Tribunal Criminal Tribunal for the Former Yugoslavia

Page 119

1 Wednesday, 5 March 2003

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 9.39 a.m.

5 JUDGE AGIUS: Good morning, everyone. Registrar, could you call

6 the case, please.

7 THE REGISTRAR: Case number IT-94-2-PT, the Prosecutor versus

8 Dragan Nikolic.

9 JUDGE AGIUS: Thank you. Mr. Nikolic, can you follow the

10 proceedings in a language that you can understand?

11 I need someone -- Usher, I need someone to assist the accused and

12 make sure that he can -- he has the interpretation equipment on.

13 Can you -- is it better now? Can you hear what I'm saying in a

14 language that you can understand?

15 THE ACCUSED: [Interpretation] Yes, I can.

16 JUDGE AGIUS: And good morning to you.

17 Appearances for the Prosecution.

18 MR. YAPA: May it please Your Honour. I'm Upawansa Yapa,

19 appearing for the Prosecution with Ms. Patricia Sellers, Mr. William

20 Smith, and Ms. Diane Boles. She's our case manager.

21 JUDGE AGIUS: I thank you and good morning to you all.

22 Appearances for the Defence, the accused.

23 MR. MORRISON: Good morning, Your Honour. Howard Morrison

24 together with Tanja Radosavljevic for the defendant Nikolic.

25 JUDGE AGIUS: Good morning to you both. So I need hardly point

Page 120

1 out that this is a Status Conference that is being held pursuant to Rule

2 65 bis, the last Status Conference having been held on the 7th of

3 November. So we are within the 120-day time limit that is indicated, is

4 imposed by the Rule.

5 I also wish to remind the parties that the purpose of such Status

6 Conference is to ensure an efficient and expeditious preparation for the

7 trial and to give an opportunity to the accused, Mr. Nikolic in this case,

8 to raise any issue that he might like in relation to his state of health,

9 be it physical or mental, or in any case relating to his state of

10 detention in the Detention Unit here in The Hague.

11 I also have been informed -- I am informed by my senior legal

12 counsel that, as planned, he presided over a 65 ter meeting these last few

13 days and that practically all the matters that will be here -- that are on

14 today's agenda were discussed during that meeting, and I am also informed

15 that, as far as certain issues are concerned, we don't need to discuss

16 them at any length here because they have been fully aired and debated

17 during the 65 ter meeting.

18 So the first item that I should like to deal with is the pending

19 motions, and the first of these is the interlocutory appeal, and I am

20 informed that this was thrashed out during the 65 ter meeting and I need

21 not touch upon it here. You are or we are all expecting a decision by the

22 Appeals Chamber very likely towards mid-April or before mid-April.

23 Obviously, the plans that we will make will focus on this date as

24 the most likely date, but if there is a delay, obviously we will have to

25 come back to this matter and the ensuing problems later on.

Page 121

1 Then there is a very recent motion that this Chamber has received,

2 and that's a depositions motion, this motion having been filed only a few

3 days ago, namely on the 28th of February, 2003, in which the Prosecution

4 is requesting from this Trial Chamber, from this Chamber, an order

5 authorising the taking of depositions from six Prosecution witnesses prior

6 to the commencement of the trial.

7 It seems, at least from the substance of the motion itself, that

8 the idea behind this motion is the age and state of health of these

9 witnesses and, therefore, the idea is to preserve, to ensure that there is

10 a deposition just in case the state of health deteriorates or they die,

11 and also, anyway, to shorten the length of trial by securing depositions

12 being taken even before the trial starts.

13 The procedure that is being suggested by the Prosecution is that

14 the depositions be taken during a three-day period here in The Hague in

15 the presence of the accused, and for this -- for these deposition, for the

16 purposes of these depositions, the Defence, of course, will be able to

17 cross-examine witnesses and depositions will be made available on video

18 and in transcript form.

19 The legal basis that is being provided by the Prosecution as

20 justification for the request is that -- is basically based on Rule 71 and

21 can be found in the motion itself.

