1 Monday, 30 May 2005
2 [Open session]
3 [Status Conference]
4 [The accused entered court]
5 --- Upon commencing at 4.13 p.m.
6 JUDGE LIU: Call the case please, Mr. Court Deputy.
7 THE REGISTRAR: Good afternoon, Your Honour. This is Case Number
8 IT-01-48-T, the Prosecutor versus Sefer Halilovic.
9 JUDGE LIU: Thank you.
10 For the sake of the record, could we have the appearances, please.
11 For the Prosecution.
12 MR. WEINER: Yes. Good afternoon, Your Honour. Phillip Weiner
13 for the Prosecution, with Sureta Chana, David Re, and Ana Vrljic, our case
15 JUDGE LIU: Thank you very much.
16 For the Defence.
17 MR. MORRISSEY: Yes, Your Honour, Peter Morrissey appearing for
18 the Defence in this case, with co-counsel Mr. Mettraux, and also our legal
19 assistant, Mr. Cengic, and Investigator Medina Delalic is present in
21 JUDGE LIU: Thank you very much.
22 Mr. Halilovic, can you hear the proceedings in a language that you
24 THE ACCUSED: [Interpretation] Yes, Your Honour, I can.
25 JUDGE LIU: Thank you very much. You may sit down.
1 THE ACCUSED: [Interpretation] Thank you.
2 JUDGE LIU: Well, this is a Status Conference of this case, during
3 which we'll discuss some procedural matters and we are not going to deal
4 with the substantive ones.
5 There are several issues on our agenda. The first one is the
6 resignation of Judge Szenasi. I'm very sorry to say that Judge Szenasi
7 resigned last Friday because of health reasons, and it is very unfortunate
8 for us to lose a Judge in the middle of the proceedings. In accordance
9 with the Rule I believe 15 bis (C), the continuation of the proceedings
10 can only be ordered with the consent of the accused.
11 So I would like to turn to the Defence first, whether they had the
12 opportunity to talk to their client about this matter and whether there's
13 a consent from the accused on this issue.
14 MR. MORRISSEY: Your Honour, the answer is that, yes, we did have
15 the opportunity to speak to Mr. Halilovic about it. He's very concerned
16 not to delay proceedings here. And in short, Mr. Halilovic does consent
17 to the replacement of the Judge and to the continuation of the
19 JUDGE LIU: Thank you very much.
20 Now could I turn to Mr. Halilovic. Could you please confirm what
21 Mr. Morrissey said just now.
22 THE ACCUSED: [Interpretation] Yes, Your Honour. Mr. Morrissey has
23 conveyed my position to you. I want the trial to go on.
24 JUDGE LIU: Thank you very much. So you agree that we'll continue
25 the proceedings?
1 THE ACCUSED: [Interpretation] Yes, I do, Your Honour.
2 JUDGE LIU: Thank you very much.
3 Any observations from the Prosecution on this very issue?
4 Mr. Weiner.
5 MR. WEINER: With regard to that specific issue, no, we would also
6 like to continue with the case with regard to that part of it. We do have
7 some other concerns, though.
8 JUDGE LIU: Thank you.
9 Well, Judge Szenasi's resignation is effective as of today, and
10 the Trial Chamber will request the President to assign a new Judge to this
11 case as early as possible. It is our -- it is also our intention to have
12 this case to be continued.
13 The next issue is about the 98 bis proceedings. The Trial Chamber
14 wants to stress that the fact that Judge Szenasi is leaving the trial will
15 not affect the Defence's ability to make 98 bis submissions. The Trial
16 Chamber will do everything in its power that no disruption is caused due
17 to Judge Szenasi's leaving and to enable the Defence to make its 98 bis
18 submission, if the Defence so wishes.
