1 Friday, 12 April 2002
2 [Status Conference]
3 [Open session]
4 --- Upon commencing at 3.05 p.m.
5 JUDGE KWON: Good afternoon. You can hear it?
6 MR. BALIJAGIC: [Interpretation] [No interpretation].
7 JUDGE KWON: Madam Registrar, would you kindly call the case.
8 THE REGISTRAR: Case number IT-01-48-PT, the Prosecutor versus
9 Sefer Halilovic.
10 JUDGE KWON: May I have the appearances.
11 MR. WITHOPF: Good afternoon, Your Honour. Good afternoon --
12 THE INTERPRETER: Microphone, please.
13 MR. WITHOPF: I apologise. Good afternoon, Your Honour, good
14 afternoon, counsel. For the Prosecution appear Mr. Carl Koenig on my
15 right-hand side, trial attorney, Mr. David Le. The case manager on my
16 left-hand side, and myself Ekkehard Whitopf, Senior Trial Attorney.
17 JUDGE KWON: Thank you, Mr. Whitopf. And for the Defence?
18 MR. BALIJAGIC: [Interpretation] Good afternoon, Your Honour. My
19 name is Faruk Balijagic. I am the Defence counsel for Mr. Sefer
21 JUDGE KWON: Thank you, Mr. Balijagic.
22 MR. BALIJAGIC: [Interpretation] Thank you.
23 JUDGE KWON: Well, the first Status Conference took place on
24 January 8th, if I'm correct, and this is the second Status Conference. I
25 think there are several matters to be considered during this conference,
1 one of which will be the Prosecution's motion regarding the application
2 for the extension of time. But before we get to that matter, I'd like to
3 firstly deal with the issue of Defence counsel.
4 I heard, Mr. Balijagic, that you were planning to withdraw from
5 the case due to your illness and to have co-counsel, and I noticed that a
6 legal assistant has been -- was assigned to you last month. So I'd like
7 to hear from you what your current position is. Yes. Thank you.
8 MR. BALIJAGIC: [Interpretation] Your Honour, I would like to thank
9 the Registry. I was assigned a legal assistant three or four days ago.
10 It is Dijana Kreho an attorney. I would like to familiarise her with the
11 case. In the previous meetings with Ms. Featherstone, we did broach this
12 issue, but it will not affect the course of the proceedings as I will
13 inform you in more detail in my later pleadings.
14 JUDGE KWON: Could you also make any comments on the matter of
15 co-counsel --
16 THE INTERPRETER: Microphone, please.
17 JUDGE KWON: Yes. Could you make any comments on the matter of
18 co-counsel as you said previously, or have you applied for the assignment
19 of co-counsel yet?
20 MR. BALIJAGIC: [Interpretation] Ms. Dijana Kreho has already been
21 appointed, and she is in fact getting familiar with the case and will soon
22 be ready to -- will know everything that there is to know about the
23 indictment and the Defence moves so far. So I would like to assure you
24 that there will be no delays in the proceedings because of this. And I am
25 also duty-bound to let you know that 15 days ago I submitted a motion to
1 Chief Prosecutor Carla Del Ponte containing 49 pages, with a number of
2 documents containing some facts which can be verified and this is all in
3 support of our motion to withdraw charges against Sefer Halilovic. The
4 Chief Prosecutor has not yet received this motion, but she will be
5 considering it in due time.
6 Do I have to make any other clarifications?
7 JUDGE KWON: Well, those kinds of matters regarding substance,
8 substantial matter, will be dealt with separately, and the main purpose of
9 this pre-trial procedure is to deal with some procedural matters and to
10 make the case get ready for the trial. So that will be dealt with later
11 on. But could you make comment, did I hear about the resignation of
12 yourself? I'm clarifying to you whether you are going to resign or not,
13 because I heard that.
14 MR. BALIJAGIC: [Interpretation] No. No. I am not going to
15 resign. I simply said that I need an assistant or co-counsel to be
16 assigned to me because if my illness progresses, that would make it
17 possible for me to withdraw at that stage and that person could then
18 replace me. And according to what I can say right now, it seems likely
19 that I will withdraw from the case, but I have to abide by the wishes of
20 my client.
21 JUDGE KWON: Very well. There might have been some
22 misunderstanding. Thank you, Mr. Balijagic.
23 MR. BALIJAGIC: [Interpretation] Thank you, Your Honour.
24 JUDGE KWON: Okay. I remained seized of the Prosecution's
25 motion. I have them in front of me, the motion of 28th of March in which
1 the Prosecution has requested an extension of time to file a pre-trial
2 brief due to reasons of untranslated materials and the belated date that
3 an expert report can be produced.
4 However, it is my understanding also that the Prosecution is able
5 to submit a pre-trial brief at the end of this month, but it would like to
6 have this one as a provisional one with the final brief being submitted in
8 In this regard, I'd like to hear your submissions, but please bear
9 in mind that I have the written motion already. So please make it as
10 brief as possible.
11 MR. WITHOPF: Your Honour, I will make it as brief as possible.
12 At the latest Status Conference held on 8 January, Your Honour ordered the
13 Prosecution to file its pre-trial brief by 29th of April, 2000. The
14 Defence was ordered to file its pre-trial brief on 31st July, 2002. Since
15 the last Status Conference, a number of issues have arisen that have
16 serious impact on the further proceedings, especially on the further
17 schedule. Those developments have intensively been discussed with the
18 officer on the Rule 65 ter meetings and I am aware that you have been
19 comprehensively been briefed about these meetings. All of these
20 developments and especially impact on the schedule on the future
21 proceedings were not foreseeable prior to the last Status Conference in
22 January 2002. Some of them are actually caused by the Defence and you
23 addressed one of them, especially since my learned colleague, Mr.
