Page 76
1 Monday, 10 February 2003
2 [Open session]
3 [Status Conference]
4 [The accused entered court]
5 --- Upon commencing at 3.32 p.m.
6 JUDGE KWON: Please call the case.
7 THE REGISTRAR: Good afternoon, Your Honour. This is Case number
8 IT-01-48-PT, the Prosecutor versus Sefer Halilovic.
9 JUDGE KWON: Thank you. Will both parties make their appearances?
10 Prosecution first, please.
11 MR. WITHOPF: Good afternoon, Your Honour, good afternoon,
12 counsel. For the Prosecution appear Ms. Marie Tuma, trial attorney on my
13 right-hand side, Mr. Hasan Younis, OTP trial support and myself Ekkehard
14 Withopf, acting senior trial attorney.
15 JUDGE KWON: Thank you. For the Defence, please? Can I have the
16 appearances for the Defence, please?
17 MR. CAGLAR: [Interpretation] [Microphone not activated]
18 THE INTERPRETER: Microphone for the counsel, please.
19 MR. CAGLAR: [Interpretation] Bakir Caglar, Mr. President, Defence
20 counsel.
21 JUDGE KWON: And if you could introduce your colleagues, please?
22 MR. CAGLAR: [Interpretation] I hope that he will introduce
23 himself.
24 MR. HODZIC: [Interpretation] Your Honours, my name is Ahmed
25 Hodzic, and I will possibly be the counsel for Sefer Halilovic.
Page 77
1 MS. KREHO: [Interpretation] Your Honour, I am Dijana Kreho,
2 assistant to the Defence in this case.
3 JUDGE KWON: Thank you. This is the fourth Status Conference held
4 in accordance with the Rules of Procedure and Evidence. Although the
5 accused, under provisional release, is not required to attend the Status
6 Conference, I ordered the accused, Mr. Halilovic, to attend this Status
7 Conference because of the substantial delays arising from the frequent
8 changes of Defence counsel. This matter still remains an issue. There
9 are a number of matters that need to be considered, but I think the first
10 and foremost question will be where are we now in terms of Defence
11 counsel? A letter dated 16th of January, 2003, from Mr. Halilovic to the
12 Registrar requests that the new Defence counsel be Mr. Ahmed Hodzic,
13 with Mr. Caglar as co-counsel. However, in a motion filed on 21st of
14 January, 2003, Mr. Caglar suggests that he shall continue to represent
15 Mr. Halilovic for a period not exceeding 30 days after the replacement is
16 assigned, and it is my understanding that the Registry is appointing
17 counsel as requested by the accused.
18 Having said that, can I hear from Mr. Caglar first on this
19 matter?
20 MR. CAGLAR: [Interpretation] Mr. President, I shall be brief. I
21 have no intention to waste too much of your time. I have -- I will touch
22 upon three matters -- three issues which to my mind seem relevant. First,
23 in my letter of the 30th of December, requesting the Registry -- to the
24 Registry, in this request I said that I would modify my request in the
25 interests of justice, to -- with due respect to ethical rules by which all
Page 78
1 the lawyers need to abide by and for that reason, I will not go into
2 details or discuss the matter with the Prosecution, and respond to
3 Prosecution's comments.
4 Secondly, I fully agree with the Prosecutor, with my learned
5 friend, with regard to the fact that the accused is entitled to a fair
6 trial and an expeditious trial. As the Prosecutor -- as the Prosecutor
7 says, and I will quote him, if the Defence is not ready to provide
8 adequate defence, if it speaks of complete, that the Defence counsel lacks
9 professional attitude and responsibility, and therefore the counsel should
10 withdraw from this assignment. Such allegations draw the attention to the
11 reliability of lawyers and bring into question the equality of arms in a
12 case. The withdrawal of a counsel will not cause any significant delay in
13 this case, since Mr. Ahmed Hodzic is the one whom the accused wishes to
14 have appointed as his counsel. As far as I'm concerned, I have to tell
15 you that an enormous amount of work has been done in preparation of the
16 Defence's pre-trial brief. So that is ready. There is also investigation
17 being conducted on the ground. I have acquainted myself with the
18 terrorism of a new kind on the basis of the files of the two previous
19 counsel, new testimony has -- could affect, could influence the further
20 unfolding of this trial, and we shall communicate that to our learned
21 friends shortly. So that they -- Defence counsel will not be entering
22 uncharted ground.
23 Mr. Hodzic, according to what he has told me, is quite ready to
24 take over the exhibits provided by the Prosecution, to fill in the
25 loopholes which still exist in the case. He is quite ready to receive
Page 79
1 them, to receive this documentation in his office in Sarajevo.
2 Among the measures which the Defence was planning to use in order
3 to facilitate communication amongst the members of the Defence team was
4 the presence, the efficient and effective presence, of a certified
5 interpreter who was, and until recent -- finally we have the contribution
6 of an interpreter and that was one of the missing links until recently but
7 this problem has been solved by now.