19 Mr. Morrissey, what's your position on this issue at this stage?
20 MR. MORRISSEY: Your Honour, we are concerned about the situation
21 with respect to the 98 bis submission. The Defence is considering the
22 possibility of not making any such submission. This was done in the case
23 recently of Limaj, Bala, and Musliu. Now, that's a different Trial
24 Chamber and the circumstances may be different, but we have some concerns
25 both in form and substance about making a 98 bis submission in the current
1 circumstances, and it's unfamiliar territory for everybody, I think, Your
2 Honour. But very briefly, we think the Rules require that it be -- that
3 the -- that the 98 bis submission be made before a Court consisting of
4 three Judges, and all three of those Judges must -- or the new Judge must
5 have certified his position in order to be able to deal with the 98 bis
6 submissions. It seems to us that it just -- it would have artificial to
7 require or to put a Judge in the position to answer that question without
8 a significant adjournment of the proceedings, one which neither
9 Mr. Halilovic nor the Chamber can really afford to happen.
10 And for those reasons, we have a concern as to how a 98 bis
11 proceeding would proceed with three Judges in the way that we think the
12 Rules require. We've looked for alternative interpretations of the Rules.
13 Frankly, we'll continue to look for those and consider this matter because
14 it's a matter of significance in a number of ways. But that's our current
15 view of it, that it's quite a difficult position at the moment for the
16 third Judge to play any meaningful part, and that means that in effect the
17 98 bis submission would be one not proceeding in accordance with the
19 In any event, the Defence is giving some consideration to whether
20 or not it wishes to proceed with the 98 bis submission. We understand
21 that in some respects these are -- this is a stage which can assist the
22 Trial Chamber and we would not lightly not proceed with it. But those are
23 the two things I -- two comments I have to make at this stage, that
24 firstly we're not sure that as a matter of form it could be done; and
25 secondly we are giving thought as a matter of substance we might choose
1 not to do so in any event.
2 And the final thing I wish to comment on is this: We think that
3 if we're right in our interpretation of the Rules and the dangers that are
4 posed, we think that significant time would have to pass by. And we
5 understand there are a number of different pressures, not just the
6 interests of Mr. Halilovic but other pressures of time in this case. And
7 we're concerned that those pressures don't begin to squeeze upon the
8 Defence case and the later preparations that follow upon that, so that any
9 delay that happens now begins to impinge upon the ability of the Defence
10 to prepare its case and to present its case accurately. That's not to say
11 we're going to lead a lengthy case; we may well not. And part of our work
12 in the next few weeks is bring it down and cut it down as much as
13 possible. We really are going to try to trim this down greatly, but we
14 don't want to be put in position where we have to do that because we're
15 running out of time. And that's another reason why we're concerned about
16 the 98 bis issue, this time pressure, which is nobody's fault, has now
17 become a factor in the case.
18 So that's what I can say in response to Your Honour's question at
19 this moment.
20 JUDGE LIU: Thank you. I think agree with you that it's nobody's
21 fault that you give up this opportunity to make any submissions according
22 to the 98 bis.
23 Any response from the Prosecution?
24 MR. WEINER: I would just want to add that we're also very
25 concerned about holding a 98 bis hearing without all members of the Bench
1 being familiar with the record. The Rules, Rule 15 bis (D) indicates that
2 a Judge cannot serve on the Bench until after they've certified that
3 they've familiared [sic] himself or herself with the record of the
4 proceedings. The spirit of this would seem to apply to both (C) and (D).
5 It would not -- if one would think of it, it just wouldn't make sense
6 under one -- even though it is written vaguely, to have under one section
7 the Judge has to be familiar and under the other section the Judge does
8 not have to be familiar. So the spirit of the Rules is that it does
9 apply. And as a result, to hold a 98 bis hearing and get a 98 bis
10 decision, we would have to have a panel, all three members of the panel
11 being fully familiar. And if this Court wanted to move ahead immediately
12 with the 98 bis, the Prosecution would request for appellate reasons, and
13 there could be considerable appellate reasons, that the accused must
14 consent -- or ask the accused's consent to a hearing without such
15 certification that that Judge is familiar with the record. The
16 Prosecution would want that to protect themselves. I mentioned this when
17 I spoke with Mr. Morrissey prior to the hearing when we both discussed
18 these matters.
19 So the issue that we're both concerned about right now would be
20 holding a 98 bis hearing with one Judge that is not familiar with the
21 record and has not certified that he or she has done so.
22 Thank you.
23 JUDGE LIU: Thank you.
24 As I stated before, this Bench does not believe that Judge
25 Szenasi's leaving will affect the submission of the 98 bis submissions.
1 Anyway, the Rule 98 bis was recently amended and there are a lot
2 of interpretations to this rule. And it will only have the Limaj case as
3 a precedent before us. To my limited understanding, this Rule could be
4 only invoked by submissions from the Defence. If there's no submissions
5 from the Defence for the 98 bis, there's no such kind of proceedings.
