Tribunal Criminal Tribunal for the Former Yugoslavia

Page 33

1 Friday, 30 March 2001

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.23 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Yes, Your Honour. This is case number IT-94-2-PT,

8 the Prosecutor versus Nikolic.

9 JUDGE HUNT: For the Prosecution, Mr. Ryneveld.

10 MR. RYNEVELD: If it please the Court, Dirk Ryneveld and Dermot

11 Groome for the Prosecution.

12 JUDGE HUNT: The accused.

13 MR. MORRISON: Howard Morrison for the accused.

14 JUDGE HUNT: Mr. Nikolic, can you hear the proceedings in a

15 language which you understand? Can you hear the proceedings in a language

16 which you understand, sir?

17 THE ACCUSED: [Interpretation] Yes.

18 JUDGE HUNT: Thank you.

19 This is a Status Conference held in accordance with the Rules and

20 within the time limited by those Rules.

21 Mr. Ryneveld, is there any matter which you wish to raise at this

22 stage?

23 MR. RYNEVELD: Not that occurs to me at the moment. Thank you,

24 Your Honour.

25 JUDGE HUNT: Mr. Morrison.

Page 34

1 MR. MORRISON: Your Honour, yes, there are just three points. The

2 first relates to an incident or two incidents which occurred in September

3 of last year. I've informed my learned friends for the Prosecution about

4 these matters, and I raise them purely for information purposes only. I

5 don't seek any order or determination by the Court today.

6 The relatives of the accused still live in Vlasenica in Bosnia and

7 in the Republika Srpska, and one of the witnesses whose statement has been

8 served upon the Defence names people other than the accused. One of those

9 persons named by that witness has taken exception to the fact that his

10 name has been mentioned, and his son and wife have, on two occasions,

11 issued fairly dramatic threats to the sister of the accused in Vlasenica.

12 I take some comfort from the fact that the last of these threats

13 was issued on the 26th of September of last year. They've only just been

14 recently brought to my notice.

15 JUDGE HUNT: Tell me, does the witness who made this statement

16 identify your client as the source of the reference to these other

17 people?

18 MR. MORRISON: No, Your Honour. That's the bizarre circumstances

19 of this case. There is no such allegation or reference by the witness.

20 No, it's simply an assumption that has been made, apparently, that for

21 some reason the accused is culpable as to that.

22 I simply raise this matter at this stage, and I've indicated it to

23 the Prosecution. If anything further arises and there is a necessity to

24 ask for any form of protective measures, the Court is forewarned of the

25 nature of the incident

Page 35

1 JUDGE HUNT: Yes. I suppose there is very little you can do about

2 the ignorant assumptions of others.

3 MR. MORRISON: Very little.

4 JUDGE HUNT: Yes. That's the first incident.

5 MR. MORRISON: The second matter is this: Of course Your Honour

6 and Your Honour's colleague will have seen the documentation which has

7 been filed in this case. Although there is no specific determination in

8 the decision that emanated from the Tribunal on the 20th of March of this

9 year, am I correct in making the assumption that it's effectively a

10 determination that the Prosecution has complied with Rule 66 as of the

11 20th of March?

12 JUDGE HUNT: I'm not sure what document you're referring to.

13 MR. MORRISON: I'm sorry. It's the determination, decision on the

14 third motion by the Prosecution for protective measures dated the 20th of

15 March and signed by Your Honour.

16 JUDGE HUNT: I remember that document, but all we can do is to say

17 these are the protective measures which will be applicable. If the

18 Prosecution has served all of the statements that it is required to under

19 Rule 66 which comply with those protective measures, then the Prosecution

20 has complied with it. But that depends upon what you say, not what we

21 say.

22 MR. MORRISON: Your Honour, I'm grateful for that and that's

23 precisely why I raise the query. As far as the Defence are concerned, I

24 accept the bona fides that I have been told by the Prosecution that

25 they have complied insofar as they are physically able to do so at this

Page 36

1 stage with all the requirements and on the assumption therefore that Mr.

