1 Tuesday, 23 July 2002
2 [Status Conference]
3 [Open session]
4 --- Upon commencing at 2.30 p.m.
5 [The accused entered court]
6 JUDGE AGIUS: Madam Registrar, could you call the case, please.
7 THE REGISTRAR: Good afternoon, Your Honour. Case number
8 IT-94-2-PT, the Prosecutor versus Dragan Nikolic. Thank you.
9 JUDGE AGIUS: To start with, my apologies for starting a quarter
10 of an hour late. This was due to my ignorance of the streets in The
11 Hague. I just got completely lost. Anyway -- which is not the first time
12 that it has happened to me, but it is the first time it has happened on my
13 way to the Tribunal from where I was. So my apologies once more.
14 The second thing is I welcome you to this Status Conference again,
15 and I would like to address myself to the accused. Mr. Nikolic, can you
16 hear me in a language that you can understand?
17 THE ACCUSED: [Interpretation] Yes.
18 JUDGE AGIUS: Thank you.
19 Appearances for the Prosecution.
20 MR. YAPA: May it please, Your Honour. I'm Upawansa Yapa,
21 appearing for the Prosecution, with Ms. Patricia Sellers and Mr. William
22 Smith. Ms. Diane Boles is our case manager.
23 JUDGE AGIUS: I thank you, and good afternoon to you.
24 Appearances for the accused.
25 MR. MORRISON: Howard Morrison for the accused Dragan Nikolic.
1 JUDGE AGIUS: I thank you, and good afternoon to you.
2 As you will certainly recall the last Status Conference, which I
3 presided myself, was held on the 18th of March. And this Status
4 Conference, which hopefully will be the last one before the trial
5 commences, is being held in terms of Rule 65 bis, although a few days
6 after the 120 days established. But that, I understand, you are -- you
7 know the reason for that. And it's just necessary to repeat or to remind
8 you that the purpose of the Status Conference, amongst other things, is to
9 ensure the proper and expeditious preparation for the trial and to give an
10 opportunity to the accused, personally or through his counsel, to raise
11 issues in relation to his mental or physical condition. And this is
12 precisely the first thing that I want to address.
13 Mr. Nikolic, do you have any complaints related to your detention
14 here in The Hague?
15 THE ACCUSED: [Interpretation] No.
16 JUDGE AGIUS: I thank you.
17 THE ACCUSED: [Interpretation] Everything is okay.
18 JUDGE AGIUS: I thank you.
19 Now, I think we can, on the basis of that, proceed fairly quickly.
20 And before we do, I think I owe it to you, both Prosecution and Defence,
21 following the information that has been given to me by the senior legal
22 officer for Trial Chamber II, Mr. Von Hebel, and that is to show publicly
23 my appreciation for your cooperation and flexibility shown in the course
24 of the meeting which -- of which he presided recently, in terms of Rule 65
25 ter. I mean, he did report to me the outcome of that meeting, and he did
1 also report to me how positive your contribution was and how appreciated
2 your cooperation is. And it is, I think, my duty to reiterate that and
3 say it in -- publicly in an open session.
4 The first significant matter is -- or most -- perhaps the most
5 important matter on our agenda today is the decision, pending decision, on
6 the motion on a legal arrest. I know that you have already been
7 sufficiently informed during this -- the meeting that I have referred to,
8 but I can also confirm on my part here that the decision itself has been
9 elaborated in the first and the second and the third draft. There are a
10 few items that are being discussed -- still being discussed between the
11 other two Judges forming -- constituting this Trial Chamber - that's Judge
12 Schomburg and Judge Mumba - I can assure you that there are no problems
13 ahead and we should be in -- certainly without hesitation and I can
14 confirm that we should be in a position to hand down our decision within a
15 fairly short time. We could actually hand it down within an even shorter
16 time, but I'm sure you would understand that we have August arriving and
17 that creates some problems. So the idea is to hand down the decision
18 before the end of August, when hopefully - and not only the three Judges,
19 but also the more important members of the staff dealing with this case -
20 will be present here in The Hague. So do expect a definitive decision
21 before the end of August, and that, whichever way it goes, that will be a
22 decision which I suppose will go to appeal. It's that kind of decision in
23 any case, and I mean, you understand that -- I'm sure you understand
24 that. That would be the latest. If we are in a position to hand down the
25 judgement before, we will hand down the judgement before. I want you to
1 understand that the three of us will be in close contact regularly during
2 the month of August, also because this is not the only case that we are
3 dealing with collectively. We are working on it -- it's practically
4 finished as far as I am concerned. I mean, a few cosmetic interventions
5 that we need to take. That would be about it. And we should be in a
6 position to issue -- hand down the judgement.
7 Then I know that -- before I pass on to something different, do
8 you have any comments on -- any remarks on this issue? Mr. Morrison, in
10 MR. MORRISON: Your Honour, no. Plainly, it is a matter which is
11 likely to go to appeal. We discussed this --
12 JUDGE AGIUS: I'd imagine that. Yes. Whichever way it goes.
13 MR. MORRISON: Whichever way it goes. Because the issues are --
14 some of the issues are fairly fundamental.