8 And thirdly and finally, and here I have the great -- I think I
9 will make the Prosecutor happy when I pronounce mea culpa. I took over
10 the work that was started by previous Defence counsel. I had to invest
11 precious time, including two visits in Sarajevo, to redress a catastrophic
12 situation and try to make up for the damage done. The Prosecution talks
13 about the disqualification of the previous counsel so that the accused
14 could have an adequate Defence. To my mind, it is a good solution, to
15 have a different Defence. This was the solution which was suggested by
16 the Prosecution and he also indicated that the Registry would also --
17 could also appoint a new counsel in order to make up for the weaknesses
18 existent so far. A lawyer, a self-respecting lawyer, also will do that
19 regardless of what the Prosecution has to say about this.
20 To build up a file, the collection of information and facts are no
21 doubt of primary importance in the Anglo-Saxon system. That I accept.
22 But it also requires that a legal basis, a legal framework, legal
23 foundations to be laid, for people who would be familiar with the truth it
24 has to be -- the jurisprudence of the Tribunal also has to become to be
25 one of the matters to be studied, and it is from the point of view of the
Page 80
1 continental law that the Defence has indicated in its request that it was
2 ready to cooperate in the preparation of the Defence pre-trial brief, and
3 that is that. And that is what I have to tell you, Mr. President. Thank
4 you.
5 JUDGE KWON: Quite regrettable to hear that but before we move on,
6 frankly, I couldn't follow this phrase when you mentioned the previous
7 counsel, mentioning the new terrorism or the new evidences which will
8 affect the future trial. Could you clarify that a little bit more?
9 MR. CAGLAR: [Interpretation] Very well, Mr. President.
10 I merely wished to say that one had to bear in mind the humane
11 sociological and historical dimension of this case. One had to decipher
12 the dramatic experience, and that is why I used the terminology which was
13 perhaps slightly ambiguous, because we were talking about terrorism which
14 has not been known in Europe before the war in ex-Yugoslavia, and I
15 therefore tried to understand those people and their mindset, their way of
16 thinking, their -- the way in which they expressed themselves. And for
17 that reason, I had to go into this case in depth. I had to study it in
18 depth, and not only to collect some testimonies or check certain facts. I
19 also had to understand men and that is what I tried to do. My education,
20 my training, forces me to do that, and I had to go through this very
21 dramatic recent history and it is owing to this new knowledge that we were
22 able to come to new testimonies, to very disturbing facts. The
23 Prosecutor -- and we shall deliver, disclose these to the Prosecutor
24 tonight or tomorrow. That is what I wish to say.
25 JUDGE KWON: Thank you. I think it's enough. Before we move on
Page 81
1
2
3
4
5
6
7
8
9
10
11
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
14
15
16
17
18
19
20
21
22
23
24
25
Page 82
1 to other matters, at this moment I want to comment on the Prosecution's
2 attitude towards Mr. Caglar briefly. I think it is one thing to comment
3 on the lack of cooperation on the part of the Defence counsel, but quite
4 another to question his professional competence. In the future, the
5 Prosecution should bear in mind that the Court will not welcome such
6 strong or inappropriate and unnecessary comments. Is there anything you
7 would like to add at this moment?
8 MR. WITHOPF: Your Honour, there are a number of issues the
9 Prosecution wishes to raise and the Prosecutor, the Prosecution will avoid
10 to make any comments on the professional competency of professor, Dr.
11 Caglar. The issue of assignment of Defence counsel, unfortunately since
12 meanwhile one year, one complete year, is the main issue in this case, and
13 it's the main issue that significantly delays proceedings, although the
14 Prosecution has timely filed its pre-trial brief eight months ago in June
15 of last year, and it has done everything, everything to speed up the
16 proceedings, the Defence case or the preparation of the Defence side,
17 appears to be not much advanced. More to the contrary, it appears to be
18 in a very embryonic state, and it appears to be in a very embryonic state
19 because we have a very, very unique situation on the Defence side which
20 gives serious raise to concerns. In particular, since this case is an
21 important one for the Tribunal, and it could be tried within a reasonably
22 short term, the Prosecutor already indicated that the presentation of its
23 case would probably last for three months only. In order to understand
24 the situation, it is necessary, and I think this is key to make an
25 informed and a right decision, on the further assignment of Defence
Page 83
1 counsel, that the Prosecutor -- that the Prosecution is allowed to briefly
2 recapitulate the core events regarding the assignment of Defence counsel
3 in this case.
4 It is necessary, since -- and that I really want to emphasise --
5 Mr. Hodzic is now the fifth -- the fifth Defence counsel the accused
6 wishes to have assigned within a short period of time, namely eight
7 months.
