; they actually were saying that they don’t have time to have video links or something like that.

MR FITZGERALD: Did you ever ask them, ‘What is your view as to the sufficiency of the evidence against Dr Ganić?’ Did you ever ask?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Well, I mean the case in the investigation is confidential, especially it’s confidential against whom the investigation is being done.

MR FITZGERALD: Can you answer yes or no?  Did you ever ask…?

MR LEWIS: Please let him answer the question.

MR FITZGERALD: Surely, he can answer yes or no first.

MR PETROVIC: [speaks Serbian].

MR FITZGERALD: Sir, can I just ask that he gives a yes or no answer?  Of course he can go on to expand it; he must be allowed to.  Did you ever ask what their conclusion was on the sufficiency of the evidence against Dr Ganić?

MR PETROVIC: [speaks Serbian].

INTERPRETER: No, not for any persons under that investigation because I don’t think it would be correct for my colleague in Bosnia to ask him to breach confidentiality of the investigation and to tell me that thing.

MR FITZGERALD: How can you accuse them of obstruction when you’re not even asking them for information?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Because we didn’t get any information from them, not even in the sense that they needed some additional evidence from us or that they do have enough evidence without us.

MR FITZGERALD: Then is this right: on December the 28th 2008 you applied to extend the investigation and for orders for the arrest and detention of Dr Ganić and 18 others?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes.

MR FITZGERALD: And a judge gave you an order on December the 29th 2008 ordering their detention?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes.

MR FITZGERALD: At that stage you hadn’t asked the ICTY what their conclusion was, had you?

MR PETROVIC: [speaks Serbian].

INTERPRETER: No.

MR FITZGERALD: And you hadn’t asked… I understand he said there was no need.  Is that right?   ‘No, there was no need’?  And you hadn’t asked Mr Alcock what his conclusions were, had you?

MR PETROVIC: [speaks Serbian].

INTERPRETER: No.

MR FITZGERALD: And you hadn’t got any of the evidence that you refer to as having got between 2009 and 2010; you had none of that evidence?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Of course, it’s not possible to gather what you had in 2008 or two thousand and…

MR FITZGERALD: But all the striking testimony that you refer to, or Mr Vuković refers to, in the letter of March 2010 was got after this.  That’s right?

MR PETROVIC: [speaks Serbian].

INTERPRETER: Yes, but before you collect the evidence by the investigating judge, that the proceedings, I mean how the proceedings go, you have to collect information.  Where is that specific evidence and whether it’s available to the investigating judge to investigate, for example, a witness or to get some additional documentary evidence?

MR FITZGERALD: So, without any of the new evidence you relied on, without any information about the ICTY, without any information about Mr Alcock, the judge simply ordered 19 people to be arrested and detained?

MR PETROVIC: [speaks Serbian].

INTERPRETER: He had reliable information with what evidence the prosecution needs to go before a judge[?] and what that evidence proved.

MR FITZGERALD: You made… So sorry.

INTERPRETER: I said that I do have a plane and they told me that the interpreter will be here at 11, so I would actually have to go.

MR FITZGERALD: We’re very grateful to you.  Things have moved much faster with you.

INTERPRETER: Thanks.  I don’t know whether we should make a break or something.  I’m really sorry.

JUDGE WORKMAN: We’re very grateful to you but you need some time, so if this is a convenient moment I’ll rise.

INTERPRETER: I think somebody mentioned that he should be here at 11 or something like that.

MR WATSON: Sir, if I can assist, we were told this morning that the interpreter wasn’t going to be available.  The Crown Prosecution Service had been making arrangements and they informed us that someone would be here at 11, but I haven’t been able to see if they’ve arrived yet.  If we have a few minutes we will find out.

JUDGE WORKMAN: I’ll rise.

[Court adjourned from 11.25 to 11.32]

EVIDENCE OF MR MILAN PETROVIC (continued)

(Evidence given through an interpreter (affirmed)

Cross-examined by MR FITZGERALD

MR FITZGERALD: Mr Petrovic, can I just ask you to look at the request, I think you have a copy of the request.  It’s Volume 1, tab 1, page 19 I think we’re on.  Hang on, maybe I’d better hand up my copy.  Okay, I’ll hand my copy up, there we go.  [Handed].

Now just looking at that request, you have a passage called ‘Background’ there, don’t you?

INTERPRETER: Are we looking at page 18?

MR FITZGERALD: No, you’ll have to go back a little bit, maybe page 16 or 17.  The heading is ‘Background’. 

INTERPRETER: This is the 17, yes?

MR FITZGERALD: I understand it’s page 18, is that right?  Do you see ‘Background’ there?

INTERPRETER: Yes.

MR FITZGERALD: Yes, right.  Mr Petrovic, you say there in the background, ‘On the 27th of April 1992 the agreement was made between BiH and FRY on peaceful withdrawal of JNA until the 19th of May 1992.’  Now do you accept that there was no such agreement?

MR PETROVIC: [speaks Serbian]

INTERPRETER: As far as – sorry, the agreement?

MR FITZGERALD: There was no agreement on the 27th of April between Bosnia and Herzegovina and the Republic of Serbia and Montenegro – of FRY, there was no agreement?

MR PETROVIC: [speaks Serbian]

INTERPRETER: The agreement that’s mentioned here –

MR PETROVIC: [speaks Serbian]

INTERPRETER: – relates to the discussions and the agreement relating to the withdrawal of the JNA from Bosnia and Herzegovina.

MR PETROVIC: [speaks Serbian]

INTERPRETER: There would have been a number, there would have been a date for this particular agreement, and there would have been the name of the authority which reached the agreement.

MR FITZGERALD: So do you accept there was no agreement?

MR PETROVIC: [speaks Serbian]

INTERPRETER: A final decision was not made.

MR FITZGERALD: There was no agreement.

MR PETROVIC: [speaks Serbian]

INTERPRETER: There was an agreement, there was no decision.  So there was no agreement in the sense of the agreement or the decision made by the Presidency of the Republic of Bosnia Herzegovina 02 [inaudible] 327/92.

MR FITZGERALD: Well why do you say that there was an agreement if there wasn’t one?

MR PETROVIC: [speaks Serbian]

INTERPRETER: It is probable that the word or the term ‘agreement’ sounds a bit different in the English language, so there is a misunderstanding in relation to what I was trying to say and explain.

MR FITZGERALD: In Court, your Counsel, when questioning Dr Malcolm, said that it was accepted that there was no agreement.  Dr Malcolm said, ‘So they accept there is no agreement,’ and Mr Watson said they, that’s you, and you were sitting there, accept there wasn’t a binding agreement at that time.

MR PETROVIC: [speaks Serbian]

INTERPRETER: But Dr Malcolm himself confirmed that this subject was discussed, and the two sides did discuss this subject.

MR FITZGERALD: Listen, we’re talking about whether something is agreed or not, and you accept there was no agreement.

MR PETROVIC: [speaks Serbian]

INTERPRETER: As far as the term that I use, they’re not that kind of agreement.

MR FITZGERALD: In the Jurišić trial you said three times in your closing speech that there had been an agreement concluded between the Bosnia and Herzegovina and the Federal Republic of Yugoslavia on the 27th of April, didn’t you?  Sir, it’s tab 3, third page in of the first speech – sorry, second page at the bottom. 

You said it three times, didn’t you, in your closing speech in Jurišić?

MR PETROVIC: [speaks Serbian]

INTERPRETER: In the case of Jurišić the term ‘Sporasm,’[?] – or agreement was used in the same context as it is used here in this document.  It means – meaning there is no number of this decision, it is not taken.

MR FITZGERALD: You said concluded agreement between Bosnia Herzegovina and the Federal Republic of Yugoslavia.  That’s what you said three times in the Jurišić closing speech.  Tab 2.

MR PETROVIC: [speaks Serbian] [Discussion amongst Counsel]

MR FITZGERALD: Yes, you have it in there.  By all means look behind there, tab 2 of the cross-examination – have you got the cross-examination bundle there?

INTERPRETER: Yes, it’s this.

MR FITZGERALD: Yes, it’s the cross-examination.  If you go to tab 2 behind.  I’m so sorry, it is tab 3.  So you have that in, ‘Contrary to previously concluded agreement between BiH,’ and he says it again on the fourth page, ‘The agreement on peaceful withdrawal from the territory between Bosnia and Herzegovina and FRY,’ fourth page, and he says it again towards the end of the agreement. 

But just look at the Serbian, page 2 of the Serbian text, which is behind the English text, paragraph 5.  Down at the bottom you see [speaks Serbian]. 

MR PETROVIC: Yes.

MR FITZGERALD: So you used this false statement three times in your closing speech against Mr Jurišić, didn’t you?

MR PETROVIC: [speaks Serbian]

MR LEWIS:  Sir, I hesitate to interrupt, but there are two questions there.  Could he just agree whether it’s false evidence, and then whether or not – there are two questions.

MR FITZGERALD: Do you accept that it’s wrong to say that there was a concluded agreement between Bosnia Herzegovina and the Republic of the FRY on the 27th of April, that that’s wrong?

MR PETROVIC: [speaks Serbian]

INTERPRETER: I don’t see it as a mistake.

MR FITZGERALD: But you did use it three times, didn’t you, in the Jurišić trial as part of your case against him.

MR PETROVIC: [speaks Serbian]

INTERPRETER: You’re omitting the fact, you’re not paying any attention to the fact that the trial of Jurišić relates to the events which took place on the 15th of May 1992.  On 4 May already there were discussions between Bosnia Herzegovina and the Federal Republic of Yugoslavia, which was established on 27 April.

MR FITZGERALD: The agreement you refer to in those passages is an agreement of the 27th of April, which you incorrectly describe as a concluded agreement between Bosnia Herzegovina and the Republic of FRY.

MR PETROVIC: [speaks Serbian]

INTERPRETER: Not in the same context as the context on which the question is being asked.  Like I explained before, if there was a final agreement there would have been a number reported of that particular agreement or decision.

MR FITZGERALD: Does the word Sporasm mean a concluded agreement?

MR PETROVIC: [speaks Serbian]

INTERPRETER: It doesn’t.

MR FITZGERALD: It does?

INTERPRETER: It doesn’t.

MR FITZGERALD: I see.  What does it mean.  What does Sporasm mean?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Two sides are discussing a particular subject.

MR FITZGERALD: So the interpreter got it completely wrong in saying ‘concluded agreement’ three times, both at this and in the request.

MR PETROVIC: [speaks Serbian]

INTERPRETER: [No audible English response]

MR FITZGERALD: Go to the – if you go to your account of the events of 2 May on page 3 of the request.

INTERPRETER: It’s not this one.

MR FITZGERALD: I’m so sorry, if you look at the request – perhaps if you can look at it in the – do you have a copy of the request?

INTERPRETER: I have.  These two pages.

MR FITZGERALD: No, no, no, the request, the request.  The formal document.  I think you’ve got it in Volume 1, tab1, there.

INTERPRETER: Okay.

MR FITZGERALD: Is the request there?  Can you see?  Is there a thing called the request there?

INTERPRETER: Yes.

MR FITZGERALD: Yes, right.  Now just look at what you say about the alleged conduct.  You make – yes, you see that, do you, on the alleged conduct on 2 May.  Is this right?  You make no mention of the fact that the JNA had been shelling Sarajevo that morning and the night before and the day before.  You don’t mention that, do you?

MR PETROVIC: [speaks Serbian]

INTERPRETER: We do not mention this because it’s not in the context of the war crime that we are discussing.

MR FITZGERALD: You don’t mention it because you’re trying to suggest that all the aggression was started by the Bosnians that day.  That’s right, isn’t it?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No.

MR FITZGERALD: Don’t you accept that a fair prosecutor would set out the background and the situation fairly to both sides?

MR PETROVIC: [speaks Serbian]

INTERPRETER: I think your question is inappropriate because you are asking me –  if you answer this question in a – and it should be answered in a historical context, and my job is to be a prosecutor.

MR FITZGERALD: Well do you accept that Sarajevo was being shelled that morning by the JNA?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No.

MR FITZGERALD: Do you accept that JNA tanks attacked the Presidency that day?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No.

MR FITZGERALD: And so the account of events you would be putting to the Judges in Belgrade would be that it’s not true that Sarajevo was shelled, it’s not true that tanks of the JNA attacked Sarajevo that day.  That’s what you’d put to the Court?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: When you come to the question of the person that you say, that Mr Ganić personally commanded an attack on the JNA Officers Club, okay, do you accept that there would be no crime if he had ordered an attack on the JNA Officers Club?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No, there is – his responsibility is there.

MR FITZGERALD: So you accept there was an international armed conflict. 

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: You accept that the JNA Officers Club housed enemy soldiers, from the point of view of the Bosnians?

MR PETROVIC: [speaks Serbian]

INTERPRETER: There is staff of the – officer staff, not enemy soldiers.

MR FITZGERALD: The people who you allege were killed were soldiers.

MR PETROVIC: [speaks Serbian]

INTERPRETER: There was a waiter, there was a manager, a house manager.  These people are not soldiers.

MR FITZGERALD: But you don’t say that Dr Ganić ordered an attack on a waiter.  You say he ordered an attack on the JNA Officers Club.  How can ordering an attack on an Officers Club in a time of war, when it houses enemy officers, possibly be a war crime?

MR PETROVIC: [speaks Serbian]

INTERPRETER: The Officers Club is also the building itself, and also the staff that work there.  In that sense there was attack on the Officers Clubs, we use.

MR FITZGERALD: You say next that he ordered an attack on a column of medical vehicles.  That’s right?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: You accept that what we’re talking about is two armed Pinzgauers and two sanitary vehicles containing military personnel.

MR PETROVIC: [speaks Serbian]

INTERPRETER: I’m sorry, did you say army personnel or medicine?

MR FITZGERALD: Army personnel.

INTERPRETER: Sorry.

MR PETROVIC: [speaks Serbian]

INTERPRETER: This is the Geneva Convention, paragraph 22 – or Article 22.  An army vehicle can be – can follow, can support the medical vehicles, and should enjoy the same protection as the medical vehicles themselves.

MR FITZGERALD: But if the army vehicle shoots first and wounds a Bosnian Muslim soldier, does it have protection?

MR PETROVIC: [speaks Serbian]

INTERPRETER: This did not happen.  The fire was started first on this column of medical vehicles.

MR FITZGERALD: Your own witness, Witness B says that the first shot was fired by the Pinzgauer vehicle, wounding Juka Prazina.  That’s what your own witness says.  Isn’t that right?

MR PETROVIC: [speaks Serbian]

INTERPRETER: The witness was saying or gave evidence that they were in fact first from the top of the buildings.

MR FITZGERALD: Witness B doesn’t say anything of the sort.  Witness B doesn’t say that.

MR PETROVIC: [speaks Serbian]

INTERPRETER: There are more witnesses to confirm what I have said.

MR FITZGERALD: Well you haven’t produced any of those other witnesses, have you?  After all this time you haven’t given us one of those witnesses.

MR PETROVIC: [speaks Serbian]

INTERPRETER: The witnesses are part of the military case.

MR FITZGERALD: So they’ve been there all along?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: The attack on the military hospital, you say that he personally commanded an attack on the military hospital.

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: You’ve seen the evidence of your own witness, Dr Tausen[?], haven’t you?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: He says there was no attack on the military hospital on the 1st, 2nd and 3rd of May, doesn’t he?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No, this is not true. 

MR FITZGERALD: Page 211.

MR PETROVIC: [speaks Serbian]

INTERPRETER: You – it is necessary to read through the whole of his evidence of Dr Tausen.

MR FITZGERALD: He says that the only attack was on the 8th ofMay, doesn’t he?

MR PETROVIC: [speaks Serbian]

MR FITZGERALD: Page 212 he says, ‘I am sure that it was the 8th of May, I’m sure of this.’

INTERPRETER: He is talking about the attacks on the 2nd and 3rd of May, the other dates we did not investigate.

MR FITZGERALD: But he says that there were no attacks.  ‘There were, you see, there were sp – someone fired a shot, but there were no significant attacks.’  And he’s being asked about 1st, 2nd and 3rd of May.  Sir, it’s page 211.

MR PETROVIC: [speaks Serbian]

INTERPRETER: He’s talking about the fact that 8 or 9 floor of the hospital was fired, and some damage was caused on that floor on the hospital, but he’s not sure if this happened on the 3rd or 4th May.