24 Balijagic, on the Defence side has chosen to withdraw from the Defence.
25 There are a number of issues I would like to address. The first
1 is the withdrawal of Mr. Balijagic as Defence counsel. The second one is
2 a jurisdictional issue that has been arisen in the Hadzihasanovic and
3 others case, and that will play a crucial role in this case as well.
4 The issue of stipulation would be the third issue I would like to
5 address, and again we will address the issue of translations, the usual
6 bottleneck of ICTY proceedings and finally the issue of the military
8 I very much appreciate that you, Your Honour, already have
9 addressed the issue of a potential or a likely withdrawal of Mr. Balijagic
10 from his position as a Defence counsel for Mr. Halilovic, the accused.
11 And again, what he told us today is confusing, and it's not the first time
13 I will give you a brief summary what happened. Mr. Balijagic, on
14 the occasion of the Rule 65 ter meeting in February this year, for the
15 first time announced that he would withdraw from the Defence due to health
16 problems. He repeated this announcement on 21st of March on the occasion
17 of the last Rule 65 ter meeting.
18 In February, Mr. Balijagic stressed that he would get an assistant
19 soon. In March, meaning 21st March 2002, but however, Mr. Balijagic had
20 not yet a co-counsel assign. He then announced that his client, the
21 accused would like to hire an US attorney. Again today in a meeting we
22 had with Mr. Balijagic a few hours ago, he corroborated as he did in front
23 of you his announcement to resign without being specific as to the date
24 when this will happen. He announced, however, at least to us that this
25 will happen very soon, in the next future. According to him, and this has
1 been corroborated now, he got an assistant signed only three to four days
3 Mr. Balijagic is still not in a position to clarify as to whether
4 this further lawyer would take over as a Defence lead counsel after he has
5 withdrawn. That means we know that there will be a change in the person
6 of the Defence counsel in near future, very soon. We do not know,
7 however, when this will happen and who will succeed him.
8 From the beginning of the pre-trial proceedings, Your Honour,
9 until today, Mr. Balijagic has been the only, and I repeat it, the only
10 Defence counsel for the accused. According to himself, he only since for
11 a very short period of time has an assistant, we just heard, since three
12 to four days. He never had and he still doesn't have a Defence
13 co-counsel. If he would withdraw in near future, meaning only a few
14 months before the Defence is supposed to file its pre-trial brief, it can
15 be anticipated that a successor, whoever it may be, will not be in a
16 position to familiarise him or herself with the complex factual basis of
17 this case and the even more complex legal issues involved in the present
18 case, whose knowledge are crucial for any substantial defence of the
20 The new Defence counsel, the new lead Defence counsel, would have
21 to go through more than 100 witness statements that form part of the
22 supporting materials. He or she would have to familiarise him or herself
23 with a significant number of documents that form part of the supporting
24 materials. He or she, furthermore, would have to read not only the
25 additional material the Prosecution disclosed in fulfilling its disclosure
1 obligations but also a significant amount of material, hundreds of pages,
2 mainly in B/C/S, that Mr. Balijagic, in support of the defence of his
3 client, provided to the Prosecution a few weeks ago.
4 In addition, any new Defence counsel, he or she would have to
5 develop his own or her own Defence strategy. This Defence strategy, Your
6 Honour, may be very, very different from the Defence strategy of the
7 current Defence counsel. He or she eventually would have to file a
8 Defence pre-trial brief and to file it not later than 31st of July
9 2002. That's the situation in a nutshell, Your Honour.
10 A reasonable new Defence counsel, even the very best one, Your
11 Honour, would not be able to do all this with the diligence that is
13 JUDGE KWON: Mr. Whitopf, I'm sorry to interrupt you, but having
14 heard from Mr. Balijagic that he would not resign as counsel, can you move
15 on to another topic?
16 MR. WITHOPF: Yes. I want to stress that the --
17 JUDGE KWON: I can get back to the counsel issue later.
18 MR. WITHOPF: No, only one sentence. The information we got from
19 Mr. Balijagic is each time confusing. The one time he says he will get an
20 assistant, the one time he says he will get a co-counsel, the next time he
21 says he will withdraw, the next time he says he will not withdraw. That's
22 the situation we have to address and you have, as the Pre-Trial Judge in
23 this matter, you have to take in consideration.
24 JUDGE KWON: But having heard that, does it have anything that has
25 something to do with the timing for the Prosecution to file a pre-trial
2 MR. WITHOPF: It has something to do, otherwise I wouldn't have it
3 outlined to such an extent. It definitely means a delay, a delay caused
4 by the Defence, a significant delay caused by the conduct of the Defence
5 side. This delay is caused irrespective of the filing date of the
6 Prosecution's pre-trial brief. Keeping this in mind, it doesn't make any
7 sense to maintain the order that the Prosecution is obliged to
8 file its pre-trial brief by 20 April 2002 since the Defence would never be
9 able to file the response, the Defence pre-trial brief, on 31st of July
11 But I will move on to the next issue. That's even a more
12 interesting and a more crucial issue. That's the jurisdictional issue.
13 The Defence in the case the Prosecutor versus Hadzihasanovic and
14 others has raised the issue as to whether Article 7 (3) of the Tribunal
15 Statutes is applicable in a situation of a non-international armed
16 conflict, in a non-international armed conflict. The applicability of
17 Article 7(3) in a non-international armed conflict is an issue that plays
18 a role in this matter as well. It is a preliminary issue, Your Honours.