8 JUDGE KWON: Excuse me, how is it fifth?
9 MR. WITHOPF: It has first been Mr. Balijagic, then it has been
10 Mr. Soyer, then Mr. Halilovic, the accused, wanted -- requested to have
11 assigned, Mr. Kreho, that was the third one, Mr. Caglar was assigned as
12 the fourth one, and now he's nominating Mr. Hodzic as the fifth one. I
13 repeat that, the fifth one within eight months.
14 JUDGE KWON: Mr. Kreho was never appointed.
15 MR. WITHOPF: He was never appointed, however within 8 months, for
16 Defence counsel. In September 2001, Mr. Balijagic already mentioned
17 at the request of the accused has assigned. In February 2002 we already
18 got to know from Mr. Balijagic that there is a possibility that he may
19 withdraw at a later point in time. In March last year, Mr. Balijagic
20 indicated, and I'm quoting, "That any change in the composition of the
21 Defence team of the accused would not lead to any delay in the preparation
22 of the case." In April, the Pre-Trial Judge during one of the Status
23 Conferences, asked Mr. Balijagic to confirm whether it is likely that he
24 would withdraw. In April, 2002, again, the Pre-Trial Judge ordered the
25 parties to file their Pre-Trial briefs, the Prosecution in June 2002, the
Page 84
1 Defence in September 2002.
2 JUDGE KWON: Mr. Withopf, sorry to interrupt you but do we have to
3 explore all the facts of the past to find out cause and effects of
4 everything.
5 MR. WITHOPF: I think it's quite important to explore these facts
6 since we have a situation, Your Honour, a situation since one year, that
7 Defence counsel for the accused and the accused himself are telling us
8 there will be no delay, and we have a delay since eight months, the period
9 to file -- the deadline to file the Defence pre-trial brief has been --
10 has been extended twice over the last half a year.
11 JUDGE KWON: Yes.
12 MR. WITHOPF: And I have a serious concern, the Prosecution has a
13 serious concern that it will again not be possible for any successor of
14 Mr. Caglar to file the Defence pre-trial brief in time, what means Monday
15 next week. That's the current deadline. The Prosecution has serious
16 doubts as to whether this will be possible and the Prosecutor thinks in
17 the interests of justice, and the Prosecution is only making a
18 recommendation, the Prosecution doesn't request it formally but it makes a
19 recommendation to not assign Mr. Hodzic as the successor or to not direct
20 the Registrar to assign Mr. Hodzic as the successor of Mr. Caglar but to
21 direct the Registrar to assign the Defence counsel who has proven before
22 trial proceedings in this Tribunal that he or she is able to provide a
23 proper and a speedy defence to the accused. Again, this is a case that
24 could be tried within a very short period of time. It's not a big case.
25 But it is an important case for the Tribunal. And the Prosecution
Page 85
1 understands and based on the fact that it never or normally doesn't
2 interfere with the assignment of Defence counsel by Registrar, does
3 understand that in this particular case, there needs to be a clear
4 direction from the Pre-Trial Judge or from the Trial Chamber in the
5 interests of justice. The interests of justice means also an expeditious
6 trial. This is finally in the interest of the accused as well.
7 Thank you very much.
8 JUDGE KWON: Could you clarify the reason why the Prosecution
9 recommends the Registry not to assign Mr. Hodzic?
10 MR. WITHOPF: I can easily clarify this. This material, Your
11 Honour, this is the material the Prosecutor tried, and I emphasise tried,
12 to disclose two and a half months ago, this is all the material that is
13 key for the preparation of the Defence in this case. The Prosecution
14 understands, and Mr. Caglar was repeatedly complaining about this fact,
15 that Defence hasn't these materials to their disposal. How can Defence
16 file a pre-trial brief without having ever read all the materials that are
17 key, that are crucial, to the preparation of the Defence? We still don't
18 know whether Mr. Hodzic is able to read English. I assume Mr. Hodzic's
19 native language is Bosnian-Croatian-Serbian language. We don't know
20 whether he will actually be able to read all these materials that are key
21 for the preparation of this case. I think that's a question that should
22 be asked, keeping in mind the memorandum that has recently been filed by
23 the Registrar.
24 JUDGE KWON: Frankly, I couldn't follow in full. Was there any
25 fault on the part of Mr. Hodzic for belated disclosure of those
Page 86
1 materials?
2 MR. WITHOPF: Certainly not, and the Prosecution wishes to again
3 emphasise that all comments are certainly not related and are not directed
4 to the person of Mr. Hodzic.
5 JUDGE KWON: So a major concern on the part of the Prosecutor is a
6 language barrier?
7 MR. WITHOPF: That's the main concern, and another concern is the
8 period of time that has passed in the past without the Defence being able
9 to read the materials that are key for the preparation of the Defence
10 case.
11 JUDGE KWON: Thank you.
12 Since this is some extraordinary circumstances, and having heard
13 what has been said, I wonder if Mr. Halilovic has anything to say in
14 regard -- with regard to the Defence counsel.
