Tribunal Criminal Tribunal for the Former Yugoslavia

Page 132

1 Friday, 22 March 2002

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 3.00 p.m.

5 JUDGE MUMBA: This afternoon we have a Status Conference in this

6 case to mainly see how the pre-trial stage is going. I note that the

7 accused are on provisional release, and the Trial Chamber did receive a

8 report from the relevant authorities in their country that compliance with

9 the Trial Chamber's orders has not been a problem with all the three

10 accused. So the position as of now is quite satisfactory.

11 I haven't asked about the parties because I assumed that they are

12 still the same, but I have noticed some new faces. Maybe I can have a

13 formal presentation.

14 The Prosecution?

15 MR. WITHOPF: Good afternoon, Your Honour. Good afternoon,

16 Counsel. For the Prosecution appear Mr. David Re, trial attorney;

17 Mr. George David Hackney, legal officer; Ms. Diana Dicklich, case manager;

18 and myself, Ekkehard Withopf, acting senior trial attorney.

19 JUDGE MUMBA: Thank you.

20 The Defence.

21 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honour.

22 Edina Residovic, attorney at law from Sarajevo, counsel for General Enver

23 Hadzihasanovic, together with my co-counsel, my colleague, Stefane

24 Bourgon, an attorney at law from Canada.

25 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours.

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1 Vasvija Vidovic, attorney at law from Sarajevo, together with Mr. John

2 Jones, attorney at law from Great Britain, Defence counsel, together with

3 my co-counsel, for General Mehmed Alagic.

4 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honour. My

5 name is Ibrisimovic, and together with co-counsel, we represent Amir

6 Kubura.

7 JUDGE MUMBA: Thank you. I welcome the new co-counsel, Mr.

8 Stefane Bourgon, to these proceedings.

9 I received a report from the Senior Legal Officer on the

10 discussions that went on during the meeting I think yesterday on the

11 preparations for trial. There are a few things that maybe we can discuss

12 briefly during this Status Conference.

13 I note that the Trial Chamber is still considering some motions

14 which have been filed, one of them dealing with the form of the amended

15 indictment, and the Trial Chamber will be issuing a Scheduling Order soon

16 after the decision has been handed down. We also have matters from the

17 report dealing with disclosure: compliance with Rule 66(A)(ii) and Rule 92

18 bis, compliance with Rule 66(B), Rule 66(C), and also Rule 67 and Rule

19 68. I note especially with regard to Rule 92 bis that the Prosecution is

20 going in the right direction, having some Prosecution witness statements

21 recorded. This does definitely help with scheduling the trial.

22 I wanted to find out whether there are any problems at this stage

23 on the disclosure stage with the documents and also with the Sarajevo

24 collection. There appears to be a satisfactory report.

25 Is there anything the Prosecution would like to raise?

Page 134

1 MR. WITHOPF: May I first address the issue regarding the

2 submissions regarding challenges to jurisdiction if I'm allowed to?


4 MR. WITHOPF: I understand that you have been comprehensively

5 informed by the Senior Legal Officer about the discussions held yesterday.


7 MR. WITHOPF: It was again a very productive meeting in detail

8 discussing all issues arisen in the past.

9 With regard to the timetable submissions to the challenges to

10 jurisdiction, I would like to make some principal remarks.

11 The decision on the challenge to jurisdiction, in particular

12 regarding the applicability of Article 7(3) in a non-international armed

13 conflict is crucial for the future proceedings in this case. Significant

14 portions, I repeat significant portions of the amended indictment depend

15 on this decision.

16 Logic requires to get a decision on this issue prior to any

17 further movement in this case, and it also can be anticipated that the

18 party whose submission will not be granted will appeal the decision.

19 Realistically, a final decision of the Appeals Chamber cannot be expected

20 prior to late summer 2002, maybe even later. That's reason enough to

21 speed up things and to get the ball rolling.

22 The fact that this issue is pending has a serious impact on the

23 case preparation on the side of the Prosecution in many regards. I want

24 to provide Your Honour only with two significant examples. Following our

25 obligation under Rule 92 bis to speed up proceedings, we are currently

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1 planning a mission to take the declarations, to take the Rule 92 bis

2 declarations involving staff of the OTP, involving staff of the Registry,

3 involving national authorities. This causes a lot of expenses, and the

4 Prosecution is reluctant to spend a lot of UN money without knowing

5 whether the underlying relevant portions of the amended indictment will

6 stay.

