Tribunal Criminal Tribunal for the Former Yugoslavia

Page 204

1 Tuesday, 11 January 2005

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 3.02 p.m.

5 JUDGE KWON: As I was told, it's full house. Yes.

6 Would the registrar please call the case.

7 THE REGISTRAR: Good afternoon, Your Honour. This is case number

8 IT-O1-48-PT, the Prosecutor versus Sefer Halilovic.

9 JUDGE KWON: Thank you.

10 Would both parties make their appearances.

11 MS. CHANA: May it please the Court. Sureta Chana, Philip Weiner,

12 Manoj Sachdeva for the Prosecution, very ably assisted by Ana Vrljic as

13 our case manager. Thank you.

14 JUDGE KWON: Thank you, Ms. Chana.

15 MR. MORRISSEY: May it please the Court. Morrissey is my name and

16 I appear for Mr. Halilovic with Mr. Mettraux and with Mr. Cengic as legal

17 assistant.

18 JUDGE KWON: Thank you, Mr. Morissey.

19 This must be the first Status Conference for the Tribunal for this

20 year. This is likely to be the last Status Conference before the Trial

21 Chamber of this Trial Chamber. Being the ninth one, I guess. And this is

22 -- this case is due -- the trial of this case is due to start very soon,

23 i.e., on Monday, 24th of this month, less than two weeks' time from now.

24 However, there are a number of outstanding motions which I'm going through

25 briefly with the parties.

Page 205

1 I think the most urgent matter would be the Prosecution's request

2 for certification for interlocutory appeal against our decision on motion

3 to amend the indictment. The Chamber is actively reviewing the motion,

4 and I would say that the decision will be issued very soon.

5 Second motion. Let me deal with the minor one. The most recent

6 one filed by the Prosecution, which is an application for leave to

7 disclose Rule 66(A)(ii) material, filed on 10th of January. It seems to

8 be a witness statement of the existing witnesses given to a local Bosnian

9 authority, some 11 years ago or 12 years ago.

10 I wonder if there's anything to say to this from the Defence on

11 this matter.

12 MR. MORRISSEY: Well, we don't oppose it, Your Honour. We are

13 troubled by the length of time and the nearness to the trial but that is

14 the only comment we can make at this point.

15 JUDGE KWON: So I like to grant it orally. Hereby that motion is

16 granted.

17 Next motion I'd like to raise is the motion to vary the number of

18 65 witnesses -- 65 ter witnesses. And it has not been decided yet whether

19 this Trial Chamber will issue a decision on this or the matter will be

20 transferred, deferred to the actual Trial Chamber hearing the case. But

21 there are a couple of things to explore on part of myself.

22 Is it correct -- am I correct in understanding that the old

23 statements of those witnesses to be added are actually disclosed, be it

24 under 66(A)(ii) regime or 66(B) or 67?

25 MR. MORRISSEY: I'm sorry, Your Honour. Can we indicate that at

Page 206

1 least with respect to the witnesses Ramiz Delalic and Enver Mujezinovic,

2 we don't think all of the statements have been disclosed.

3 JUDGE KWON: I'm sorry to interrupt. Could you give me the second

4 name of the second witness.

5 MR. MORRISSEY: Yes. M-u-j-e-z-i-n-o-v-i-c, Enver Mujezinovic.

6 Your Honour, I could indicate that --

7 JUDGE KWON: Please, yes.

8 MR. MORRISSEY: Pardon me. Have I misspelled again? Mujezinovic.

9 It's correct. It is correct.

10 JUDGE KWON: Delalic, all the statements were disclosed except for

11 the transcript of the suspect interview?

12 MR. MORRISSEY: Well, the difficulty is with Mr. Delalic, we have

13 here the suspect interview and in the text of that is disclosed --

14 JUDGE KWON: I'm sorry to interrupt again. You were given the

15 transcript --

16 MR. MORRISSEY: We have been given the transcript.

17 JUDGE KWON: -- which has been outstanding --

18 MR. MORRISSEY: That's correct.

19 JUDGE KWON: -- for quite a time.

20 MR. MORRISSEY: Yes, that's correct. We have that and we have it

21 -- we've now endeavoured to read as much as we can of it. However, within

22 the text of it, it discloses two matters of interest. Firstly, a 1996

23 interview which we do not have.

24 JUDGE KWON: Yes. 1996 interview. Yes.

25 MR. MORRISSEY: That interview we understand was an interview with

Page 207

1 the Office of the Prosecutor. There is also referred to what the witness

2 claims to be 50 contacts with a particular investigator, named Mihailov.

3 We do not have any records of those contacts.

4 Mr. Mujezinovic mentions that it is the third statement that he

5 has made. We've been provided with two.