6 This is my limited understanding. Whether the Trial Chamber has the power
7 to make a judgement on acquittal proprio motu is another matter, and it's
8 still under the discussion and debate in this Tribunal. So at this stage,
9 we'll not touch upon that very issue. But however, we believe that if
10 there's no submissions from the Defence in accordance with the
11 Rule 98 bis, we'll not invoke that procedure at this stage.
12 So, Mr. Morrissey, could I confirm that you are going -- you are
13 not going to file any submissions in according to the 98 bis.
14 MR. MORRISSEY: Your Honour, I would like to formally reserve the
15 position because we don't have a ruling at this stage on the record -- on
16 the record of interview with Mr. Halilovic in 2001 and we have yet to hear
17 the final witness. Can I indicate that as a matter of substance, that is
18 very likely to be the position, that we will not do so. And therefore, we
19 would not -- it's not necessary to plan for schedule for one to be heard.
20 Of course, if anything should change, we would immediately advise the
21 Chamber, and we understand that it's not a good idea for changes to occur,
22 having indicated a course. I think it to -- very, very unlikely, but just
23 as a matter of form I would wish to maintain a discretion to -- or at
24 least leave to apply to do it subsequently, depending upon if something
25 strange, for example, developed out of the evidence of Mr. Karic. I think
1 it's unlikely, but formally speaking the Prosecution has not yet closed
2 its case at this moment. But however, I can indicate that that is my
3 intention at this point not to proceed with such -- not to invoke the
5 JUDGE LIU: Yes. Of course -- but, however, there must be a time
6 limit on that. You cannot delay your decision, you know, until sometime
7 very late because we have to guarantee expeditious trial of this case.
8 MR. MORRISSEY: Your Honours, a time commitment can be fixed now,
9 and that could be the morning after Mr. Karic, if that would be suitable
10 to all. I can indicate that it's very unlikely that I would change my
11 view, but at that moment I think it's fair to say the Prosecution case
12 would be closed in every way, if I can indicate then.
13 JUDGE LIU: Thank you very much. Thank you.
14 Well, the next issue is about the preparation of the Defence case.
15 In our view, that the 98 bis proceedings does not affect the preparation
16 of the Defence case. Pursuant to Rule 65 ter (G)(i), and (ii), the Trial
17 Chamber shall order the Defence to file the list of the witnesses it
18 intends to call and a list of exhibits and copies of exhibits the Defence
19 intends to offer in its case.
20 So I wonder at this stage whether the Defence is in the position
21 to inform us whether -- at what time you could provide a 65 ter list. And
22 the Trial Chamber would propose for the 13th of June. Do you think it's
23 feasible at this stage, Mr. Morrissey?
24 MR. MORRISSEY: Your Honour, the answer is: Yes, I think we
25 should aim for that. I think I -- I'm prepared to say it's feasible now.
1 We are going to be sending people to Sarajevo shortly. And this case has
2 had its developments, as all cases have, I suppose. And we have -- we now
3 find ourselves in a somewhat different position than we were. One example
4 is that we are now facing no expert testimony at all. In the past, we
5 were. That will have an affect, and one would hope it would have an
6 effect of shortening the case, because to the extent that we call expert
7 evidence now, it would be focussed. It wouldn't be meeting a general
8 expert opinion from the Prosecutor. It would be expert evidence an
9 particular issues. So we think we can save time in that regard.
10 Your Honours, again, if I may reserve the right to apply at a
11 future time if we should find ourselves struggling. We think that setting
12 an early deadline like that will help us to work out, frankly, and we're
13 happy to aim for that. So may I just say, yes, that's an appropriate
15 JUDGE LIU: Yes. I want to stress at this stage that the filing
16 on the 13th of June is just a very preliminary filing, subject to the
17 future changes and alternations because it's very difficult to predict the
18 proceedings of the preparation of the case at this stage. And it is our
19 intention to start the Defence case on the 20th of June. Is that
20 agreeable to the parties? Mr. Morrissey?
21 MR. MORRISSEY: Yes, Your Honour. Again, subject to what I said
22 before, we think that would be in Mr. Halilovic's interest, to start as
23 soon as possible.