7 I will provide you with a second example, and this one is as

8 serious as the first one. Currently we are establishing contact to an

9 outside military expert in order to get his assistance as a Prosecution

10 military expert. Again, to hire him causes a lot of expenses that could

11 be completely or to a high percentage a waste of money if the decision of

12 the Trial Chamber or the Appeals Chamber would be against the

13 Prosecution's position. To not have a final decision on this issue has

14 obviously a very practical implication.

15 Therefore, the Prosecution proposed, as you know, 28 days for each

16 party to file, to concurrently file their submissions and ten days for

17 cross-responses. This seems to be reasonable and more realistic than the

18 Defence proposal, 60 days for submission, 6-0 days for submissions for

19 each party and 15 days for cross-responses.

20 The main issue, as you know, is applicability of Article 7(3) on

21 non-international armed conflict. That's an old issue. This issue was

22 first raised by the Defence in their joint preliminary motion on the

23 original indictment. This motion has been filed the 8th of October,

24 2001. Since then, five and a half months have passed by. The Defence

25 knows since 17th December last year that this issue has to be addressed at

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1 least in a pre-trial brief. Again, three months passed. This has been

2 sufficient time for preparation.

3 The Prosecution has used this time. The Prosecution would be in a

4 position to file its submission within 21 days starting from today. The

5 submission should be filed concurrently. That's the position of the

6 Prosecution. Otherwise, there would be further delay in the proceedings

7 and there would be an undue advantage for the Defence if they were allowed

8 to respond to the Prosecution's submission again.

9 Yesterday --

10 THE INTERPRETER: Counsel is kindly requested to slow down,

11 please. Thank you.

12 MR. WITHOPF: I apologise. With regard to the page limits, we

13 yesterday discussed to some length. Obviously ten pages are not

14 sufficient. An agreement has been reached, at least I understand an

15 agreement has been reached amongst the parties that both parties should be

16 allowed to file 50 pages each.

17 I want to stress that if the Defence --

18 JUDGE MUMBA: Fifty pages, 5-0.

19 MR. WITHOPF: Five zero.


21 MR. WITHOPF: Each.

22 JUDGE MUMBA: Each defendant.

23 MR. WITHOPF: No. Yeah, each party.

24 JUDGE MUMBA: Each party.

25 MR. WITHOPF: Each party. However, the Defence, at least

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1 yesterday, hadn't made a final decision whether they want to file a joint

2 submission or three separate submissions. If the Defence intends to

3 follow the line of separate submissions, the combination, the combination

4 of these submissions, for obvious reasons, should not exceed fifty, 5-0

5 pages, meaning each party works under exactly the same page limitation.

6 There's another regard with the challenges to jurisdiction. That

7 is the issue of oral hearing. The Prosecution is of the opinion that an

8 oral hearing is not necessary, considering that this would cause a

9 repetition, only a repetition of the legal arguments exchanged in the

10 submissions of the parties and would again delay proceedings.

11 Last issue in this regard, that's the issue of having amici curiae

12 invited to provide their submissions. That has been a consideration by

13 the Presiding Judge following a proposal by the Defence, a proposal by the

14 Defence to invite the permanent members of the Security Council.

15 The Prosecution does not take a specific position in this regard.

16 However, considers the use of amici curiae a potential reason for again a

17 significant delay in the proceedings. In addition, regarding the

18 permanent members of the Security Council as proposed by the Defence, the

19 intention is only one source amongst others with regard to the

20 interpretation of Article 7(3) and its applicability. We also have to

21 rely on the jurisdiction of the ICTY. The Defence argument, therefore, is

22 not convincing to invite them.

23 If I may summarise the Prosecution's position, things can only

24 speed up by the Trial Chamber. It's up to the Trial Chamber to get the

25 ball rolling. Not having a final decision on the issues involved

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1 seriously hampers the further proceedings. Again, I want to stress the

2 Prosecution is ready, is ready to file a submission on short notice,

3 meaning 21 days from today on. Thank you.