19 As in the Hadzihasanovic and others case, traditional logic
20 requires that the present case -- that we get a decision in the present
21 case or in the Hadzihasanovic and others case on this issue prior to any
22 other movements. The Trial Chamber in Hadzihasanovic, as you already
23 know, has issued a Scheduling Order. The parties in that case have to
24 file final submissions by the end of 2002. Afterwards, the Trial Chamber
25 in Hadzihasanovic and others has to issue its decision. It's obvious that
1 the party's whose submissions will not be granted will appeal. Whatever
2 the decision will be, a binding -- a binding decision by the Appeals
3 Chamber will only be issued late fall this year, maybe even later.
4 That's the second issue, Your Honour. There's a third issue, and
5 unfortunately this issue concerns stipulations.
6 In January, we were very optimistic that Mr. Balijagic and the
7 Prosecution would be able to find some agreements on facts. But
8 unfortunately, this did not happen. We submitted Mr. Balijagic a
9 comprehensive list of facts we would like to get his opinion. We got a
10 response, but it was not a response in a yes or no format. We got a
11 response making comments to certain facts. That's obviously not the
12 format you need for stipulations.
13 The Prosecution submitted another set, a very similar one, on 21st
14 March, and only today we got the answer of the Defence outlining that the
15 accused is not willing and not ready to enter in any discussions with the
16 Prosecution on stipulations. That is a new movement and that to a high
17 extent changes the situation as compared to the situation in January this
18 year. Again, another reason to defer the current deadline of a final
19 pre-trial brief.
20 Let me now address the issue of translations, and I'm sure Your
21 Honour is very familiar with the overall situation on translations.
22 We all know that translations are the bottleneck of all ICTY
23 proceedings. The Prosecution in this matter over the last month did
24 everything possible to significantly narrow down the amount of material
25 that needs to be translated, and I'm sure you are aware of the discussion
1 we had during the Rule 65 ter meetings.
2 We have 1.171 pages to be translated by CLSS, but this is only the
3 material that was provided to us prior to February 2002, prior to the fact
4 that we got a large amount of additional material by both, by the Defence
5 and the Bosnian government in answering a number of Prosecution requests.
6 These documents are ranging in a number of thousands of pages that may
7 have serious impact on the present case, both culpatory and exculpatory
9 The area in particular to be considered are JNA manuals which the
10 accused, in the course of his interview as an accused, in late fall last
11 year provided the Prosecutor with. Translations of these manuals need to
12 be provided to the Prosecution military expert. The Defence military
13 expert, and I want to stress that the Defence military experts are able
14 and are in a position to read the B/C/S material, apparently relied on
15 those materials. The Prosecution cannot address issues raised by the
16 Defence military experts in its pre-trial brief without exactly knowing
17 what the manuals are saying.
18 Although the Prosecution has narrowed down the translation request
19 to the absolute minimum, and I want to repeat to the absolute minimum some
20 400 pages need to be translated with regard to the JNA manuals.
21 Translation of those manuals need a particular expertise. Last inquiries
22 have revealed that 58 pages are currently translated, and this task will
23 not be finished prior to summer this year.
24 To summarise on this issue also, the Prosecution has done
25 everything, everything possible to narrow down the amount of material to
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 be translated. Large amounts of crucial materials, crucial for our final
2 pre-trial brief, still evade translation.
3 Coming to an end now, Your Honour, I want lastly to address the
4 issue of a military expert. I already briefly touched on it. The current
5 situation on the Prosecution side is not the result of a late call by the
6 Prosecution. The Prosecution has made first efforts already in September
7 last year, efforts to identify a suitable military expert, a general whose
8 mother tongue is neither one of the official languages nor B/C/S has been
9 chosen. Members of the trial team met him, met him in October last year,
10 and it turned out that the General was well-qualified as a Prosecution
11 military expert witness. However, after further consideration, the
12 Prosecution decided not to use him. The main reason for that, and I'm
13 sure Your Honour will appreciate this, has been that the General doesn't
14 speak English and that this would cause further delay.
15 A new military expert has now been identified. The team met him a
16 few weeks ago. Significant amounts of materials have been handed over to
17 the military expert. The expert is supposed to come back to us next week
18 to inform us whether he's willing and in a position to assist the
20 After the meeting I just mentioned, a professional schedule has
21 been discussed. We were told by the expert that he would not be able to
22 submit his written expert opinion prior to August 2002 at the earliest.
23 Your Honour, the Prosecution is well aware that it is not obliged
24 to file a or the written military expert opinion with the pre-trial
25 brief. However, the final written expert opinion in a case like the
1 present one may have such significant impact on the contents of the
2 pre-trial brief that the Prosecution is hardly in a position to file its
3 pre-trial brief without the sound opinion of a military expert.
4 To summarise, and now coming to an end, each of the reasons just
5 outlined gives reason enough to defer the filing of the Prosecution's
6 pre-trial brief. The combination of these reasons, in the opinion of the
7 Prosecution, makes it necessary. From the point of view of the
8 Prosecution, end of September, end of September seems to be a realistic
9 deadline to file its final pre-trial brief.
10 Thank you very much, Your Honour, having given me the opportunity
11 to extensively outline the Prosecution's position.