15 THE ACCUSED: [Interpretation] Your Honour, the main reason for
16 which I am here, and I'm grateful to you for having invited me to attend
17 this Status Conference, and I also hope that at the end of this Status
18 Conference we will have an answer to the question as to whether I have the
19 right to a defence, because my rights to a fair and correct defence have
20 been threatened and reduced to a minimum. I can't exactly say who has
21 infringed my rights, whether the lawyer, the Registrar, or some third
22 party, but 17 months have passed since the indictment was submitted. I
23 still don't have a Defence team provided for by the rules from the
24 International Court of Justice. Please understand, and I want to be quite
25 clear about this matter, this is not the result of capricious behaviour on
Page 87
1
2
3
4
5
6
7
8
9
10
11
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
14
15
16
17
18
19
20
21
22
23
24
25
Page 88
1 my part. It's the result of the fact that my requests were not granted
2 and I think that I have the right, right to a defence on the basis of the
3 rules from the international court. And naturally this is a logical
4 thought and I think that these rules should in no way damage my rights
5 because I'm now in a situation which is totally new to me. Up until this
6 time, up until this case, I never even had to pay a parking fine or
7 anything of that kind. My first lawyer, Faruk Balijagic, I have to say
8 I'm surprised by this because I didn't know that in February, March and
9 April, he announced that he would be withdrawing from the case. I
10 requested that an objection be raised in relation to the indictment, that
11 a foreign lawyer be appointed as co-counsel, someone who was well
12 acquainted with Anglo-Saxon law, and I requested that other conditions be
13 ensured to make sure that I could work properly, administrative
14 assistants, office space, et cetera. The Prosecutor says that this is not
15 a big case. I think it's a very big case. And I think it requires two or
16 three investigators and assistants for the Defence, because a translator
17 because most of the documents we receive is in English and then it's
18 translated a few months later into Bosnian.
19 When I was allowed to -- provisional release, I appointed two
20 experts who have compiled eight reports and they've all been provided to
21 the Prosecution, but these experts still have not been recorded, put on
22 the record but the Registry and I think this is for banal shortcomings
23 on the part of the lawyer. Before coming to this Status Conference I
24 spoke to Mr. Balijagic I asked him why he didn't object -- why he hadn't
25 objected to the indictment because I wanted to state something about
Page 89
1 it here and ask the Trial Chamber to ensure that I didn't suffer because
2 of what the lawyers had failed to do.
3 His explanation was that he didn't object to the indictment, as he
4 said, because of operations which were in course with the Prosecution, and
5 also because he had reached an agreement with the Prosecution according to
6 which the indictment would be withdrawn at a given moment in time. And
7 this agreement, Balijagic said, is an agreement he reached with the chief
8 Prosecutor, Carla Del Ponte. This is something he stated in front of
9 witnesses on several occasions. As far as other Defence issues are
10 concerned, he told me, after I had insisted, that he form a Defence team,
11 he told me that the Registry had told him that this was not an urgent
12 matter, and at the beginning they had received from two investigators,
13 they had -- but then they withdrew the investigators so a lot of material
14 has remained, in addition to what the Prosecution has proposed, there is a
15 lot of -- there are a lot of documents that remain because the
16 investigator simply doesn't have sufficient time. The translator recorded
17 is someone who no one knows, the translator suggested by the Registry is
18 someone who is not known by anyone from the Defence team. It's a woman
19 who lives in Mostar, not in Sarajevo, and nothing has been translated for
20 the Defence apart from perhaps a letter that Mr. Balijagic sent to the
21 Prosecution.
22 I was also told that this kind of defence team, the kind of team
23 that I suggested and I think that I have the right to such a defence team,
24 he said that such a team might be authorised in the second stage of the
25 proceedings but not before. So the Defence has one investigator at the
Page 90
1 moment, one assistant, and that is all. Translation, technical processing
2 of documents, office material, one big and two small computers, and all
3 other expenses, expenses that I have to bear. It's true that Mr.
4 Balijagic promised that he would deal with certain debts that had to be
5 settled with translators and this amounts to something between 6.000 and
6 7.000 euros. This is a promise he made a year ago. After Mr. Balijagic
7 withdrew from the team, the Registry did not accept Mr. Kreho as defence.
8 It's not true that I suggested Dijana Kreho be appointed. I suggested Mr.
9 Kreho be appointed as lead counsel. The Registry, without having
10 consulted me, refused to appoint Senad Kreho, and appointed Mr. Soyer. I
11 would like to clearly state, I would like to apologise for an impolite
12 letter that I addressed to Mr. Soyer but that correspondence with Mr.
13 Soyer lasted for too long in the Defence's opinion. I'm sorry, perhaps
14 Mr. Soyer is an excellent lawyer but I don't know Mr. Soyer and if I have
15 the right to a defence, then I should be in a position to express what my
16 position is, and not to have Defence counsel appointed without being
17 consulted about this. We commenced to work with Mr. Caglar, but his
18 opinion was that the files from the Ministry of the Interior should be
19 looked into, files from the AID, the secret police, the cantonal court and
20 Prosecution, and the archives of the Republic of Croatia. He considered
21 that all these -- all this material should be consulted.