22 I take it that the Defence filed their response only a few days

23 ago, on the 3rd of March. There is no objection in principle to the

24 taking of depositions. Defence, however, has to rely on the good faith of

25 the Prosecution in relation to the assessment of the state of health of

Page 122

1 the witnesses, and the usefulness of these depositions obviously has to be

2 viewed in relation to the trial date, which, to me, this last point is

3 perhaps the most important of all, together with the -- with whether the

4 state of health of these six individuals, six persons, is such as to

5 really present a predicament and justify the concern that you have, Mr.

6 Yapa, representing the Prosecution, that you may not be in a position to

7 make any use of these witnesses later on if we don't take these

8 depositions in a timely fashion before the trial starts.

9 I personally should like you both to address this point -- on

10 these two points, plus another concern that I personally have as a

11 Pre-Trial Judge. In all probability, as I see it, I won't be the

12 Presiding Judge in the trial when this takes place, and I personally feel

13 a little bit awkward in granting the hearing of the evidence of these

14 witnesses by the procedure that is being suggested, in a way depriving the

15 future Presiding Judge in this trial for the opportunity of having them

16 here in open court and testify viva voce. That is the other problem that

17 I have.

18 But having said that, I should like you to address these issues,

19 keeping in mind that, as I will be saying later on, there is a strong

20 probability that the trial may start end of April or early May.

21 Mr. Yapa.

22 MR. YAPA: Thank you, Your Honour. On this question of our motion

23 for the depositions, as Your Honour was pleased to explain, our main

24 concern was the age and the state of health of the witnesses. We cannot

25 be definite about any of these matters. It is actually as a matter of

Page 123

1 precaution that we filed the motion. It may be said if there is any kind

2 of predicament to any of the witnesses, it may be said that we were too

3 late in making the application or we need not have made the application

4 because the witnesses are hale and hearty at the time the depositions have

5 to be taken and the trial is to be taken up.

6 So it is only as a matter of precaution and also as an abundance

7 of caution that we filed this motion before Your Honour. So if the trial

8 date is earlier, Your Honours may, or whoever is taking the decision, may

9 consider that it may not be required to have depositions because the trial

10 date is coming close by. But if there is a likelihood of the trial date

11 going down, then I would submit that it will be in the interests of

12 justice to have the statements or have the evidence of these witnesses

13 recorded.

14 JUDGE AGIUS: I thank you, Mr. Yapa. That is indeed -- you've

15 been most reasonable, and I thank you for that.

16 Mr. Morrison.

17 MR. MORRISON: Your Honour, I take the same position as to the

18 dates. Plainly if the trial is going to be in May, that is when the

19 depositions were proposed in any event so obviously there would be no

20 point in doing it in those circumstances.

21 I think the only real issue is whether or not in that case, whilst

22 we are still unsure of the exact trial date, that the issues that Your

23 Honour raised actually turn out to be the most important, as to whether or

24 not in the circumstances, if Your Honour is not going to be the Presiding

25 Judge - and I understand may not even be -- the Trial Chamber composition

Page 124

1 hasn't even been determined yet, so Your Honour may not be a Judge in any

2 event at any part of the proceedings - it would be then a pity to take

3 away the impact of hearing direct oral testimony, assuming that there's no

4 advanced deterioration in the state of health.

5 As I understand it, what we have at the moment is an assessment of

6 the state of health of the witnesses based upon what they say, the

7 witnesses themselves say, and their age, which is obviously not contested.

8 There is no medical evidence, as I understand it, as such, beyond that.

9 I'm not suggesting that there's anything less than -- the suggestions as

10 to the health are anything less than accurate, but if it became an issue

11 for the Trial Judge, the Presiding Judge, he may want, of course, medical

12 evidence to support the contention. I don't know. I won't be asking for

13 it because plainly it's not a question for me to make the decision, it's a

14 question for the Judge to make a decision.

15 I am content that if there is any real doubt as to the ability of

16 these witnesses to attend because of their frailty, that in those

17 circumstances depositions should be taken. That's the point.

18 JUDGE AGIUS: So I think -- I thank you, Mr. Morrison. I think I

19 can decide this here and now orally, Mr. Von Hebel, and my decision is as

20 follows:

21 It is indicated that more or less the date when this trial will

22 commence will be proximate to the date when the Prosecution intended to

23 present these witnesses for the -- for the purposes of the motion filed by

24 them on the 28th of February, 2003.