6 JUDGE KWON: Is the one related to the intercept?

7 MR. MORRISSEY: We have that.

8 JUDGE KWON: You have that.

9 MR. MORRISSEY: We have that.

10 JUDGE KWON: Different one.

11 MR. MORRISSEY: What we referred to, obviously, as an earlier one.

12 Sorry, Your Honour, does that deal with the question?

13 JUDGE KWON: Yes. 1996 -- interview in 1996?


15 JUDGE KWON: Do you mean that you have the tape?


17 JUDGE KWON: So both the tape and the transcript.

18 MR. MORRISSEY: Correct.

19 JUDGE KWON: I don't follow the context with the investigator.

20 MR. MORRISSEY: Well, we don't know who the original -- the two

21 are separate. The 1996 interview was, we believe, with an investigator,

22 but we don't know who that was. However, the witness mentions numerous

23 contacts, he says 50, with the investigator Mihailov. They're quite

24 separate matters. We would like to have the 1996 tape and transcript, and

25 we would like to have such material that there is arising from the 50

Page 208

1 contacts.

2 JUDGE KWON: So can I take it, as you are saying, that the

3 Prosecution is duty-bound to keep records of every contact with the

4 suspect or potential witnesses?

5 MR. MORRISSEY: It would be our position that they're bound to

6 keep records, and it would be our position -- in fact, elsewhere, we argue

7 that they are indeed duty-bound to provide and to preserve the records of

8 the questions that they've asked. But at the least, we say they should

9 preserve records of contacts.

10 JUDGE KWON: Thank you, Mr. Morrissey.

11 If I can hear from the Prosecution on this matter.

12 MS. CHANA: Yes, Your Honour. In respect of Delalic and the -- we

13 have handed over now the transcript yesterday, and what my learned friend

14 is referring to is within the transcript Mr. Delalic obviously talks about

15 interviews with Mr. Mihailov, but we have no statements that we have --

16 that those contacts generated. We have handed over everything that we

17 have in our custody over to the Defence. There is no other material which

18 is still pending to be disclosed.

19 JUDGE KWON: Is that the final position or there's room to -- for

20 a more investigation on that matter, whether you have any records of

21 interview or meeting with the Prosecutor?

22 MS. CHANA: In respect of Delalic, Your Honour, I think that is

23 the Prosecution's final position.

24 JUDGE KWON: Okay. Since Mr. Delalic is mentioned, I have a

25 feeling that we are required to make a ruling on a sort of hypothetical

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Page 210

1 motion, which means that I was told, informed by the Senior Legal Officer,

2 that OTP has not yet decided whether to call Mr. Delalic or not. Is it

3 still the position?

4 MS. CHANA: As I mentioned at the 65 ter conference, Your Honour,

5 that we were all awaiting the transcript, the Defence and the Prosecution,

6 and now that we've just got the transcript, the Prosecution team is going

7 to look at the transcript and make the final decision, and we shall be

8 able to advise the Chamber and the Defence within the next two days

9 whether we will be -- whether we still want Delalic on our witness list.

10 JUDGE KWON: So you're suggesting that you can make the decision

11 in two days?

12 MS. CHANA: Your Honour --

13 JUDGE KWON: By the end of -- today is Tuesday.

14 MS. CHANA: Yes, Your Honour. I've just been advised by my

15 co-counsel here, Friday. Would that be all right? Because one of our

16 prosecuting counsel is not returning until Thursday, I've just been

17 reminded.

18 JUDGE KWON: I would be grateful that decision can be made by the

19 end of Thursday, and let the Chamber know about the result of the

20 decision.

21 MS. CHANA: As Your Honour pleases.

22 JUDGE KWON: Thank you.

23 And how about the -- I'm sorry about the pronunciation --

24 Mujezinovic, the second witness. Third witness statement of his?

25 MS. CHANA: We have disclosed, as far as we are concerned, all the

Page 211

1 statements of Witness Mujezinovic, but we will look into this matter.

2 We'll ask our case manager, Ana, to see and do some more investigations to

3 see if there is another witness statement. Sometimes witnesses do make

4 mistakes as to how many witnesses -- how many statements they've given,

5 but of course if there is another one, we will look into it. But as of

6 now, we don't know of any other statement other than the ones that we've

7 disclosed.

8 JUDGE KWON: Thank you. So next matter, next motion to be dealt

9 with is an urgent motion for immediate disclosure from the Defence. We

10 have the response from the Prosecution, and also -- and in addition to

11 that, we have a reply from the Defence as well. Certain matters have

12 already been attended to.

13 Can I confirm that the Defence received all the materials in

14 relation to military expert?