22 This work was all carried out by a small team, one investigator,
23 one Defence assistant, together with me. We had to write in the Bosnian
24 and then translate that into English, send it to Mr. Caglar to translate
25 it into French. This represented additional costs and it took up a
Page 91
1 significant amount of time.
2 A month ago, when I asked Mr. Hodzic to help me, and he accepted
3 to do so, and when I informed Mr. Caglar about this, professor Caglar
4 suggested that Mr. Hodzic, as an experienced and military lawyer, should
5 be appointed as lead counsel and that he, professor Caglar, should remain
6 as part of the Defence team and should be co-counsel.
7 So my suggestion is what I -- is the assertion I made in the
8 letter dated the 16th of January, if you're asking me for my opinion, and
9 finally, I would request that a Defence team be finally formed because one
10 could say that I have in a way been penalised even before the commencement
11 of the proceedings. That's all I have to say. Thank you very much. And
12 thank you once more for having invited me to this conference.
13 JUDGE KWON: I'd like to point out one thing, Mr. Halilovic, since
14 the issue was raised, the right of the accused to choose a counsel of his
15 own is -- should be respected, according to the Statute and Rules.
16 However, in cases of counsels appointed by the Tribunal, it is not without
17 any limit, as was noticed in previous decisions regarding Defence counsel
18 issue.
19 In case of Mr. Kreho, it was noted that there had been some
20 conflict of interest, and all the other decisions were legitimately done
21 by the Registrar or by the Chamber.
22 Having said that, so your intention is to have Mr. Hodzic as your
23 lead counsel, with Mr. Caglar remaining as co-counsel. Thank you. And it
24 is Mr. Caglar's intention, however, to withdraw from the case. Can I hear
25 from Mr. Caglar? Yes, you may sit, please.
Page 92
1 MR. CAGLAR: [Interpretation] Mr. President, I have to say I have
2 no choice. I have never dropped someone on -- I've never dropped someone
3 I decided to defend, never let anyone down.
4 JUDGE KWON: Thank you. Would you like to add anything,
5 Mr. Withopf? Yes.
6 MR. WITHOPF: Your Honour there are a few issues that need to be
7 clarified. The first and the main issue is the alleged agreement between
8 the Prosecutor and the accused and/or his Defence that the Prosecution
9 would withdraw the indictment against the accused. To make it very clear,
10 the Prosecution never intended and does not intend to withdraw the
11 indictment against the accused.
12 The second issue I just want to stress to get the facts completely
13 right. First Defence counsel, Mr. Balijagic, the accused actually
14 cancelled his power of attorney, as we all know, and to get a second thing
15 right, the accused, for a period of time, that extended three months, did
16 not communicate with assigned Defence counsel, namely Mr. Soyer.
17 Thank you very much.
18 JUDGE KWON: Thank you. The Registry will look into the matter
19 and will decide whether Mr. Hodzic is fully qualified to be appointed as a
20 lead counsel, and that will be done in due course.
21 Apart from these matters, there are a lot of issues to be dealt
22 with today. On matters of Defence team, am I correct in understanding
23 that the parties, especially the Defence, received an informational
24 memorandum from the Registry explaining what the Registry can provide in
25 terms of interpretation or -- translation assistance during the pre-trial
Page 93
1
2
3
4
5
6
7
8
9
10
11
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
14
15
16
17
18
19
20
21
22
23
24
25
Page 94
1 stage?
2 MR. CAGLAR: [Interpretation] No, Mr. President. I wasn't
3 informed, not officially.
4 JUDGE KWON: I think that will be done in due course. In short,
5 to a certain extent, a translation and interpretation service will be
6 provided by the Registry.
7 Let's deal with some disclosure matters and some other matters.
8 My understanding is that a lot of materials already have been disclosed to
9 Mr. Caglar or former counsel, the 66(A)(i) materials and exhibits and some
10 interviews, interview materials of the accused. Where are they now? Who
11 has what documents? Could you clarify that?
12 MR. CAGLAR: [Interpretation] In my office, Your Honour. I'd like
13 to add that the documents that were provided to me by Mr. Soyer and at a
14 much later date by Mr. Balijagic, that's all.