25 There is no apparent reason given the circumstances surrounding

Page 125

1 the request of the Prosecution for the taking of depositions of these

2 witnesses before the trial commences. In addition to the fact that this

3 trial -- that this Pre-Trial Chamber thinks it is important not to

4 deprive, as much as possible, the Trial Chamber that will try the accused

5 in due course from the opportunity of hearing the evidence of these

6 persons viva voce in the course of the trial.

7 Because of this, or in view of this, the Trial Chamber decides not

8 to grant the motion for the time being but reserves the right for the

9 Prosecution to represent the motion as far as any of the six Prosecution

10 witnesses that have been mentioned are concerned at any time should their

11 state of health deteriorate or present a more serious reason for concern

12 for the Prosecution. And in addition, the Pre-Trial Chamber reserves its

13 position and also to provide differently should the dates when Trial

14 Chamber -- when the trial will commence be further than early or mid-May,

15 as envisaged now.

16 So that's as far as pending motions are concerned. Disclosure. I

17 know that this was also discussed during the 65 ter meeting, but I want to

18 make sure that we are perfectly in order.

19 I am informed, Mr. Yapa, that you would be in a position to

20 complete Rule 66 disclosure by mid-May, and that you, Mr. Morrison, agree

21 more or less with this deadline. I see you both nodding, so I have

22 confirmation of this.

23 Is there anything else either of you would like to add with regard

24 to Rule 66 disclosure?

25 MR. YAPA: Your Honour, as to what was required, we have -- we did

Page 126

1 mention to the senior legal officer at the 65 ter conference, made

2 reference to the fact that in terms of Rule of 66(A)(i), all indictment

3 supporting material have been disclosed, including the translations.

4 In terms of Rule 66(A)(ii), there is one statement, it may be a 92

5 bis statement, which the Prosecution intends to disclose to the Defence,

6 and it will be done in the very, very near future.

7 JUDGE AGIUS: I thank you. I take it that Mr. Morrison has

8 nothing to add?

9 MR. MORRISON: No, Your Honour.

10 JUDGE AGIUS: I thank you, Mr. Morrison.

11 As regards Rule 68, I think I just need to remind both of you that

12 there is -- that the obligation of the Prosecution is a continuing one,

13 and I'm reminding you of this, Mr. Yapa, in particular, because in the

14 previous Status Conference, you hinted that there may be some further need

15 to -- for disclosure in this context at some future point in time. And

16 since we're talking of November and now we are in March, I should like to

17 know whether the position is still as you maintained it to be in November.

18 MR. YAPA: Thank you, Your Honour. I have been informed by the

19 Senior Legal Officer of the position in respect of Rule 68 material. I

20 can say with confidence at the moment that we have disclosed whatever that

21 has been revealed to us, likely to be Rule 68 exculpatory material we have

22 disclosed, and we have also been in contact with the Defence in respect of

23 anything further that has to be done. We have asked the Defence as to

24 whether they have any indication as to any other searches that we should

25 do. So that also has been attended to. So I can say that up-to-date,

Page 127

1 whatever that has been disclosed, whatever that has been revealed to us as

2 exculpatory material has been disclosed to the Defence.

3 JUDGE AGIUS: Do you agree with that, Mr. Morrison?

4 MR. MORRISON: Your Honour, yes.

5 JUDGE AGIUS: I thank you. Next point on the agenda was agreed

6 facts, but I am told that this more or less was dealt with exhaustively

7 during the 65 ter meeting, and unless you indicate to me the contrary, I

8 will not discuss this matter in this Status Conference.

9 Protective measures, and obviously this is a very important

10 matter. You will recall that we discussed this at the last Status

11 Conference, and between that Status Conference and today, we handed --

12 Trial Chamber II handed down a decision which more or less covers -- a

13 blanket provision for protective measures at this pre-trial stage.

14 I need hardly indicate to you that when we have a date set for the

15 beginning of the trial, for the trial, the situation needs to be addressed

16 in a different fashion, and Mr. Yapa, the Prosecution will be required to

17 file a fresh motion, as has been the practice so far in other cases, and

18 which will address the protective measures required for each and every one

19 of your witnesses when requested and where applicable but as they relate

20 to their giving evidence in the trial.

21 So we will require from you later on a comprehensive protective

22 measures motion at the adequate -- at the right moment.