2 Ryneveld makes an deemed that the Prosecution has complied with Rule 66, I

3 can take no objection to that for the purposes of time running for

4 purposes of

5 Rule 72.

6 JUDGE HUNT: Well, unless we had evidence upon which we could make

7 a determination, it could only be by agreement. I don't like deeming

8 anything, but if we note an agreement that the Prosecution has complied

9 with 66(A)(i), then you are in a situation in that time starts to run.

10 MR. MORRISON: Your Honour, so be it. We are in agreement. I do

11 accept that as of today, and I have been orally informed this morning that

12 that is the position, that the Prosecution have done all that they can do,

13 so if time starts to run as from today, that's 30 days as from today in

14 the normal circumstances, which leads me to the third issue that I want to

15 raise. This is purely a matter of incidence or, rather, coincidence.

16 I've recently found out that I have to go into hospital on the 4th

17 of April to Leicester Royal Infirmary in England for surgery. It's

18 invasive surgery. I'm told that I'm likely to be out of action, for all

19 effective purposes, for something in the order of 14 days, assuming there

20 are no complications, which is an assumption I'm happy to make. So ...

21 JUDGE HUNT: Thirty days, I think, is the 28th of April. You're

22 asking for an extra two weeks.

23 MR. MORRISON: I'm just asking for an extra two weeks from that

24 date so that the period that I shall be ineffective or even more

25 ineffective is taken into account.

Page 37

1 JUDGE HUNT: And the Prosecution consents to that?

2 MR. RYNEVELD: We certainly do.

3 JUDGE HUNT: I don't have a diary now, but we'll make it so that

4 it doesn't fall on an awkward day.

5 MR. MORRISON: Well, if I could have until the -- Friday the 11th

6 of May would be, I think, a suitable day.

7 JUDGE HUNT: I was going to suggest the following Friday just so

8 that you've got plenty of time up your sleeve.

9 MR. MORRISON: Well, out of an abundance of caution, I gratefully

10 accept that, if it could be the 18th of May. Of course I'm not going to

11 use all that time if it's not necessary. I will serve any motions as soon

12 as they are ready to be served, but if that time under Rule 72 could be

13 extended till 18th of May, I would be very grateful.

14 JUDGE HUNT: Mr. Morrison, about this proposed application which

15 you forewarned us of previously challenging the jurisdiction on the basis

16 of the nature of the arrest, the Appeals Chamber has accepted that the

17 onus is on you to establish your case. If you seek the assistance of

18 anybody else to provide you with the material, you do have to show that

19 there is a likelihood, I suppose, a likelihood or it's on the cards, as

20 one Judge put it, that that person you seek assistance from can give you

21 that assistance.

22 Now, it's not to be a fishing expedition. I don't want this point

23 to arise later. That's why I'm raising it now. You will have to put on

24 something to demonstrate that there is an issue which we have to determine

25 before you will get an order from us that anybody else gives you

Page 38

1 assistance.

2 MR. MORRISON: Yes. Well, Your Honour, the reality of the

3 position is that the only two sources of information which would otherwise

4 remain confidential or subject to an aura of secrecy would be either the

5 Office of the Prosecutor or SFOR themselves. They're the only two sources

6 of information.

7 JUDGE HUNT: But in order to get any assistance from either the

8 OTP or SFOR, you would have to demonstrate to us that there is something

9 that -- some likelihood that they will be able to give you that

10 assistance.

11 Mr. Todorovic, if you remember, thought that he had done that,

12 although there was some confusion there about the onus of proof, by simply

13 tendering a third-hand, hearsay item off the Internet, and he failed, and

14 the Appeals Chamber agreed with the Trial Chamber that he had

15 failed. He then came along and he gave evidence, and it was the evidence

16 which he gave which persuaded the Trial Chamber that SFOR would be able to

17 assist, because he gave evidence of the circumstances in which he arrived

18 at the air base which was controlled by SFOR.