24 JUDGE LIU: Yes.
25 Mr. Weiner, could I know your opinion on that? Do you think you
1 have enough time to prepare for the Defence case?
2 MR. WEINER: Yes, as long as under (G)(i)(b) there is a summary of
3 the facts upon which witness will testify is provided, and it's a full
4 summary. We can then respond and deal with each of the witnesses.
5 JUDGE LIU: Yes. And at this moment, we don't know how big is the
6 Defence case yet. And what's the estimated length of the Defence case and
7 whether there's any Rule 92 witnesses?
8 MR. MORRISSEY: Yes, Your Honour. Well, these matters are more
9 volatile than my previous answers were as to the length of the Defence
10 case. We do -- we have three categories of -- we have a number of
11 different categories of witnesses that we have to see. At this stage it
12 seems that a Defence case of approximately five weeks is possible. I want
13 to make it clear that I prefer to run a case that is shorter than that.
14 We aim to run a case that's shorter than that. Currently calling the
15 witnesses that are on our list, I'm happy to say that I think it would
16 take six weeks. I think it's realistic to say it will be reduced, and we
17 wish it to be reduced further. But I want to say it's an unsatisfactory
18 situation from the Prosecutor and Chamber's point of view that I can't be
19 precise, but this case has had its changes and things have developed.
20 Part of going to Sarajevo is to refine that. I myself will go there at
21 some stage; others will go there before me to perform my other functions.
22 So that the time estimate is volatile. It could be six weeks; it's likely
23 to be five as things currently stand. We mean to reduce it further. I
24 hope it to be shorter than that.
25 As to the 92 bis situation, we intend to use that as much as we
1 possibly can. There will be 92 bis witnesses. The way the Rules are
2 structured now, it's necessary for the Defence to put material in
3 mitigation of a plea, even if we're not -- even if we're ultimately
4 acquitted, we're still obliged now to put certain material related to
5 that. We're likely to put all of that as 92 bis if we can, and we'll see
6 what the Prosecution say about that sort of thing. So there is likely
7 that sort of material in 92 bis.
8 There is other material that doesn't go to the movements or
9 conduct of Mr. Halilovic himself, and we're likely to endeavour to put
10 that sort of material as 92 bis. And it may be there's some material
11 that's repetitive and we'll assess that. Depending on whether it's
12 rational, if the Prosecutor would challenge that, we may put that as
13 92 bis as well.
14 Can I indicate there is likely to be a substantial amount of
15 material offered as 92 bis material. We think some of it would be -- the
16 Prosecution would be content with and there may be some of it they would
17 wish to cross-examine on. So that's the position.
18 Again, that's one of the reasons I'm a little doubtful about the
19 ultimate length of the Defence case, because that depends to some degree
20 on what leave the Chamber grants to the Prosecution to cross-examine
21 92 bis witnesses, and that's a matter for argument. When the Prosecutors
22 get our list, they can assess what they want to say about that.
23 So that's my lengthy answer, Your Honour.
24 JUDGE LIU: Thank you.
25 To be on the safe side, we'll make it six weeks at least planned
1 for the Defence case, which means we might sit in the first week of the
2 recess, that is from 25th to 29th of July. We better make that
3 reservation in advance so that we're prepared because it will affect
4 dozens of people for their locations during that period.
5 And according to Rule 93 ter, a pre-Defence conference would be
6 held on the 17th June, so in order to discuss number of the witnesses the
7 Defence want to call and how to shorten the estimated length of the
8 Defence case.
9 As for the expert witness, I would like to remind the Defence
10 under Rule 94 bis the Prosecution has 30 days after the full statement of
11 any expert witness has been disclosed to it within which to object, which
12 means that if you would like to call an expert witness you had better
13 furnish the statement of that expert in advance so that the Prosecution
14 will have the opportunity or enough time to examine that report or might
15 make any objections to the expert report.
16 In the jurisprudence of this Tribunal, it is not quite clear what
17 is exactly an expert report. I have to say -- well, I'm not going to
18 comment in detail on this matter. I just remind the parties, be very
19 careful with the expert report. Yes.
