Tribunal Criminal Tribunal for the Former Yugoslavia

Page 51

1 Wednesday, 29 August 2001

2 [Open session]

3 [Status Conference]

4 [The accused entered court]

5 --- Upon commencing at 9.34 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Good morning. This is case number IT-94-2-PT, the

8 Prosecutor versus Dragan Nikolic.

9 JUDGE HUNT: Appearances, please.

10 MR. RYNEVELD: If it please the Court, Dirk Ryneveld, along with

11 Bill Smith, for the Prosecution this morning.

12 JUDGE HUNT: Thank you. And for the accused?

13 MR. MORRISON: Your Honour, Howard Morrison for the accused Dragan

14 Nikolic.

15 JUDGE HUNT: Thank you, Mr. Morrison. Does your letters patent as

16 one of Her Majesty's counsel not convey -- carry here?

17 MR. MORRISON: Well, sometimes it does and sometimes it doesn't.

18 JUDGE HUNT: It depends which robes you have with you, I suppose.

19 MR. MORRISON: Well, it depends which ones I'm able to bring, Your

20 Honour.

21 JUDGE HUNT: Would it be appropriate to treat this as a Status

22 Conference so the time runs, Mr. Morrison?

23 MR. MORRISON: Your Honour, yes.

24 JUDGE HUNT: Is there anything you want to raise under the

25 relevant Rule in relation to your client's detention or anything like

Page 52

1 that?

2 MR. MORRISON: No, not directly relating to the client's

3 detention. The only thing I seek to say, and I don't say it with any

4 sense of criticism or even particular urgency, but the words "amended

5 indictment" come to mind.

6 JUDGE HUNT: Yes. I've got that on my list too. Mr. Ryneveld

7 will no doubt tell us how he is excluding unnecessary charges. But are

8 there any matters you want to raise?

9 MR. MORRISON: The only matter apart from the issue which Your

10 Honour has raised.

11 JUDGE HUNT: Oh, yes. Well, the whole of this Status Conference

12 was called in order to try and bring to a head one way or another your

13 client's application.

14 Mr. Ryneveld, what about the amended indictment?

15 MR. RYNEVELD: Yes. I'm acutely aware of the fact that I

16 indicated to Your Honour last date that we were in the process of working

17 on that. I must tell you that we have not finalised that process. I am

18 awaiting the return of Mr. Groome, as you know, who is counsel on this

19 case, who is still on his honeymoon. I anticipate that we will be

20 finalising that matter in the very near future and hope to have an amended

21 indictment available shortly.

22 JUDGE HUNT: It probably will fall on completely deaf ears in the

23 Office of the Prosecutor, but I hope that this current style of indictment

24 will not be followed in this case. It would be such a good idea to start

25 off chronologically and end up with charges rather than with the charges

Page 53

1 and then telling us what it's all about later.

2 MR. RYNEVELD: Yes. Your Honour will probably have noted a

3 difference in formatting, if we want to call it, in terms of which

4 sections of the indictment proceed and follow each other.

5 JUDGE HUNT: It's almost totally confusing, if I may say so, and

6 it resulted in another case with which you are concerned in a suggestion

7 by the media, who are necessarily ignorant of procedures, that you had

8 downplayed a particular matter because it was at the end of the indictment

9 instead of at the beginning. So you can see that it doesn't work terribly

10 well from the OTP's point of view either.

11 MR. RYNEVELD: Well, I certainly appreciate Your Honour's

12 observations, which I shall convey to those who have given me my

13 instructions. In any event, I can assure the Court and my learned friend

14 that this matter will be given priority. You should also be aware, Your

15 Honour, that my understanding is that although I am still on record as

16 senior trial attorney, my understanding is that I may not be following

17 this matter. But I have -- before handing this matter over to whoever

18 follows me, I will ensure that an amended indictment is in their hands

19 rather than waiting for someone else to get up to speed on the file.

20 JUDGE HUNT: You see, this case started off with what was proudly

21 proclaimed by counsel who was in it as having a record number of counts,

22 80. It would be a good idea if it perhaps it went down on the record as

23 having the least necessary number of counts. You can convey that one too.

24 MR. RYNEVELD: I shall, and I can tell the Court that I'm

25 personally persuaded that this matter needs to be streamlined and shall be

Page 54

1 streamlined.

2 JUDGE HUNT: Right. Well, now, in relation to this application by

3 the defendant to be released because of the circumstances of his arrest, I

4 have to make it very clear to you both that I am not going to draft any

5 agreement between you as to the basis on which it proceeds. If there's

6 one thing I have learnt as a judge of some 20 years standing now is that

7 you can never force upon the parties the terms of an agreed issue. Four

8 years in the commercial list was enough to persuade me of that. But it

9 seems to me that the differences between you in the documents that have

10 come in so far are quite unnecessary. Facts can be agreed without

11 admission for the sole purposes of deciding an issue of law. The issue of

12 law, I think, is a sensitive one. It has to be dealt with so that it

13 produces an issue in this case. Whatever happens, we are not going to

14 write a textbook on the law of unlawful detention or arrest. It just is

15 very silly to do so.