23 MR. YAPA: Yes, Your Honour.

24 JUDGE AGIUS: Okay. Thank you.

25 I also wanted to inform you or confirm to you that I as Pre-Trial

Page 128

1 Judge have been handed recently these last few days an updated, corrected

2 version of the witnesses, list of witnesses that the Prosecution intends

3 bringing forward in the course of the trial and that I have taken note of

4 its contents.

5 Trial date and timetable of pre-trial preparations. Obviously

6 there is no point in starting this trial before the Appeals Chamber has

7 decided -- have decided the interlocutory appeal on the jurisdiction and

8 the legal arrest matter. As I said earlier, that is the decision of the

9 Appeals Chamber, as far as we have been given to understand, is expected

10 before mid-April, and that should pave the way either for the trial to

11 start or for the proceedings to be dropped if the entire request of the

12 Defence in the plea, preliminary plea, are upheld by the Appeals Chamber.

13 So that means to say that the trial date depends almost entirely on the

14 decision by the Appeals Chamber.

15 But there is another caveat which is important: There is no point

16 in my stating to you that the trial will start immediately after the

17 decision by the Appeals Chamber. When I say "immediately," that means

18 after providing each one of you, particularly the Defence, with enough

19 time to come forward and start with the trial unless we have the certainty

20 of having a Trial Chamber at our disposal.

21 I'm saying this because, as you know, there are six trials going

22 on at the moment which occupy fully the -- all the Judges, all the Judges

23 that form part of this Tribunal, and there needs to be three Judges or at

24 least one permanent Judge, one permanent Judge available in order to start

25 this trial.

Page 129

1 It is my belief that that is also possible towards May, from --

2 starting from end of April. I state this subject to correction, of

3 course, because what -- anything could happen and any one of the cases

4 that are expected to finish more or less around about that time may take

5 longer. But I can assure you, Mr. Morrison, that this particular case,

6 also because of the time that your client has already spent in detention,

7 is being given the utmost attention and top priority.

8 If the Appeals Chamber decides against your client, Mr. Morrison,

9 and once a date for the commencement of the trial is fixed, then obviously

10 the Pre-Trial Judge, whoever that may be, will convene a Pre-Trial

11 Conference as required by our Rules, usually a few days, a short time

12 before the start of the trial. From previous experience, I can tell you

13 that these pre-trial -- such a Pre-Trial Conference can be a very short

14 one or can take quite some time, depending on the matters that need to be

15 thrashed, but I don't see now in this particular case a Pre-Trial

16 Conference can take place. Everything is indicative of quite a short and

17 incisive Pre-Trial Conference.

18 I also should like to inform you that once we all know when the

19 case is going to start, when the trial is going to start, the senior legal

20 officer of the Trial Chamber that will be dealing with the trial, that

21 would be conducting the trial, will convene another 65 ter meeting to

22 discuss any outstanding issues that there may be, and in particular, in

23 particular, thrash out the protective measures matters. And for that

24 purpose, it will be -- it is imperative that you are prepared, Mr. Yapa,

25 to be in a position to file the comprehensive motion on protective

Page 130

1 measures in good time before this 65 ter meeting.

2 I take it also that in the course of the 65 ter meeting that you

3 had with our Senior Legal Officer, Mr. Von Hebel, you discussed also the

4 anticipated length of the Prosecution's -- of the case for the Prosecution

5 and the Defence case.

6 I am told that more or less the case for the Prosecution is

7 expected to last five full court weeks, but this means three witnesses

8 being dropped from the original 40, list of 40, and depositions being

9 taken, which would also mean that if depositions are not taken or if there

10 is an increase in the number of witnesses, then you would require more

11 than five weeks, but as I take it, we are still within this six to

12 seven-week time frame.

13 Do you agree with that estimate, Mr. Yapa?

14 MR. YAPA: Yes, Your Honour.

15 JUDGE AGIUS: I thank you. As far as the Defence case is

16 concerned, I am informed that according to you, Mr. Morrison, at this

17 present moment you find it difficult to give an estimate but are prepared

18 to give a rough estimate of approximately one full working month. Do I

19 take it that this is your idea?

20 MR. MORRISON: Your Honour, that would be the absolute maximum.

21 It's -- it's conceivable that if the Prosecution case takes five full

22 working weeks, that any trial of the indictment as it now is could be

23 concluded within two full working months, i.e., eight or thereabouts

24 working weeks.

