1 Friday, 22 June 2001
2 [Status Conference]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 10.03 a.m.
6 JUDGE HUNT: Call the case, please.
7 THE REGISTRAR: Case number IT-95-14/2-A, the Prosecutor versus
8 Dario Kordic and Mario Cerkez.
9 JUDGE HUNT: Appearances, please, for the Prosecution. Mr. Yapa.
10 MR. YAPA: May it please Your Honour. I'm Upawansa Yapa,
11 appearing for the Prosecution, with Mr. Norman Farrell. Ms. Edel Guzman
12 is the case manager.
13 JUDGE HUNT: For Mr. Kordic.
14 MR. NAUMOVSKI: [Interpretation] Your Honour, my name is Mitko
15 Naumovski, attorney from Zagreb, and Defence counsel for Mr. Dario
16 Kordic. Thank you.
17 JUDGE HUNT: For Mr. Cerkez.
18 MR. KOVACIC: Good morning, Your Honour. For Mr. Cerkez, Bozidar
19 Kovacic, attorney from Milica Rijeka, Croatia.
20 JUDGE HUNT: Thank you. Mr. Kordic, are you able to hear the
21 proceedings in a language which you understand?
22 THE APPELLANT KORDIC: [Interpretation] Thank you, Your Honour.
23 Yes, I can understand.
24 JUDGE HUNT: Thank you very much. You may sit down.
25 Mr. Cerkez, are you able to hear the proceedings in a language
1 which you understand?
2 THE APPELLANT CERKEZ: [Interpretation] Your Honour, yes.
3 JUDGE HUNT: Thank you very much. You may sit down.
4 This is a Status Conference called in accordance with the
5 provisions of Rule 65 bis. Before we get to the matters which have been
6 filed, is there anything which the Prosecution wants to raise generally?
7 MR. YAPA: No, Your Honour.
8 JUDGE HUNT: Anything that is to be raised of a general nature on
9 behalf of Mr. Kordic?
10 THE INTERPRETER: Microphone, please, counsel.
11 MR. NAUMOVSKI: [Interpretation] Of a general nature, I have
12 nothing to state. All I would like to do is to inform the Trial Chamber,
13 if I may, that we filed two submissions yesterday. In view of the
14 shortness of time, I'm not sure whether you have had a chance to look at
15 them yet. Just so much for me, thank you.
16 JUDGE HUNT: I have looked at them. I must say, they were
17 certainly very late. If you do want to raise these matters, it would
18 assist everybody if you gave us a bit more time to look at them. But we
19 have them. I'll deal with them later.
20 On behalf of Mr. Cerkez. Mr. Kovacic.
21 THE INTERPRETER: Microphone, please.
22 MR. KOVACIC: I'm sorry. I'm awfully sorry. [Interpretation]
23 Your Honour, we have nothing special to raise. We have seen the
24 submissions of the Kordic Defence. I was away when they arrived. I was
25 on a trip. And I think that I can say that I agree with those submissions
1 and perhaps will myself present additional arguments that is linked to the
2 Bosnian archives, the archives in Bosnia-Herzegovina and the Federation of
3 Bosnia-Herzegovina, to which we did not have access. Now we have obtained
4 a document of this kind for the first time from the Prosecution. I am not
5 ready today to engage in a discussion on the issue, unless we are going to
6 discuss it within the frameworks of what was stated generally in the
8 JUDGE HUNT: Before we turn to that, Mr. Yapa, can you please tell
9 me what is the Bosnia-Herzegovina archive to which you refer in your
11 MR. YAPA: If Your Honour will bear with me, I'll give it to you.
12 [Prosecution counsel confer]
13 MR. YAPA: Your Honour be pleased. On the information that I have
14 at present, I can say that it is - the document that was disclosed is the
15 document that had been obtained from the Bosnian archives. I am not in a
16 position to say as to when the document was disclosed.
17 JUDGE HUNT: I'm sorry. I think you misunderstood me.
18 MR. YAPA: Yes.
19 JUDGE HUNT: Your letter, which we got on an ex parte basis, to
20 which I will return in a moment --
21 MR. YAPA: Yes.
22 JUDGE HUNT: -- is dated the 13th the June, and it says: "The
23 enclosed material is the result of our searches through the documents
24 obtained from the ABiH archive."
25 MR. YAPA: Yes, Your Honour.
1 JUDGE HUNT: Now that has produced this great mountain of paper.
2 What I want to know is what do you understand to be the Bosnia-Herzegovina
3 archive? We've had a lot to do with the Zagreb archive. That's obviously
4 a different one.
5 MR. YAPA: If I may go to the history of it as to how the document
6 came to be disclosed on the basis --
7 JUDGE HUNT: No, no. Please, Mr. Yapa. It's a very simple
8 question. What is the Bosnia-Herzegovina archive? Is it a collection of
9 documents which the Prosecution has obtained, and if so, when did it
10 obtain it?
11 MR. YAPA: I thank Your Honour. It is a collection of documents
12 referred to as the Sarajevo collection, a document obtained from the ABiH
13 archive during operation -- an operation in October 2000 and located in a
14 shelf referred to as 5E7 in the ABiH 3rd Corps archive room.
15 JUDGE HUNT: I don't think we need that detail. Now, you say that
16 it came into the possession of the Office of the Prosecutor in
17 October 2000; is that right?
18 MR. YAPA: That is the information, yes.
19 JUDGE HUNT: And was it ever disclosed to the Defence?
20 MR. YAPA: It was not. It had not been disclosed.
21 JUDGE HUNT: Why is that?
22 MR. YAPA: Your Honour asked me the question as to why it was not
24 JUDGE HUNT: That's right.
25 MR. YAPA: The only -- the answer that I can give is that it had
1 not been disclosed, and it was disclosed for the first time.