19 You don't have to prove that SFOR was in some way improper at this

20 stage. You have to only demonstrate that their records may well assist

21 you.

22 MR. MORRISON: Well, of course an evidentiary hearing where the

23 accused himself gives evidence upon oath is a possibility. He's the best

24 possible source of the information of what happened to him in any

25 particular period of time. There can't be a better source than that.

Page 39

1 JUDGE HUNT: And there would be a limitation upon the extent to

2 which the Prosecution could cross-examine him, rather like a voir dire.

3 MR. MORRISON: So be it. But -- and I will certainly make an

4 application for such an evidentiary hearing if the Prosecution indicate to

5 me that they contest that he was, in fact, in some way, and I use the word

6 as a matter of generality at the moment, kidnapped from Serbia and

7 removed, against his will, into Bosnia-Herzegovina and there handed over

8 to members of SFOR.

9 JUDGE HUNT: That leads me to the next issue that I want to raise

10 with you. Bearing in mind the turmoil that the SFOR order has produced,

11 and I'm not worried about the political ramifications about it despite

12 what Mr. Ryneveld's colleague tried to put before us in that hearing, but

13 I'm talking about the legal ramifications with appeals and every country

14 from NATO putting on an appearance, and they're even now trying to

15 persuade the Appeals Chamber to hear the appeal notwithstanding the

16 removal of the order.

17 There is another very real issue that we have to determine, and it

18 will be for the first time, I think, by an International Tribunal, and

19 that is whether misconduct, if I could use that in a very general sense,

20 on the part of somebody other than the Prosecutor is relevant. As you

21 would be aware, most national systems take the view that this is not a

22 game of cricket, and if people try to avoid being arrested and they are

23 arrested in circumstances which may not comply with everybody's human

24 rights, nevertheless, provided the Prosecution or the Tribunal are not

25 involved in it, it doesn't matter. Now, I put that in a very general

Page 40

1 sense.

2 That is, as I say, a fresh issue which has never been determined.

3 The Prosecution, in the Todorovic case, was very keen for the Trial

4 Chamber to determine that first, and for various reasons, the Trial

5 Chamber decide against doing so, because there was at least an issue which

6 they felt had to be determined. But rather than put everybody through the

7 turmoil of another SFOR order and appeal and the delays that will occur,

8 it may be preferable for that other issue to be determined first. If, and

9 I'm not saying anybody's got a particular view, but if that was determined

10 against you, that would be a matter which could be dealt with by the

11 Appeals Chamber reasonably speedily.

12 MR. MORRISON: Yes. Well, Your Honour, with great respect, I

13 think that's eminently sensible, if I may say so, because the last thing

14 that Mr. Nikolic wants to do is go through the -- as it were, the delays

15 and the turmoil of Todorovic, and it's the last thing I want to do, and

16 I'm sure it's the last thing that the OTP want to do.

17 If there is a question of a point of law to be determined, as Your

18 Honour indicates, then I would be more than content to draft that point of

19 law for determination, to annex to that motion for a determination the

20 authorities that I rely upon and indeed authorities that I can find that

21 may assist the Tribunal in general, and to have that point taken as a

22 preliminary point of law.

23 JUDGE HUNT: There has been some publications on this issue. In

24 the Judge McDonald book, there is an article which refers briefly to some

25 of those cases, the article by Susan Lamb.

Page 41

1 MR. MORRISON: Your Honour, I've read that, and I'm going to

2 shamelessly exploit it and adopt it.

3 JUDGE HUNT: She's written one also in the international law

4 journal or one of them, one of the British ones, in more detail, I think,

5 but that seems to me that if you want to pursue this preliminary motion,

6 we could start on that.

7 The concern I have is that your client may have to languish in

8 custody longer than he should otherwise awaiting his trial. The ad litem

9 judges, of course, will certainly pick up the speed of the list, you see.