15 JUDGE AGIUS: Exactly.
16 MR. MORRISON: The only concern we have jointly as to that is the
17 impact of that upon any trial date. We discussed that matter yesterday
18 with --
19 JUDGE AGIUS: I know.
20 MR. MORRISON: -- the senior legal officer. I think the general
21 view was that to proceed, as it were, planning for trial and take the
22 appeal, if any, as and when it comes and deal with it as expeditiously as
24 JUDGE AGIUS: Yes. And as far as that goes, Mr. Morrison, I can
25 assure you that we're talking of a time frame where that would be
1 perfectly possible, also because we have been working in recent days on
2 the programme for sittings, a draft calendar for sittings between now and
3 the end of the year, and this is taken care of already. Obviously I
4 cannot anticipate dates -- promise dates, et cetera, but it's something
5 that has been taken care of in anticipation of the fact that there will
6 certainly be an appeal whichever way it goes.
7 MR. MORRISON: [Microphone not activated]
8 JUDGE AGIUS: Okay. The next thing -- and on this I am advised
9 that -- it may just be relevant to bring out or to mention at this -- in
10 this Status Conference is the issue with regard to disclosure. I
11 understand that this matter is more or less in hand, that there are very
12 few, possibly two statements under Rule 66 which will soon be disclosed to
13 you, Mr. Morrison, and another five statements that are in the process of
14 being translated. And you know that that is a problem, particularly in
15 the wake of certain cases that have been started here, certain trials that
16 have been started here. However, I have the assurance through my senior
17 legal officer but from the Prosecution that this would be -- it's
18 very well in hand and they should be made available to you, Mr. Morrison,
19 within a fairly short time.
20 I am also informed - and of course, if there is any information to
21 the contrary, please do let me know - that the Prosecution has completed
22 its obligations of disclosure under Rule 68. If you have reason to doubt
23 that or any submissions to make, Mr. Morrison, please do. Tell me.
24 MR. MORRISON: Your Honour, no. I am -- I have been so informed
25 by the Prosecution. I have absolutely no reason to believe to the
1 contrary. In fact, I don't believe to the contrary. I accept that this
2 is a prosecution being conducted absolutely bona fide.
3 JUDGE AGIUS: I thank you. And then there is the important aspect
4 of agreed facts. I told Mr. Von Hebel this morning that I wish the
5 Brdjanin/Talic case could proceed on this matter with such flexibility.
6 I understand that you are in the process of preparing a list of
7 agreed facts or facts on which there could be mutual agreement. And if
8 that is so, I do want to again express publicly my appreciation.
9 Yes, Mr. Morrison.
10 MR. MORRISON: Well, Your Honour, yes, that is the case. The
11 Prosecution has delivered a list of 184 different matters, upon which
12 they've asked for agreement. Those matters which are plainly contentious
13 as between the Defence and the Prosecution, obviously we cannot agree.
14 Those are matters which are issued in trial. There are a considerable
15 number of peripheral issues which we can agree and we have agreed. And
16 what I have done today is I've handed over the responses to the
17 Prosecutor. Some of it will require the re-drafting of admissions by the
18 Prosecution. And that having been done, I anticipate there will then be
19 complete agreement the object of the exercise being that when the case
20 comes to trial, we will have but a single document to put before the Court
21 rather than a Prosecution document with a Defence document in opposition.
22 JUDGE AGIUS: That's -- yes. I thank you. Yes.
23 MR. YAPA: Your Honour, two matters that I wish to take up at this
24 moment, Your Honour. In regard to the Rule 68 disclosure, I wanted to
25 mention this matter. Your Honour stated that we have informed the senior
1 legal officer that it is complete. We do not wish to use the word
2 "complete" in respect of Rule 68 disclosure. So far as maybe up to date,
3 whatever that had to be disclosed we have, and the searches are going on.
4 And if you do come across any --
5 JUDGE AGIUS: Okay.
6 MR. YAPA: So it is an ongoing process and we'll be doing that.
7 JUDGE AGIUS: Obviously.
8 MR. YAPA: In respect of the agreed facts, as my learned friend
9 correctly stated, we have tendered the document to him with matters for
10 agreement, 184, and he has been of great assistance to us and he has
11 indicated to us on which matters he could agree. And finally what we
12 propose to do is to submit to Your Honours the document which both of us
13 can agree in respect of the agreed facts, which will assist Your Honours'
14 chamber. Thank you.