15 JUDGE KWON: Yes, Mr. Withopf?
16 MR. WITHOPF: Your Honour, this is actually a serious issue the
17 Prosecution wants to use this opportunity to raise this again. The
18 Prosecution made available as a courtesy copy taking into account the
19 difficulties
20 Mr. Caglar was facing in respect to not getting materials from Mr.
21 Balijagic, provided on 4th and 5th December, in the context of the last
22 Rule 65 ter meeting, these materials. This is a courtesy copy, produced
23 by the Prosecution. This courtesy copy involves huge materials, and I
24 really wish to have the opportunity to detail this. That involves
25 transcripts in both English and B/C/S of the lengthy interview of the
Page 95
1 accused. This involves 25 video tapes of such an interview, three further
2 video tapes, 123 witness statements in B/C/S, 197 witness statements in
3 English, additional six witness statements in French, three audiotapes,
4 two CDs containing crime scene photographs. Two further audiotapes, five
5 transcripts of further witness interviews, more than 115 documents, quite
6 a number of such materials are actually Rule 68 material that the
7 Prosecutor put together in fulfilling its obligation under Rule 68. On
8 5th -- or 4th December, after the Rule 65 ter meeting, the Prosecution
9 asked Mr. Caglar to wait for a few minutes to give the Prosecutor an
10 opportunity to take the materials down, an interpreter has been provided.
11 Mr. Caglar disappeared after 20 minutes without giving an explanation --
12 JUDGE KWON: Mr. Withopf, I have to interrupt. We don't have to
13 go back to all those issues. You made the point and I understand the
14 frustration of the Prosecution to make all the courtesy -- photocopies but
15 we have to admit there were some problems in practically speaking a
16 language barrier for Mr. Caglar so let's put aside those issues.
17 MR. WITHOPF: Okay. I'm more than happy to put such issues aside
18 but I want to stress and to emphasise that to date the Defence doesn't
19 have such materials. It's offered again. And I would suggest to us,
20 actually Mr. Hodzic, whether he will be able to file the Defence pre-trial
21 brief on Monday week thank you very much.
22 JUDGE KWON: We will get to the matter later on.
23 Let me deal with the reciprocal disclosure matter first. Just a
24 second. Yes, Mr. Caglar?
25 MR. CAGLAR: [Interpretation] Excuse me, Mr. President. I don't
Page 96
1 have the ability to read into the -- to read the Prosecutor's mind, what
2 I'm interested in is to contribute to the efficiency of this trial, to
3 ensure that the proceedings are conducted in a correct manner. This
4 matter has already been discussed. I cannot have -- I wasn't able to have
5 all these documents because I didn't have the necessary team. This is not
6 a matter that concerns one man alone. The Prosecutor provided, disclosed
7 a courtesy copy of all these documents. Obviously I am not an orchestra,
8 I'm not a team. I can't do everything alone. I need a team that has to
9 be formed in order to carry out this work. I can't do it alone. I've
10 done everything that was possible for me to do alone, to an extent I
11 succeeded and to an extent I failed. That's all I have to say, Your
12 Honour. Thank you.
13 JUDGE KWON: Yes. Let me get back -- go back to the issue of
14 reciprocal disclosure a minute. Mr. Balijagic, former counsel, formally
15 triggered the reciprocal disclosure obligations of Rule 66(B) and 67(C)
16 and this was adopted by Mr. Caglar at the Status Conference in October,
17 2002. My understanding is that the -- some arrangements were made for
18 Mr. Caglar to inspect the so-called Seve files and the state surveillance
19 files at the OTP in December last year. I would like to hear the
20 positions regarding this matter. What happened?
21 MR. WITHOPF: Very briefly, the statement is completely correct,
22 both the Seve files and the state surveillance files have been made
23 available for Mr. Caglar for inspection, pursuant to Rule 66(B). Such an
24 inspection happened on the 4th and on the 5th December last year. The
25 Prosecutor again agreed to provide Mr. Caglar with a courtesy copy of
Page 97
1 quite a number of documents he wanted to have copied, a number of such
2 copies have been provided on the 5th of December last year and additional
3 material, additional copies, again courtesy copies, are ready to be
4 disclosed today.
5 JUDGE KWON: Having heard so far that -- let's go directly to the
6 issue of pre-trial brief on the part of Defence. When will we finally get
7 to see the Defence pre-trial brief? As Mr. Withopf suggested --
8 indicated, the Prosecution's pre-trial brief was filed more than a half a
9 year ago, in June last year. Can we still expect to see the Defence's
10 brief on or before 17th February, next Monday, the result of an extension
11 that I granted? Could you make any observation on that, Mr. Caglar?
12 MR. CAGLAR: [Interpretation] Mr. President, that depends on the
13 appointment of new counsel obviously but as a matter of principle, I am
14 really sorry to have to say this, but at the moment, and I am really sorry
15 to have to say this, but we will require one month to finish the work that
16 we have started. Thank you, Mr. President.
17 JUDGE KWON: The one month time frame, was it discussed with the
18 lead counsel to be, that is Mr. Hodzic, Mr. Caglar?
19 MR. CAGLAR: [Interpretation] Yes. I had an exchange of opinions
20 with Mr. Hodzic last night, and we agree. We fully agree with that. Of
21 course, if that is agreeable to you.