15 MR. MORRISSEY: As with many responses, there will be a yes and a

16 caveat. The material that was requested at the 65 ter conference was duly

17 provided in two editions. We were provided with two documents, less a

18 particular annex, and we were not provided with a third document, being a

19 synopsis. In due course, the annex and the synopsis have both been

20 provided.

21 However, I should add this: That upon my personal interviewing

22 the witness concerned yesterday, it came to my attention then that two

23 further expertises had been prepared by him and provided to the

24 Prosecution. The witness, understandably, did not wish to provide them

25 directly to me, so he undertook to give them to -- to communicate with the

Page 212

1 Prosecution, which presumably he did. We then communicated ourselves with

2 the Prosecution and have been today provided with two further expert

3 opinions from that particular witness, Lieutenant General Ridgway.

4 So the answer to Your Honour's question is yes, and then again

5 yes.

6 JUDGE KWON: Can I clarify this? Expert was --?

7 MR. MORRISSEY: Lieutenant General Ridgway, Andrew Ridgway.

8 JUDGE KWON: Was assisted by another expert?

9 MR. MORRISSEY: No. Well, he was, but the point I'm putting here

10 is that he initially, and -- prepared a report, and that was provided, as

11 it should have been. We sought some background material to that report,

12 and after some pre-trial skirmishing, the Prosecution ultimately agreed to

13 provide that in the terms that Your Honour will have seen at the 65 ter

14 conference.

15 JUDGE KWON: I understand that.

16 MR. MORRISSEY: When I went to visit him, he told me for the first

17 time that he actually prepared two other reports, additional reports.

18 They have been provided to us, after our request, today.

19 JUDGE KWON: Thank you. And in light of the reply filed by the

20 Defence, is there anything to add to your response already filed on the

21 part of the Prosecution on this issue of the urgent motion for immediate

22 disclosure?

23 MS. CHANA: I just wanted to respond on this Ridgway issue. My

24 learned friend stated that there were expert reports, two additional

25 expert reports, which of course there are not. We did write a letter to

Page 213

1 the Defence this morning and said that our position has always been that

2 these were informal communications done by General Ridgway in a

3 consultative capacity to the Prosecution and were not discloseable under

4 Rule 70(A). And we were, in the interests of transparency and good order,

5 providing it to them now since they asked for it. We were trying to be

6 extremely open with the Defence in this regard and giving them what they

7 requested. But they were certainly not additional expert opinions, Your

8 Honour.

9 JUDGE KWON: That is put on record.

10 And is there anything to add to make any comment to the motion

11 requesting the OTP to provide and identify materials in relation to

12 violations of international humanitarian laws of the witnesses?

13 MS. CHANA: No, Your Honour. I have nothing to add. I think our

14 response says it all. We have responded to all the issues raised by the

15 Prosecution. And at this time, in respect of this, I will not say

16 anything.

17 But there is one other matter in respect of disclosure I would

18 like to bring before Your Honours, and that is, this afternoon I asked

19 Mr. Morrissey whether he would be prepared to accept and waive our

20 requirement that we seek leave from the Chamber to disclose one further

21 statement which has come to light today which we took November 15th of

22 last year. It's a suspect interview of one of our current witnesses. We

23 have the tape, but we do not have the transcript as yet. We are required

24 by an order of the Chamber to seek leave of the Chamber to disclose

25 anything under 66(A)(i), and Mr. Morrissey had indicated to me at the 65

Page 214

1 ter conference that if we were to ask them beforehand, they could waive

2 the requirement, but Mr. Morrissey says that we would have to seek leave

3 of the Chamber, which we will do tomorrow.

4 JUDGE KWON: Ms. Chana, did you say that 66(A)(i)?

5 MS. CHANA: Sorry. (A)(ii), Your Honour. I correct myself.

6 JUDGE KWON: And can I hear the Defence position again.

7 MR. METTRAUX: Yes. Good afternoon, Your Honour. I think there

8 would be a few clarifications to be made about that issue which came to

9 our attention shortly before the Status Conference.

10 The first one, to say the least, is that we are surprised to hear

11 about this new document, considering the fact that we've been told on many

12 repeated occasions that disclosure was finished in this case, and we heard

13 that for the last time on Friday last week, so it's difficult for us to

14 understand what has happened in that case.

15 The second thing which we would like to ask the Prosecution to

16 provide us is the date at which this interview, because it appears to be

17 an interview, was taken, and the reason why it hasn't been disclosed to us

18 as of yet.

19 The third matter which would require I think an explanation on the

20 part of the Prosecution is the status of that particular witness, Your

21 Honour, and whether that witness is now being regarded as a suspect in

22 that case.