4 JUDGE MUMBA: Thank you. Any response or submissions by the

5 Defence of the first accused?

6 MS. RESIDOVIC: [Interpretation] Yes. Thank you, Your Honour. I

7 probably got an interpretation that is not quite accurate so I would like

8 my learned friend Mr. Withopf to confirm to me that he said that on

9 account of jurisdiction, we are talking about the applicability of

10 Article 7(3) in "internal conflicts," because the interpretation I got was

11 in "international conflicts." Did I understand you correctly, sir?

12 MR. WITHOPF: What I said, Ms. Residovic, I said, "in a

13 non-international armed conflict."

14 MS. RESIDOVIC: [Interpretation] Thank you very much. That's what

15 I thought you meant, but the interpretation I got was somewhat different,

16 so I want to avoid any misunderstanding. I would also like to thank our

17 colleagues from the OTP for having clarified this matter entirely to you,

18 Your Honour, including that which the Defence believes, but nevertheless,

19 I would like to say a few words about what we actually think. When I say

20 "we," I'm referring to all three Defence teams, because we have identical

21 views with regard to this particular matter.

22 First and foremost, we believe that the question of jurisdiction

23 is of great importance for each and every one of our clients. Not only

24 that, though; we think that the applicable law in non-international

25 conflicts in relation to Article 7(3) is of general interest for this

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1 Tribunal and of general interest for the application of international

2 humanitarian law. Therefore, it is our position that we should devote due

3 and considerable attention to this matter, and at this point the Defence

4 is working separately on looking into customary law with regard to this

5 particular matter.

6 In our motion, several legal issues were raised, and we will try

7 to present existing law to the Trial Chamber, the law that was in force

8 when the alleged crimes were committed. We believe that the Trial Chamber

9 should rule, in a decision of their own, on an alternative possibility,

10 namely: If the Trial Chamber believes -- or rather, if we decide to file

11 a joint motion, because we are going to have identical views with regard

12 to each and every one of the issues raised, then the Defence fully agrees

13 that we have the same number of pages for preparing this material as the

14 Prosecutor did, that is to say, 50 pages, if we decide on a joint motion

15 of this nature. However, if we were to submit separate motions to the

16 Trial Chamber, then we believe that compiling separate motions requires a

17 few formal yet necessary pages, and therefore, we think that the Trial

18 Chamber should rule that each and every one of the parties should compose

19 a paper on 25 pages respectively, that is to say, a total of 75 pages. I

20 think that you understand the position of the Defence. Therefore, it

21 would be our request for your ruling to make it possible for us either to

22 submit a joint motion of 50 pages or separate submissions with 25 pages

23 respectively for each and every one of the accused, a total of 75.

24 Within the time frame that we were considering in terms of

25 compiling this motion and carrying out the necessary preparations, our

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1 proposal is that, if we were to work as hard as possible and to do our

2 very best, to make it possible for us to have either 30 days after the

3 indictment enters into legal force or a total of 60 days. Naturally, this

4 deadline would go for the other party as well. Both parties would, after

5 that, have the obligation to respond within 15 days.

6 In respect of this particular matter, and for the above-mentioned

7 reasons, we believe that it would be necessary to have an oral hearing.

8 As we have already said, these are questions that not only of interest to

9 these parties that are here in this case; these are general legal issues

10 that this Tribunal is indeed interested in.

11 As for an amicus curiae, my learned friend from the Prosecution,

12 Mr. Withopf, presented one of the positions presented during our meeting

13 yesterday. That was not our position, though. We did not think that we

14 had to call upon the permanent members of the Security Council. That was

15 one of the opinions presented. Our position, though, is that the Court

16 should pursue its own decision, as it will do, and if the Court believes

17 that they should avail themselves of their authority to call in an amicus

18 curiae, we have full trust in this kind of a decision of the Trial

19 Chamber. However, it is not for us, the parties, to make suggestions to

20 this effect to the Trial Chamber as to whether they are going to call in

21 an amicus curiae or not.

22 Since you also referred to the Sarajevo collection, I think that

23 the Prosecution gave us access to most documents, or rather, all documents

24 from the Sarajevo collection, and also selected military maps, except for

25 one, and I believe that they will make it available to us today. However,

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1 we believe that the Prosecutor is duty-bound in respect of this issue to

2 check audio and video cassettes and to make accessible to the Defence that

3 material which would have to do with the applicability of Rule 68 in

4 relation to what you have just mentioned.