12 JUDGE KWON: Thank you. Do you have anything to say, Mr.
13 Balijagic, to this?
14 MR. BALIJAGIC: [Interpretation] I certainly have. Your Honour, I
15 have listened to Mr. Whitopf with great attention indeed, and I must say
16 that in my today's discussions in the Chief Prosecutor's office with
17 Mr. Whitopf, and I must say that we not only have the language barrier
18 between us but it seems to me sometimes that I live on planet Mars. I say
19 this regarding the indictment against my client. That is why I asked the
20 representatives of the OTP to take care of the charges listed in the
21 indictment and the pleadings in the indictment, not worry about the
22 defence of my client. I said that on our part, we will not be the cause
23 of any delay. And I will repeat here that we are ready to start trial as
24 soon as tomorrow. I want to point out that we have provided the
25 Prosecution already with all the Defence witness statements.
1 In order to facilitate the work of this Court and for the sake of
2 the truth, allow me to add one more thing. I was truly shocked today, at
3 the office of Mr. Whitopf. My client and I understood our cooperation
4 with the Prosecution office, and we have stated so in this court, that
5 this cooperation is to serve the purposes of establishing the truth, and
6 my client even said that he would even be prepared to sign his own
7 conviction. Mr. Whitopf also raised the issue of my client's pronouncing
8 himself guilty. My client will certainly not do that.
9 Last year, I referred the representatives of the Prosecution
10 office to the file of the secret police in Sarajevo, titled "Sefer
11 Halilovic." The existence of this file means that he was the subject of
12 special treatment. Top experts of the secret police, Mustafa Zdravko, the
13 chief of the Yugoslav secret police, said that such a man could not
14 command a group of people let alone a wide military operation. We have
15 also provided the OTP with numerous military expertise, all with a view of
16 facilitating the work of this Court and establishing the truth on the
17 crimes committed.
18 For all these reasons, I believe that it is extremely incorrect
19 and unfair on behalf of the Prosecution to conclude that we will be late
20 with our pre-trial brief, which was scheduled to be filed before the 31st
21 of July, the last Status Conference of the 8th of January. We are
22 expecting the Prosecution's pre-trial brief, and we will be immediately
23 ready to respond to it.
24 And there is one more thing. Our witnesses were taken as samples,
25 and we have already heard, talked to 30 very high-quality witnesses, but
1 we are ready to call 500 more witnesses to help establish the truth, and
2 we are ready to provide the Court and the OTP with their statements, if
4 I would therefore like you to accept if I say that there is
5 absolutely no need to defer the filing of this pre-trial brief, and I am
6 ready, on the instructions of my client, to start this trial as urgently
7 as possible because this indictment, pleaded as it is, is a great burden
8 to him. And I regret that you are unduly burdened by this issue of the
9 Defence of Mr. Halilovic.
10 And that would be all I have to say. Thank you very much.
11 JUDGE KWON: Thank you. Before getting to the individual issues
12 raised by the Prosecution's motions, I'd like to stress at this moment
13 that the -- before that, I noticed that the Prosecution seems to emphasise
14 that, by this extension of time, the actual commencement of the
15 trial will not be delayed, but I'd like to stress that the -- whether the
16 actual commencement date will be delayed or not is not a real issue.
17 It seems to me that the Chamber of this Tribunal, before I arrived
18 here, has made it a principle to have cases get ready for trial as soon as
19 possible, that is in six months after the indictment. The reason being is
20 this: As you know, since this Trial Chamber is tied up with
21 Mr. Milosevic's trial for the moment, and which is expected to last
22 certainly more than a year from now, and thus this case might not possibly
23 be heard until the end of that case.
24 But however, we cannot exclude the possibility that the current
25 Milosevic trial could be adjourned for an extensive period of time for any
1 reason or that there might be another possibility of a couple of cases
2 being heard at the same time in parallel. But in such cases, suppose
3 there's no case in this Trial Chamber ready for trial. Then it will be
4 very frustrating. So it is our aim to make cases get ready as soon as
5 possible, irrespective of the actual commencement of the trial. And
6 that's the underlying position of the Trial Chamber, and I will deal --
7 let's deal with these individual issues.
8 When was this case indicted? This seems a quite recent one.
9 September 2001. It's a quite recent indictment compared to other cases.
10 So my guess is that the Prosecution should have a fresh memory than any
11 other case, which means that there will be no great difficulty for the
12 Prosecution to produce a pre-trial brief.
13 So I'd like to hear why do you need to assess the newly obtained
14 materials? And do you think it will -- the outcome of the assessment of
15 the newly obtained materials or the military expert report will affect the
16 basic structure of the indictment greatly?
17 MR. WITHOPF: Your Honour, may I refer to the military expert side
18 in that's our main concern. This is a 7.3 case, command responsibility
19 under Article 7(3). We got six military expert reports from the
20 Defence side addressing a variety of issues that are crucial for this
21 matter. To respond to these issues, we need to have the JNA manuals fully
22 translated. I outlined the current situation with regard to this issue.
23 We will only be in a position to respond, to respond in a pre-trial brief
24 to these crucial issues as soon as we have the JNA manuals translated.
25 That takes time. The military expert, the Prosecution military expert
1 will need sufficient time to provide his expert opinion, and that's the
2 main reason we would like to file a final pre-trial brief at a later
3 stage, and as I already mentioned, September 2002 would be a very
4 realistic time frame.
5 Another solution would be that we file a provisional pre-trial
6 brief as it has been granted in a variety of other cases, and we would
7 file a final pre-trial brief later on. Again, September would be a
8 realistic time frame.
9 JUDGE KWON: The reluctance for the Court to accept the word
10 "provisional" is that -- it's my personal feeling that the word
11 "provisional" seems to make the work of the -- whoever it is, the brief
12 lacking some kind of sincerity. So what I want is a final brief. The
13 word "final" meaning the best brief you can produce at this moment. And
14 that does not necessarily prevent the parties or necessarily prevent the
15 pre-trial brief supplemented to or added to later on.