23 The last question, finally, is quite an important one for us at

24 this stage, to be able to prepare adequately for the trial, is an

25 indication on the part of the Prosecution as to whether this particular

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Page 216

1 witness will be called at trial. As was expressed during the Rule 65 ter

2 conference and on previous occasions, the Defence has been preparing for

3 many witnesses, spending much resources, wasting much time to prepare

4 witnesses which are not to be called. We are quite concerned that this

5 could be the case with that witness and other witnesses in this case.

6 Thank you.

7 JUDGE KWON: By the way, this was -- this witness was among the

8 list which exists already?

9 MS. CHANA: Yes, Your Honour. This is one of the witnesses on our

10 list. The interview, Your Honour, was taken on 15th November in another

11 case altogether, not this one.

12 JUDGE KWON: A year ago?

13 MS. CHANA: No. This November gone, 2004, Your Honour.


15 MS. CHANA: Just before the Christmas break. And we have got the

16 tape, of course, but we do not have the transcript. And that's why I was

17 volunteering to give the -- hand over the tape in enough time, and when we

18 have the transcript available, we'll be able to give that. But we can

19 also seek leave now before Your Honours to tender this, subject to our

20 obligations under the order.

21 JUDGE KWON: Thank you, Ms. Chana.

22 Apart from the general opposition against the manner of the

23 investigation is being conducted, I don't think Defence is opposed to

24 receiving it.

25 MR. METTRAUX: With one caveat, Your Honour, no, we are not

Page 217

1 objecting to receiving that material, but the statement from the

2 Prosecution as to the status of that individual as a suspect,

3 unfortunately confirms a number of matters which we've been raising in the

4 past, including in our motion for urgent disclosure. There is material

5 which has not been disclosed to us, particularly material which goes to

6 the status as suspects of those particular individuals who are now

7 presently on the Prosecution list, and the Defence is very, very concerned

8 about that fact. So to your question, Your Honour, no, we do not object

9 to this material being disclosed to us, but we would like to receive

10 urgently the material upon which the Prosecution based its conclusion that

11 this individual is now being regarded as a suspect.

12 JUDGE KWON: That's the question I was about to ask.

13 Could you respond to this last question, whether Prosecution has

14 anything to add to the previous answer in relation to the Defence request.

15 The Prosecution should identify those witnesses with some criminal records

16 in relation to international humanitarian laws.

17 MS. CHANA: Your Honour, at this point, all the Prosecution will

18 say is that this particular interview was taken under a suspect interview,

19 and when we do seek leave to admit this material, we would be giving

20 further explanations as to the status of this particular individual.

21 JUDGE KWON: When was the Prosecution's response filed in relation

22 to this urgent motion for immediate disclosure? I think it is 22nd of

23 December last year. At that time, I think, in the least, the Prosecution

24 should be able to say, in relation to this witness, this has -- this

25 witness has a record of some international humanitarian law violations.

Page 218

1 But you didn't do that. That's the point the Defence wishes to raise at

2 this moment.

3 MS. CHANA: Yes, Your Honour. We did file on December 22nd, and I

4 think it has been an oversight, because at that time, being the Christmas

5 break, most of the counsel who had been on the case were on leave and I

6 think it was Mr. David Re who filed that, and perhaps it had not been

7 brought to his attention that there was this one outstanding matter. So

8 for that, we do apologise, Your Honour.

9 JUDGE KWON: Thank you, Ms. Chana. And you are saying that you

10 were not filed the written motion for this leave?

11 MS. CHANA: We would be very happy to file the written motion for

12 this leave, but unless you dispense with it now, Your Honour.

13 JUDGE KWON: Please do so. We don't have the name.

14 Yes.

15 MR. METTRAUX: One last point, Your Honour, if you allow me.

16 We've just heard that this situation was due to an oversight. We're quite

17 concerned that there are a number of other oversights in this case,

18 including in relation to the status of Prosecution witnesses. This is a

19 matter that we've been raising for a month, if not for a year or so. We

20 would not like to be in a position of having to conduct the investigation

21 for the Prosecution. We would like an undertaking on the part of the

22 Prosecution that no other witness on this case is being regarded as a

23 suspect by the Prosecution, that there is no postponement of further

24 interviews of individuals as suspects in that case, and that every

25 material going to the suspect status of an individual or any other

Page 219

1 material which would tend to indicate any involvement in serious

2 violations of humanitarian laws has now been disclosed and has been

3 identified as such to the Defence. We are very concerned that some of

4 that material has not been disclosed to us, Your Honour. Thank you.

5 JUDGE KWON: In this matter, it has yet been decided as well

6 whether to issue an order by this Trial Chamber. We'll consider this

7 matter, bearing the submissions of today.