5 So this is the position that we have with regard to these

6 particular matters. Thank you.

7 JUDGE MUMBA: Thank you very much. The Trial Chamber will

8 consider the submissions of the parties. The reason why some of these

9 motions, especially the one dealing with jurisdiction, is still under

10 consideration is that you will appreciate that Trial Chamber II is the

11 only Trial Chamber which has been divided into three sections, without

12 corresponding legal support teams, so it has been rather heavily weighted

13 down with work while waiting for legal support to be appointed. But the

14 situation has now improved, so the motions should -- the decisions on the

15 motions should be moving much faster, as from next week especially.

16 The matters raised regarding page limits, I think the Trial

17 Chamber will give due consideration to what the parties have said, and we

18 will be issuing a written decision in due course.

19 It is important, though, to comply with the practice directions;

20 otherwise, there would be no use for the Tribunal to issue practice

21 directions if at each stage parties feel they cannot conform.

22 On the oral hearings, during the pre-trial stage it is normally

23 the practice of the Tribunal, or rather, the Trial Chambers, to have

24 written submissions as much as possible because of the courtroom heavy

25 schedule. We have only three courtrooms and we are now having a lot of

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1 trials. And when the Appeals Chamber is sitting, they also require a

2 courtroom. So during the pre-trial stage, as much as possible, parties

3 should comply with written submissions. And in fact, there is a ruling, I

4 think in Brdjanin and Talic, where the Trial Chamber did say reasons

5 should be given why written submissions are not sufficient by any party

6 who is applying for an oral hearing. Otherwise it would be a waste of

7 court time, when the written submissions are sufficiently argued, for the

8 Trial Chamber to have oral hearings. The experience has been what the

9 Prosecution has alluded to, that usually it's a repetition of what is

10 already in writing. There is nothing actually to stop a party from

11 including every possible point they would like the Trial Chamber to

12 consider in their written submissions. And in any case, the written

13 submissions, except in situations where they are confidential, they are

14 always in the public domain so that people are able to follow the

15 arguments of the parties and are able to follow the reasoning of the Trial

16 Chamber once a written decision is given. It saves on a lot of court

17 time.

18 On the issue of whether or not amicus curiae should be requested,

19 this is a matter which very much depends on how the Trial Chamber will see

20 the options as submitted by the Defence, and there is nothing to stop the

21 parties to submit, under every stage, as to what was discussed by the

22 members of the Security Council at the relevant time, on the relevant

23 issues, or indeed any other body of the United Nations, to bring the

24 matters to the attention of the Trial Chamber; otherwise, the Trial

25 Chamber would be in a position to decide on this one.

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1 On the Rule 68 and the Sarajevo collection and the video and the

2 other evidence which is not in paper form, I'm sure the Prosecution, in

3 keeping with the provisions of Rule 68 and according to the submissions of

4 the Defence, are in agreement that they have this obligation. And on this

5 one, I think there will be a time limit for the Prosecution's obligations

6 under Rule 66(A)(ii), and the Trial Chamber is of the view that we may be

7 issuing an order in May of this year.

8 On the motion regarding co-counsel, the assignment of co-counsel,

9 the Trial Chamber is issuing a decision. I think latest by Tuesday next

10 week, a decision should be there. But I'm of the view that this shouldn't

11 hold the pre-trial stage at all, because we comply with what is in

12 position as of now and that the co-counsel is on the case.

13 On the submissions that -- the motion on jurisdiction, which has

14 to be decided by the Trial Chamber, that a lot hinges on this as to what

15 steps the Prosecution have to take in the preparation of the case, that

16 has been noted, and as I explained earlier, the Trial Chamber is now

17 having sufficient staff, so it should be able to decide very soon.

18 I also note that in situations where the accused are on

19 provisional release, there is a tendency sometimes not to comply with the

20 Rules on pre-trial stage. I wish to point out that it is important to

21 comply with the Rules on time limits with a pre-trial stage, because even

22 though it appears as of now that all Trial Chambers are having trials,

23 some of the trials may be shortened and the Trial Chamber may be available

24 for the trial to start. So in my view, it isn't a good practice to keep

25 stretching the time limits and also to keep stretching the pre-trial stage

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1 unnecessarily too long. It's obvious that it costs the Tribunal a lot of

2 money for every sitting, and a lot of -- and for every sitting and every

3 stage that the parties take.