16 Most of the cases who talk about requiring the involvement, to use

17 a weasel word, of the Prosecution in the illegality concede, however, that

18 if there is some illegality in the circumstances of the arrest or the

19 detention which makes a fair trial impossible, it doesn't matter how it

20 happened or where it happened or by whom, and that, I think, we can put to

21 one side, because there's no suggestion anywhere that that is the case

22 here. So we come down to what I hope I try to define in the document that

23 I prepared for you: Does the Prosecution have to be involved? And I

24 accept that there's a certain ambiguity in the word "involved." And if

25 it's not the Prosecution personally, is SFOR its agent for the purposes of

Page 55

1 the arrest or detention?

2 Now, the wording of the document I have put was done very

3 hurriedly after a 36-hour trip back from my hometown and probably

4 suffering from some degree of jet lag, so I don't think that there should

5 be any particular value placed upon it. I've put words in square brackets

6 because I couldn't at that stage think of anything better, and I hope that

7 between you, you will be able to come to some agreement. If you can't,

8 and I'm not criticising anybody if you can't, but if you can't, then I'm

9 afraid, Mr. Morrison, we'll just simply say, what do you want to do next,

10 which would, I should think, enter into the quagmire of getting assistance

11 from SFOR.

12 MR. MORRISON: Your Honour, that's exactly what we are all seeking

13 to avoid. I understand from my learned friend, Mr. Ryneveld, that the

14 draft which we've kindly supplied, bearing in mind the two documents that

15 you received from us, and that the -- as I understood it, and it didn't

16 come directly from my learned friend Mr. Ryneveld but from Mr. Groome, one

17 of the problems was that it was perceived that by agreeing to my draft

18 there was some degree of compromise by the OTP. Well, I don't see it like

19 that. It's not a question of compromise; it's simply a question of what

20 are the issues that the Court has to determine.

21 JUDGE HUNT: But you'll notice that I have tried to put it in the

22 most general of terms rather than specifying the particular conduct

23 involved. I've also tried very hard to avoid identifying where it

24 occurred, because I thought that threw up false issues really. So if you

25 could proceed along those lines, and it's only very much a suggested

Page 56

1 draft, and see if you can come to some agreement and the agreement is

2 reached without prejudice or without admissions, however you would like to

3 place it, so that we can determine this. It may be that the Trial Chamber

4 will come to the conclusion that international law is completely different

5 from any other law and that any illegality, no matter where it happens, is

6 sufficient. I don't know. It's a very complicated problem. But if we

7 can get that issue determined so that if you succeeded on that, you don't

8 need SFOR, then we'll go ahead with it. If you do need SFOR, or if you

9 need the OTP even more so, then there will be other stages.

10 Now, I think there's been a very common misconception as to what

11 happened in Todorovic, a misconception mainly by the NATO countries, as

12 far as I can see, because I thought that the judgement was reasonably

13 clear. All that NATO was asked to do in that case was not to reveal its

14 own criminal conduct, if there was any; it was to assist the accused to

15 know what part the Prosecution had played in the arrest. And that seemed

16 to me to be a very, very narrow issue and it was not ordered because of

17 some magical quality that SFOR may obtain. Indeed, it's rather difficult

18 to know what its legal personality is. It was simply that there was a

19 source from which it was on the cards likely that there would be

20 information, if there was any information, about the part played by the

21 Prosecution in the arrest or detention.

22 So the proceedings against SFOR were not in order to make it

23 guilty of something but simply to find out what part, if any, the

24 Prosecution played in it.

25 MR. MORRISON: Your Honour, that's the way I perceived it, and the

Page 57

1 only reason one doesn't want, if one can avoid, to go down that avenue

2 straight away, is that no matter how much Your Honour and others, with

3 respect, may perceive it, it's plainly not the way that NATO perceives it.

4 JUDGE HUNT: I know. It's a very emotional thing from their point

5 of view. I can understand their emotions. But it was an unfortunate

6 result that they took the course that they did. There were no arrests for

7 six months after that, which struck me as being childish in the extreme,

8 but nevertheless part of the reality of the circumstances in which this

9 Tribunal has to operate.

10 MR. MORRISON: Your Honour, if I can suggest this: I don't know

11 how my learned friend is fixed for the next hour or so. He hasn't got a

12 very busy schedule, I'm sure. But if he --

13 JUDGE HUNT: He has to be back here tomorrow for another event.

14 MR. MORRISON: He can be back here tomorrow. But if I have an

15 unequivocal undertaking that he will supply the coffee and the sticky buns

16 we will sit down now and sort this out.