15 JUDGE AGIUS: I thank you, Mr. Yapa.
16 And that brings me to the most crucial of -- and most important
17 points in -- on the agenda of this Status Conference, and that is the
18 future. I will try to cut the corner straight away and come to the
19 basics. It is the opinion and a suggestion of this Chamber that the trial
20 itself could start based on the information that was collected by the
21 senior legal officer during the meeting that I mentioned, that the trial
22 could start on the 18th of November of this year. This would entail the
23 following, that the -- namely, one, that the Prosecution would need to
24 file its pre-trial brief by not later than the 3rd of October, followed by
25 the pre-trial brief from the Defence, expected not beyond the 24th of
1 October. Following that there will be a Pre-Trial Conference on
2 approximately the 14th of November, a few days before the commencement of
3 the trial. This is based on the assumption or the information that I have
4 been given that the Prosecution estimates about six to seven weeks for the
5 presentation of its case, that the estimated number of witnesses is
6 roughly between 35 and 40. That does not include the expert witnesses and
7 some Rule 92 bis statements; that the Defence estimates work -- one
8 working month for the presentation of its case, with an estimated number
9 of witnesses of approximately 20, maybe less. And that includes the
10 defendant, if he chooses to give evidence. And it is also based on the
11 anticipation that the Registrar of this Tribunal will appoint a co-counsel
12 by not later than -- or around about the beginning of next month, the
13 beginning of August. I know that this matter is in hand.
14 May I have your comments on this time frame that I am suggesting
15 to you. The Prosecution, would you be in a position to file your
16 pre-trial brief -- this is obviously without prejudice, because you could
17 lose the motion on the illegal arrest. But for the time being, I'm just
18 working on the presumption that it will be on -- in your favour and that
19 the trial will -- will proceed, following also a decision by the Appeals
20 Chamber. So we need to work on that assumption, whichever way it goes.
21 But assuming that that will be the case, would you be in a position to
22 file your pre-trial brief on or about the 3rd of October of this year?
23 MR. YAPA: Thank you, Your Honour, for the inquiry. The dates
24 given by Your Honour are quite acceptable to us, and we -- we are
25 agreeable to those dates. They would not create a problem for us.
1 JUDGE AGIUS: I thank you.
2 And Mr. Morrison, should that be the case, and assuming that the
3 Prosecution does file its pre-trial on the 3rd of October, 2002 or
4 thereabouts, will you be in a position to file your pre-trial brief on or
5 about the 24th of October of this year?
6 MR. MORRISON: Your Honour, yes. That won't be difficult. I'm
7 assured by the Registry that the co-counsel will be appointed about the
8 1st of August.
9 JUDGE AGIUS: That seems very likely, I'm informed.
10 MR. MORRISON: One of her tasks -- in fact, her principal task is
11 going to be the collation of witnesses that have been seen already by an
12 investigator and the more detailed assessment of their value to the
13 Defence. I anticipate that she will be able to complete that task
14 certainly by the end of September, beginning of October. So I wouldn't
15 have seen any difficulty in complying with the 24th.
16 JUDGE AGIUS: I thank you.
17 So that being the case, there shouldn't be any difficulties for
18 holding a Pre-Trial Conference or about the 14th of November. And in
19 anticipation of another Presiding Judge having terminated the case of
20 which he is presiding -- the trial over which he is presiding now, there
21 shouldn't be difficulties in having the trial -- this trial start on the
22 18th of November, give and take a couple of days here or there, you know.
23 MR. MORRISON: Your Honour, looking at my diary, I just noticed
24 one thing. I see that I've been invited to speak at a conference in The
25 Hague on the 14th of November. I'm just wondering whether or not it's
1 possible that the -- the Pre-Trial Conference could take place on the
2 13th. Or is that not --
3 JUDGE AGIUS: The 13th would be what day?
4 MR. MORRISON: Wednesday.
5 JUDGE AGIUS: Wednesday. It shouldn't be -- 13th. That would be
6 even better. Let's mark the 12th or the 13th of November.
7 MR. MORRISON: That would be -- that would suit the purposes very
9 JUDGE AGIUS: Yes.
10 MR. MORRISON: I -- the conference is in The Hague, as it happens.
11 JUDGE AGIUS: Yes. But it so happens that I think I have agreed
12 with the other two Judges in the Brdjanin/Talic case -- Judge Taya needs
13 to go to Japan, and I think we are stopping from the 14th or 15th,
14 something like that. So -- but we -- Mr. Von Hebel will be in --
15 communicating with you in due course, but we'll take into consideration
16 what you have just stated. And the status -- the Pre-Trial Conference
17 will be held either on the 13th or on the 12th of November.
18 MR. MORRISON: I'm obliged.
19 JUDGE AGIUS: That wouldn't change the trial from starting -- the
20 trial date for the commencement of the trial of -- based on the 18th,
21 hoping that the other trial Judge -- presiding trial Judge will have
22 finished the other case.
23 So that being the case, I think I will proceed with instructing
24 the legal staff to issue an order relating to the timetable in accordance
25 with what I've outlined, subject, of course, to the outcome of the
1 decision on the illegal arrest motion. Is that agreeable?
2 I thank you. And with that, unless there are any other -- there
3 is any other matter that either the Prosecution or the Defence would like
4 to raise at this point, we can adjourn.
5 So the Status Conference is adjourned. I thank you once more for
6 all the cooperation that you have shown throughout. Thank you. And good
7 afternoon to you.
8 --- Whereupon the Status Conference adjourned at
9 2.54 p.m.