4 On the issue of the trial date, that is a matter that will be

5 decided by the Trial Chamber once the motions have been decided and the

6 major steps in the preparation have been complied with. We may be looking

7 perhaps towards the end of this year, because from the records of the

8 Trial Chamber, some cases may be coming to an end; the trials may be

9 completed. Otherwise we may be looking at early next year. I'm aware

10 that in the order on provisional release, there is an aspect of the

11 accused reporting to the Tribunal some 60 days, I think, before the date

12 of trial. I don't think that should be a problem, because the Trial

13 Chamber can always change the days when the accused should report before

14 the trial date. And in any case, it may not necessarily be Trial Chamber

15 II which will take this trial. Any other Trial Chamber which may be ready

16 can take the trial, and it will be up to that Trial Chamber to discuss

17 with the parties as to when the trial can start.

18 Although the discussion on pages seems to have been quite a matter

19 with which the parties are concerned, I don't think I would like to give

20 the number of pages right away. I would leave it and discuss it with the

21 Trial Chamber, since the motions are under discussion, and see how best to

22 deal with this, how many pages each party should have. In the event that

23 it is a joint submission by the Defence or in the event that it is a

24 separate submission, the Trial Chamber is very much aware that although it

25 is going to be a joint trial, each accused person has his rights which

Page 145

1 must be complied with and which must be considered separately as much as

2 possible. So the Trial Chamber will be very much aware that whatever

3 decision we come up with does not undermine the rights of any of the

4 accused to fully debate their case.

5 There is another point on making it -- asking the parties to make

6 it possible to have a list of agreed facts. I think that again can only

7 be seriously debated once the decision on the motion has been issued by

8 the Trial Chamber.

9 I don't see any other matters that are remaining except if the

10 Prosecution wishes to raise any matter.

11 MR. WITHOPF: Just one issue, Your Honour, just for

12 clarification. You just mentioned that you will, with regard to Rule

13 66(A)(ii) issue an order in May. Does that mean the time limit is in May

14 or does it mean the order will be issued in May, indicating a time limit?

15 JUDGE MUMBA: The order will be issued perhaps for the time limit

16 to start running as from May.

17 MR. WITHOPF: Since there's one facet to be considered regarding

18 the Rule 66(A)(ii) disclosure, and that's the issue that we also have to

19 provide to disclose the Defence previous prior statements of our witnesses

20 we want to use.

21 The system-wide searches have been initiated. However, they have

22 been put on hold. We only resume end of April. The results can only

23 being expected at the end of May. Obviously there has to be an

24 examination to be made that would cause some delay, a few weeks' delay.

25 Realistically, we would only be in a position to disclose prior statements

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1 around end of June, beginning of July.

2 JUDGE MUMBA: All right. Yes, that will be taken into

3 consideration.

4 Any other matters the Defence wishes to raise during this Status

5 Conference? Yes?

6 MS. RESIDOVIC: [Interpretation] Your Honour, first of all I would

7 like to thank you for stating in public that our clients are complying

8 fully with all the Court orders in accordance with the decision on their

9 provisional release.

10 And secondly, I would like to say that we are looking through

11 public documents in three trials, and these are voluminous materials. The

12 Registry is providing significant support, but we are all in different

13 locations, and we appreciate the Court's understanding in view of the fact

14 that we cannot prepare so fast. So the dates that Your Honour has stated

15 for the beginning of the trial are realistic.

16 JUDGE MUMBA: All right. That is noted.

17 The Trial Chamber appreciates the cooperation that is being

18 demonstrated by the parties to this case inasmuch as the discussions with

19 the Senior Legal Officer show. I'm sure that everybody's doing their

20 level best so that the pre-trial stage can be completed as soon as

21 possible.

22 The Trial Chamber, on its part, will deal with the matters that

23 are before it as soon as possible so that the stages are not -- the

24 pre-trial stages are not delayed.

25 So I take it there are no other matters that the parties wish to

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1 raise, and we shall adjourn the Status Conference at this time until next

2 time.

3 --- Whereupon the Status Conference adjourned

4 at 3.33 p.m.