17 JUDGE HUNT: Very well then, if you can do that. And if you can

18 come to some agreement. It can be done in writing. We can file it and

19 we'll have a look at to see if there's any problem about it.

20 MR. MORRISON: It may well be, given the nature of this issue,

21 that rather than file a draft, we simply submit a draft, because that

22 seems to take rather a long time if we go through the whole process of

23 filing. I don't know go I'm circumventing some essential procedure by

24 suggesting that. If I am, no doubt I won't be allowed to do it.

25 JUDGE HUNT: No, no. Filing simply means that the Registry

Page 58

1 undertakes service of any document on the other party.

2 MR. MORRISON: Precisely. If we can just put it in the hands of

3 your assistant, Gabrielle McIntyre, then that seems to be the fastest way

4 of resolving any issues and I would like to walk out of this building

5 today having got it sorted out.

6 JUDGE HUNT: Well, I'll be here all day on other matters.

7 MR. RYNEVELD: If I may just make these comments now, and that is

8 that the Prosecution is anxious to resolve and litigate the legal issue as

9 identified by Your Honour. We're just apprehensive that we do not want to

10 expand the proceedings into anything beyond the initial issue to which we

11 agreed, was: What remedies exist? And we would not want this to turn

12 into a fact-finding exercise per se. And my only concern with the wording

13 of point 2 is that it perhaps contemplates some form of fact-finding

14 exercise.

15 JUDGE HUNT: No, no. Point 2 was intended to say that except in

16 the case where it can be demonstrated that the Prosecutor, for example,

17 directed the -- or pleaded with SFOR to do something illegal, what is the

18 relationship between SFOR and the Prosecution in relation to detention and

19 arrest? Now, in Todorovic, that was gone into in great detail from

20 documents, including one which Mr. Morrison may have some trouble with,

21 and that's the statement that SFOR does not regard itself in any way as

22 obliged to do anything on behalf of the Prosecution. In fact, it doesn't

23 feel obliged to do anything that -- unless it stumbles over a person

24 indicted somewhere in the street, they can arrest him. That was a

25 statement made some years ago, and one hopes that they have got over that

Page 59

1 particular view. But that's what I meant. There is documentary stuff

2 which -- and we would refer simply to what's in the Todorovic decision.

3 MR. RYNEVELD: And Your Honour would anticipate or envisage that

4 this be a purely legal exercise based on submissions as opposed to the

5 calling of evidence.

6 JUDGE HUNT: Oh, yes. We are not going to make any finding of

7 agency in this case unless Mr. Morrison has got some evidence, which I

8 would have expected him to put in the motion anyway, and it's not there,

9 that the Prosecution in some way, outside the ordinary event, assured -

10 I'm sorry - asked SFOR to do something illegal.

11 MR. RYNEVELD: That having been clarified, I think I can perhaps

12 shorten proceedings by indicating to Your Honour that I would be content

13 with the questions as formulated --

14 JUDGE HUNT: No, no. Please don't do that. There was recently an

15 application for leave to appeal against a decision in which I participated

16 in, which I had drafted and what I thought would be an acceptable part of

17 the indictment, and I was accused of taking over the role of the

18 Prosecution. I'm not drafting anything.

19 MR. RYNEVELD: Having said that, I suppose I have to supply the

20 sticky buns and we will attempt to resolve this matter and get back to

21 Your Honour before close of business.

22 JUDGE HUNT: And after all, another thing from having been a judge

23 for over 20 years, you do learn that counsel know their cases better than

24 Judges and that they are better to be able to formulate the issues as they

25 see them and as they want them to be resolved. Now, when I talk about in

Page 60

1 some way and by aiding and abetting, I'm using very generalised wording.

2 I think you could probably do better between you about that. I don't want

3 there to be a criticism later in the Appeals Chamber, if it gets there,

4 that we have forced upon you something which was imperfect. So I'm saying

5 it very clearly now. I accept that my somewhat jet-lagged attempt to

6 suggest something to bring this to a resolution is probably very

7 imperfect, but it was an attempt to show that this could be resolved by

8 agreed facts made without admission, agreed without admission.

9 Now, is there anything else that we can deal with at this stage?

10 MR. MORRISON: I don't think so, Your Honour.

11 JUDGE HUNT: Well, provided that the court staff, by which I

12 include all the interpreters and court reporting, don't go away for a

13 picnic or something, if you need to come back, we might be able to arrange

14 a further hearing, but hopefully you can do it on paper without one. All

15 right. Well, thank you very much for your attendance, and I hope that you

16 can come to some resolution.

17 I'll adjourn now.

18 --- Whereupon the Status Conference adjourned at

19 9.54 a.m., sine die.