MR FITZGERALD: No, he says, ‘On the 8th –‘ he’s asked about it at page 212.  Just have a look on page 211.  I’ll take you to it.  Page 211 of the WCPO bundle.  It’s at tab 20, Sir.  Do you see there, that he says there – he’s asked by the prosecutor on the 1st, 2nd and 3rd of May, since these dates are of particular interest to us, ‘Were there any attacks on the military hospital during these days?’  And that’s you asking, and he says, ‘There were, you see, there were sporadic attacks, I don’t know, someone fires a shot from somewhere, some of them hit someone, but there were no significant attacks.’  Do you see that?  Do you see that?

MR PETROVIC: [speaks Serbian]

INTERPRETER: I would like to have a statement in Serbian language, and I would like to show you what I said so down this where – the exact spot where this witness says what I told you.

MR FITZGERALD: Let’s read on and we’ll see –

MR PETROVIC: [speaks Serbian]

INTERPRETER: If you look at his answer on my next question he answers what I told you now.

MR FITZGERALD: No, he says, ‘Please accept my apologies, I can’t remember.  I don’t know the date, and whether the hospital was fired.  It was somewhere on the 8th/9th floor.’  ‘Was it on the 3rd or 4th?’  ‘I don’t know that.  I don’t know.’  Well if he doesn’t know if it’s on the 3rd or the 4th, and he does know it was on the 8th, how can it be on the 2nd?  He never mentions the 2nd ever, and yet your charge is – your first charge is he – that they blockaded the hospital and attacked it on the 2nd of May.  You’ve got no evidence at all of that, have you?

MR PETROVIC: [speaks Serbian]

INTERPRETER: He was – the surgery was open on the 3rd of May.  He says that on the day of his surgery, the 7th or 8th floor of this hospital was hit.

MR FITZGERALD: The doctor doesn’t say that, does he?

MR PETROVIC: [speaks Serbian]

INTERPRETER: So the fact that the witness Tausen does not remember is it the 3rd or 4th of May, I take it as the 3rd of May being the more probable one.

MR FITZGERALD: What about the 2nd of May?  Have you got any evidence?  Because you say there were two attacks, one on 2 May, one on the 3rd.  Have you get any evidence at all of an attack on the 2nd of May?

MR PETROVIC: [speaks Serbian]

INTERPRETER: More witnesses are confirming that were more – a larger number of sporadic attacks on the 3rd of May.

MR FITZGERALD: We haven’t seen any of those witnesses, have we?

MR PETROVIC: [speaks Serbian]

INTERPRETER: If you go through the file of the military case you can easily find the statements of these witnesses.

MR FITZGERALD: But the military file was provided to the Rules of the Road, and it was provided to Mr Alcock, wasn’t it?  It was provided to the Rules of the Road, wasn’t it?  The military file was provided to the Rules of the Road, wasn’t it?

INTERPRETER: I don’t know how to translate the Rules of the Road.

MR FITZGERALD: Okay, the Rules of the Road Agreement, the Rules of the Road Inquiry.

INTERPRETER: Okay, so your question is?

MR FITZGERALD: Yes, so a military file was provided to the Rules of the Road Inquiry.

MR PETROVIC: [speaks Serbian]

INTERPRETER: I explained this in my answers to the previous questions, therefore I have nothing new to add.

MR FITZGERALD: Let’s just do this one final point on the military hospital.  You say that the military hospital was used exclusively for medical purposes, is that right?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: Do you accept that Marco Labudović and his anti-terrorist unit were accommodated at the military hospital at this time?  Yes or no.

MR PETROVIC: [speaks Serbian]

INTERPRETER: Marco Labudović and his forces were securing the hospital.

MR FITZGERALD: Yes, and is this right, that they during this period, on Dr Tausen’s evidence, they engaged in provocative acts? 

MR LEWIS[?]: Sir, it’s page 214.  I think that sometimes they did provoke, I have the right to think so.’

MR FITZGERALD: He said, ‘I think at times they did provoke, I have the right to think so.’

MR PETROVIC: [speaks Serbian]

INTERPRETER: There was a certain amount of disagreement between Dr Tausen and Marco Labudović.  Because Marco Labudović was killed it’s not possible to check or verify the statements made by Dr Tausen.

MR FITZGERALD: Well then how can you say that the military hospital was used exclusively for medical purposes?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Because there were wounded people and soldiers there.  There were civilians who were being treated in this hospital, and it was only used for medical purposes.

MR FITZGERALD: And Marco Labudović is based to conduct his provocative acts, such as threatening to blow up a mosque.

MR PETROVIC: [speaks Serbian]

INTERPRETER: Marco Labudović was there to secure it.

MR FITZGERALD: Just – I want to come on from there to the attack on the withdrawing column, the Dobrovljaćka incident.  I’m not going to put everything to you, but can you help us on this?  Do you accept that what you state there – what you state there, you say that the indictee, Ejup Ganić, starting from the decision of the 27th of April and the agreement, agreed all details of the peaceful dislocation of the JNA Forces from Sarajevo to Lukavika.  Can you see that?  Do you see that?  Well it’s in the text, but you remember saying that?  That’s wrong, isn’t it?  He never agreed.  Ejup Ganić never agreed for the withdrawal of JNA Forces from Sarajevo to Lukavika and the route of the moving column, he never agreed that.

MR PETROVIC: [speaks Serbian]

INTERPRETER: We have evidence that he did.

MR FITZGERALD: You’ve got – well what’s the evidence that he ever agreed to that?  Any evidence at all.

MR PETROVIC: [speaks Serbian]

INTERPRETER: The evidence of Lewis MacKenzie, [Mil-in-ar Ak-sent-i-o-vitch?], Dragoljub Pavlović.

MR FITZGERALD: When was this agreement reached?  What time?

MR PETROVIC: [speaks Serbian]

INTERPRETER: In the afternoon. 

MR FITZGERALD: You see, you say he was present when the decision was made at the meeting held on the 3rd of May.  He wasn’t present at any meeting in the afternoon, was he? 

MR PETROVIC: [speaks Serbian]

INTERPRETER: He was in direct telephone contact with Present Izetbegović and other persons who were directly involved with the decisions about the withdrawal of JNA, and which road are they going to take and when.

MR FITZGERALD: You agree then that he was never present when the decision was made at a meeting held on the 3rd of May.  He couldn’t have been present.

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: So why did you put it in the request when it’s wrong?

MR PETROVIC: [speaks Serbian]

INTERPRETER: This is not in the request.

MR FITZGERALD: Sorry, it says here, ‘He was present when the decision was made at the meeting held on the 3rd of May.  The indictee, Ganić was present.’

MR PETROVIC: [speaks Serbian]

INTERPRETER: This is a description of –

MR FITZGERALD: What?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Where Ganić exactly was specifically mentioned?

MR FITZGERALD: You say Dr – ‘The indictee, Ganić was present when the decision was made at the meeting held on the 3rd of May for the peaceful dislocation of JNA Forces.’  Where was he present when this meeting was agreed – when this was agreed?  Where was he?

MR PETROVIC: [speaks Serbian]

INTERPRETER: The Presidency of Bosnia Herzegovina.

MR FITZGERALD: But you see, the meeting that took place was at UNPROFOR in the morning, the meeting that he was present at. 

MR PETROVIC: Yes, he was.

MR FITZGERALD: And nothing was agreed about the dislocation of the JNA at that meeting in the morning, was it?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Report Number 3.4 from the UNPROFOR talks in some detail about how the withdrawal was going to be performed, where and when exactly from Bistrik to Lukavika.

MR FITZGERALD: Just answer the question.  Was he present when any agreement was reached as to the dislocation of the JNA Forces?

MR PETROVIC: [speaks Serbian]

INTERPRETER: The fact is that he was informed about the decision, and this is confirmed by the witnesses, and also by the recording which was played here at this time.

MR FITZGERALD: The recording you have sought to rely on is a recording of a discussion on the 2nd of May in the evening.  It’s got nothing to do with this day.  That’s right, isn’t it?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No.

MR FITZGERALD: Did you ever take a statement from Mr MacKenzie, who you rely on so much?  Did you take a statement, yes or no?

MR PETROVIC: [speaks Serbian]

INTERPRETER: We agreed that Mr MacKenzie will come and give his own evidence directly.

MR FITZGERALD: Did you take a statement from Mr MacKenzie?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No, we still did not get a statement from Mr MacKenzie, but we have his statement from the interview and from his book.

MR FITZGERALD: Mr Alcock went and spoke to him, and he accepted that he was in error, didn’t he, to Mr Alcock?

MR PETROVIC: [speaks Serbian]

INTERPRETER: He did not admit making a statement to Mr Alcock.  It is Mr Alcock who – whose view is that Mr MacKenzie’s statement is not true.

MR FITZGERALD: Mr Alcock actually, unlike you, spoke to Mr MacKenzie, didn’t he?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: Did you speak to President Izetbegović at any stage?

INTERPRETER: Did he or did who speak to?

MR FITZGERALD: Did you or did any of your inquirers at any stage speak to President Izetbegović?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No.

MR FITZGERALD: Did you ask to interview any of these 19 people?  Did you say, ‘I’d better – before I charge them and get an order for their arrest, I might at least put the case to them.’  Any of these 19 people?

MR PETROVIC: [speaks Serbian]

INTERPRETER: These 19 individuals that were indicted, the Serbian authorities did not have access to them, as far as I know.

MR FITZGERALD: Well why didn’t you ask to go and interview them.

INTERPRETER: As far as I know – as far as I know Mr Alcock had access to Mr Ganić but he never spoke to him.

MR FITZGERALD: You see, Mr Alcock wasn’t charging him because he didn’t think there was enough evidence.  You were charging him, and you were seeking his detention.  So why not say, ‘Before I charge you, or all these other people, some of whom are dead, I’d better ask you for your side of the story’?

MR PETROVIC: [speaks Serbian]

INTERPRETER: I believe that in law also there is the institution of trying in absence, and there’s no access to refuse it.  You also had these cases in the International Tribunal at the Hague.  They also indicted people without talking to them first, they had no access to them, but they still are accused and been indicted.

MR FITZGERALD: But this man’s just down the road in Sarajevo.  Why not go over there and speak to him?  At least ask.

MR PETROVIC: [speaks Serbian]

INTERPRETER: The law in Serbia, or the way the law is in Serbia means that the authorities of Serbia cannot go and talk to a citizen of a different state without permission or invitation.

MR FITZGERALD: Did you ever seek one?  Did you ever seek a commission regulatoire? 

MR PETROVIC: [speaks Serbian]

INTERPRETER: It is not possible to ask for that sort of hearing for that type of accused.  Only for witnesses.

MR FITZGERALD: Can we just go – he wasn’t accused, of course, at that stage, was he?  You were conducting an inquiry.

MR PETROVIC: [speaks Serbian]

INTERPRETER: It’s different in Serbia, the law. 

MR FITZGERALD: Right, I want to move on.  Can we look at the letter of 8 March.  It’s at tab 4, Sir, in the core – I think it’s Volume 9.  I’m just going to ask a few more questions.  Do you see the letter dated 8th of March, and signed by Mr Vukćević?

MR PETROVIC: Yes.

MR FITZGERALD: Do you accept responsibility for that letter?  Was it drafted in consultation with you?

MR PETROVIC: [speaks Serbian]

INTERPRETER: I don’t have the signature station.

MR FITZGERALD: Well you see – do you see that it starts, ‘Dear Prosecuting Cabinet’, but it’s signed by Mr Vukćević?

MR PETROVIC: [speaks Serbian]

INTERPRETER: I think this is an authentic letter.

MR FITZGERALD: I just want to ask you two questions about that.  In that letter it says that Mr Ganić says that in the absence, what he said in a documentary film, he’s recorded as saying, ‘In the absence of Alija Izetbegović, I am the one in charge.’  You’ve heard Dr Malcolm’s evidence that no such words were said about ‘I am in charge’.  Do you accept that?

MR PETROVIC: [speaks Serbian]

INTERPRETER: I don’t, because there is a recording where Ganić is appearing in a TV programme.  His words are different.

MR FITZGERALD: He says, ‘I’m assuming certain responsibilities,’ that’s all he says.  Isn’t that right?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: And then coming on from there, where you say, ‘Alija is heard saying to Ganić, “Ejup, instruct the Territorial Defence to let them get out”.’  When do you say that was said?  I’m so sorry, it’s just a bit further down, after ‘in charge’, about halfway down.  ‘Alija is heard saying to Ganić, “Ejup, instruct the Territorial Defence to let them get out”.’

INTERPRETER: This is on the second page, right?

MR FITZGERALD: Yes, second page, just about seven lines down.  Do you see that?

INTERPRETER: Yes.

MR FITZGERALD: When do you say that was said?

MR PETROVIC: [speaks Serbian]

INTERPRETER: This was said during the talks between Izetbegović and Kukanjac, with the presence of Mr MacKenzie about the withdrawal of the JNA towards Lukavika. 

MR FITZGERALD: When?  When?  When was this?

MR PETROVIC: [speaks Serbian]

MR FITZGERALD: On 2nd of May?  3rd of May?  9th of May?  When?

MR PETROVIC: [speaks Serbian]

INTERPRETER: This was the first telephone contact between Alija Izetbegović and [inaudible].

MR FITZGERALD: When?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Whilst Alija Izetbegović was in Lukavika.

MR FITZGERALD: So you’re saying this was said on the evening of the 2nd of May. 

MR PETROVIC: [speaks Serbian]

INTERPRETER: Not in the evening of the 2nd of May.

MR FITZGERALD: I have to put it to you that nothing of that sort was said, and certainly nothing of that sort was said at any stage on the 3rd of May.

MR PETROVIC: [speaks Serbian]

INTERPRETER: These are the words of the President Alija Izetbegović.

MR FITZGERALD: We look forward to seeing them.  But you’re saying it was said in front of Mr MacKenzie on the 3rd of May? 

MR PETROVIC: [speaks Serbian]

MR FITZGERALD: On the 3rd of May, are you saying it was said in front of MacKenzie on the 3rd of May?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Second date, yes.  The second date, yes.

MR FITZGERALD: The 3rd of May.

INTERPRETER: The 3rd of May. 

MR FITZGERALD: Well I have to put it to you, there’s absolutely no evidence to support that at all on the CD.

MR PETROVIC: [speaks Serbian]

INTERPRETER: The evidence confirms what is written there.

MR FITZGERALD: And as – you make a claim that there are a whole series of spectacular – striking testimonies.  What I have to put to you is that there were no striking new testimonies at all that you had obtained.

MR PETROVIC: [speaks Serbian]

INTERPRETER: My belief as a prosecutor is completely different from yours.

MR FITZGERALD: Well Jevtović had already made a statement, hadn’t he?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: Tausen gave the evidence we’ve seen, didn’t he?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: Kovačević had been interviewed already by Mr Alcock’s team, hadn’t he?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: And it’s right that he was a henchman of [Vla-dic and Kor atchi[?], a fellow minister in their regime.  He was a defence minister, wasn’t he, with Kor-atchi and Vla-dic.

MR PETROVIC: [speaks Serbian]

INTERPRETER: The investigation of the life story has nothing to do with the facts which are presented in this case.

MR FITZGERALD: Will you tell us whether he was a minister in the regime of Vla dic and Kor-atchi?

MR PETROVIC: [speaks Serbian]

INTERPRETER: I cannot confirm that.

MR FITZGERALD: Don’t you think it might be a good idea to find out who you’re relying on as a witness of truth?

MR PETROVIC: [speaks Serbian]

INTERPRETER: The facts as stated by one witness we link to the facts as stated by another witness, and when those two start to tell the same story, so to speak, then we take this as effective.

MR FITZGERALD: As to Witness A, you accept that Witness A was seen by Mr Alcock?

MR PETROVIC: Yes.

MR FITZGERALD: And he was brought to Belgrade by two Republica Srpska Officers, [Ra-zo and Tus-ovlac?] wasn’t he?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: And are you aware that they had offered him a job in exchange for him giving testimony?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No.

MR FITZGERALD: Did you ask them whether they had?

MR PETROVIC: [speaks Serbian]

INTERPRETER: This witness voluntarily came to the Court.  He was warned by the Court about truth and – of whatever evidence he is about to give.