16 So you can agree to this?
17 MR. WITHOPF: On principle, I would agree with you, Your Honour.
18 However, there are further considerations I have to make. First of all,
19 provisional pre-trial briefs have been granted in a number of ICTY cases.
20 They have been granted in Galic. They have been granted in Ademi. They
21 have been granted in Krajisnik and Plavsic and they have recently been
22 granted in Stakic, and I think all cases should be treated similar.
23 An even more crucial issue is the fact that we have to include
24 exhibits, list of exhibits -- add a list of exhibits to our pre-trial
25 brief, our final pre-trial brief. This is a quite difficult exercise
1 since currently we would be able to include 156 exhibits, but as I already
2 announced, as I already informed you about, we have to wait for
3 translations, and we can anticipate that for our final pre-trial brief in
4 September we would thoroughly be able to refer to around 500 exhibits.
5 That's another reason why we would like to file our final pre-trial brief
6 at a later stage.
7 Finally, it will finally serve the acceleration of the trial
9 JUDGE KWON: Thank you.
10 MR. BALIJAGIC: [Interpretation] Your Honour, if I may. Just a
12 JUDGE KWON: Yes, Mr. Balijagic.
13 MR. BALIJAGIC: [Interpretation] Your Honours, I have reached an
14 agreement today with representatives of the OTP and I would like to have
15 it on record. The file of Sefer Halilovic containing 3.250 pages belongs
16 in the category of material whose discovery or disclosure leads to the
17 acquittal of the accused. The file of the terrorist group Seve who
18 committed a terrorist act against my client Sefer Halilovic -- will you
19 allow me to finish, please, sir.
20 JUDGE KWON: Could you make it very briefly.
21 MR. BALIJAGIC: [Interpretation] I wish this to be entered in the
22 record, namely, my request that this material be made available to the
23 Defence as exculpatory material. Thank you very much, Your Honour.
24 JUDGE KWON: Is it that you are triggering the Rule 66(B)
25 disclosure, if I understand it correctly?
1 MR. WITHOPF: Your Honour, may I first strictly oppose any attempt
2 by the Defence counsel to enter into a discussion on the merits of this
3 case. That's what he tried to do right now.
4 Secondly, you --
5 JUDGE KWON: Yes, thank you. That's what I was going to point out
6 later. Yes. Next point.
7 MR. WITHOPF: You are quite rightly addressing the subject of
8 reciprocal disclosure and that is a subject has been confused on the
9 Defence side all the time.
10 Mr. Balijagic, as the Defence counsel for the accused, submits a
11 high amount of material to the Prosecution. That would mean he is
12 actually doing what he would be requested under Rule 67(C) if he would
13 have triggered reciprocal disclosure. However, the Prosecution asked him
14 several times does he explicitly trigger reciprocal disclosure. We never,
15 never ever got a clear answer.
16 We are currently working under our disclosure obligations. We
17 consider them Rule 66(A)(i)-(ii), Rule 68. There is no explicit either
18 verbal nor written announcement that reciprocal disclosure has been
19 triggered, and I would like to have it on the record what is the situation
20 on the Defence side.
21 JUDGE KWON: Thank you. Coming back to the issues, the issues
22 relating to the military expert report and some translations of newly
23 obtained materials.
24 In my opinion, those circumstances, they will cause a delay in
25 producing a pre-trial brief. You like to call it a provisional pre-trial
1 brief but with the possibility that the pre-trial brief can be
2 supplemented to. I would like you to produce a pre-trial brief as soon as
3 possible. So I would not allow an extension of time to file a pre-trial
4 brief for the reasons that are stated above only, but however, there is
5 one thing I have in mind, I'm really concerned about. It's about
6 stipulations, as you stated.
7 What I heard from the Senior Legal Officer is that the parties are
8 very cooperative, but I notice it's quite different today. So has there
9 been any progress? I'd like to hear from -- having heard from the
10 Prosecution, I'd like to hear from Mr. Balijagic about the stipulations or
11 agreed facts.
12 MR. BALIJAGIC: [Interpretation] Your Honour, it is true that we
13 have made maximum efforts to cooperate with the OTP with a view to
14 establishing the truth about crimes in Grabovica and Uzdol. It is true
15 that the Prosecution offered us some incontestable facts. However, after
16 analysing the evidence that is available to the Defence, we responded by
17 describing the situation as it is actually. We had it translated into
18 English. On the 19th of February, together with about 50 documents which
19 haven't been translated, that's true, presented this to the OTP.
20 The Prosecution was not satisfied with our response because our
21 response contains the truth and only the truth which is exculpatory and
22 acquitting for Sefer Halilovic, and they suggested that we draft a new
23 response, replying with a yes or no.
24 When I informed my client, the accused Halilovic, about this, he
25 was very concerned and shocked indeed, and couldn't understand why
1 Mr. Whitopf was ignoring our claims made in the response concerning
2 incontestable facts or stipulated facts. That is why we have to leave it
3 to the Court to decide on the merits. We really have --
4 JUDGE KWON: Mr. Balijagic, I'm sorry, I have to interrupt you at
5 this stage. The merit will be decided, will be heard and decided upon
6 later on, after the trial commences. So why don't you at this moment
7 concentrate more on procedural matters and especially at this moment on
8 the stipulations.