22 JUDGE KWON: That is only when Mr. Hodzic is appointed by the
23 Registrar as the lead counsel? If I'm right.
24 MR. CAGLAR: [Interpretation] Yes, Mr. President.
25 JUDGE KWON: Why don't we set the deadline for the pre-trial brief
Page 98
1 apart for a while and let's deal with some Prosecution's matters for a
2 minute first. The JNA military expert, manual, what is the current
3 position, or current status regarding that matter?
4 MR. WITHOPF: Your Honour, the relevant portions of such manuals
5 have been fully translated. The military expert is about to provide the
6 Prosecution with his final report. The external military expert for the
7 Prosecution. And such materials are amongst the disclosure materials that
8 have been offered in the past and will be offered today again.
9 JUDGE KWON: What did you refer to when you said the final report?
10 MR. WITHOPF: Your Honour, we have indicated in the last Rule 65
11 ter meeting that the external military expert witness for the Prosecution
12 is in a position to provide the Prosecution with his final draft of his
13 written expert opinion by end of January. Such a draft has actually been
14 submitted. Recently there are a few issues that need further
15 clarification. The military expert is currently working on such issues
16 and he has promised that we would get his final report, that will then be
17 filed within the next few weeks.
18 JUDGE KWON: What about the translations?
19 MR. WITHOPF: Translations of the manuals?
20 JUDGE KWON: Translation of the manual in B/C/S into English.
21 MR. WITHOPF: Again, that's already done, Your Honour.
22 JUDGE KWON: Thank you. And the final report will be translated
23 again?
24 MR. WITHOPF: Into B/C/S language?
25 JUDGE KWON: Yes.
Page 99
1
2
3
4
5
6
7
8
9
10
11
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
14
15
16
17
18
19
20
21
22
23
24
25
Page 100
1 MR. WITHOPF: Yes, it will be translated.
2 JUDGE KWON: When do you think it will be done.
3 MR. WITHOPF: It mainly depends when the military expert will
4 submit his final report. Then it's a matter of translation only.
5 JUDGE KWON: Since the Prosecution is saying that it has a brief
6 look on that final -- on the report, will there be an addendum or
7 amendment to the Prosecution's pre-trial brief?
8 MR. WITHOPF: As it stands now, there will be no amendment to the
9 pre-trial brief based on this written report.
10 JUDGE KWON: Then what do you think about setting a deadline for
11 disclosure of that expert military report?
12 MR. WITHOPF: If the deadline is reasonable and takes into account
13 the delay of the filing of the Defence pre-trial brief, the Prosecution
14 would suggest eight weeks and there wouldn't be any problem.
15 JUDGE KWON: What would you respond -- how would you respond if
16 the Defence will say that in order to produce a -- its pre-trial brief, it
17 has to look at those military expert report?
18 MR. WITHOPF: I would respond as follows: It's a quite unusual
19 situation, the Defence at the time it has to produce its pre-trial brief
20 is actually in possession of the written expert's opinion of the
21 Prosecution. That's a quite unusual situation.
22 JUDGE KWON: And what is the status of the Prosecution's expert in
23 pathology who performed the -- the pathologist who performed some
24 post-mortem reports?
25 MR. WITHOPF: The Prosecution is happy to announce that such
Page 101
1 pathologist reports have been fully translated, the materials will be
2 amongst the materials that can be offered for disclosure today.
3 JUDGE KWON: And I note the -- on 5th of February this year, the
4 Prosecution filed a motion to add four witnesses to its list, the
5 statements of these witnesses were disclosed, as I understood it, to
6 Mr. Caglar in October of last year?
7 MR. WITHOPF: That's correct, Your Honour.
8 JUDGE KWON: Thank you. Can I hear the Defence's response to this
9 at this moment?
10 MR. CAGLAR: [Interpretation] These testimonies.
11 THE INTERPRETER: We are sorry, the microphone is switched off.
12 We cannot hear the counsel.
13 MR. CAGLAR: [Interpretation] I received these statements some
14 seven or eight days ago, end of January.
15 JUDGE KWON: Yes. Legally speaking, the Defence has some more
16 days to respond to this motion of the Prosecution, so you can take time.
17 Since Mr. Caglar has said so, can I expect that to see the
18 Defence's pre-trial brief in a month's time from now? That is around end
19 of March? Before the end of March.
20 MR. CAGLAR: [Interpretation] Yes, Mr. President.
21 JUDGE KWON: And Mr. Withopf, could you try to disclose the expert
22 report until the end of March?
23 MR. WITHOPF: We certainly will try to do so. And the Prosecution
24 is very optimistic that it will be able to do so.
25 JUDGE KWON: Okay. And 92 bis witnesses? I understand that
Page 102
1 statements of 43 witnesses are expected to be tendered for admission under
2 Rule 92 bis, and were available, I understand, all the certified
3 statements of these witnesses were disclosed, with the Prosecution's
4 pre-trial brief. I would recommend the parties to have a word on that and
5 to reach an agreement on the admission of these statements. Is there any
6 progress -- has there been any progress on that matter?