MR FITZGERALD: But after Mr Arnaut said what he said, did you check with them whether they’d offered him a job?

MR PETROVIC: [speaks Serbian]

INTERPRETER: We were not interested to have a conversation in that respect –

MR FITZGERALD: I see, so you didn’t the truth I that.

INTERPRETER: – and the witness did not ask for this.

MR FITZGERALD: And is it right that during the interview with Witness A, there were times when the Magistrates switched off the tape and led him towards saying incriminating things about Dr Ganić?

MR PETROVIC: [speaks Serbian]

INTERPRETER: This is not true.  This is not true because of the procedure which is followed when a statement is being recorded by a witness.  It’s done in such a way that the staff which are involved in recording this statement are not in the courtroom, it’s not done by a Judge but in a different room, and they’re not present at that time.

MR FITZGERALD: Can I just ask you this?  You were the prosecutor in the Jurišić trial, were you?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR FITZGERALD: And you said he’s not appealing against his conviction and sentence.

MR PETROVIC: [speaks Serbian]

INTERPRETER: No.

MR FITZGERALD: You’ve seen the –

MR PETROVIC: [speaks Serbian]

INTERPRETER: I didn’t say that.

MR FITZGERALD: What did you say?

MR PETROVIC: [speaks Serbian]

INTERPRETER: What I said was that politically he has no complaints towards the prosecutor.

MR FITZGERALD: So you accept –

MR PETROVIC: [speaks Serbian]

INTERPRETER: And also that he accepted the facts of the prosecution’s case.  But his view is that because he relayed this order, he is not responsible for issuing, and in that sense he appealed.

MR FITZGERALD: Yes.  The order that he said he relayed was an order to return fire.  Return fire, that’s what his evidence was.

MR PETROVIC: [speaks Serbian]

INTERPRETER: This is his defence.  Nobody supported it or confirmed it.

MR FITZGERALD: Yes, but you just told us that he admitted the order.  The whole question was what order, wasn’t it?

MR PETROVIC: [speaks Serbian]

INTERPRETER: He accepted that he issued the order to attack the column.

MR FITZGERALD: He did not, that’s confirmed.  Not one independent commentator has said that.

MR PETROVIC: [speaks Serbian]

INTERPRETER: I don’t know which independent commentators are you referring to.

MR FITZGERALD: Sir, I have no further questions.  Can I just put to you that you’ve misled the Court on that and on many other things in your evidence?

MR PETROVIC: [speaks Serbian]

INTERPRETER: This is not true.

MR FITZGERALD: On Monday you were even saying he wasn’t appealing.

MR PETROVIC: [speaks Serbian]

INTERPRETER: No, this is not true.  I can only say I’m not crazy, that’s all I can say.

MR FITZGERALD: Thank you, Sir.  No more questions.

EVIDENCE OF MR MILAN PETROVIC (continued)

(Evidence given through an interpreter)

Re-examined by MR LEWIS

MR LEWIS: Just one or two points, Mr Petrovic.  This morning you were asked at some length about the alleged kidnapping of President Izetbegović.  Is it a criminal offence to take the leader of an enemy state captive?

MR PETROVIC: [speaks Serbian]

INTERPRETER: In our law it is, but it’s not a war crime.

MR LEWIS: And has there ever been a criminal complaint made to the War Crime Prosecutions Office about this matter?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No.

MR LEWIS: And is there any breach of the Geneva Conventions if prisoners of war are exchanged?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Serious breaches of the Geneva Conventions are torture and any form of inhuman treatment of prisoners of war.  This did not happen to Alija Izetbegović.

MR LEWIS: Now even if a domestic crime is committed against President Izetbegović, would that affect the criminality alleged against Dr Ganić?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Absolutely not.

MR LEWIS: Next you were asked about the Rules of the Road file.  The file, which is in English, when was the first time that you actually saw this file?

MR PETROVIC: [speaks Serbian]

INTERPRETER: I cannot give you the exact date when was the first time I saw that file, but it was recently, and the file was in English language, and I do not speak it.

MR LEWIS: And is it right it was supplied by the Defence in this case?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR LEWIS: Is it a confidential document?

MR PETROVIC: [speaks Serbian]

INTERPRETER: I think it is a confidential document.

MR LEWIS: Is – as a prosecutor are you bound by any comment that is made in the 2003 decision on the evidence then available by the Rules of the Road lawyer]?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No.  The Rules of the Road absolutely do not apply to any criminal proceeding in the Republic of Serbia.  The Rules of the Road only apply for criminal proceedings in Bosnia Herzegovina.

MR LEWIS: Do you regard that 2003 decision as relevant to whether today the Republic of Serbia has a case against Dr Ganić?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No, they did not have enough evidence then.

MR LEWIS: And is it the same position today?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR LEWIS: I’m the cross-examiner, but I understand the question.  Do you say it is the same, that there is insufficient evidence today?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No, today there are reasonable evidence for the charges, for the prosecution.  This evidence is perfectly enough to be brought up in front of the Court, and the Court will then decide on guilt.

MR LEWIS: And you were then taken to tab 11 of the Defence cross-examination bundle, and shown a newspaper report, which says, ‘Spokesperson of the Serbian War Crime Prosecution Office, Bruno Vekaric, etc.’  Do you know if that report is accurate?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Can we see the –

MR LEWIS: Sure.  It’s tab 11 of the Kingsley Napley, ‘Ejup Ganić, cross-examination by the WCPO’.  The question was do you know if that is an accurate report of what was said by the newspaper?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR LEWIS: And can I just take you to a document which was used in the cross-examination of Mr Alcock, it should be in the cross-examination bundle.  Is that there?  It’s the grey with the green spine.  Sir, I think you have it in the grey with the red spine.  I’m sorry, it’s this one.  That’s exactly right, Sir, I think from a distance.  Tab 12.  Do you have it, Sir?

JUDGE WORKMAN: Yes, I do.

MR LEWIS: We have behind it, so you can look at it, Mr Petrovic, the Serbian language written, the characters behind the English translation.  Do you have that?

INTERPRETER: Yes.

MR LEWIS: So is it right that the Bosnian Herzegovina authorities have been investigating this matter for some considerable time?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR LEWIS: And have they come to a conclusion on any of the potential indictees in this case?

MR PETROVIC: [speaks Serbian]

INTERPRETER: No.

MR LEWIS: In your opinion have they had enough time to come to a conclusion?

MR PETROVIC: [speaks Serbian]

INTERPRETER: They had too much time.

MR LEWIS: Thank you.  You can close those.  You were asked why you hadn’t interviewed President Izetbegović.  Do you know if he’s still alive?

MR PETROVIC: [speaks Serbian]

INTERPRETER: President Izetbegović was not alive when the prosecution case, or the investigation started in the Republic of Serbia.

MR LEWIS: Thank you.  So far as the other indictees who were in Serbia, if they were in Serbia would you have interviewed them?

MR PETROVIC: [speaks Serbian]

INTERPRETER: The Court would not accept the request for the investigation before the accused – or before the indicted gave their statements, therefore for sure these indictees, these persons would be interviewed if they were in Serbia.

MR LEWIS: The fact therefore is because they are absent or absconding they’ve been unable to be interviewed.

MR PETROVIC: [speaks Serbian]

INTERPRETER: That’s the only reason, yes.

MR LEWIS: And a final point, I’m looking at the time, you were talking about the new material which has been gathered more recently than either the Rules of the Road or Mr Alcock’s investigation.  Even when those witnesses have previously given statements to either the Rules of the Road or Mr Alcock, did you think it right to re-interview them for the purposes of your investigation?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR LEWIS: Would that be in order to satisfy yourself of the evidence?

MR PETROVIC: [speaks Serbian]

INTERPRETER: Yes.

MR LEWIS: Yes.  Thank you very much.  Sir, do you have any further questions?

EVIDENCE OF MR MILAN PETROVIC (continued)

(Evidence given through an interpreter)

Examined by JUDGE WORKMAN

JUDGE WORKMAN: Could you help me as to the date on which your investigation began?

MR PETROVIC: [speaks Serbian]

INTERPRETER: 28 December 2008.  The Investigating Judge issued an order related to the starting of the investigation.

JUDGE WORKMAN: So at that time what evidence did the Investigating Judge have?

MR PETROVIC: [speaks Serbian]

INTERPRETER: He had the full military file, or access to the full military file.  Plus there was a report from the Ministry of the Republic or Srpska, which was also – he had access to it.  Also there was the advice from the Office for the War Crimes, which went into which witnesses should be interviewed, and on which issues or which statutes.  There were also some video materials from the – relating to the matters.

JUDGE WORKMAN: Thank you very much.  Thank you very much for your time. 

MR FITZGERALD:  Sir, I think we’ve both prepared written submissions.  I think if my learned friend, if he sees mine, and me if I see his, because then he’ll know, as it were, how – I tried to summarise it the other way, but I have copies of – yes.

MR LEWIS: If my learned friend wants to show me his I’ll show him mine.

MR FITZGERALD: Yes.  It’s just it may assist, Sir, if my learned friend knows how we do put the case.  And Sir, I’ve prepared it for you.

JUDGE WORKMAN: Thank you very much.

MR FITZGERALD: So there are – that’s for you.

JUDGE WORKMAN: Right.  And you are expecting me to look at this between now and –

MR LEWIS: If it helps, tab 1 is submissions, and the remaining tabs are authorities.  I understand my learned friend has an authorities bundle.

MR FITZGERALD:  Yes, we have an authorities bundle.

MR LEWIS: When I do my research, our authorities bundle is in the file, Sir.

MR FITZGERALD:  No, Sir, likewise we have a bundle for the authorities for referral.  So I think – I mean we – can we try and do it at least in an hour and a quarter each at the most? 

MR LEWIS: Sir, I will be, I promise.

JUDGE WORKMAN: You are happy with an hour and a quarter each?

MR LEWIS: My learned friend –

[Cross talk]

MR FITZGERALD:  And if it can take place, so much the better.

MR FITZGERALD:  Yes – no, well if I can do it in less I will, certainly.  Because a lot of it is in writing and a lot of it you’ve already had in writing, but – so I won’t read it all out.

JUDGE WORKMAN: I cannot promise to look at this, I am afraid.

MR FITZGERALD:  No.  Sir, in our case there is a 20-page summary at the start, which is all you need to read, because it’s – and it’s big writing.  But in a sense that’s our case on abuse 81(a).

MR LEWIS: And before you go, Sir, there is just one thing.  Perhaps I should technically put it through the witness, arising from your question, that may have a –

JUDGE WORKMAN: What is that?

MR LEWIS: Because there is in fact a full list of what was before the Judge, arising from your question.  If you went to WCPO bundle, tab 1, seeing it – well I’ll tell you exactly what it is just so you can see it.  Tab 1 of the bundle is the 29 December decision by the Judge, which sets out the facts.  But in fact, Sir, if you go to page 11, and the following at the bottom, the Judge sets out a statement of reasons, and in the middle of that he sets out all the evidence he’s considered, which includes the military file and wire taps, other matters.  And it goes over to page 12.  It does say wire taps.  I think it means the transcripts are a bit – it may just be a translation, it says wire tap.  I think it means the radio communications. 

JUDGE WORKMAN: Oh, right.

MR LEWIS: I think that’s what it – it’s not telephone wire tap, it’s –

JUDGE WORKMAN: No.

MR LEWIS: Sir, it’s all set out there.

JUDGE WORKMAN: Right, thank you very much.  I shall rise until 10 past 2.

MR LEWIS: And Mr Petrovic can be released.

JUDGE WORKMAN: Yes, of course.  Yes, thank you very much.

[Court adjourned from 13.03 to 14.17]

MR LEWIS: So can I just take you through to the tab 1, which has got our closing submission set out in writing, and what we’ve attempted to do is really set out a roadmap to assist you in the matters which need to be decided, and summarising our additional mode of matters.  So we’ve set it out in 1.2 as the four different areas: extradition offence; abuse of process; Section 81A and Section 81B, given that Mr Fitzgerald has indicated that passage of time; human rights; and, indeed, the question of function immunity can all be left at this stage.  So those are the only matters which are called for your decision on, and so I’m pleased to say there’s a large measure, or appears to be a large measure of agreement in the way the extradition offence has been dealt with.  So we’ve set it out, and our opening position on extradition offence is that, of course one has to look at the face of the request, and very helpfully and as is customarily fair, now Mr Fitzgerald and Mr Jones have put in paragraph one of the summary of closing submissions that they accept that three of the four allegations, taken at face value, are capable of amounting to extradition grounds.  So, Sir, rather than weary the court with a full detail, going through again the conduct which we say amounts to extradition grounds, can we simply point you to, in 2.4 if necessary, the way it’s put in our opening note, which is tab 8 of our tall bundle, and also Annexe A, which is tab 11, and then, Sir, we say they amount to conduct capable of amounting to a breach of Section 1 of the 1957 act.

JUDGE WORKMAN: What do you say about the fourth allegation?

MR LEWIS: Well, Sir, I see the strength of my learned friend’s [inaudible].  On abuse of process I would just like to remind the court of the approach that the Divisional Court has set out, and it may help if we go toBirmingham, which is really the seminal case on abuse of process.  Sir, it’s in tab two of this clip, which you have in front of you, and I’ll just take you to the material parts; I know it’s a familiar case, and the facts I needn’t trouble the court with.  But if I could take you through to paragraph 91 in that judgement – I’m afraid it’s not paginated, but it is paragraphed – and you’ll see a Roman III, and it says abuse.  So what it, it then sets out the familiar trilogy of cases dealing with abuse of process, which were under the 1870 and the 1989 Act, so you’ll remember Schmidt, Atkinson and Sinclair, and if we go over the page, it really begins, so far as we’re concerned for our purposes, at paragraph 98, at the bottom of the page.  And Sir, it is the next, that paragraph which is the important paragraph, in our respectful submission, for the consideration of abuse of process.  As it is important, Sir, can I just read it out? 

‘The question of whether abuse is demonstrated has to be asked and answered in light of the specifics of the statutory scheme, and accordingly, subject to an important qualification’, which I’ll explain, ‘no finding of abuse can be justified in a case like the present where the category two territory has been designated the purpose of Section 84’, and just pausing there, Sir, this is the same, Serbia has been designated.  ‘By the prosecutor’s refusal or failure to disclose evidential material beyond what was contained in the extradition request for reasons straightforward’.  In such an instance, as I’ve shown, the prosecutor does not have to establish a case to answer; evidence going to where there is in fact a case to answer is therefore not relevant to the court’s task.  Mr Jones submitted that while no doubt the prosecutor was not required to produce evidence to the merit, if he failed to do so, he would or should be in peril, but adverse release from the court under Sections 82 or 87 of the 2003 Act.  Here Mr Jones makes a mistake; there is a major flaw in his argument and the judicial review.  His submission looks for a statutory regime Parliament has chosen not to revive; the prosecutor can’t be penalised under Section 82 or 87 by any other route, for liming the material he places before the court for that which is required for the proper execution of the court’s function under Section 78.  The observation of Mr Justice [inaudible] in Re: Lee are in point. 

So, just pausing there, what the Divisional Court have said is that the prosecutor sets out his allegation in the request, there is no evidential requirement, that is it, and you can’t use any deficiencies to support a submission under Sections 82 or 87 – that’s with the political motives or fair trial, because otherwise you undermine the whole system; that is not what Parliament has set out.  He does go on to say in 100, paragraph 100, I refer to an important qualification – it applies to both the points I discussed – ‘the prosecutor’s failure to give full disclosure and his failure to facilitate the defendant’s enjoyment of the relative benefits of the 1989 Act’ – these are important words – ‘the prosecutor must act in good faith.  Thus, if he knew he had no real case, but was pressing the extradition case for some collateral motive, and accordingly tailored the choice of documents accompanying the request, then might it be a submission of abuse’.  So, Sir, we accept, and it really comes down to this, it’s a  proposition that Mr Watson and I have put forward in our written argument, which although it doesn’t find resonance in authority it’s one which we say is correct; there is no authority because the point simply hasn’t come up for it.  But it boils down in essence to this: so if you were to find that no reasonable prosecutor could bring this request, that would affectively amount, we accept, to an abuse of process, or evidence capable of supporting an inference that there was no proper motive for bringing it, and that’s one of the key issues in the case before us.  So, Sir, that’s why in our written submissions we have said that it is open to the, prosecutor in this case, to come to the conclusion that the prosecution can properly be brought. 