9 So you haven't answered to the question of the Prosecution. Could
10 you clarify that? You said you just sent extensive materials to the
11 Prosecution without any response to the questions of the Prosecution. Is
12 it true?
13 MR. BALIJAGIC: [Interpretation] We responded to the question, Your
14 Honour, but not with a yes or no. We responded in the form of our own
15 version of stipulated facts and suggested that the OTP respond to that and
16 assume the responsibility for their answer, whatever it is, if they failed
17 to verify them.
18 JUDGE KWON: Have you got any answers?
19 MR. WITHOPF: Your Honour, to make it clear, we submitted a first
20 set of potential stipulated facts to the Defence counsel. It was a set
21 comprised of 100, 150 individual facts, facts obviously related to the
23 The concept of stipulations only allows to answer by a yes or no.
24 It's not designed to make comments to these facts. Unfortunately,
25 Mr. Balijagic made comments and altered these facts. We didn't appreciate
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 it. We submitted a second set of potential stipulated facts to
2 Mr. Balijagic. It was a very similar set. And today, just a few hours
3 ago, we got an answer, we got an answer by Mr. Balijagic, saying that his
4 client is not willing to enter in stipulations. Thank you.
5 JUDGE KWON: So the Defence will not enter into stipulations to
6 sort out the agreed facts or facts not disputed in the indictment.
7 MR. BALIJAGIC: [Interpretation] Of course, Your Honour. Look, if
8 you will allow me to just briefly describe one thing.
9 I'll take five witnesses who testified before the cantonal court
10 in Sarajevo, and they said my client was [as interpreted] a commander.
11 The same five people testified before the Prosecution and said that he was
12 a commander. So their statements are contradictory. And we cannot agree
13 about this. That's why we failed to reply with a yes or no. We just
14 described things as they really were.
15 JUDGE KWON: It may be that the -- one of the causes which makes
16 the Defence difficult is that the questionnaire itself might be too
17 extensive. I noticed the extensive list of facts. How long was that?
18 You said 150 questions? And the later one consisted of how many?
19 MR. WITHOPF: I can't give you the exact number, but it should be
20 in the range of at least 100. It was two and a half pages. But they were
21 such simple facts as the date of the independence of Croatia, the date of
22 birth of the accused, such kind of thing. You understand? Such very
23 basic things. We didn't get an answer.
24 JUDGE KWON: Mr. Balijagic, at this moment let's forget the
25 merit. So do you understand? Whether Mr. Halilovic, your client is
1 innocent or guilty.
2 And having said that, I'd like to ask you whether you can put in
3 writing a brief response to the indictment itself, which consists of one
4 count and two incidents, one in Grabovica and one in Uzdol. So -- among
5 which -- can you sort out facts you can agree to and those you cannot
6 agree to? Is it possible for you?
7 MR. BALIJAGIC: [Interpretation] Your Honour, we can certainly
8 agree and we have agreed, if I may remind Mr. Prosecutor Whitopf on the
9 place of birth, date of birth, conflict, et cetera, but we cannot agree
10 with facts which are founded in unverifiable and false statements and
12 So we have --
13 JUDGE KWON: Mr. Balijagic. Mr. Balijagic. Forget about the
14 evidence. Just concentrate on the indictment itself. You can agree some
15 CVs of your client, Mr. Halilovic was born on some day and blah, blah.
16 You can agree to that matter.
17 MR. BALIJAGIC: [Interpretation] We have already agreed to that.
18 JUDGE KWON: If you go a little further --
19 MR. BALIJAGIC: [Interpretation] But shall I emphasise? We have
20 already drafted certain corrections for the benefit of the Prosecution
21 regarding the schools he graduated from, et cetera.
22 JUDGE KWON: Yes. Thank you. But -- yes. There's a list in the
23 indictment. Is it municipality -- in Grabovica, the list of some 33 dead
24 persons, people. You -- do you dispute whether these people died at this
25 place at that time or you agree to that kind of facts, for example?
1 MR. BALIJAGIC: [Interpretation] Your Honour, we have agreed on all
2 facts which do not relate to the merits of the case, and we cannot agree
3 on any facts which bear on the merits.
4 JUDGE KWON: So you do not agree to these -- for example, Mr. Pero
5 died in Grabovica at this time of day, as written in the indictment? So
6 you cannot agree on any facts regarding merits? Is that your position?
7 MR. BALIJAGIC: [Interpretation] Your Honour, how can we agree with
8 that when those things are unfamiliar to us completely? We have learnt
9 about them from the indictment.
10 JUDGE KWON: So the only facts you agree to is the curriculum
11 vitae things of your client? Is that right?
12 MR. BALIJAGIC: [Interpretation] Not only that. There are other
13 things which do not bear on the merits of the case and that we can agree
14 with. But we would like to see a fair draft of these facts or,
15 alternatively, the Prosecution may rely on our set of proposed
17 JUDGE KWON: Do you happen to have the questionnaire with you now?
19 MR. BALIJAGIC: [Interpretation] I think I have a copy in the
20 Bosnian language.
21 JUDGE KWON: I don't think it will assist me anyway.
22 MR. WITHOPF: Your Honour, the Prosecution opposes such a
23 procedure. The stipulations is an issue between the parties, and at this
24 point in time, I assume Your Honour shouldn't be involved.
25 JUDGE KWON: Yes. Well, it is neither --
1 [Trial Chamber and Senior Legal Officer confer]
2 MR. BALIJAGIC: [Interpretation] Your Honour, my answers are here
3 as well, showing what was agreed on and everything else. We entered a
4 correction here as to the year when my client attended military academy.
5 We corrected that date. And the second set of questions, I think, had the
6 same number of questions.