20 And the last matter is that I wonder whether the Defence would
21 like to make an opening statement on the first day of the start of its
23 MR. MORRISSEY: Your Honours, the answer to that is, yes, we will
24 wish to. I suspect that it is going to be a confined statement, but
25 perhaps we'll just wait and see who we end up deciding to call, but I
1 suspect it will be a confined opening statement, but, yes, I do wish to do
2 that. I will give an estimate of the length of that, frankly, when I come
3 back from Sarajevo, Your Honour --
4 JUDGE LIU: Yes.
5 MR. MORRISSEY: -- it won't be a monster. It won't go certainly
6 outside of a day; it might not go outside of an hour, so it will be
8 JUDGE LIU: The next issue is about the housekeeping matters and
9 which may be related to the admission of the outstanding documents. On
10 Thursday morning, we'll hear Mr. Karic's testimony via videolink
11 conference. The scope and time is very limited for that procedure, so we
12 could have some time left over on that day's sitting. We'll deal with
13 some housekeeping matters, especially about the admission of outstanding
14 documents. I believe that I asked both parties to submit their list of
15 the documents for tendering as well as their objections to the document
16 tendered by the other party. So I hope we could guide those submissions
17 tomorrow or the day after tomorrow, at least before that housekeeping
19 Yes, Mr. Weiner.
20 MR. WEINER: Sorry, Your Honour, are you referring to the
21 documents of Bakir Alispahic or are you referring to any remaining
23 JUDGE LIU: First to the last witness, Bakir Alispahic, yeah. And
24 secondly, I hope the Prosecution could go over all its files and to inform
25 us whether in their case there are still some documents they would like to
1 tender or we forgot to deal with it during the whole proceedings. It's a
2 kind of housekeeping, you know, procedures.
3 MR. WEINER: Thank you.
4 JUDGE LIU: I think that is the same to the Defence.
5 MR. MORRISSEY: Yes, Your Honours. Well, I understood that was
6 what Your Honour required. And I think in terms of the Prosecution there
7 was the Alispahic documents and there were also some outstanding documents
8 concerning the Witness Ramiz Delalic and there was an outstanding tape
9 concerning -- arising from the witness Karavelic. So these are all
10 matters. In relation to some of the Alispahic documents and the Karavelic
11 ones, Mr. Re and I are going to speak. But you recall Mr. Re played a
12 card in that discussion which I may find difficult to avoid in terms of
13 Exhibit D390. So we'll certainly be speaking in that regard. It may be
14 that we don't take the same attitude that we took in the past about it.
15 The only question about that, Your Honour, is whether you wish
16 submissions in writing about those things if we -- if we withdraw our
17 objections to each other's exhibits. In any event, Your Honour,
18 something's already been drafted. It hasn't been signed by me yet, but
19 it's drafted, so you'll have that in the next couple of days.
20 JUDGE LIU: Thank you very much. If the parties could submit it
21 in written form in a very concise format, that will be of great help.
22 MR. MORRISSEY: Yes, Your Honour.
23 JUDGE LIU: Well, at this stage are there any other matters that
24 the parties would like to raise?
25 MR. MORRISSEY: Your Honour, there's one --
1 JUDGE LIU: Yes.
2 MR. MORRISSEY: Pardon me, there is one matter to raise. It
3 doesn't directly concern the Prosecution and at this stage it doesn't
4 directly concern the Chamber, but I just need to make a record of it.
5 Your Honours, at this stage the Defence has to enter into
6 discussions with the registry concerning funding matters. And normally
7 speaking, it's not something that Your Honour becomes involved with in any
8 way. We just wish to note that we are in that phase, that because of the
9 very tight time-lines that arise, sometimes if there isn't agreement or if
10 there are difficulties that arise between registry and Defence counsel, it
11 may be that -- that the registry would seek some assistance or guidance
12 from elsewhere. I've indicated to the registry that I have no difficulty
13 with them approaching the Chamber or its representatives at any time
14 without first notifying me to verify any of the claims that I've made and
15 the requests that I've made. Really, I just wish to put on record that
16 I've done that so that in the future if the Chamber should be approached
17 by registry in some form, that's with our authority. We want things to
18 proceed clearly.