8 The final motion seems to be the -- is related to pre-trial brief,

9 supplementary explanations from the Prosecution. But this may be the one

10 which is likely to be dealt with by this Trial Chamber, because it is

11 related to pre-trial matters. But first of all, as Defence raised, what

12 would be the nature and effect of that document, and what -- under what

13 Article and Rules is the Prosecution filing this document? What is the

14 supplementary explanation? If you could clarify on that, first of all,

15 Ms. Chana.

16 MS. CHANA: Your Honour, we have -- we filed the supplementary

17 explanation to the pre-trial brief. As we had reviewed our Prosecution

18 list, witness list, and our exhibit list, and since we had made quite a

19 number of changes, we thought it would be something which we could get no

20 notice to the Defence and to the Trial Chamber as to what the Prosecution

21 theory is and to -- by way of explaining, the extent to which the

22 Prosecution theory has changed or not changed, and this is just exactly

23 what it says. It's an explanation to the pre-trial brief, with an

24 addition. So it would be under the Rule of the pre-trial brief, Your

25 Honour, 65 ter.

Page 220

1 JUDGE KWON: There seems to be a slight change of a Prosecution's

2 assertion in terms of some factual situation. Is it not?

3 MS. CHANA: Your Honour, I don't think there has been any

4 particular change in the Prosecution's assertions. The theory of the case

5 remains the same. It's 7(3) responsibility for failure to prevent and

6 punish. I'm sorry, Your Honour; I have a bit of a cold. It is redefining

7 the theory. Since there has been great changes on our witness list, we

8 have reduced our witness list by two-thirds and we just thought that, to

9 make it quite clear to the Defence as to exactly what our Prosecution

10 theory is and to give them advance notice, it would be something valuable

11 for them to have. It's just exactly that. It's just the advance notice

12 to the Defence. And it's only in relation to Grabovica. We haven't done

13 anything in relation to Ostoja, Your Honour.

14 JUDGE KWON: Thank you, Ms. Chana. The Chamber will consider the

15 matter in due course.

16 MR. MORRISSEY: Sorry. Just in relation to that, I understand

17 that you will consider it, Your Honour, would you just hear me briefly on

18 it. We would invite you to regard it as being a new indictment and we

19 draw your attention to what we say are significant new facts that are

20 raised in it, asserted in it. And without being exhaustive about it, you

21 could have regard to the assertion that the inspection team and the RKM,

22 which it had attached to had become an operations group, to the timing of

23 notice for Mr. Halilovic, a fundamental matter, which is now expressed to

24 be on the 8th or the 9th, there are numerous other matters of relevance.

25 But whilst we are grateful to my friend for the indication that she gave,

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Page 222

1 we do not regard it as simply a helpful explanation at all.

2 JUDGE KWON: Thank you, Mr. Morrissey.

3 I think somewhere in the process, the Prosecution alluded the

4 possibility of a future -- another amendment of the indictment. Could you

5 clarify on that.

6 MS. CHANA: Yes. We had in that particular motion said that we

7 will be asking for an amendment in respect of one other matter, and that

8 is the date, Your Honour, which was the 8th and the 9th. At the moment we

9 have only asserted the 9th and we would like to amend the indictment to

10 state 8th and 9th. That is the full extent of the amendment that the

11 Prosecution had foreshadowed in this motion that we might bring before the

12 Chamber.

13 JUDGE KWON: Is it the Prosecution position that the Trial Chamber

14 at the later stage, at the judgement stage, cannot decide otherwise unless

15 there's a change, amendment of the indictment?

16 MS. CHANA: No, not at all, Your Honour. The Trial Chamber of

17 course would be at liberty to decide that, depending how --

18 JUDGE KWON: I'm referring to whether, for example, it is 8th or

19 9th.

20 MS. CHANA: Yes. Your Honour, of course, at the end of the case,

21 the Trial Chamber would be quite within its rights to see what the

22 evidence states and amend it accordingly, but this was something that we

23 had put forward and since we are still seeking certification and we are

24 awaiting the ruling on that particular amendment, we will wait for that

25 before we move on this other amendment, Your Honour.

Page 223

1 JUDGE KWON: My query is that if, as you put it just now, if the

2 Trial Chamber is free to decide on the date of notification, which is a

3 bit different from the passage written in the indictment, why do you

4 bother to amend it?

5 MS. CHANA: Your Honour, I mean, that's quite correct, Your

6 Honour, and we thought for good order we might do so. And now that we see

7 that the Defence pre-trial brief, Your Honour, that -- whether it will be

8 the 8th or the 9th or the 10th, or for all three days, they have alleged

9 that their client was not in the particular location. So I do not think

10 in that event it will prejudice the accused greatly. So if they were

11 alleging that their client was not on that two days but not the third,

12 then perhaps it would have prejudiced the accused, but now that we have

13 seen the Defence pre-trial brief it doesn't make any difference because

14 their position appears to be that for all three days their client was not

15 in Grabovica. So to that extent, perhaps it would not be necessary at

16 this time, Your Honour.