Sir, just going back to our written argument, paragraph three, page three, we’ve looked at Birmingham, and we point out, of course, there has to be strong evidence for allegations of bad faith to be made, [that’s the old case of Martin?], and we do – one does have to be careful when dealing with abuse to understand where the bar is set.  In abuse of process the bar is set – in our respectful submission – quite high.  If we just, for instance, look at Latif[?] which is the House of Lords case one finds at tab three in this bundle, it is a domestic abuse of process, but the dictum set out in the speech of Lord Stain is of assistance.  So if I just ask you to glance at the abuse of process issue you’ll see there’s a heading on page 111 of the report, just between A and B, it says the abuse of process issue, and Lord Stain sets out observations from [Nen Se-ry Vis-ad?] and other cases.  And if we, if I can just take you over the page in the speech of Lord Stain, page 112, at G, His Lordship is making the general observation that the court has a discretion, it performs a balancing exercise, but what informs that balancing exercise is if a court concludes a fair trial is not possible it will stay the proceedings.  And another way in which it may stay the proceedings, he sets out at page 113, and just picking it up at B, ‘it is possible to say that in such a case as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried, and the competing public interest in not conveying the impression that the court would adopt the approach that the end justifies any means’.  And dropping down just above D, on page 113; His Lordship says, ‘The conduct of the customs officer was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed’.  So, in effect, what Lord Stain is saying, an opinion which the rest of the Appellate Committee agree, is that when you are looking at an abuse of process, you really need something which is unworthy or shameful that it’s an affront to the public conscience to let it go ahead, because the natural thing in a trial situation, particularly when grave crimes are concerned, is that they should be tried.  It is a strong thing to stop a prosecution before the prosecution has come to its normal and proper conclusion. 

And, Sir, if we just on that thing, just in tab six, a relatively recent decision of the Court of Appeal is The Crown v S, although it’s dealing with delay the Vice-President, Lord Justice Rose, does set out some general principles of abuse of process.  Having reviewed a large number of the authorities, can I just ask you to pick it up at page 346 of the report, paragraph 21, where Lord Justice Rose distils the principles in abuse of process, albeit I accept this is delay, we do say this is of some general importance.  And at paragraph 21 III, Lord Justice Rose says, ‘No stay should be granted in the absence of serious prejudice to an offence so that no fair trial can be held’.  And IV, ‘When assessing serious, possible serious prejudice the judge should bear in mind his or her plan to regulate the inadmissibility of evidence that the trial process itself should ensure that all relevant facts or issues arising from delay will be placed before the jury for their consideration’.  So what we get from that, Sir, is that the bar, so far as abuse of process, is extremely high.

Now, in the extradition context, there are other safeguards which the scheme has built in.  So if matters are politically motivated, one would normally go under Section 81, 81A or 81B, because that’s what the scheme has set out; one doesn’t need to resort to some inherent unreliability in the system for abuse of process.  So one would, in our respectful submission, first look at the provisions under Section 81A and 81B, and it’s only in an extreme case, or abuse of process, then have to be called into action to prevent the court’s procedures being manipulated or misused.  And finally, just on paragraph three, by way of introduction, we set out, at IV, a quotation from Lord Justice Leggatt in Osman and, Sir, just for your cross-referring note, we actually dealt with that, just give me one moment, Sir, it’s the…  I’ll make sure that we’ve got the…  We’ve – it’s cross-referred to in paragraph 4.8 of our skeleton argument served on the 18th June, but we’ve actually set out the quote in complete form, because it’s an unreported case.  But the upshot is that Lord Justice Leggatt said it’s virtually impossible if there’s a prima facie case to say that the request was brought in bad faith, because the country will be seeking to deal with matters in pursuance of the same criminal law. 

So, Sir, with that legal introduction, and dealing with abuse of process, we do say that the bar is quite high.  If we look at the defence submissions on this matter, they’ve crystallised their position into five heads, which we’ve set out at 3.3.  They rely upon the Rules of the Road; the findings of Philip Alcock; and the light of the non-instigation of proceedings against the defendant by the ICTY.  Just dealing with that; we say it’s quite clear that the Rules of the Road was a limited review, fixed in time, with no binding effect.  If it were otherwise, as Mr Alcock fairly accepted in cross-examination, his entire investigation would have been otiose.  He told us that, had he found, in his opinion, sufficient evidence, he would have prosecuted Dr Ganić, irrespective of any previous finding by the Rules of the Road, and therefore one has to see it in that context.  It’s anachronistic and it was limited, and it cannot, in any shape or form, amount to a bar, or indeed be a foundation, for abuse of process – it is a limited review, fixed in time, which was not intended to have binding effect, and, indeed, we have evidence that cases which were previously marked as standard marking B, might subsequently be standard marking A when new evidence was found.  So, Sir, that has, that really and truly can, in our respectful submission, be put out of play.  So far as Mr Alcock was concerned, he obviously carried out a much more thorough investigation; his investigation, he told us, lasted for over three years, and we do say that, again, it’s important to remember that the investigation which he began is not closed; it’s ongoing in Bosnia.  And it may be helpful just to look at, at this juncture, our annexe to our written submissions, Sir, which begin at page 11.  I’ll just take you to them very briefly, because I just want to pick up a summary of Mr Alcock’s evidence, to which he agreed in cross-examination; it’s page 16 of that bundle, paragraph 12.  And the sub-heading we’ve given it is Philip Alcock’s session on the evidence; do you have that Sir? 

And, Sir, we do say under cross-examination you can see that in many respects it would not be unreasonable for a different prosecutor to reach a different conclusion from his own.  And, you may remember, Sir, I put to him a number of points, now which we run through; first, I think with some caveats he did agree there was evidence of war crimes on the 2nd and 3rd of May.  He said, ‘I did on the facts as you put them to me and confined’.  Second, ‘and we also know, secondly, that a reasonable inference, not necessarily the only one, a reasonable inference could be made that Dr Ganić was in charge on 2nd and 3rd May’, Mr Alcock, ‘Yes’.  Three, thirdly, I think we’ve come to the conclusion that Dr Ganić was in the presidency throughout the afternoon of 3rd May’, ‘On 3rd May, yes’.  ‘Fourthly, there is some evidence to show that the orders to attack the convoy came from the presidency,’ ‘Answering exactly the question you’ve put to me, yes’.  ‘Fifthly, there is some evidence on the radio traffic that the person [Zag-ay?] repeated Dr Ganić’s orders, and one of which was giving the order to attack the convoy?’  ‘I think that’s open to a lot of interpretation, but I’m aware of the reference to which you referred me and I see an argument to that effect’.  Six, ‘also on the evidence I’ve shown you there is some evidence that the attack on the convoy was carried out by Green Berets’. ‘I agree with that only in the sense that ‘Green Berets’ is a catch-all phrase for a huge variety of militia, not all under clear chains of command’.  Seventhly, ‘some evidence that Emin Švrakić was on the ground on the afternoon of 3rd May near the convoy’, based on the evidence of Witness A.  ‘not sure – I’d need to have my memory refreshed’.  He says he can’t remember.  Eight, ‘Švrakić was subordinate to and took orders from Dr Ganić,’ and, ‘as yesterday, I would say I would see it as logical that he was subordinate to and took orders from Hasan Efendić or other, if you like, military leaders above him; and although one might say in a legalistic chain of command the buck stops with the president I have not seen evidence that the president was directing war conduct on that afternoon’. 

‘Ninthly – I’m not sure if I’ve shown you this – there is some evidence that Dr Ganić said that all the soldiers were effectively captives’, and he says, ‘I am absolutely convinced – and perhaps we’re at one with this and that’s what you’re asking me – that it simply relates to the state that the entire JNA second headquarter garrison has been surrounded and entrapped within the second headquarter military district.  They are prisoners in that sense, yes, but not prisoners in any other sense.’

10, some evidence that ‘Dr Ganić is evasive about his knowledge and position’ in the afternoon of the 3rd, in his interview with red line.  ‘Yes, but in the context one might say of a rather provocative interview where Aksentijević is being equally evasive’. 

So, Sir, looking at that evidence, when one boils it down to those points, we do say those bring it into the position where a reasonable prosecutor could properly say this is a case which should be brought to trial.  There is always room for different opinions, and, of course, prosecutors are not judge and jury; the people who make the decision of where the guilt lies are the judiciary.  Sir, if we’re just coming back to the defence submissions, this is the defence grounds two and three, namely gross misrepresentations in the WCPO’s letter of the 8th March, and the request itself contains serious misrepresentations and omissions, to an extent indicative of abuse and political motivation.  Now, we submit that none of those matters themselves are capable of providing a proper basis which reaches the high bar of abuse of process, and we say that because the request complies with the statutory requirements of the 2003 Act, and on close analysis, many of the errors are not either errors are at all, or are of limited significance.  And just running through those very quickly, so the errors identified by Dr Hoare, there’s a typographic error or spelling error in A, in Bajramović, there’s a missing death certificate, which explains why it’s still on the indictment, and in Prazina there is a lingering doubt that in fact he may have faked his own death to avoid being tried, but in fact, until that’s completely satisfied it can’t properly be said to be an error.  In Prazina the recurrent problem of historic details, and then there were complaints about rank and designation, and really, again, we say those are not material matters.  And, where you have those type of two sides, it would just be wrong, in our respectful submission, to make a finding of fact that the drafters of a request deliberately set out to mislead and create a specific advantage to themselves to prejudice Dr Ganić in these proceedings, and, again, the high bar of abuse of process would not be met.  We point out that to the extent they are probably relied upon under the political motivation head, they should not be corresponding with the abuse of process jurisdiction, coextensively the abuse of process jurisdiction. 

Their fourth ground, that Serbia is motivated by a desire to rewrite history, we say falls clearly within the extraneous considerations bar, and we will deal with that in a moment, and the point relating to Damir Arnaut’s evidence, together with the Serbian response, we say it’s clear there was no formal involvement of any relevant government serving ministry or official in any negotiations surrounding Dr Ganić’s bail.  The extent Mr Arnauld’s evidence is found to demonstrate an attempt by those Bosnian [inaudible], and on Mr Arnauld’s own evidence he agreed expressly it was improper for the Bosnian government to do what they did, and he agreed expressly it was improper for them to try and interfere with the bail position, or try to interfere with the withdrawal of the request.  So, we set out other points on missing grounds within the summary; we do say that on the statutory scheme, and on the high bar that abuse of process requires, its place within the statutory scheme simply has not been made out on the material put before the court and the evidence of Deputy Prosecutor Vuković dispels any question of there being abuse of process in this case.

The next point, Sir, Section 81A; I won’t take you to the provision, but, Sir, you know that requires that the extradition is fact made for political purposes, rather than anything else.  And, in fact, I think it’s the actual wording, Sir, I’ll just read it out to you, ‘A person’s extradition to a Category Two territory is barred by recent extraneous considerations if, and only if, it appears that the request for his extradition, though purporting to be made on account of the extradition offence, is in fact made for the purpose of prosecuting him on account of his race, religion, nationality, political opinions’.  So, again, Sir, you have to find, as a fact, this was not, the request was not made to prosecute him for this crime, it was in fact made because of his political opinions, and it’s if and only if that factual finding was made that the bar in Section 81A is satisfied, and we say that that simply can’t be done if one comes to the conclusion that a reasonable prosecutor could properly make this extradition request.  So if a reasonable prosecutor could properly make this extradition request, there really can be no argument that the request has been in fact made for political purposes, in effect, to say they are mutually exclusive, because it will have been made properly to deal with the procedure under the criminal law. 

Section 81B, which is the, perhaps the strongest ground my learned friend put forward; 81B says that, ‘A person’s extradition to a Category Two territory is barred by reason of extraneous considerations if and only if it appears that if extradited he might be prejudiced at his trial, or punished, detained or restricted in his personal liberty by reason of his…’  Now we accept that the correct legal test is set out in the case of Fernandez, and just to remind you, Sir, where that is, that’s in tab five of our written submissions, and if I could just take you into the speech of Lord Diplock, who gave an opinion with which all other members of the Appellate Committee agreed.  Taking you to page, directly to page 992 in the report, if we just drop down to the bottom of page, just below H, ‘The third ground relied upon by the Appellant as he might be returned be’ – and Sir, that’s immaterial, the same wording as we have in Section 81B.  And Lord Diplock set out the proper approach to that; he explains at page 993, at H, at the bottom, that one shouldn’t really speak of balance of probabilities when one’s deciding under Section 41C of the Act; that’s the equivalent to our 81B.  And if we go over the page, he points out that Section 41 – our 81B – uses the word ‘might’ and if we pick it up at D, in the second sentence of that paragraph, ‘The degree of confidence that the event specified in the paragraph will occur, which the court should have in order to justify refusal to return the fugitive, is not determined by the mere use of the subjunctive mood of the auxiliary verb may’.  He is referring to the draftsman’s use of the word ‘might’.  And if we drop it down to the bottom of the page, he effectively comes to this, just below H, ‘But judged by any of these tests, by applying, untrammelled by semantics, principles of common sense and communality which are subsumed by the Act, I can see nothing in the evidence in the incident of the case’ – and I’m sorry, I should have picked it up – the test is it’s less than a balance of probabilities, it says a lesser degree of likelihood is, in my view, sufficient.  ‘I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. “A reasonable chance,” “substantial grounds for thinking,” “a serious possibility”…’.  See, Sir, that’s the test one has to apply on 81B; and, in our respectful submission, going back to our written argument, paragraph five, eight and nine of that bundle in tab one. 

We respectfully submit that much of the argument resolves the question, would Ganić receive a fair trial, because if he’s going to receive a fair trial he won’t be prejudiced on account of his political opinions.  I accept it’s not synonymous with… the same question, but much of it leads in the same direction, and that is the approach which the courts have often taken, and just to show you a similar approach to that, in Asliturk, which is tab four of this bundle, which was a decision against the Government of Turkey.  If I could just take you towards the end of the decision in Asliturk at paragraph 23, tab four.  Paragraph 23, ‘Counsel for the government submitted quite rightly the jurisdiction to be exercised [inaudible] jurisdiction’.  And then dropping down, ‘Counsel’s submission was that the arguments raised by Mrs Asliturk, points relating to alleged flaws in the prosecution evidence, were really matters for trial under the European Convention Regime; the government is not obliged to establish a prima facie case of guilt.’  He pointed the court to aspects of the evidence that indicated that Mrs Asliturk did indeed have a case to answer, and submitted the protestations of innocence were matters for the Turkish court.  ‘However, in my view that ignores the fact that the material produced on Mrs Asliturk’s behalf for the purpose of demonstrating the accusation was political was not made against her in good faith and it would be unjust and oppressive to return her to Turkey.’  There, of course, picking up the word unjust, this is in the context of Section 11 of the 1989 Act; unjust in the context of that has always been can we get a fair trial; that’s Karkis[?] and now Gomez[?].  Sir, as I have already stated in the earlier parts of this judgment, the Government made no effort at all to counter this material; I am just pausing there, that is obviously not the case here.  In that case it was only a one way street, and in those circumstances they could see no reason to part from the Magistrate’s decision and find that there was not political motivation.  And at paragraph 26, the point I wanted to make, Mr Blake, as he then was, and Counsel were in agreement with the circumstances giving rise to challenge to extradition under Section 6 cannot add to a conclusion challenge under Section 11C.  Sir, the Section 6 is the equivalent to Section 81B in the 1989 Act, and it’s the equivalent of Section 4 under the Fugitive Offenders Act 1967; it was Section 61A and B, or in our material 81A and B.  Sir, that’s why our respectful submission is that much of it, although not exclusively, resolves into the question of whether or not he will get a fair trial, because getting a fair trial eliminates much of the possibility that he will be prejudiced, because of his political opinions, because a fair trial, by virtue of being fair, eliminates that. 