25 JUDGE AGIUS: I thank you, Mr. Morrison.

Page 131

1 The next item on the agenda is assessment of Prosecution's case.

2 I note that this also was discussed during the 65 ter meeting. I think it

3 is important enough to merit some further comments on my part.

4 I take it that you agree that in order to be in a position, both

5 as far as the Trial Chamber is concerned and as far as the Defence is

6 concerned, to make an assessment on the case of the Prosecution. When I

7 say an assessment, I mean a real in-depth assessment, and in order to put

8 the Trial Chamber, in particular, and also the Defence in a position to

9 effectively prepare for the trial, it would be useful to have what we have

10 referred to earlier as the proofing charts. Such charts are conceived

11 under Rule 65 ter (E)(i) and (ii), the idea being to give an outline of

12 evidence for each count on the basis of the summary of the witness's

13 testimony and indicating for each witness the way the witness proposed

14 would fit in the outline of evidence, the way suggested exhibits may fit

15 in with the outline of evidence, and the way facts which you may agree

16 upon between you before the trial may fit in within the outline, the

17 parameters of the evidence.

18 I know that you have been shown a sort of a sample or an example

19 of an exhaustive document, exhaustive exercise along these lines coming

20 from another case, and I also know that more or less, Mr. Yapa, the

21 Prosecution indicated that they should or they anticipate that they would

22 be in a position to provide the Trial Chamber with these charts before

23 mid-April. I want a confirmation of that because that is absolutely

24 important if the trial itself is expected to start sometime in mid-May or

25 late May.

Page 132

1 MR. YAPA: I thank you, Your Honour, for the opportunity given.

2 In fact, this is one of the matters I wanted to take up. After Your

3 Honour's explanation as to the purpose of the proofing chart, I don't

4 think I have to raise that question, because at the stage when the senior

5 legal officer mentioned this at the 65 ter conference, although I thought

6 that I had a general idea as to what was required, I thought there were

7 certain matters that needed to be clarified. But those matters have been

8 clarified by Your Honour. So I must say at the outset that we are willing

9 and prepared to do that exercise and to submit proofing charts by the date

10 indicated, by mid-April.

11 JUDGE AGIUS: It should be -- it shouldn't be a difficult exercise

12 at all because we are talking here of a relatively small number of

13 witnesses.

14 I thank you.

15 Do you need to comment on this, Mr. Morrison, or --

16 MR. MORRISON: Your Honour, no, save to endorse that it is a good

17 idea. I prosecute in England quite a lot, and it's something that we

18 always -- in the last four or five years it's been the practice of the

19 Crown to produce such a chart. It also, of course, in the English system

20 it helps the Judge summing up to the jury. It's not an issue in this

21 Tribunal, although I should imagine the same exercise can be undertaken

22 with a view to forming a judgement. So I think it's a very helpful

23 exercise all round.

24 JUDGE AGIUS: I thank you, Mr. Morrison. Indeed, I fully agree

25 with you that it is a very important exercise.

Page 133

1 We are coming to the end. Are there any procedural matters,

2 issues that either of you would like to raise at this point?

3 MR. YAPA: With Your Honour's permission, I'm convinced that Your

4 Honour may have been informed of the -- what transpired at the 65 ter

5 meeting, every matter. There was one matter that I raised in terms of

6 Rule 67 of the Rules and regulations -- Rules of Procedure and Evidence of

7 the Tribunal. My learned friend very clearly stated as to what his

8 position is, but I'm making reference to that at this stage because this

9 is a requirement in terms of Rule 67 for the Defence whenever defence of

10 alibi or a defence of like nature is taken up. So it is for that purpose.

11 We have not been provided with anything yet, but my learned friend said

12 that -- it refers only to a few counts, not all the counts, but my learned

13 friend made it clear that beyond what was stated at the interview with the

14 accused, there was nothing more to say.