17 JUDGE KWON: Thank you, Ms. Chana.

18 We will bear all the submissions in mind in deciding this matter.

19 MR. MORRISSEY: We will, Your Honour. But may I take the liberty

20 to add to it very briefly that this matter of notice is important. We

21 need to be told straight away. We have to prepare this case. It's only

22 two weeks away. The Prosecution should now undertake to move that motion,

23 if they're going to do so, or abjure to do so. Because we're being kept

24 hanging in relation to it. So we call upon, to the extent that we can do

25 in this court now, we call on the Prosecutor to indicate that they will

Page 224

1 file that motion straight away. Because it has nothing to do whatsoever

2 with the Uzdol motion or the certification. It can be done now. It's

3 simply a matter for the Prosecutor to do it, and we submit they should.

4 JUDGE KWON: And Defence is not opposed to the amendment?

5 MR. MORRISSEY: The Defence is opposed to the amendment. We need

6 to know whether we're filing it, or whether they're persisting with it.

7 We certainly do not accept the gloss that's been placed on the pre-trial

8 brief of the Defence filed long ago in response to what we say is quite a

9 different case.

10 JUDGE KWON: I understand that. Is there any difficulty on the

11 part of the Prosecution to file the motion to amend the indictment right

12 now, as soon as possible?

13 MS. CHANA: No, Your Honour. There's no difficulty at all, and we

14 could, but we are very much guided by what Your Honours told us today, is

15 that perhaps it might not be necessary after all, and especially since, as

16 I said, after seeing the Defence pre-trial brief, no prejudice would be

17 caused to the accused. And in relation to what my learned friend said, I

18 would like to state that they were given an opportunity to amend their

19 pre-trial brief, like the Prosecution did, but they have said that their

20 pre-trial brief stands even though it was written about a year ago or so

21 ago. So we can just take it from that that whatever they assert in the

22 pre-trial brief is true today. And in that pre-trial brief, for all three

23 days, which is the 8th and the 9th and the 10th, Your Honour, they assert

24 that the accused was not in Grabovica. So if there was any question of

25 alibi, Your Honour, and the date was very crucial to that, of course we

Page 225

1 would have moved to amend, but as Your Honour stated earlier on, perhaps

2 it would not be necessary, since after the case is heard and the evidence

3 will show which particular date it was, and -- so at this point, all I

4 will say is we will take it under advisement and see whether we'll still

5 need to move the Court and amend the indictment. And if we do, it will be

6 done very shortly, Your Honour.

7 JUDGE KWON: Yes. Please do so. Defence is entitled to

8 understand the nature of the case and whether, apart from the theoretical

9 approach, if you intend to amend the indictment, could you do that in a

10 week's time from today?

11 MS. CHANA: Yes, Your Honour.

12 JUDGE KWON: That is so ordered.

13 So let me be clear about the number of witnesses in the trial. If

14 you could clarify on this. What's the number of live witnesses, as it

15 stands now, and how would it be changed if the motion would be admitted?

16 MS. CHANA: Your Honour, at the moment, there are 37 live

17 witnesses, one expert, and eight 92 bis witnesses.

18 JUDGE KWON: That's the case if the motion would be admitted,

19 motion to vary the number of the witnesses?

20 MS. CHANA: Yes. That's what the motion says in our confidential

21 annex, Your Honour.

22 JUDGE KWON: And the number of eight 92 bis witnesses are eight,

23 and two among which the Defence is not opposed to the admission of the

24 statements without cross-examination. Am I right?

25 MR. MORRISSEY: Yes. Sorry, Your Honour. Yes, that's correct.

Page 226

1 JUDGE KWON: Thank you. Agreed facts. I understand that the both

2 parties said to commit themselves to make some further progress. Can I

3 expect both parties to make -- file submissions how far they can agree

4 with the briefs, pre-trial briefs submitted by the other party, for

5 example, so whether they can indicate as far as they can agree to the

6 assertion of the other party by the time of the Pre-Trial Conference which

7 is to be held by the Trial Chamber. I think that can assist the Trial

8 Chamber in one way or another. But yes, can I hear from Mr. Morrissey.

9 MR. MORRISSEY: Yes. Your Honour, the Court is entitled to call

10 for that. It clearly would assist the new Chamber that's coming. We

11 would like to cooperate. We are in real difficulties because of what we

12 say is the shifting sands of this Prosecution. We say there are changes

13 to the indictment, to the pre-trial brief, there are changes that have

14 come and changes that are coming and we still don't know what they are.