And just in A, of fair trial provisions, could I just ask, Sir, you to turn to bundle 6 of the defence.  Now it’s a bundle we only received after the close of business last week, the Friday 3rd July, with the case starting on Monday 5th…  So then I didn’t receive it – Friday 2nd our account, but we – and this was, Sir, let, and why I don’t complain served late, it obviously has deprived the Government of Serbia from giving a fuller response than that given by Deputy Prosecutor Vuković.  In this bundle, can I just, in the last few minutes which I have available, can I just draw the court’s attention to one or two points; I would just like to go to tab six, in divider A, and it deals with war crimes and Serbia – did you see that Sir?

JUDGE WORKMAN: Yes.

MR LEWIS: And if we go over the page, there’s a large number of war crime cases which have been dealt with in Serbia by this independent organisation.  And if you look at the introduction, it actually speaks quite highly of the War Crimes Trials Chamber and the prosecution.  And, indeed, as we go through these cases, there is no proper criticism of the War Crime Prosecution Office, other than the one which I indicated I should draw to your attention, is of the Trial Chamber, which is in the Scorpions[?] case.  It is on page 8 of the bundle, where it does say, under V, ‘In reaching its decision the Trial Chamber was clearly influenced by political rather than judicial reasons’.  Sir, do you see that? 

JUDGE WORKMAN: Yes.

MR LEWIS: It’s obviously a point against me, but it’s right that I draw your attention to it.  It’s at page 8, paragraph V.  Above the enemy case, the paragraph immediately above that. 

JUDGE WORKMAN: Page?

MR LEWIS: I’ve got internal page 8, it’s tab 6 of divider A.  The way it’s split up isn’t terribly easy to follow.  So, Sir, it begins with, just to show you, it looks like this at the beginning.

JUDGE WORKMAN: Yes, I have that.

MR LEWIS: And then page 8, page 8…

JUDGE WORKMAN: Enemy case…

MR LEWIS: Page 8?

JUDGE WORKMAN: Yes.

MR LEWIS: And it’s this paragraph here…

JUDGE WORKMAN: This is about the enemy case.

MR LEWIS: I think it’s right that I draw your attention to that Sir.  But, in all the other cases, in our respectful submission, there is no such criticism, and that one has to be looked at in the context of not prejudice against the defendant, it was prejudice in favour of the defendant.  So, in effect, they said, they got a lesser sentence, because many were convicted in the Scorpions case, but the opinion of this observer is that the Trial Chamber did not deal heavily or with enough… were prejudiced against the defendants.  But, of course, all these reports do have to be taken into very careful consideration, because in this Scorpions case itself, sir, if we could go back, to go back to page 7; now, that is why these, all these reports require an enormous degree of care.  Sir, if you’ll see here, it says, first full sentence, ‘On the contrary, he asked a 16-year-old boy, “Have you had sex before?” When the boy said he’d not Aleksandar Medic told him, “Well, you’re not going to”’.  And the observer says that’s more than sufficient to conclude that the accused, Medic, knew the prisoners were going to be executed; there is no doubt whatsoever.  He’s saying it’s a wrong view; do you see that Sir?

JUDGE WORKMAN: Yes.

MR LEWIS: But in fact, if you just go to the next tab, tab 8, and look at page 110, under 1.2.5 it says the Scorpion – it’s the next tab, tab 8, page 110 in the left hand side of the margin.  They are dealing with the exact point we were just looking at now, but this observer says, it’s in the third paragraph, a witness Slobodan, who filmed the event, altered his statement.  At the first main hearing he said that after a captive answered Medic’s question by saying, ‘I’ve never fucked’; Medic replied, ‘And you never will’, which suggested that the defendant was aware of what would happen to the captive.  The witness, however, changed his statement; said he’d not heard Medic saying such words.  So, Sir, when you have another independent observer looking at it, you get a completely different complexion.  So all of a sudden the first observer is saying, well, the trial was biased in acquitting one of the members of the Scorpions, because there was obvious evidence that they were guilty, because of this statement that you’re never going to have sex, but when one looks at another observer there’s this, that sentence was firmly withdrawn in the trial.  So that’s why one does have to have a real degree of caution when looking at some of these cases, but throughout these cases which we’ve been looking at in tab 6, there is not an indication that a, that a fair trial is not received, and just in the last couple of moments, to draw your attention to one or two others ones, could I just go into tab 8 and ask you to look at a comment on one of the cases, that’s theParsik[?] case; it’s page 104 in the left hand margin.  If one goes back to page 103 it’s the, at paragraph 1.1.8, theParsik case.  We go over the page to 104, middle of the page between the perforations, this is a war crime trial in Serbia; the trial was efficient, the defendants were given stiff penalties, commensurate with the gravity of the crime they committed, all judicial authorities dealing with the case – prosecutor’s office, trial court, Supreme Court of Serbia – performed in a highly professional manner, conducted the case without bias, and which is particular important, taking fully into account the extreme severity of the offence involved.  So just to pick up another case in that bundle, if we go to page 107, and just above the first perforation, the Aslugnui[?] case.  The trial was conducted in accordance with standards for professional conduct and fair trial; it was efficient and dynamic, nevertheless the sentence imposed on Parsik is minimal. 

But, Sir, the general approach, from these independent observers, is that it is quite clear one does get, in the War Crimes Trial Chamber, and by the War Crimes Prosecution Office, a completely fair trial.  And, of course, one has to be careful, one has seen in these courts, time and time again, criticisms of Pobe, of Lithuania, of US state reports, which say that Pobe is almost the worst country in the world for torturing, etc.  One does have to put all of these into context, and there is absolutely no evidence whatsoever, in our respectful submission, that one does not get a proper, fair trial in Serbia; and because one will get, and Dr Ganić will get a fair trial in Serbia, it ameliorates any suspicion that may arise as to whether or not there was any possibility that there might be prejudice over his political opinions. 

Sir, I’m conscious of the time; we said we’d deal with it in an hour each, and that is pretty much coming up to ten past, my hour, and in those circumstances we would say that the Serbian government has rebutted the allegations of abuse of process and the safeguards alleged to be infringed under Sections 81A and B.  And finally, Mr Watson reminds me that one can finish with a flourish on the fact that the ICTR, which is often described as the litmus test for whether a person will get a fair trial, has transferred cases to Serbia.  My learned friend is wrong to say that they have ever refused, and we have been down that route of whether or not it was simply accepting the Office of the Prosecutor’s motion to withdraw, because there was a conflict between Croatia and Serbia, not simply Serbia, and in those circumstance there never has been a decision by the ICTR that they, no fair trial will be achieved in Serbia, and it is the contrary for the hard transfer decisions.  And the mere fact that – sorry. 

JUDGE WORKMAN: [inaudible]

MR LEWIS: Sorry?

JUDGE WORKMAN: The evidence there had been transfers is to the contrary; you can say that there have been?

MR LEWIS: There has been two.  There has been a trans – there has never been a refusal and there has been a transfer – [Su-von-ar-ic?]

JUDGE WORKMAN:  Kovačević. 

MR LEWIS: Kovačević

JUDGE WORKMAN:  That is the Dubrovnik shelling…

MR LEWIS: The Dubrovnik shelling case has been transferred.

JUDGE WORKMAN:  He hasn’t been tried yet.

MR LEWIS: But under 11 BIS the ICTR had to be satisfied that he’d get a fair trial in Serbia, and they did transfer it.  So, Sir, the summary of the evidence is there has been one transfer, there has never been any refusal to transfer, there has been one motion accepted by the court to allow the prosecutor to withdraw her request to transfer either to Croatia or Serbia.  That’s the sum of the evidence, and, Sir, for completeness we’ve added in your bundle there, at tab seven, an example of a refusal by an international tribunal, in this case the ICTR, to refuse to transfer to Rwanda.  He just points out that, if we look at this, Sir, in tab 7, this is the [Mun i an av Kar sic?] decision, and at the top of the page 734, paragraph seven, this is what the chamber, and it’ll be the same for the ICTY, and it’s 11  BIS, which we’ve seen in footnote 11, so 11 BIS C, ‘The accused will receive a fair trial and, of course, as was accepted in the Divisional Court, that is in fact itself a much higher test than is necessary to gauge under Sections 87 of our Act,’ which is flagrant denial of justice; that is a positive assertion that the person will receive a fair trial.  So the international court, the ICTY, has found expressly that a transferring will get a fair trial, and, of course, then there is the extradition case with Norway, which, again, supports and corroborates that decision.  So in all those circumstances, Sir, we say that the submissions put forward by the defence should fail.  Unless there are any other points those would be my submissions.

JUDGE WORKMAN: Thank you very much.   

MR FITZGERALD: Sir, can I just pick up those final points, just very briefly at this stage.  Firstly, there has, as my learned friend has accepted, been one transfer case; that was the man called Kovačević, and Mr Kovačević was a Serb being transferred for trial in Serbia; in fact, he hasn’t yet been tried, and it may well be that his mental health played a part in the decision, him being mentally disordered.  There has never been a case of a Bosnian Muslim being transferred.  The one case, the Vukovar Three, that my learned friend referred to; in that case the prosecutor withdrew and the reason given by the prosecutor for withdrawing was the strong sentiment, which would be pro this Serbian defendant, and they referred to the seniority of the accused.  Sir, all this is set out at pages 13, if I just give you the reference, pages 13 to 16 of our response.  Now, it’s just simply not true to say that they just permitted the withdrawal, because they then had to consider, the court had to consider, do we proprio motu, of our own motion referr, and they decided not to, and the reason that they decided that we will not do it of our own motion, although the defence were asking, ‘Please send me back to Serbia to be tried by my own people’, was they said the feelings are so great that it won’t be tried in an unbiased way.  In other words, it won’t be tried objectively and dispassionately.  Sir, I can just give you the, the handout that’s in, just so we don’t have to waste time.  So it’s just rather like the evidence of Mr Petrović it’s just completely misleading.

Firstly, you remember Mr Petrović saying, ‘You can rely on us because Carla del Ponte sought to refer it’.  In fact, Carla del Ponte then withdrew that, but she didn’t withdraw it just as a matter of… she withdrew it because she didn’t think it would be tried objectively, and the court then had to say, do we, of our own motion transfer it, because that’s what the defence are asking for, and they said, ‘We will not, of our own motion, do it’, and they gave reasons why they wouldn’t of their own motion, which was to do with the national – this is all set out in detailed quotations at pages 13 to 16 of our, of our skeleton and there is no room, that they say the intensity of feelings for – this is no doubt matched by the potential witnesses and the families of victims, by their nature these allegations provide a ready foundation for the extreme feeling of intensity which brings  into sharp focus the question of whether even today a trial held in either country would be generally accepted as reflecting the fair administration of justice.  At page 16 that is set out, of our response skeleton, and they’re saying, the court itself is saying you cannot trust them to try this fairly, and therefore we will not, of our own motion.  So they didn’t – it’s no good my learned friend shaking a hand – we put, we put this in and they have never responded to it other than by saying, in a really bare technical way, all they did was to exceed – that’s not true.  They went on and they said, do we proprio motu, of our own motion do it, and they didn’t, and they gave reasons for it, and the reasons for it – they’re all set out there – was the intensity of feeling. 

So where do we get to?  This supposed sign of approval; no Bosnian has ever been transferred, one Serbian has been transferred, one Serbian, the prosecutor herself withdrew it and the court approved the withdrawal and didn’t do it of their own motion.  Now, at the end of that there is nothing.  Now, you contrast that with Rwanda, where the only kind of transfers were of Hutus to be tried in a Tutsi dominated regime, and there, of course, that was the issue.  And so it would have been a seal of approval if they had said, well, we will send a Hutu back to be transferred, to be tried, in a Tutsi dominated regime.  But, you see, in our case they’ve never had this issue; they’ve never had, here’s Dr Ganić, you have part heard during his case, will you transfer him; it’s just never happened.  And so we say, and as for the Norwegian case, again, it was a Serbian person being sent back to be tried in Serbia.  So none of these international themes give any help at all to my learned friend, but do remember, Sir, do remember I invite you, Mr Petrović was, he was misleading the court; he was saying, you can have confidence in us because the confidence of Carla del Ponte is shown by her motion to transfer, and what did I say?  Why didn’t you mention the fact that she withdrew that motion to transfer?  He said, ‘I don’t have to mention anything that helps the other side; I just have to put the case that helps me’.  Now, is that a prosecutor with any sense of justice at all, and he’s the guy who’s going to run the trial, he’s the man who ran the Jurisic tried and three times told, talked nonsense about this agreement, and then tried to say an agreement doesn’t mean an agreement, and my learned friend, Mr Watson, last week conceded there wasn’t an agreement, and headed off Dr Noel Malcolm by saying, ‘You needn’t deal with that, of course we accept there is no agreement’.  He gets in the witness box and says, ‘Well, when I said concluded agreement I didn’t mean that’.  Mistranslation – that’s nonsense – the word means agreement, the translator was saying agreement, when I said the word agreement he was translating that word.  So, Sir, we really are in a situation where we respectfully submit he will not get a fair trial.

Now, can I just take you to the submissions; if you look to the submissions on the extradition offence.  Firstly, as my learned friend indicated, we do accept that on the very face of it four of the, three of the four allegations would constitute an extradition offence.  Firstly, if he did personally command an attack on a column, and they were properly marked, then that would constitute a grave breach, but for the reasons that we’ve analysed, we say, the evidence goes nowhere near establishing even a prima facie case.  Sir, again, Witness B, his evidence – I won’t take you back to it…

JUDGE WORKMAN: Significant of a prima facie case is, at this point…

MR FITZGERALD: Well, Sir, if you find that there is no sufficient case, then you’ve said in some of the Russian cases that that’s a significant factor.

JUDGE WORKMAN: Yes.

MR FITZGERALD: Can I just put it this way, Sir, just supposing that in the request, what we now known to be the case was fairly set out…

JUDGE WORKMAN: Yes.

MR FITZGERALD: …Which after all would be the duty of a fair prosecutor.  Supposing he set out in the request, attack on the medial hospital, there is an allegation that the hospital, which housed an anti-terrorist unit that was threatening to blow up a Mosque, that that unit was housed there, there was an attack on it, it may have been on the 8th, he couldn’t remember whether it was on the 3rd or 4th, he certainly said nothing but the 2nd.  And then you were faced with a request which said, and we’re told there’s two offences, on the 2nd and on the 3rd he ordered an attack.  You would say, now that you’ve fully spelled out the basis of your request; one, it’s clearly not, as they say, used exclusively for medical purposes; two, your request itself does not arrange something that could be ordered, because you say it’s on the – I don’t know whether it’s on the 3rd or 4th, it’s probably on the 8th, when Ganić wasn’t even in charge.  And so if they put the truth in a request, you’d be saying there’s no extradition crime.  And let’s take the other one, let’s take the medical, the attack on the medical column; if they had said, ‘What we’ve called a medical column was in fact two Pinzgauers and two sanitary vehicles, and the Pinzgauers were packed with military men, because all the people shot were military men, and they opened fire, and they shot a Bosnian, and as a result – you would be saying; well, that’s not a war crime.  So it’s only by not putting in what they know, and they know it because Tausen was put forward as spectacular, striking testimony, and you looked at him and you think, how could they say that?  My learned friends have obviously persuaded them that they ought to disclose it, but, very late in the day, but remember, back on the 8th March Tausen was being put forward as a reason to keep Dr Ganić in custody.  We have received particularly striking testimony since March 2009, which justifies keeping him in custody; it’s the very opposite which is the truth.  Remember Article 5: the European convention requires no detention be arbitrary.  Raisi[?] says you’ve got a duty if you’re trying to keep someone in detention, the prosecution have a duty to tell the truth.  I’m not criticising my learned friends, but the people – he was locked up when they wrote that on 8th March, and they were trying to keep him locked up, and they were trying to keep him locked up by lying, and saying, ‘Our case is supported by a particularly striking testimony’, which, in fact, invalidates their case.

But, Sir, the point I’d make here is set out in…

JUDGE WORKMAN: I think that the point was in answer to one…

MR FITZGERALD: I’m sorry.

JUDGE WORKMAN: …Which was – the fundamental case in point relates to Section 81 abuse which isn’t actually related to extradition.