10 MR. MORRISON: Without having taken instructions, and Mr. Nikolic

11 hears what I say, looking at the court diary and calendar, I would have

12 thought it unlikely that such a preliminary point was going to extend by

13 any significant period the question of a trial date in this case.

14 JUDGE HUNT: Well, I wouldn't assume that too much. This case

15 will not necessarily be tried by Trial Chamber II, and Trial Chamber I,

16 whatever its composition may be, will be free to start hearing cases very

17 shortly, and the other two cases which are ahead of you on our list are

18 likely to start as soon as the ad litem judges are appointed.

19 MR. MORRISON: Well, this is a matter of great significance to the

20 accused, and it may be a matter of great significance to the jurisprudence

21 of the Tribunal.

22 JUDGE HUNT: I'm not here to try and make law, just as your client

23 is not here to make sure his name is on a leading case.

24 MR. MORRISON: No, but I look ahead and see a position whereby

25 one, for the sake of getting an earlier trial date, takes shortcuts, only

Page 42

1 to find out that there is another case, similar case, in future where a

2 determination is made which would have had impact upon the client's case,

3 and then one is left asking that "what-if" question, which is a question I

4 don't want to ask.

5 I mean the resolution of the speed of this matter is really in

6 part a factor of how quickly, first of all, I deal with it and how quickly

7 the Prosecution responds. I think we can work together on this and within

8 the time scale that has already been allocated for the response to

9 Rule 72, then I am sure that a motion can be put together with all the

10 authorities and perhaps even heard within that time scale or at least

11 listed within that time scale.

12 JUDGE HUNT: All right then. I'll leave that for your

13 consideration and your discussion with the Prosecution.

14 Mr. Ryneveld, do you want to say anything about this suggestion?

15 MR. RYNEVELD: No. To echo my friend's remarks, it seems a

16 reasonable solution to the problem.

17 JUDGE HUNT: It may not be a solution but it may be. It just

18 struck me as being perhaps a quicker way to get on with the case.

19 MR. RYNEVELD: I whole-heartedly endorse Your Honour's comments.

20 JUDGE HUNT: One thing though, Mr. Ryneveld, if I may raise with

21 you, I imagine that the 80 counts that the draftsmen of this indictment

22 produced earned the draftsmen, whoever that may have been, some sort of an

23 award up in the OTP, but we now have some authority about cumulative

24 convictions. Nobody can actually stop the Prosecution being silly and

25 multiplying unnecessarily the counts in the indictment unless it produces

Page 43

1 an injustice, but I do suggest that somebody might like to look to see

2 just how necessary 80 counts really are in this case.

3 See, in the current detention centre case we're dealing with

4 now, the Prosecution very wisely withdrew all the grave breaches because

5 it required them to prove something which was not easy and unnecessary,

6 and the relationship between Articles 3 and 5 of the Statute have now

7 become fairly clear from the Kunarac case, and the internal duplication

8 within Article 5 is a matter which will clearly arise in our current case.

9 So it may be that the Prosecution, instead of making awards for

10 the largest number of counts, can look at it sensibly as to how the trial

11 is going to be conducted, and it may like to slightly reduce them at some

12 stage.

13 MR. RYNEVELD: I can assure Your Honour that my co-counsel and I

14 have already looked at that possibility, and although I can't make any

15 undertakings at this point because I need to discuss this with the powers

16 that be, that is something we are certainly looking at. We're not anxious

17 to proceed with 80 counts either.

18 JUDGE HUNT: Well, you can tell the draftsmen that.

19 Very well, then. Is there anything else that you want to raise,

20 either of you, under the Rule?

21 MR. MORRISON: Your Honour, no. Thank you.

22 JUDGE HUNT: We're very grateful for your attendance, and we will

23 make a formal order deeming time to have commenced to run, and we grant an

24 extension of time for any preliminary motion under Rule 72 until the

25 18th of May, and, Mr. Morrison, we hope you are successful.

Page 44

1 We're adjourned.

2 --- Whereupon the Status Conference

3 adjourned at 9.42 a.m.