19 But there is a difficulty that arises for the Defence and that is
20 this: That if there are -- sorry, that our undertakings here to be able
21 meet deadlines and our bona fide attempts to do that are going to depend
22 on us having the full team. I'm basing that on -- that we'll be in a
23 position to send investigators where we have to send them and to do what
24 we have to do. I don't ask Your Honour to join in this discussion at this
25 stage at all. I just mention that it is a factor, and it is a discussion
1 that's going on now. And that should there be any difficulties, I just
2 indicate I will come back and raise the matter, even though normally Your
3 Honours do not provide a remedy directly here. Sometimes the Chamber is
4 able to indicate what the Chamber thinks should happen or can indicate how
5 a resolution might be reached.
6 I've said all I have to say about that topic.
7 The other thing that I would raise is that I just really wish to
8 advise the Chamber of the effect of a delay on the Defence team. Your
9 Honours have indicated time-lines which we think will avoid that problem,
10 but if there are lengthy delays the Defence team consists of employees who
11 are not employed permanently for a Defence generally but simply work for
12 the Halilovic team and they're funded accordingly. If there were to be a
13 delay, for example, of two months, those employed in the Halilovic team
14 simply have to find other work, and that's the real world. Now, for
15 myself, I can do that easily and the nature of my work is I can do that
16 and come back and work again. If there was a delay of two months, it
17 wouldn't compromise me; it would cause me difficulty but difficult is not
18 a problem. For others, however, who have obligations elsewhere or who
19 have to live and work and survive, it is a real issue and it is a genuine
20 issue. So can I indicate that a lengthy delay would have the capacity to
21 very adversely impact upon our team, and that indirectly would cause
22 problems for the expeditious deciding of this case. It would affect
23 Mr. Halilovic and affect all those who have a stake in the proceedings
24 here, including the Tribunal itself.
25 For that reason I also indicate that we feel ourselves obliged at
1 all times to endeavour to avoid delays and it is very much not in our
2 interest to have delays in that regard. I mention that because it's just
3 a real-world situation we find ourselves in, and in the future if
4 disasters happen, the Tribunal should know that that is a factor we have
5 to wrestle with. It shouldn't be the case -- I don't mean any criticism
6 of registry in this at all. It's just the way things are. That if
7 there's a lengthy adjournment, that's the world in which I'm going to find
8 myself in managing a team, which up to now has -- I'm very proud of and I
9 don't wish to fall apart.
10 So I mention that now, Your Honour, but at this stage the
11 deadlines that Your Honours have set will avoid any difficulties like
12 that. The other matter that arises from it is one -- this is a bit of
13 forward thinking here. Should we finish the Defence case on or about the
14 time when the -- when the recess takes place, then the Defence would be
15 very keen to press ahead with the preparation of final submissions at
16 final brief during that recess. That doesn't involve court staff or
17 anything of that nature, but we're very keen to avoid a situation where
18 there is, to use a phrase, downtime then for myself and Mr. Mettraux as
19 well. We would be wanting to work and preparing at that time. That's a
20 matter I will be indicating to the registry, and should they have any
21 doubt about that it may be that the registry would wish to contact the
22 Chamber and indicate -- and discover what the Chamber's view about it
23 was. I mention it because it's going to arise in our discussions. None
24 of that gives rise to remedy now, Your Honour. I'll stop. I thought I
25 better put that on to record now because those are managerial issues we
1 have to face.
2 JUDGE LIU: Thank you very much for bringing to our attention
3 about the funding issues. At this stage I have to say that generally
4 speaking this issue is within the mandate of the registrar. In the
5 meantime, the -- it is also the responsibility for the Trial Chamber to
6 guarantee a expeditious trial that is without any undue delay. So if
7 there's any problem or if there's any difficulties on the part of the
8 Defence concerning of these issues, I hope you could draw our attention to
9 it and we'll do our best to facilitate the solving of this problem and to
10 make the proceedings moving on. This is our responsibility, I believe.
11 MR. MORRISSEY: Thank you, Your Honour.
12 JUDGE LIU: And at this stage it's very difficult to predict
13 whether there's any rebuttal and rejoinder procedures after the recess, so
14 I will not make any comments on that issue.
15 Yes. Are there any other matters on the part of the Prosecution?
16 MR. WEINER: None, Your Honour.
17 JUDGE LIU: So I believe that's all for this Status Conference.
18 The hearing is adjourned.
19 --- Whereupon the Status Conference
20 adjourned at 4.51 p.m.