7 JUDGE KWON: Yes. I don't think that will -- I don't think that
8 will assist the Court right now.
9 It is neither the rule nor the practice in this Tribunal to have
10 the response of the Defence at all at this stage, so as such, the Defence
11 is never obliged to make a response to the indictment itself. But in
12 continental -- in countries which adopt the continental legal system, it
13 is very customary to make a brief answer to the indictment. On some parts
14 we agree, yes, like I agree my date of birth and my graduate school, but
15 the others I cannot agree. "I do not know," or something like. Or some
16 part of it. "Yes, I agree that Mr. X died here but it is not from my
17 fault," for example.
18 So I think -- and it's quite -- it may be said that kind of
19 procedure is similar to that of making, producing a stipulation in common
20 law countries. So what I'd like to ask Mr. Balijagic again is that not --
21 do not respond to the extensive list of facts of the -- from the
22 Prosecution itself but could you sort out the facts which are not disputed
23 by the Defence or accused in the trial among the facts in the indictment?
24 MR. BALIJAGIC: [Interpretation] Of course we shall do that. As
25 far as it does not enter into the merits of the case.
1 JUDGE KWON: No. Every fact in the indictment itself, without
2 regard any -- any regard to evidence. And with yes, no, and you can put
3 some -- your position in writing. Is it possible?
4 MR. BALIJAGIC: [Interpretation] Your Honour, what if I say that
5 Pero Peric was killed, if I agree that he was killed and he is discovered
6 to be alive? Will then there be any consequences --
7 JUDGE KWON: No. You can say what you do not know. Just you
8 don't know. Or -- and these facts -- these kind of facts can be
9 classified as facts the Defence will not argue about it. As such, is it
11 MR. BALIJAGIC: [Interpretation] But now that we mention this name,
12 I know that two people mentioned in the indictment died of natural causes
13 several years after the event. I know where they were buried. That is
14 why we shall agree only to what we truly consider to be indisputable. But
15 we cannot agree to anything else.
16 JUDGE KWON: The purpose of having pre-trial procedure in advance
17 to the actual trial is to help the Court and parties to concentrate on
18 real important issues. For example, in this case, whether Mr. Halilovic
19 bears the command responsibility or not. So we cannot disregard it. We
20 can get over the peripheral things very easily in the trial. So if you
21 can sort out some facts you are not going to argue as early as possible,
22 it will -- the Court and the parties will get on very easily. Certainly
23 you can understand my words.
24 MR. BALIJAGIC: [Interpretation] Your Honour, I understand you very
25 well. Please give me some time to consult my client. You must understand
1 that he was in a state of shock and anxiety when we received the same set
2 of questions from the Prosecution, with a few exceptions, such as the year
3 of birth, and the Prosecution did not take our comments into account
4 at all. That was a reaction on the part of my client, and of course I
5 have to take instructions from him. But please allow me to discuss the
6 matter with him once again so that we can answer to at least some of these
7 questions with yes or no.
8 JUDGE KWON: Yes, thank you. I would say one of the counsel's --
9 as a professional, one of the counsel's duties is to let his client
10 understand this complicated procedure, so I would appreciate that you can
11 produce some agreed facts with the cooperation of the Prosecution. So in
12 that regard, I would like to give you a month from now. So --
13 MR. BALIJAGIC: [Interpretation] That is very acceptable, Your
14 Honour. We shall do this even sooner.
15 JUDGE KWON: Yes. Have a discussion with your client, and please
16 put in writing as detailed as possible. And then after that, the parties
17 can have a 65 ter meeting with our Senior Legal Officer, and then we'll
18 give the Prosecution a month from that to file a pre-trial brief.
19 Does that sound acceptable to the Prosecution?
20 MR. WITHOPF: Your Honour, I understand that means two months from
22 JUDGE KWON: Yes.
23 MR. WITHOPF: That sounds possible. That sounds acceptable.
24 JUDGE KWON: Yes. Thank you. I didn't hear about the search
25 programmes, about the search for the witnesses, which -- my impression
1 is -- which really concerns the Prosecution is that the search is not done
2 completely at this moment. Could you make a short comment on that.
4 MR. WITHOPF: Your Honour, you know that with regard to disclosure
5 under Rule 66(A)ii), we have to disclose also prior statements of the
6 witnesses we want to call or whose statements we want to use as Rule 92
7 bis statements. The search has been initiated weeks ago. Unfortunately,
8 due to the Milosevic trial, this search has been blocked for quite a
9 number of weeks. It will only start in the near future. Again only a
10 very little percentage of the witnesses, only the result with regard to a
11 very little percentage of the witnesses has been provided to us. I cannot
12 anticipate at this point in time when these searches will be finished.
13 That is just a matter of reality, and ISO, our search unit, is not in a
14 position to predict how long it will take.
15 JUDGE KWON: Thank you. Is there anything the parties would like
16 to raise at this moment? Yes, Mr. Balijagic?
17 MR. BALIJAGIC: [Interpretation] The Defence has nothing to raise,
18 Your Honour.
19 JUDGE KWON: Thank you.
20 MR. WITHOPF: Your Honour, there are two issues that are still not
21 clear to the Defence. First of all, the announced withdrawal of
22 Mr. Balijagic as Defence counsel, and the second issue is the issue of
23 reciprocal disclosure. We still didn't get an answer to our question
24 whether reciprocal disclosure has been triggered or not.