MR FITZGERALD: No, no, I accept – sorry, Sir, yes.  So, it’s really 1.2; what we say is it’s the fact that the request is so misleading and so misrepresents the evidence that’s part of the abuse of process; it is only the deliberate systematic and bias misrepresentation of the facts that enables the prosecution to claim that it satisfied the extradition offence test.  This is an abuse of process, because it deprives the defendant of a valid protection by deliberately misstating the true position to the point that the request appears to allege three extradition offences.  If, for example, the request fairly reflected the evidence of Dr Tausen that the medical hospital was not protected and that it accommodated a combat unit, there would be no basis whatsoever for the allegation that Dr Ganić personally commanded the attack upon a protected military hospital – there was no basis for an attack on a protected military hospital on the 2nd and the 3rd.  It was only by systematically exaggerating, to the point of absurdity, Dr Ganić’s supposed micro-managing of every incident, that there is a legally sufficient allegation and an extradition offence.  So, what I say Sir, is this is classic manipulating the process, so that on the face of it you have an extradition offence, when, in fact, you don’t.  Of course, if you mistake – it’s quite true that sometimes they don’t get caught out; and, for example, I couldn’t say if we didn’t have Tausen, you refer to Tausen, give us Tausen, or it’s an abuse of process.  And that was the Birmingham situation; Mr Jones saying, ‘Give us the staff, or it’s an abuse of process’, but if they choose to give it, Sir, and they gave it to us to try and rebut the powerful prima facie case of abuse, they said, ‘Well we – this is not in bad faith, because look at all the evidence we’ve got’.  And when we get the evidence it contradicts their whole request; that’s the abuse.  If they had fairly set out, point-by-point, what their evidence shows, they would not have a case of an extradition offence.  And therefore, we respectfully submit that that is an abuse of process; it’s manipulating things, so as to suit you, and then it’s expressly saying that if there’s prosecutorial manipulation, by which they deprive the defendant of a benefit, then that is abuse of process, and I’ll show you that; and one of the main categories of abuse is manipulation of the process. 

So the JNA officers, as my learned friend has fairly conceded, and there is no extradition offence there.  But, Sir, again, that’s quite important: why was it there in the first place?  It was…

JUDGE WORKMAN: I need to be clear, have you conceded this…?

MR FITZGERALD: Well, okay, my learned friend hasn’t conceded, but then let me just put it; if you attack a military base, or the JNA Officers Club, housing officers, during an armed conflict, that, if you say attacked the JNA Officers Club, that is not an extradition crime.  Now, my learned friend fairly said that he saw the force of that, so let’s take it one step further.  Mr Petrović said, ‘I will prosecute him for that’, and the point is this, why do they have to have that, because it’s the very first incident of the day when they say, according to the prosecutor Vuković, the war started.  They have to put that in there because of their political agenda; they have to say, this all started with an unlawful attack on the Officers Club, that precipitated the medical convoy, that was attacked, that precipitated everything else, and that’s why we sent the tanks in, although they now say they didn’t send the tanks in, but that’s why we may have sent the tanks in.  And so why have they put it there?  Why have they got to get their blow in at 11 in the morning?  Because this is moving to a political agenda, and he doesn’t care whether it’s true or not, whether it’s an extradition crime or not, what he cares about is proving you started it.  And you heard what he said; when I put to him, which every single international body has established, and it’s a matter of finding by a court, and you’ve got the reference, but it’s a matter of finding in the, in the, in the case of Gavić.  Sorry, 4, G-A-L-I-C, you’ve got it in the… In the Galić case they said, ‘We find that there was shelling that morning and then incursion by the Serb forces’, and the UN report shows there was shelling.  I said to him, ‘Do you accept there was shelling?’  ‘No’.  ‘Do you accept there was a tank attack?’  ‘No’.  Now he’s not going to present to a court a fair account of the events in that case; he’s, and my learned friends say, ‘Well, it doesn’t really matter; what matters is what happens’; that’s not true.  You couldn’t have a murder case in which the prosecutor got up and told a whole load of lies and then said, ‘It doesn’t matter that I told a whole lot of lies about the background, I got it right that he shoved a knife in you’.  You couldn’t have a case based on the Second World War which the prosecutor got up and said, ‘There wasn’t a Second World War going on, but all that matters is what happened’.  Of course, in a case like this, where we’re dealing with war crimes which depend on is there an international armed conflict, is it protected, are there soldiers, everything like that – who is responding to what, what is the context?  It matters enormously what the context is, you can’t get a fair trial if they are distorting the very start of events that day.  So, so you see that he wouldn’t get a fair trial. 

JUDGE WORKMAN:  [Inaudible].

MR LEWIS:  We’re not inviting that… can I just explain?  The point we were making was that they hadn’t spelt it out in the request for reasons that they’d always been saying it was a civil war.  It does seem to be clear from what the judicial findings of the International Court were, that, it’s certainly strongly argued and this is an international armed conflict, and we’re not… they say it in their request, we’re prepared to accept, Sir, this is an international armed conflict.  If it is an international armed conflict, then there are two sets of combatants in that international armed conflict, and they are entitled to fight.  The only thing that would be unlawful would be if he said ‘Go and attack… go and attack a protected target’ such as a hospital, or ‘Go and attack a protected ambulance unit.’  But the idea that they were phoning – you’ll remember the evidence we’ve heard about Skenderija was at the heart of the conflict.  That’s where they were coming over the bridge.  The idea that they were phoning and saying ‘We’ve just been fired on by a Pinzgauer tank.  Can we now fire back?’ ‘Yes.’  ‘And hit an ambulance if we miss?’  ‘Yes.’  ‘And then make them go and stick their hand…’ That’s the point: the whole theory that they’re putting forward of personally commanding it is ridiculous in the circumstances, and it was found to be ridiculous by the ICTY and by Mr Alcock.  Do you remember, I put to Mr Alcock in re examination, ‘Is there any evidence that he personally commanded an attack on the ambulance?’  ‘No.’  ‘Is there any evidence that he personally commanded an attack on a military hospital?’ ‘No.’ ‘Is there any evidence that he agreed to the JNA convoy going in then double crossed them?’ ‘No.’  My learned friend was citing some theoretical thing where he put eight points and ‘if this, but something… well that might… a reasonable prosecutor might…’  The simple thing is, there is no evidence that he personally commanded an attack on the military hospital.  There is no evidence he personally commanded an attack on the medical relief.  There is no evidence that he ever agreed that that convoy should go out, and the Rules of the Road are absolutely clear on that, and so was Mr Alcock. 

So if I can just summarise the points we make on abuse and political motivation.  So, the three points of law being made at 2.2.  Firstly, we accept that there is a jurisdiction obviously where it is oppressive or vexatious, and we say this applies here given the decision of the ICTY not to prosecute, and the two major prosecutor decisions that there was no case to answer.  And we say that in the light of that and in the absence of something new there would be… no reasonable prosecutor should prosecute, and you’ve got what we said about the authoritative nature of the ICTY review, page 21.  My learned friends keep saying this is just some lawyer – it’s page 21 of the… we’ve set out there, it’s clear on the face of the Rules of the Road file that at least the following ICTY office lawyers were involved.  The ICTY Chief Prosecutor; the ICTY Deputy Prosecutor [Ferman Bruic?]; the ICTY Legal Officer [Jan Emmanuel?]; the ICTY Legal Officer Condic[?]; the ICTY Legal Officer Wiphof[?]; the ICTY investigator [Ken Caller?], and as a senior legal advisor, extremely distinguished, Fenric[?] who gave advice on international humanitarian law.  In other words, the team comprised at least six ICTY lawyers from at least five different countries and three continents, three of whom were the most senior members of the office of the prosecutor, and leading experts on the laws of war and prosecution of war crimes.  And sir, if you look at the Rules of the Road, you have in that small bundle which was, we put in on the 11th, which was, I think it was called the ‘Core Bundle’, which had the extracts of the Rules of the Road…

If one looks there…

MR FITZGERALD:  I don’t want to make… can my friend actually say Carla del Ponte actually looked at it?

MR LEWIS:  She signed it… well, my learned friend is trying to suggest she didn’t approve it.

MR FITZGERALD:  No, I’m not saying she didn’t approve it, I’m [inaudible] view of it.

MR LEWIS:  Well, my learned friend is then making a very serious allegation that she simply rubber stamped it.  Well, I suppose Mr Vuković is rubber stamping everything, I expect Mr Petrovic is stamping everything.  If we’re just going to throw around allegations that nobody does their jobs, then of course my learned friend is… but he never cross examined or put it on the basis…

MR FITZGERALD:   [Inaudible].

MR LEWIS:  He never suggested that Carla del Ponte hadn’t reached a conclusion on this matter, and she wrote… you’ll see all the people’s names on the front, at 328.706… Sir, can I just take you to 328.706.

JUDGE WORKMAN:  If I can just find the right…

MR LEWIS:  Okay.

JUDGE WORKMAN:  This is…

MR LEWIS:  This is the Rules of the Road… yes, it’s with the Core Bundle, which I think is the only bundle you may need.  We’ve got it here if you… it’s the Core Bundle, which has the March…

JUDGE WORKMAN:  [Inaudible]

MR LEWIS:  It’s the, just if I could take you to 328.706…

JUDGE WORKMAN:  Yes, I am there.

MR LEWIS:  You’ll see there the five, to establish perfectly a prima facie case that the President freely gave his personal guarantee; he told Ganić of his personal guarantee; Ganić accepted that guarantee and agreed to participate; JNA then acted in reliance on that guarantee; the guarantee was falsely given.  None of these events, other than the fourth, are established on the evidence on this file.  Now, it’s that analysis that we rely on, and that’s what Lord Justice Laws relied on, and he asked my learned friend Mr Newton, sorry, he said to him, my learned friend Mr Watson, he said to him ‘Have you got anything in this letter to fill the gaps, and to meet those points?’  And he said ‘No.’  And now, all of a sudden, this is just the view of a lone prosecutor.  That is a detailed analysis of the law, and with great respect it’s a lot clearer than anything we’ve had from Mr Petrovic, and it was endorsed by Mr Alcock.  We say that plan is the same prosecutor approaching this difficult issue in a reasonable way, and we have heard nothing from Mr Petrovic to answer that.  He has got no basis to say that at any stage Mr Ganić agreed to, and this is the most important thing, agreed to let it, to say ‘Yes you can go.’  On the contrary, all the evidence is he was saying ‘No, the deal is off,’ etc. 

So that is the point we respectfully make.  That makes it, if I can take you to the top of page seven, a second raft of legal test of abuse is whether there has been prosecutorial misconduct, in the form of misleading the court, manipulating the processes of the court or suppressing the relevant facts at key points of the extradition proceedings.  And you can see that, sir, in Tollman – I’ll just give you the reference, but perhaps I can read it, in Tollman, at Tab 1 of our authorities, the Authorities bundle, paragraph 82, and of course this supersedes Berman[?], it says ‘This Court held the regime’s integrity must not be usurped by abuse of process.  At this stage, we simply endorse the conclusion that the Judge conducting the extradition proceedings has jurisdiction to consider an allegation of abuse of process.  Indeed, we would go further than this and apply to extradition proceedings the statements made by Lord Justice Bingham in Ex Parte Ellis.’  And then there’s the quote: “‘If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the Court in order to oppress or unfairly prejudice a defendant before the Court, I have no doubt it is the duty of the Court to enquire into the situation and ensure that its procedure is not being abused.’” 

And of course, what happens when you put in a statement saying ‘We have got striking new evidence,’ and you keep someone in custody, or you try to keep someone in custody by that.  And when you say ‘He said ‘I am in charge’” when the expert has said that’s not what those words mean; when you say that a video shows something it doesn’t show.  That, in the context of trying to keep someone inside, is an abuse of process, because it’s manipulating the processes of the Court, and we respectfully submit that that is what has happened here.  And the fact that they didn’t fairly set out a request, now, they had ample time to amend their request to reflect a fair procedure.  They were amending it all the along about international armed conflict.  They could have aid ‘Okay, we’ve put in a new request which supersedes these and fairly reflects what the evidence shows.  We’ve dropped the JNA Officers Club, strong arguments that it doesn’t apply; we’ll put in the true situation on the military hospital.  We’ll put in the true situation, and then we’ll allow the court to rule on the basis of the facts as in fact they are.’  Because by then you’d already found there was a prima facie case of abuse.  They didn’t do anything of the sort, and you saw the attitude of Mr Petrovic: if you can get away with it, get away with it.  If you can rely on the fact that they made a request for transfer, and you don’t have to make… and nobody notices that they actually withdrew that request, good, get away with it.  ‘I have no duty,’ he said, ‘to do anything than say what is positive for my case.’  Now, if an English prosecutor said that to an English Court, at that point the English Court would say ‘Abuse of process, out of my Court, if you haven’t got the basic concept of prosecutorial fairness.’  So, you’re in charge of this case, it will not be fairly conducted, and we respectfully submit those are the words that Lord Justice Bingham used if by manipulating or using the procedures of the court in order to repress or unfairly prejudice, that’s exactly what has been happening here.

Sir, then we say further, your finding clearly justifies a stay, there’d been an abuse of power by the prosecutor or the state seeking extradition, and here this principle applies, and that’s the Bennett abuse of process.  So, for example – and this happened, I’ll give you an example.  Simon Mann, detained in Zimbabwe.  Equatorial Guinea were trying to get him, and there was a lot of to ing and fro ing about if you give us an oil deal, we’ll do this, if you give us an oil deal we’ll do that, if Simon Mann pays us a lot of money we might let him out of the process.  A lot of negotiation.  If that’s going on, if the state that is seeking extradition is putting into the bargain oil deals, and saying… and that is the Executive, because it’s the state that asked for the extradition, manipulating the fact that they’ve got an extradition, and in this case, if as Damirano[?] says that when negotiations, and sir I ask you to look at K, Exhibit K, which reflects what the representative of Bosnia is saying to the representative of Serbia about the agreement they had reached, which has never been contradicted, and in that agreement he says ‘This is our understanding.  Our understanding is that you will take this step and in exchange for that this step will take place.’  Now, if that kind… if they’re using the fact that they’ve got him detained here to obtain political leverage, doesn’t matter, even if the prosecutor was as pure as driven snow, the fact that the state is using it, manipulating it, would render it an abuse, because the abuse of power is at that level.  You can’t say, ‘Oh well, the prosecutor didn’t know about this, or says he didn’t know about it.’  The state is seeking it, and if the state is using it, in other words, if Equatorial Guinea and Zimbabwe are doing manoeuvring about oil deal, Simon Mann, no oil deal, no Simon Mann, that is a misuse of power, an abuse of power.  And that, we say, Mr Arnaut’s evidence clearly establishes. 

So sir, can I just take you to the… section 81(a), there’s ample authority that the statutory protection from politically motivated prosecution should be given a broad interpretation, if the extraneous political considerations play a substantial part in the way in which the prosecution has initiated and the way in which it has maintained, pursued and presented, then that justifies discharge.  It is relevant to the exercise of discharge that the case itself is long delayed, evidentially suspect and inconsistent with earlier decisions not to prosecute, as for example in some Russian cases.  You’ve seen the Rules of the Road and what they say.  You’ve seen at page 328.706 what they say, and that there’s no case.  Then it was transferred to the Bosnian prosecutors, and the Bosnian prosecutors reached the same… and the international prosecutors have all reached that same thing.  We say all the points about it being misused for political purposes apply here, and then oppressive prosecution, we say it’s an abuse of process and clear evidence of political motivation; this prosecution was initiated and maintained despite the findings of the ICTY that there was no case – I’ve given you the reference – and despite the fact the international prosecutor in the State Court of Bosnia and Herzegovina found that there was no basis for proceeding against him.

Moreover, the ICTY did not itself prosecute though it had power and duty to do so.  We say that the authoritative and thorough nature of the ICTY review cannot be dismissed as the views of a single prosecution lawyer, for the reasons set out in the postscript.  When respected and independent prosecutors acting under international mandate have twice conducted thorough investigation over many years and concluded there was no case to answer, it is oppressive to initiate a prosecution in December 2008 and maintain it thereafter without some dramatically new evidence.  And you know the situation, in December 2008 they had none of the new evidence that they relied on before Lord Justice Laws.  What we can see is the Judge ordering 19 people to be detained on the basis of no evidence, we would say, other than what is set out in that, none of the startlingly new evidence that they rely on.  We say that undermines the rule of law, and this new prosecution team produced no significant evidence, has not addressed the plain defects in the prosecution case identified by the Rules of the Road.