7 MR. WITHOPF: As Your Honour mentioned, almost all -- I have to
8 correct this -- almost all Rule 92 bis witness statements have been
9 disclosed out of 45 are disclosed actually are all of them. However, out
10 of 45 witness statements, the Prosecution got 43 certifications pursuant
11 to Rule 92 bis. Two additional ones are still needed and the Prosecution
12 will get such certifications as soon as possible.
13 JUDGE KWON: Thank you.
14 One more thing is related to Rule 68 disclosure. What is the
15 position in terms of those materials? And also I understand that the
16 Prosecution has sought some assistance from the Defence in identifying key
17 areas of interest, search criteria. What is the status? Could you brief
18 me on that?
19 MR. WITHOPF: Actually, the Prosecution would be very happy if it
20 would have some assistance by the Defence. Such assistance has been
21 announced several times. However, never, ever the Prosecution got such an
22 assistance. The Rule 68 system-wide search is ongoing. The Prosecution
23 is using a wide range of key words. It has asked several times the
24 Defence to provide the Prosecution with additional search criteria. As I
25 already mentioned, never ever got a response to such a request. It is
Page 103
1 ongoing today, we will be able to again disclose additional Rule 68
2 materials.
3 JUDGE KWON: Mr. Caglar, do you have any say on this matter?
4 MR. CAGLAR: [Interpretation] No, Mr. President.
5 JUDGE KWON: I'd like to point out that whether the Defence is
6 offering some search criteria or not, the Prosecution is duty-bound still
7 to disclose whatever material they have in their custody.
8 In terms of exhibits, I understand there are some bundle of
9 documents named "Sarajevo collection" provided by the Bosnian authorities
10 from the official archives and the Prosecution stated that it may be used
11 to form part of the exhibits. What is the current status?
12 MR. WITHOPF: Again, there is not much of a change as compared to
13 the last Status Conference. The Prosecution is working on the basis that
14 it will finally produce 200 to 300 exhibits, the analysis of the documents
15 that result from the Sarajevo collection is currently ongoing.
16 JUDGE KWON: Thank you. If the Registrar has a calendar -- thank
17 you.
18 Looking into the calendar of next month I notice -- I note that
19 the 24th, Monday, is around -- is Monday. So if Mr. Caglar and the
20 Defence team could file the pre-trial brief on or before that date. There
21 will be a month -- 40 days from now, around.
22 MR. CAGLAR: [Interpretation] Very well, Mr. President.
23 JUDGE KWON: And this time, I'm making it simply clear that there
24 will be no more extensions. And the Prosecution, if the Prosecution could
25 disclose the military expert report until on or about the third -- a week
Page 104
1
2
3
4
5
6
7
8
9
10
11
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
14
15
16
17
18
19
20
21
22
23
24
25
Page 105
1 after, Monday, the 31st of March?
2 MR. WITHOPF: Your Honour, the Prosecution will do so.
3 JUDGE KWON: And major concern of the Prosecution on the
4 qualification of Mr. Hodzic, is in the language barrier problem. I don't
5 see that there would be many obstacles for the Registry to appoint
6 Mr. Hodzic but it's a matter for the Registry, so that is -- that matter
7 is to be seen, and is there any issues to be raised at this moment?
8 MR. WITHOPF: Yes. The Prosecution wishes to ask Defence counsel
9 whether Defence is actually able to get handed over such materials today.
10 JUDGE KWON: Yes, Mr. Caglar?
11 MR. CAGLAR: [Interpretation] I have already said it,
12 Mr. President. Tonight or tomorrow morning. I've already said that.
13 JUDGE KWON: And the next Status Conference will need to be held
14 by 10th of June, while the next 65 ter conference presided by our senior
15 legal officer should be held from mid-to-late March. Initially in my
16 first Status Conference we are looking at the end of June, 2002, last
17 year, as for when the case would be ready for trial. Now it is February,
18 2003, and I want this case ready for trial by the end of April at least.
19 If there is nothing remains, Mr. Halilovic, is there anything you would
20 like to add at this moment?
21 THE ACCUSED: [Interpretation] Your Honour, I believe just a brief
22 comment and a small request. As a matter of fact, I'd not discussed with
23 the Prosecutor the withdrawal of the indictment. If something was done in
24 this regard, it was done by lawyer Balijagic. I had nothing to do with
25 it. I did not take part in any discussions about the withdrawal of the
Page 106
1 indictment nor do I know anything about it. Secondly, I hope you will
2 accept my proposal concerning the assignment of the lawyer and appointment
3 of interpreters and investigators because without that, it simply won't be
4 possible to work. Thank you.
5 JUDGE KWON: That matter will be looked into.
6 Then this Status Conference is adjourned.
7 --- Whereupon the Status Conference adjourned at
8 4.49 p.m.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25