15 The exhibit list, which has been foreshadowed to be amended, has not been

16 provided to us yet. New exhibits are said to be in preparation to be

17 provided. We haven't been provided with those yet. We don't know whether

18 they're old exhibits that have assumed a new significance or whether they

19 are now exhibits altogether that may attach some or all or none to the

20 witnesses sought to be added.

21 And for those witnesses, committing to an agreement to any part of

22 the Prosecution's current array of pre-trial material is risky and

23 uncertain. We wish to do it, and we commit to do it, but in the current

24 state of uncertainty, we feel afraid to do it, because we're exposing

25 ourselves to what we see as shifting, uncertain facts and assertions of

Page 227

1 facts.

2 We have endeavoured to engage in a dialogue with the Prosecution

3 already, and have met with some discussions, but as things currently

4 stand, restricting the question of our pre-trial discovery -- sorry - of

5 agreement of facts to the pre-trial briefs, as Your Honour did, we're not

6 in a position to agree, as things currently stand, until we have some more

7 certainty about the way the case is being put. We don't do so to be

8 obstructive but we do so because, frankly, of a fear of the shifting

9 sands.

10 JUDGE KWON: That having been said, I would expect both parties

11 make their best efforts to produce some agreed facts, and I would expect

12 the both parties to file, in writing, before the Trial Chamber, before the

13 Pre-Trial Conference, a written submission which states the range of facts

14 they can agree, as far as they can. For example, I have no doubt that

15 Defence can agree with the age of Mr. Halilovic. For example, that's a

16 very simple thing.

17 MR. MORRISSEY: Your Honour, there will be no difficulty with any

18 such factors.

19 JUDGE KWON: Or any factual explanation in the indictment; names

20 of victims, number of victims, whether they were killed or not. There

21 will be a number of facts --

22 MR. MORRISSEY: Your Honour --

23 THE COURT: -- that Defence can consider.

24 MR. MORRISSEY: -- we will. Although, Your Honour, it has to be

25 said, Your Honour has identified some areas where there may well be

Page 228

1 legitimate controversy.

2 JUDGE KWON: Also background facts, historical background.

3 MR. MORRISSEY: I should indicate to Your Honour that we're in

4 current live and not preliminary discussions with the Prosecution about

5 that. We've urged the adoption of certain facts from indictments brought

6 by the Prosecution already in relation to background facts. Some

7 discussion took place at the 65 ter conference that Your Honour noticed.

8 We hope the Prosecution will agree to many of the facts which they

9 themselves have alleged in other prosecutions which we say are legitimate

10 facts, easy to agree upon, not in scandal or in conflict with any other

11 decisions that may come in the future. We'll persist with that. We think

12 those facts should, of course, be admitted and that's what we mean to do.

13 The uncontroversial facts that Your Honour referred to, of course we will

14 persist with, but the crunch comes and the crisis comes, of course, with

15 facts that are alleged in the pre-trial brief and, Your Honour will

16 appreciate, simply on the material which you've seen today, perhaps what

17 the fears of the Defence are.

18 JUDGE KWON: Thank you. I come back to the exhibit list. When is

19 the Prosecution able to finalise its position on this?

20 MS. CHANA: We stated at the 65 ter, Your Honour, that we will be

21 in a position to file our exhibit list on 14th of January, which is

22 Friday. We don't intend to add many exhibits, Your Honour, and these are

23 exhibits which we have collected in recent times, so it's not something

24 that we had in-house already. And I do not want to put -- commit myself

25 to a figure, but they're not going to be more than about 25 exhibits, Your

Page 229

1 Honour, which we will be adding to the exhibit list from new collections.

2 So the Defence need not be too concerned --

3 JUDGE KWON: Very well.

4 MS. CHANA: -- about the new exhibit list.

5 JUDGE KWON: Very well. Yes. Any comment on this?

6 MR. MORRISSEY: Well, I make no hostile comment because we don't

7 know what we're getting, Your Honour. The comment that we make is, and

8 it's one that, Your Honour, when you come to consider, ask the crucial

9 question, are we ready for trial, we are doing our best to be ready for

10 trial and this is what we're against. We're going to receive new material

11 and we're going to be preparing at the pace dictated by the Prosecution.

12 We have plenty to do ourselves in preparing for this case and it's very

13 regrettable that we find ourselves in this position. Having said that, we

14 must simply await developments and await the Prosecutor when it sees fit

15 to give us that material. But of course, when it comes, we reserve our

16 position to object to it being added and to deal with it appropriately in

17 motions. At this stage, it's simple hollow words because we don't know

18 what we're getting.