And I do remind you, sir, of what was said by Mr Watson to Lord Justice Laws.  He said that the WCPO’s letter of the 8th March ‘effectively contains no answer to the conclusions of the ICTY lawyers.’  So we say the WCPO’s initiation and maintenance of this prosecution, despite those earlier findings, strongly points to political motivation.

Now, the Serbian prosecutors complain of obstruction by the Bosnia & Herzegovina authorities as the reason for initiating that.  It said in that letter, and it was adopted by this witness.  We say, let’s accept my learned friend’s test.  Would a reasonable prosecutor act in this way?  Would a reasonable prosecutor say that Mr Alcock, who you’ve heard and had the opportunity to assess, was obstructing matters or was he conscientiously addressing his duty?  And the reason they gave for initiating the process, and I’ve given you the references, because the Bosnia Herzegovina were obstructing this.  Well if that’s an unreasonable basis then no reasonable prosecutor would act in that way.  And we say it is plainly false, and it’s plainly indicative of also political motivation.  And we say given the lapse of time, the history of early investigations, the insufficiency of the evidence – and we do rely on that as you rely on it in other cases – that you can look at how good the evidence is.  And I can see the point, you could say that it could be a relevant factor in a murder case, that there’s overwhelming evidence of that; and you say nobody could look at this without seeing there’s an overwhelming case of murder – and if an earlier team missed it we go ahead.  But here every stage of it is fraught with controversy.  You can’t get out of the political mire for one instance. 

They say we’ve got to start with the new evidence and they put forward Tauser, they put forward Kovačevic who’s the mate of the two biggest war criminals – he was a fellow member of their cabinet and he wouldn’t even admit it.  He was the person who said, ‘We’ll shoot down UN planes if they try to land’.  Kovačevic as your key witness; it’s a joke, it makes – how can you put him forward as someone who’s a witness of truth.  And what does he say, ‘I didn’t investigate Kovačevic, I didn’t know he was a minister in the next door state with which we have things – I don’t know that’.  Can you possibly believe that Mr Petrovic was telling the truth when he said, ‘I don’t know whether he was a minister in the Republic of Srpska’, along with [Ka-ra-chic?], one of the biggest war criminals of all, and Vladić, who they are still harbouring.  We respectfully submit, he knows full well he was, and he was not being truthful to this court.  He just wanted to say, ‘I don’t have to answer that question’, then he said, ‘I don’t know, I don’t have to investigate the background’.  Well he does.  If you’re going to put forward something, a startlingly new testimony on which a court can rely, you’ve got to investigate that person.  And in witness A, he didn’t even go back to witness A and say, ‘Were you bribed by an offer of a job?’  He’s done – and so we respectfully submit, no reasonable prosecutor could have done this.  So the – the – we’ve done a – independently[?], my learned junior has done a very exacting analysis of all the new bits of evidence in that, tab 3, and that bundle 3, and has shown how it’s not new, it’s not conclusive, it’s not anything and it’s all internally contradictory. 

For example they rely on Delimustafić making an accusation in the course of a meeting.  But Delimustafić was interviewed by the Rules of the Road and said, ‘I don’t know who ordered it’.  Sorry, he was interviewed by the Belgrade Military Tribunal, it’s in the Rules of the Road, but you’ll see it in the Rules of the Road; Delimustafić actually said, ‘I don’t know – I’ve got no idea who ordered it’. 

So we say secondly, that the Serbian government in a letter dated 8th March have misrepresented the English court, that their prosecution is justified by the Straiten[?] testimony.  On analysis this tape is also unsustainable.  There other thing where they said, that it was said, ‘I’m in charge – you heard me’.  Dr Malcolm said that that wasn’t said.  And it was knowingly put forward to keep Dr Ganić in custody. 

Thirdly we say the request as such contains serious misrepresentations of fact and is guilty of fundamental and wholly unfair omissions such as the Serb bombardment that commenced hostilities, the Serb tank attack that same day, despite my learned friend, Mr Watson’s, brilliant revanchism on this subject; everybody agrees that there was a Serb tank – a tank that – and you heard the evidence – sorry, revisionism I should say.  But it’s no good saying, ‘There’s no evidence, it’s just the eccentric view of the BBC’, it’s a finding of the International Criminal Tribunal of Yugoslavia; it’s in numerous books, you’ve heard an eyewitness who said she heard the tanks massing and coming down that day just shortly after 11.00.

Some of the errors have finally been admitted by Counsel, such as that there was no agreement for the JNA to withdraw in April 1992.  My learned friend Mr Watson, in customary fairness, admitted that.  But then Mr Petrovic immediately took back that and said, ‘Well, there’s some sort of agreement but I’ve got a special word which means something which nobody else seems to think it does mean’.  And then at the meeting on the morning of 3rd May at UNPROFOR there was no agreement at all by Dr Ganić to withdraw.  Again my learned friend Mr Watson very fairly conceded that, and – because Mr Malcolm – Dr Malcolm was about to squash that point – and my learned friend Mr Watson said, ‘Leave it alone, leave it alone, we admit that there was no meeting at which it was all agreed that morning’.  Mr Petrovic comes into the witness box and says, ‘Oh yes there was’.  I mean where are we? Who’s wagging the dog?  I mean what kind of a prosecution is this?  A concession is made and then withdrawn by Mr Petrovic, it’s clear from all the evidence, that that meeting in the morning – even Etsemtaovic[?] says that; that the meeting in the morning was a one for one deal.  And yet in the request it says, ‘At the meeting, at which he was present, the JNA withdrawal was agreed’.  I put it to him; he wasn’t present at the meeting at which the JNA withdraw.  ‘Oh’ he said, ‘Okay, not at the meeting, but a telephone call’.  But why put at the meeting at which he was present, which has a certain ring – and remember this man was being denied bail on the basis, this looks a pretty plausible request; it looks as if it’s got it all right.  Sounds – if he was present at meeting at which it was agreed – sounds as if he’s got a good case. 

You can’t say, as my learned friends seek to say in a highly controversial, like this – case like this, ‘Oh it doesn’t matter if there are a few pork pies along the way, as long as you get the general picture’.  They were keeping a man locked up in custody for the initial days, and following that, they were keeping him locked up in this country for months on the basis of a request, which they then admit – in two key particulars – is wrong.  And then Mr Petrovic says, ‘Well they’re not quite wrong’.

We respectfully submit that you can’t have this kind of manipulation; there are duties which foreign countries assume when they invite our courts to lock people up on our behalf.  And their duty is to tell the full truth, not to tell half the truth, not as Mr Petrovic seems to be, okay, to say, ‘Well we’ll leave out anything that might help you and we’ll just put that there was a motion to transfer even though that was withdrawn’.

And other things, at the bottom of the page, such as, there could not have been any command to attack the medical vehicles nor any order to attack the military hospital, and that the attack on the JNA was not a war crime’, have not been omitted, they’re undeniable.  And finally no explanation has been given for the numerous unjust omissions relating to the events of 2nd May, such as the kidnapping.  So again, you heard what he said.  He finally admitted, yes he was detained, so was his daughter, unlawfully.  ‘Why didn’t you put it in?’ ‘I didn’t regard it as relevant’.  But if they are relying in their request, as they are, on President Izetbegovic had agreed this, it must be relevant if he is under duress; if he is being held against his will.

We say, put together, in the words of Dr Malcolm, this shows a strong systematic bias such as to render the procedures and abuse to make its political motivation evident.  And the expert evidence on this was overwhelming; it came from Dr Malcolm, Dr Hodge, Dr Schwarz-Shilling, Philip Alcock and of course Sonja Bizerko and Gordana Knezevic, Gordana Knezevic giving the lie for much of this and saying it simply didn’t happen in that way. 

Fourthly, the presentation of a misleading and wholly unjustified series of allegations and request, unsupported by the prosecutions own evidence itself, has deprived the defence of the opportunity to challenge the existence of any proper allegation of any actual extradition offence.  If the facts were fairly laid out, no extradition offence would be made out.

Fifthly, there’s clear evidence that the prosecution was motivated by extraneous factors, and in particular a motivation to rewrite history and falsely blame the Bosnian Muslims for starting for what you’ve seen so well, where the prosecutor says, it is in tab 11 of our cross examination file; Mr Vukćević says, ‘This is where the war started’.  They don’t normally – I mean if you get a murder case you don’t get someone saying ‘This where the war started’.  Why’s it relevant?  It’s relevant because they’re trying to prove a point; ‘It’s your fault, you started it’.  Public statements such as ‘This is where the war started’ reveal the underlying political motivation.  The overwhelming expert evidence further supports this proposition, there is in a word, a political agenda for this prosecution which explains why the 2nd May allegations are pursued in the way they are.  The purpose is to suggest that the conflict in Sarajevo began with an unlawful attack on the JNA Officers Club and on the medical column on the morning of May the 6th.

And finally Sir, there’s the fact that the request for extradition has been exploited and manipulated for political purposes; and that is confirmed by the evidence of Damir Arnaut, a favour sort by the Serbian government in exchange for dropping the case or making concessions as to bail.  And Exhibit K from the statement is the letter confirming the understanding of the agreement sent by the Bosnian government to the Serbian government.  And what his evidence shows is that the Serbian government has sought to use the existence of the extradition request for Dr Ganić as a bargaining chip.  Such executive abuse of the proceedings to obtain advantage renders the proceedings an abuse.  It amounts to an abuse of power, in the sense in ex parte Bennett.  If the government that brings the extradition request misuses the fact of that request to extract political advantage, that is an abuse of power.

The final point we make is 81(b) and my learned friend, Mr Lewis, very fairly, said, ‘That’s where the strength – their strong case is’.  We say, that we have a strong case on abuse; we have a strong case on 81(a).  But let’s just look at 81(b), it is only a real risk and the protection is to be broadly interpreted.  It’s true that there is authority, that the mere fact of being tried by ones former enemies does not justify a section 81(b) finding in every case.  But Travcisic[?], you recall Sir, was a case of a Serb being sent to Croatia, and he wasn’t able to say, ‘I’m being tried by my former enemies’.  But there was extensive evidence of the function of the courts in Croatia.  There isn’t, in our respectful submission, in this case.

It did not involve an acting Head of State or indeed a high profile defendant at all.  Nor did it involve an incident arousing such strong nationalist sentiments, and alleged to be the incident where the war started.  We say, firstly, there is overwhelming expert evidence that Dr Ganić would not receive a fair trial, and there is a real risk of prejudice on the grounds of nationality, political opinion and religion.  As a Bosnian – which goes to nationality – a leading politician in a country whose independence was violently opposed by Serbia, and as a Muslim he risked grave prejudice at any trial, and that is particularly so because of his high profile and his demonisation by Serb politicians and Serb media as the villain of the 3rd of May.  And the evidence is, Philip Alcock OBE, prosecutor with 30 years of experience – and Sir I do ask you, contrast him to Mr Petrovic – he made concessions and my learned friend leaps on them.  He made concessions when he thought it right to.  He admitted things when he thought it was necessary and in the interest of justice.  But he conscientiously told you about what he’d investigated for all that time.  And contrast MacKenzie, they say, they call in MacKenzie – MacKenzie, he was – he went and interviewed him and MacKenzie said, ‘Oh yes I’m sorry I got that wrong’, and they’re still – they didn’t get a statement from MacKenzie, and you’ve seen all about MacKenzie’s tour where he is paid for by the Srpska internet, or SerbNet, highly criticised for that.  And he’s got an agenda of his own.  But in any event when a fair prosecutor goes to him and says, ‘Are you sure about that?’ he says, ‘No’.  And they’re still saying, ‘Well we’ll call MacKenzie’.  Well they haven’t even taken a witness statement from him.  Is that a reasonable prosecutor acting reasonably, to say that we’ll go to some bravado on the radio rather than a statement?  And he chalked up a huge risk of prejudice, drawing on his knowledge of the prosecution authority.  And also he knows the court system, he knows the prosecution authorities; you talked about the – the blindness in this area and I think we’ve seen evidence of that.

Professor Doctor Christian Schwarz-Shilling, former high represent – emphasised massive pressures on the prosecution and the judiciary to convict in the high profile cases.  He regarded fair trails as impossible – ausgeschlossen or something, or whatever – but it meant impossible.

Dr Harold – sorry, Dr Carole Hodge, 30 years’ experience in the region, a broad knowledge of this conflict, firmly of the view of a great risk of prejudice because of the political environment in which Dr Ganić would be tried, and the hostility to him as a Bosnian nationalist and a Muslim.

Dr Noel Malcolm, a deeply respected, authoritative historian.  Sir, you heard him, not a word he said wasn’t carefully weighed and based on massive scholarly analysis.  He knew the case better than my learned friend Mr Watson, certainly better than any of us.  He knew the evidence back to front and he said, ‘This is systematic bias’.  He talked of Serb nationalist sentiment as, ‘Creating a risk of prejudice, and of a hostile public opinion influencing both the prosecution and the climate in which he would be tried’. 

We haven’t mentioned that Gordana Knezevic, can I just remind you of what she said.  She said, ‘This is definitely politically motivated’, and she said, ‘I am also almost sure that there is no chance of a fair trial’.  So Gordana Knezevic, ‘I’m almost sure there is no chance of a fair trial’.  And Sonja Bizerko, who again – Gordana Knezevic, a journalist present in Sarajevo throughout the war, of Serb ethnicity, and she gave the lie to my learned friend’s theory that there was no tank attack.  She saw tanks massing, she saw the shells falling, she heard them falling, she sent her children out of the city that morning for their own safety.  It’s just nonsense to say that it all started with an unprovoked attacked on the JNA Officers Club.

Sonja Biserko, ‘I’m convinced it’s politically motivated’, she said, ‘and the reason is to even responsibility, it’s part of a state strategy.’  And she said, ‘Jurišić did not get a fair trial and there is no chance of him getting a fair trial’.  Again she is right there in the heart of it.  She’s for 18 years been Helsinki foundation in Belgrade, and she said, ‘He won’t get a fair trial, and the judiciary will be put under pressure and won’t act fairly.’

There is clear evidence of a civil society creating an atmosphere of such hostility that it would make it impossible – borne out by both politicians’ statements and the rabid and inappropriate press reporting.  Certainly newspapers have already declared Dr Ganić a war criminal.  The atmosphere of the wider civil society and the general polity of the country, that’s Lord Justice Law’s words in Brown, where the defendant would be tried, was held to be relevant in the Rwandan case of Brown.  He said look at the wider society: see if it is inimical.  And he said it was particularly important if they are denouncing acquittals.  In that case acquittals by the International Criminal Tribunal in Rwanda; here they are denouncing acquittals of any Croats or Bosnians in the – or Albanians indeed – in the ICTY.

Sir, I’ve made my submissions on the non transfer of the Vukovar case.  The defence rely on the decisions of the ICTY prosecutor, and the ICTY itself, that Vukovar Three case should not be transferred.  That was on the basis that there would be bias towards a Serbian defendant in such a case.  So the Serbian courts could not be relied on to accord a fair trial in such a case as this.  The ICTY has only once transferred one case, that’s the Kovačevic or Dubrovnik shelling case and that was a case involving a Serbian, tried in Serbia.  It’s never transferred a case of a Bosnian Muslim, and the Norwegian extradition decision relied on by the WCPO involved the extradition of a low ranking Serbian for trial in Serbia. 

So the ICTY’s practice affords no support for the prosecution, and no reassurance for the court in the case of a prominent Bosnian Muslim, extradited to Serbia in relation to an incident alleged to have started the war.  There is just no comparison to the Norwegian extradition case, or sending a Serb back to Serbia in the one case of Kovačevic.  So if that is the – my learned friend’s plum point, litmus test, the seal of approval – they haven’t given their seal of approval to a situation like this; they haven’t considered it.  It’s pretty obvious if one looks at the reasoning of the prosecutor, and if one looks at the acceptance of that reasoning buy the Court, acting proprio motu, in the Vukovar Three case, that if they didn’t think they could try a Serb fairly because there would be over bias towards them for war crimes in the Vukovar Three case, they didn’t think – they wouldn’t think that a Bosnian Muslim, who’s head of state, alleged to have started the war, and a demonised figure would get a fair case.