15 JUDGE AGIUS: Yes, Mr. Morrison.

16 MR. MORRISON: Your Honour will appreciate the difficulty. The

17 Defence position, which is quite plain from the interviews given by the

18 defendant in this case, is that he was not present at the time when a

19 number of the incidents alleged to have happened took place. In a lot of

20 cases, the dates are not given with any particularity, or the times are

21 not given with any particularity. It is known that the defendant was

22 present at the camp when it was his time to be there according to a duty

23 roster. When he was not at the camp, the position is plain that he was

24 back in the town at Vlasenica, living a normal domestic existence. But

25 without the opportunity to be given exact dates or exact times, and

Page 134

1 especially after the amount of time that has passed, it is simply possible

2 for the defendant to give any meaningful alibi in the sense of producing a

3 witness who will say, "Oh, yes. At that particular time on that

4 particular day I was -" for instance - "having a cup of coffee with the

5 defendant at a cafe in Vlasenica, therefore he couldn't have been

6 at the camp." That sort of evidence simply isn't available to the Defence

7 and it will never be available in circumstances where the indictment is

8 necessarily vague as to exact timings and where the opportunity for giving

9 alibi evidence is simply to say, "I wasn't present. I don't know whether

10 what was alleged to have happened did happen, but in any event, I wasn't

11 present either at the scene or necessarily at the camp." And I don't

12 think he's going to be able to go beyond that.

13 JUDGE AGIUS: What you say is indeed very reasonable, Mr.

14 Morrison, but what about those events for which there is a specific date

15 indicated?

16 MR. MORRISON: Well, where it is possible to do so in a way that

17 is going to assist the Court, I will undertake that we will endeavour to

18 produce a notice of alibi, but I forewarn everyone that it is likely to be

19 in vague rather than precise terms because of the passage of time.

20 JUDGE AGIUS: And in any case, there is the ultimate solution of

21 crossing swords with any witness during your cross-examination and taking

22 issue when there is something that you obviously want to contest.

23 MR. MORRISON: Exactly.

24 JUDGE AGIUS: So more or less there. But Prosecution does have a

25 right to be -- to have advance notification on any alibi.

Page 135

1 MR. MORRISON: Your Honour, the object of giving alibi notice is

2 to prevent the Defence from ambushing the Prosecution at trial with an

3 alibi that wasn't previously indicated. All I can say is that there will

4 be no such ambush and no such attempt at ambush.

5 JUDGE AGIUS: Okay. I thank you.

6 Does that satisfy you, Mr. Yapa?

7 MR. YAPA: Yes.

8 JUDGE AGIUS: Any other procedural matter or issue you would like

9 to raise? It's taken that there is no further procedural matter that you

10 would like to raise.

11 Mr. Nikolic, should -- should you like to raise any matter

12 relating to the -- your detention in the Detention Unit and to your state

13 of health, mental or physical, that you think ought to be brought to the

14 notice of this Trial Chamber -- or Pre-Trial Chamber?

15 THE ACCUSED: [Interpretation] Your Honour, as I said last time,

16 the only thing is that I've been here quite a long time. Otherwise, I

17 don't have any other problems. I feel healthy. I have become accustomed

18 to this way of life, if I can put it that way, and I don't think I have

19 anything of any substance to add and present to you here. My lawyers have

20 already stated what I wanted them to say.

21 The conditions in the Detention Unit are quite normal, especially

22 in the building we've been put up now. The greatest problem is the length

23 of the proceedings themselves. The indictment was raised in 1994 against

24 me, so that's quite a long time ago. And that is the only thing I have to

25 say and my only remarks. Thank you.

Page 136

1 JUDGE AGIUS: Thank you. Mr. Morrison, is there anything else

2 that you should like to point out in relation to these matters, these

3 issues, his state of health and his condition of detention? Is there

4 anything that is of concern to you except for the length of time that has

5 been taken before this trial starts?

6 MR. MORRISON: Your Honour, no. It's -- it's plainly the longer

7 the person is in custody and the greater the length of time between the

8 events in issue and the trial, the worse everybody's memory becomes. So

9 that's the only issue.

10 JUDGE AGIUS: The Prosecution is trying to solve that by taking

11 depositions.

12 MR. MORRISON: That's why I don't object in principle to

13 depositions.

14 JUDGE AGIUS: I thank you, Mr. Morrison.

15 And is there anything else either of you would like to mention,

16 raise?

17 MR. YAPA: Nothing from me.

18 JUDGE AGIUS: So I thank you both, and the Status Conference

19 stands adjourned.

20 --- Whereupon the Status Conference adjourned

21 at 10.22 a.m.