19 JUDGE KWON: I understand that. Could you shorten the period?

20 Could it be done in a week's time from today, until the Wednesday next

21 week? No, no, no. I beg your pardon. 14th is Friday of this week.

22 MS. CHANA: Friday, Your Honour. If you want to give us more

23 time, until next Wednesday, Your Honour, we would be very pleased.

24 JUDGE KWON: I was mistaken. Then it is so ordered.

25 I think I dealt with all the items I planned to raise. Then I --

Page 230

1 can I hear from the parties, anything which it likes to raise. Can I hear

2 from the Prosecution. Is there anything to raise?

3 MS. CHANA: The Prosecution has nothing else to raise at this

4 time, Your Honour.

5 JUDGE KWON: Mr. Morrissey.

6 MR. MORRISSEY: We hope it doesn't seem disrespectful to say that

7 we understand that the Chamber is dedicating all of its attention in the

8 best way that it can to these matters and we're grateful for that, because

9 the sooner we have those rulings, the sooner we can plot our course and in

10 particular deal with agreed facts, among other things.

11 JUDGE KWON: I expected that you -- to raise something in relation

12 to the return date of the accused.

13 MR. MORRISSEY: Pardon me. I'll deal with that now, if it's

14 appropriate. Yes. In relation to that matter, it's currently -- the

15 current state of affairs is that he's required to return here and present

16 himself, according to the usual arrangements, on the 17th. Your Honour

17 will be familiar with the feast of Bajram, B-a-j-r-a-m, which is to be

18 celebrated. Mr. Halilovic is a person with a family, and he has

19 instructed us that he is very keen and desirous of spending that precious

20 time with his family, if possible.

21 Our motion -- Your Honour will also be aware that there's a motion

22 before the President for accommodation or alternate accommodation

23 arrangements to be made. Now, it's our submission and it's raised live in

24 court now rather than by motion, for a good reason, that he be permitted

25 to return on the 21st of this month, to enable him to spend that time in

Page 231

1 that religious festival with his family. It's an unusual request, but in

2 the circumstances, his position is unusual.

3 And the reason why that is is because he's been effectively on

4 provisional release for a long time. As we understand it, there's no

5 complaint made about his conduct while on provisional release. He seems

6 to have conducted himself in a way which would give the Tribunal

7 confidence that he'll attend. He's fulfilled his obligations. We submit

8 you could deal with it safely on that basis, that he'll answer his

9 obligations.

10 We understand that although it does impose some burden upon the

11 Tribunal to bring individuals back in the way that they have to, in fact,

12 in this instance, it would only require the deployment of one person. It

13 does require some administrative work to be performed, but it won't

14 require major difficulties. And --

15 THE INTERPRETER: Could counsel kindly slow down for the benefit

16 of the booths, please.

17 JUDGE KWON: Mr. Morrissey, you are being asked to slow down for

18 the sake of the transcript.

19 MR. MORRISSEY: Mr. Morrissey will now slow down.

20 It's effectively a bail application and I speed up for that

21 reason, Your Honour. Because of his record, because of the religious

22 festival, because he's been on provisional release, we request that his

23 liberty be extended to the period -- to the date of the 21st, and that

24 unless there be some reason by way of misbehaviour or something of that

25 nature, that he be permitted to come back under supervision on that date.

Page 232

1 JUDGE KWON: Thank you, Mr. Morrissey. First of all, I would

2 prefer the motion to be filed in writing so that the Chamber can consider

3 more conveniently. And though informally I was informed by the relevant

4 authority that 21st is not practicable, given that that day is a UN

5 holiday, and the Chamber will consider the matter in due course.

6 MR. MORRISSEY: We shall undertake to file the motion, and the

7 explanation for not doing it in writing is because it triggers the usual

8 elapse of days which potentially took us outside or beyond the period

9 which we sought. Now that we've raised it at a live time, as we have

10 done, we will comply with your order.

11 JUDGE KWON: Thank you, Mr. Morrissey.

12 Is there anything you'd like to raise at this moment?

13 Having no further things, then -- let me check.

14 [Trial Chamber and legal officer confer]

15 JUDGE KWON: In relation to the accused's return date, does the

16 OTP have anything to say?

17 MS. CHANA: Your Honour, the OTP's position really, I would leave

18 the matter to the Court. I think it is a matter of logistics. As we

19 heard at 65, it's very, very difficult. As long as we have him on the

20 24th in the dock, I think that's all we are concerned with.

21 JUDGE KWON: So we will not wait for the Prosecution's response

22 for the filing of Defence.

23 MS. CHANA: Yes.

24 JUDGE KWON: Having said that, the hearing is now adjourned.

25 --- Whereupon the Status Conference adjourned

Page 233

1 at 3.53 p.m.