Fourthly, there is the fact that the leading Serb politicians have publically denounced acquittals.  For example the Orić case; President Tadic of Serbia called the ICTY’s acquittals outrageous.  And such facts were held to be relevant by the High Court in the Brown Decision, where Lord Justice Laws said, ‘The fact the Rwandan government would not accept acquittals by the ICTY might be taken as a certain presumption of guilt.  Public pronouncements [inaudible] to protest acquittals, the ICTY apart, indicate a degree of politically motivated involvement at the highest levels’.  We have exactly that here.

These same leading politicians however have given warm and enthusiastic welcomes to returning Serbian war criminals such as Plavšić and you’ve heard the evidence of Dr Schwarz-Shilling on that.  And that the prejudicial atmosphere in which Dr Ganić would be tried if extradited.

Now my learned friend said that there was some comfort for him in volume 6, tab 6 of the authorities.  Sir, we respectfully submit there isn’t, because he fairly drew you attention to volume 6, tab 6, and said there was just one case where there was criticism and that was the Scorpions case.  But in fact if he read on, he would see that in that same article the Tuzla case is referred to – so it’s at page 17, so it’s volume 6, tab 6, page 17.  And in that case one seems – yes, can I just take you to page 18 at the top.  So this is the Jurišić case which we’ve heard so much about; ‘That the indictment was raised before the investigation was finished…’  and Serbia ‘consistently refuses to transfer the criminal proceedings to the Office of the Prosecutor of BiH, which is also conducting a separate investigation of the same case, prompts the conclusion that the reason for such refusal is political’.  The office of war crimes is used in this case in self defence against the accusations that it only prosecutes Serbs.  So they do criticise the Tuzla convoy case which is the most comparable case.  And if you look onto tab 8, which my learned friend again referred to trying to derive some comfort from that, if you look at – the page is 107-108 – they criticise there the trial of Jurišić, and over the page at 108, ‘The trial is unduly prolonged [reads to the words] witnesses often failed to appear either because the court cannot [reads to the words] therefore because the witness are not interested.  Court examined the [reads to the words] only former members of the JNA who do not know anything about the defendant’s activities.  This reinforces suspicions this trial was initiated for political reasons and not to establish the responsibility’. 

So I put to Mr Petrovic that, at the centre of that case, which has got some pretty striking similarities, he keeps banging on about this 27th April agreement and he used it – because what he was saying is that is why there are perfidious; because they lull them into security with the agreement.  Now my learned friend Mr Watson fairly admits there was no such agreement.  Well poor Mr Jurišić has been condemned, partly, on the basis, well – there was such an agreement and that is what misled everybody into thinking – to being tricked into thinking nothing would go wrong.  He can’t have it both ways, he can’t say, when Dr Noel Malcolm is threatening and saying that’s a lie, ‘Okay it’s a lie’, and then reinstate it in the Jurišić case and say, ‘Well I got it right’. 

And we – yes – there is also in the cross examination bundle at tab 7, the fact that three countries have not a extradited high ranking Albanian member named [Che cu?] to Serbia, so I just give you that reference.

And then you’ve got – so the general, say – I took him to those various – there has been criticism by a number of organisations; the Humanitarian Law Centre, Truth and Reconciliation Committee in Tuzla, the Centre for Trans-National Justice in the Jurišić case.  And it’s been criticised by Sonja Bizerko also.  We say that you can’t be confident that the criticisms that apply to Jurišić and that trial wouldn’t apply all the more to this trial.  Is there a real risk of prejudice?  Answer, yes, in the view of all of the – you remember, Sir, you are being represented to by… that response to that request of June 2010 – sorry – of 17th June 2010.  They were saying, ‘We have never been criticised’, that’s an extraordinary thing to say – never by a defendant, extraordinary thing.  So I’ve given you all the references.  Even the trial log of Todorovic says it wasn’t a fair trail, it was politically motivated.

We say, there is the evidence that the Jurišić Trial – striking similarities to this case – is the only example of a Bosnian non Serb tried in Belgrade for crimes against Serbia in the war.  He was tried for a perfidious attack; these four reports by internationally recognised bodies have highlighted that he didn’t get a fair trial.  The alleged crimes thereto were of huge symbolic significance and part of the national collective memory.  So he said, Mr Petrovic, that the evidence – that actually Mr Jurišić accepted that he gave the order to fire.  What?  And you can get it from the Tuzla Foundation report into this, what is actually said was that he accepted that he gave an order to return fire.  That was what the whole case was about; was it an order to fire or to return fire?  And he was saying, ‘The order I got and passed on was to return fire’.  Well that wouldn’t be a crime to return fire.  So it’s ridiculous to say that he admitted the crime.  It’s also ridiculous to say he’s not appealing when you can see Todorovic talking about the appeal, in an article [inaudible] if you read the reference to that article.  It’s in – it’s in bundle 7 sorry, yes the Darning[?] article in bundle 7.  There’s Mr Todorovic – it’s an article in tab 7 – I won’t go through it but I will give just give you the reference.

So we say there’s an absolutely overwhelming case, and we say finally and above all there’s the evidence of how WCPO conducted the case against Dr Ganić, how they exaggerated their case, suppressed facts favourable to him, misrepresented the evidence, there is moreover fact that they still intend to present the case against him in a totally unfair manner on the basis that he personally ordered and is responsible for every alleged illegality committed by any combatant on the Bosnian side on either 2nd May or 3rd May.  You remember his answer to my question; on Monday I said, ‘So is that the way you’re conducting…?’  And he says, ‘Absolutely’.  His approach to personable responsibility is that everything that is done on that day was the responsibility of Dr Ganić because he was the acting President.  And so I made my submissions earlier about how ridiculous that would be in any wartime situation.  As ridiculous as saying that Winston Churchill is responsible for any excesses or breaches by the troops under his notional command or the Commander in Chief in the United States is responsible for every breach, which you can’t expect him – unless he gives an order, knowing that it’s going to be carried out in a particular way and that its unacceptable.

He denied all the obvious points.  He denied that the prosecution had withdrawn – that is was necessary to refer to that fact that the prosecution had withdrawn the request.  He denied that there was shelling instituted by the JNA.  He denied the kidnap of the President; he said he did admit that he’d been taken by force.  He denied that the original deal on the morning where Dr Ganić was present at meeting was a one for one meeting – which all witnesses accept except for him.  Everything relevant and exculpatory was deliberately excluded.  The 27th of April agreement was distorted and then we have the same prosecutor complaining about Mr Alcock and saying that the Bosnia Herzegovina independent prosecutor had acted with an obstruction.  In fact Mr Barašin, who’s taken over, has made the statement saying that there is no case to answer – we’ll just get a reference for it – I did put it to one of the witnesses.  And you’ve got the point…  The further point that we made that when this was initiated in 2008, we say it was with extraordinary alacrity, extraordinary ignorance of what was going on internationally.  We say it’s not really believable that they weren’t curious as to what happened to the file referred to the ICTY.  He said they were probably interested – probably interested. 

JUDGE WORKMAN:   The judge must have had it, quite a lot of these files.

MR FITZGERLAD: Yes, yes he must.  Also we just find it – we say, quite frankly this is just ridiculous to suggest that they weren’t interested in what the ICTY had decided.  And that they wouldn’t – and that they wouldn’t – and a fair prosecutor would have said, ‘Well this man was referred to the ICTY, you may want to know what their view was.’   He said there had been discussions with Mr Alcock about the A and B markings during 2006 and 2007 by his officials.  Well, it seems inevitable Dr Ganić would be the top one; what was the marking for Dr Ganić?  He would have had a duty to tell the judge that, and say to judge, ‘Well the Bosnia Herzegovina prosecutor take a different view, or at least try and find out their…’

We know that the – there was an order for the detention for all 19 of these people by the judge in December 2008, and really, we say, without proper enquiry all of them were ordered to be detained.  Some of them were dead; some – we can produce the death certificates in five minutes, we’ve got them in bundles.  The chap who said, ‘I’m not sure he’s died’, we just phoned up Belgium overnight and we’ve got his death certificate here

SPEAKER: Not from Bosnia?

MR FITZGERALD: No not from Bosnia, he died in Belgium.  I mean – anyway, so that’s the dispute.  So we just say – I mean it’s in the bundle – I’m not going to – we just say overwhelming expert evidence, an overwhelming case that this is so highly politicised that there is a risk. 

All that needs to be established is a real risk and that when you look at the Jurišić case, when you look at all the remarks made by the State Department about corruption of judges and all that; and then you look at this particular case – and Sir you’ve got it all at Appendix 1 – the statements.  And at Appendix 2 you’ve got all the key quotes from, all the witnesses about political motivation.  I’m not going to take you through those unless you wish me to.

JUDGE WORKMAN:   Could you just help me out there; I’m sure I’ll need to look through the Jurišić case again – but it was the same prosecutor?

MR FITZGERALD: Same prosecutor.

JUDGE WORKMAN: Based upon the same agreement – 27th April – which is now thought not to have ever existed.

MR FITZGERALD: It was also said that there was a local agreement to, to be fair, on the 4th of May.  But he was relying, repeatedly on the 27th of April agreement, which was described as an agreement, yes.  Same prosecutor, same – and – well you’ve heard it.  But also it is important that in both cases it’s a Bosnian person.  In one case a Bosnian Croatian, and in this case a Bosnian Muslim being tried in Serbia and that is the real risk.  Someone who was part of the Bosnian resistance, and he got 12 years.  The allegation was that he passed on an order; the order was, as it were, transmitted through him, he didn’t initiate it, but he passed it on.  But what his evidence was, and it’s quite clear from the case before you, his case was, ‘The order that I received was to return fire’.  But the point is, what all these witnesses are saying, is someone in that position, where it’s a big emblematic thing where they are trying to say the war started with the Bosnians misbehaving, isn’t going to get a fair trial and there were a whole load of witnesses who weren’t heard – the defence witnesses – because the judges were saying we can’t hear this.  So on all those basis we say it is an overwhelming case.

Yes, so I should make it quite clear that there was no phone call, even allegedly between President Izetbegović and Dr Ganić.  There never was.  I mean Barašin, the new prosecutor in Bosnia Herzegovina, has been suggesting that the thing is still open.  But if you look at tab 17 of the cross examination bundle, which I put to one of the witnesses: Barašin is saying there is insufficient evidence and I’m not going be bullied into prosecuting someone with no…  And Barašin is a Serbian, in Bosnia, prosecutor who’s as it were, taken over the mantle of Mr [Al-ga-ni?], and he’s saying, ‘I’m not going to be bullied into it’.  He’s saying, ‘Their prosecution of Dr Ganić is politically motivated’.  So this idea that it’s still open – that it’s still – he’s made – it may be still open in relation to other people; he’s reached a clear conclusion that – you know in the Trifunović case, in cross examination bundle at tab 19, which is about – yes he was punished by the Serbs for pulling out and not bombarding.  My learned friend, Mr Jones draws attention to his annex at tab 3 and particularly at the – about the videos – we do not accept that the CD material directly links the accused Ejup Ganić to the war crimes committee on the above specified dates.  We say that that misleads the courts that allegation about the CD materials.  It’s analysed fully there and we say that indicates the 8th of March letter was misleading.

Sir, those are my submissions.  Sir, can I just make this further point?  Obviously this is about timing.  Dr Ganić has been detained since March; and then after being detained for a period he’s been required to stay in this country and obviously he is very anxious for a resolution of this matter.  So I’m not trying to be pushy or over – overconfident about this matter, but we do respectfully submit that on all three points, that even on my learned friend’s, Mr Lewis’ admission, certainly on the third point, the case is overwhelming.  And we respectfully do invite you Sir, if you can, to reach at least a conclusion as swiftly as possible.

Obviously we would apply for bail for him to return to Sarajevo if it was going to be a prolonged period.  But it might be better, if you could, if at all possible, reach a conclusion.  And Sir, I realise that you have many duties and –

JUDGE WORKMAN: I’ve looked briefly at my diary, but not at the Court diary – and I was hoping to be able to give my reasons by a fortnight yesterday, which is Tuesday 27th.  Is that too far ahead?  I’m afraid to be honest –

MR FITZGERALD: Yes.  Well Sir, I don’t know what my learned friend, Mr Lewis’ position would be, but in the meantime, obviously, there is –

JUDGE WORKMAN: There’s clearly a problem in any event isn’t there at the point that I make my decision – if I find in favour of the government then Dr Ganić will have to remain here until the arrangements are made for him to go to Serbia.  If I find in his favour, it may be that the government will wish to appeal.  I have on previous occasions requested [inaudible] Lord Justices’ decision in relation to bail.

MR FITZGERALD: Yes, I understand that.

JUDGE WORKMAN: And – an application by the Crown to appeal, and for bail to be enlarged pending appeal; I would find difficult to get him to deal with that, and would probably be saying that is a matter which ought to be returned to the Lord Justices.  That of course does not give me very much time if we – I think it’s the 22nd of July, because the case starts on the Thursday.

MR FITZGERALD: Yes.

MR LEWIS: Can we leave it till the 27th of July?

[Cross talk]

MR LEWIS: …that’s a Tuesday.

JUDGE WORKMAN: That’s a Tuesday.

MR LEWIS: Okay, so would we – could you give it in the afternoon?

JUDGE WORKMAN: Would 14.00 be alright or I could make it later if it’s not appropriate?

MR LEWIS: 14.00 would be fine.

SPEAKER: I can’t be here Sir but that doesn’t matter in reference to what’s not [inaudible].

JUDGE WORKMAN: I shall have some have discussion with Counsel and consider the matters over about a day or more.  I confess that I was a little concerned and uncertain about what was happening in terms of bail application and reference to Turkey, and –

MR FITZGERALD: Well Sir, we won’t need –

JUDGE WORKMAN: I won’t get into that if I can help it at the moment.  But if there is a way of resolving the issue of bail between you, then that would assist me.

MR LEWIS: If it’s not possible…?

JUDGE WORKMAN: You may both wish to consider, with the Lord Justice’s clerk, when the matter can be resolved.  I think that’s the best way to leave it.

MR FITZGERALD: Yes, yes, well obviously he’ll be a –

JUDGE WORKMAN: I’m sure that his clerk would understand the circumstances, even if he’s not in a position to make any decisions about whether the matter could be heard.  So I will leave that. 

MR FITZGERALD: Yes.

JUDGE WORKMAN:   Meanwhile I’m granting bail on the same terms until the 27th at 14.00.  If there is nothing else now I’ll rise and…

MR LEWIS: I should just mention, I don’t think it’s included in our – just to, as I said, give more reading.  But there is a useful statement which was mentioned a lot, and we haven’t actually gone to it.  It’s the – MacKenzie – it’s his extract.  And just to tell you where it is Sir, in case you don’t know – just to indicate where it is, to help you specifically; it’s in the Government of Serbia cross examination bundle, which is the grey bundle with the red side.  And it’s at tab 10, just for your reference, Sir.

MR FITZGERALD: Actually it was taken into account by the Rules of the Road, and of course taken into account by –

MR LEWIS: I accept that.

JUDGE WORKMAN: Thank you.

MR WATSON: Sorry Sir, I rise to submit one other – one more matter of housekeeping.  This was provided to us on the – on Monday.  It’s a short response to Dr Schwarz Shilling’s evidence on one point, and I do think I need to hand it round; it’s simply – you’ll see there in the second paragraph, the statement made, ‘Dr Schwarz-Shilling declared that…’ it goes onto say, quote, ‘Tadic[?] and Dolich[?] greeted Ganić at the airport’, and the response from the embassy is that that point is untrue.  So I just wanted that to be before – before the court [inaudible].  We didn’t ask for it, they produced it off their own back.

JUDGE WORKMAN: You can’t put this in context at the moment.

MR FITZGERALD: This is about Pladsic[?] returning and being greeted I think.

MR WATSON: I’m sure Sir, when you – if it’s important when you review it Sir, you have that –

[Cross talk]

MR JONES: I don’t want to start a hare run; we’ve put it forward for completeness, we don’t think it’s material.  So –

MR FITZGERALD: Sir, obviously in the interest of Dr Ganić getting the decision we – at some point we have to draw some sort of line and stop.

JUDGE WORKMAN:   So if I don’t see you on the 22nd

MR LEWIS: Unfortunately I will be out of the jurisdiction.

JUDGE WORKMAN: So may I thank all Counsel involved; I am most grateful for all your work.

[Hearing concluded at 16.30]

 
Peščanik.net, 25.09.2010.