25 JUDGE KWON: Yes. Could you clarify this problem, please
2 MR. BALIJAGIC: [Interpretation] Your Honour, I do require
3 reciprocal disclosure. As I have said, the Defence has disclosed
4 everything to the Prosecution, and we ask that the Prosecution do the
5 same, especially as regards material containing exculpatory evidence. By
6 this I'm referring primarily to the two files which I prompted the
7 Prosecution to obtain, and I wish to remind the Prosecution of the Rules
8 of Evidence and Procedure, under which it is their duty to disclose to me
9 any exculpatory evidence.
10 JUDGE KWON: Yes. And about the first issue? It is certain that
11 you will not resign from this case, will not withdraw from this case?
12 MR. BALIJAGIC: [Interpretation] Your Honour, allow me to explain
13 very briefly the reasons for my withdrawal. I am also a victim of
14 genocide, which is punishable under Article 2. In 1994 I fled Sarajevo in
15 an American plane in order not to be assassinated. All the participants
16 of the attack on me are witnesses for the Prosecution. I do not feel
17 comfortable when I see all this.
18 I asked my client to release me, but I was concerned that an
19 appropriate replacement be found for me. I hope that we will find a
20 replacement in Ms. Dijana Kreho or someone else as Defence counsel, and
21 I think I will withdraw. But let me tell you again that all this depends
22 on my client. If my client insists that I remain, I shall listen to the
23 ethics of my profession.
24 JUDGE KWON: I don't think very appropriate for the Court to ask
25 the client -- the counsel whether it will resign or not any further, so
1 let's take it that he will not resign for the moment. And that will not
2 make any difference to the current position of the Prosecution.
3 MR. WITHOPF: Your Honour, with all due respect, I disagree. That
4 will make a difference. Any new Defence counsel will not be in a position
5 to respond to a Prosecution's pre-trial brief within two or there months.
6 That's just not possible if he or she is a reasonable Defence counsel.
7 JUDGE KWON: That is not the problem of the Prosecution in filing
8 a pre-trial brief. That is what I'm pointing out at this moment.
9 MR. WITHOPF: But you have to consider, with all due respect, that
10 this has some implications. The Defence would get definitely much more
11 time, since any, any new Defence counsel will immediately file a motion
12 for extension of time.
13 JUDGE KWON: So that -- but my opinion -- I'm pointing out that
14 will -- cannot be a cause for a Prosecution to delay its pre-trial brief,
15 as you agreed before.
16 And -- yes. Can I see the Senior Legal Officer?
17 [Trial Chamber and Senior Legal Officer confer]
18 JUDGE KWON: Okay. The position of Mr. Balijagic is not quite
19 clear regarding the Rule 66 (B) disclosure, which is reciprocal
20 disclosure. So if you would like to -- if you are saying that you would
21 like to apply for the reciprocal disclosure provided in Rule 66(A)(ii); is
22 that right? 66(B). So could you make it in writing later with some
23 more -- with some clear words? And why don't we leave it as it is.
24 Yes, Mr. Whitopf?
25 MR. WITHOPF: Your Honour, one last observation I have to make.
1 Provided that Mr. Balijagic, the Defence, will invoke reciprocal
2 disclosure, that will have a serious, a crucial impact on our resources.
3 That means that it diminishes our ability to file a pre-trial brief, a
4 final pre-trial brief, within the time frame you just mentioned. And
5 unfortunately, I don't get the impression, I didn't get it during the last
6 conference with the senior legal officer and I didn't get it today that
7 Mr. Balijagic, the Defence, understands, understands the concept of
8 reciprocal disclosure and the impact on the proceedings. I unfortunately
9 have to say this.
10 And Mr. Balijagic must give a clear sign what he wants. Of course
11 we are disclosing Rule 68 material. 68 has nothing to do with 66(B)
12 reciprocal disclosure and I'm not sure that the Defence understands the
13 concept of this.
14 JUDGE KWON: Yes. The Prosecution's position has been noted, and
15 I will make it clear if necessary.
17 MR. BALIJAGIC: [Interpretation] Your Honour, I have understood
18 your order that I should make my submissions in writing. It is true we
19 raised this issue with Ms. Yvonne Featherstone during one of our meetings
20 when Mr. Ekkehard said that their Sarajevo dossier contained 50.000 pages
21 and that it would slow down the proceedings, delay the trial, and then I
22 asked that only Rule 68 evidence be provided, that is, exculpatory
23 evidence focusing only on the two files of Sefer Halilovic and the Seve
24 terrorist group, but I will certainly make my submissions in writing, Your
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 JUDGE KWON: Yes. One thing I forgot is the timetable for the
2 Defence pre-trial brief. You yourself can respond as soon as --
3 immediately, immediately after the Prosecution's pre-trial brief, but is
4 three months enough for you after the pre-trial brief -- to produce a
5 Defence pre-trial brief?
6 MR. BALIJAGIC: [Interpretation] Yes, Your Honour.
7 JUDGE KWON: Yes. Roughly two months from now the --
8 [Trial Chamber and Senior Legal Officer confer]
9 JUDGE KWON: In two months the Prosecution is ordered to file its
10 pre-trial brief, and afterwards, in three months again, the Defence will
11 file its pre-trial brief.
12 Unless there is anything the parties would like to raise at this
14 MR. WITHOPF: Your Honour, no further observations from the side
15 of the Prosecution.
16 JUDGE KWON: This hearing is adjourned, and you will have a 65 ter
17 conference after the Defence has produced its brief response to the
18 indictment. And it is very much encouraged to both parties to communicate in
19 producing such a response. Thank you very much.
20 --- Whereupon the Status Conference adjourned
21 at 4.22 p.m.