2 JUDGE HUNT: But why was it not disclosed? is the question.
3 MR. YAPA: Yes.
4 JUDGE HUNT: You see, you have an obligation, a continuing
5 obligation under Rule 68 so that all material in your possession must be
6 searched for documents which may fall within Rule 68, and if this
7 collection of documents came into your possession something like eight
8 months ago, the question is: Why was this document, which you disclosed
9 on the 13th of June, not disclosed earlier?
10 MR. YAPA: Yes. The short answer I can give to Your Honour at
11 this moment is that it had not come to our attention as a disclosable
12 document at that stage. And when we were making a search for the documents
13 that should be disclosed, we came across it and immediately we disclosed
15 JUDGE HUNT: Does that mean between October 2000 and June of this
16 year there was no search being made through those documents pursuant to
17 your obligations under Rule 68?
18 MR. YAPA: Particularly -- particularly for the purpose of
19 Rule 68?
20 JUDGE HUNT: That's right. It's a continuing obligation.
21 MR. YAPA: It is. It is. With respect, it is. So with that in
22 mind, when the search was made --
23 JUDGE HUNT: When was the search made? is the question. When?
24 MR. YAPA: For the purpose of the disclosure --
25 JUDGE HUNT: Now, look, please. When was the search made through
1 this collection which you received in October last year for the purposes
2 of Rule 68?
3 MR. YAPA: The search or the attention given to documents is a
4 continuing one.
5 JUDGE HUNT: Yes.
6 MR. YAPA: So it came to our attention --
7 JUDGE HUNT: Now, look, please. I don't want these evasive
8 answers. They may not be deliberately evasive, but they're not answering
9 my question.
10 MR. YAPA: Yes.
11 JUDGE HUNT: When did somebody say, "We must look through this
12 Bosnia-Herzegovina archive to comply with our obligations under Rule 68"?
13 MR. YAPA: This has been so, with great respect, from --
14 JUDGE HUNT: When?
15 MR. YAPA: -- from the very beginning, Your Honour.
16 JUDGE HUNT: So as at October.
17 MR. YAPA: Yes.
18 JUDGE HUNT: So somebody has been looking through those documents
19 since last October, have they?
20 MR. YAPA: It has to be so, Your Honour.
21 JUDGE HUNT: I'm not sure that's an answer, however. Has somebody
22 been doing it?
23 MR. YAPA: Your Honour, to give a very specific answer to that,
24 I'm not in a position to do it now, but the assurance that I can give is
25 the search has been going on, and when we came across the document we
1 disclosed it.
2 JUDGE HUNT: How large is this collection, the Sarajevo
4 MR. YAPA: I'm not in a position to give that answer at the
5 moment, Your Honour.
6 JUDGE HUNT: Well, these are all matters that are very relevant to
7 this. In that last decision that I gave in this case, I drew attention to
8 the fact that it is very important. It is as important as the obligation
9 to prosecute.
10 MR. YAPA: Yes.
11 JUDGE HUNT: And the Prosecution having raised the description
12 that they are ministers of justice, that is quite right, and one of the
13 obligations they have as a minister of justice is to disclose to the
14 Defence, not only pursuant to Rule 68 but a general obligation to disclose
15 to the Defence material which will assist them.
16 Now, in October of last year, the case was going.
17 MR. YAPA: Yes, Your Honour.
18 JUDGE HUNT: And this was discovered for the first time in June.
19 It seems that some explanation may be available, but it nevertheless will
20 have to be given.
21 MR. YAPA: Yes, Your Honour. Yes.
22 JUDGE HUNT: All right.
23 Well, now, the application by Mr. Kordic for an extension of
24 time. What do you want to say about that?
25 MR. NAUMOVSKI: [Interpretation] Your Honour, I apologise, but I
1 cannot but say something with respect to what the Prosecution has just
2 said from when the document dates or, rather, from what time the
3 Prosecution has the document in their hands.
4 The Trial Chamber, on the -- in our case, on the 18th of July,
5 2000, issued an order to Bosnia-Herzegovina, the Federation of
6 Bosnia-Herzegovina, to supply the documents asked for by the Defence. The
7 Prosecution knows full well -- has known full well for many years that we
8 are seeking those documents. We ended our case last year in mid-December,
9 and these documents were shown to the Court sometime in mid-October. That
10 is to say, had they been shown in mid-October, by mid-October, I think the
11 Trial Chamber would have made a different decision.
12 So these are crucial documents, and that is why I cannot accept
13 what the Prosecutor has just told us, that they had it in their possession
14 as of October last year and that they disclosed it to us only with the
15 letter that I received on the 14th of this month. So that is unacceptable
16 to us. Thank you.
17 JUDGE HUNT: Well, if I may say so, you brought some of this upon
18 your own head, because your application for the documents, the order for
19 the documents, was made ex parte. So the Prosecution would not have even
20 known that you were after those documents.
21 It's not clear to me why it was made ex parte, just as it's not
22 clear to me that none of this material that is attached to the motion is
23 filed ex parte.
24 MR. NAUMOVSKI: [Interpretation] I wanted -- let me start from the
25 end. When I filed my motion, I wanted to make all those documents public,
1 but I didn't want to be in contravention to a Court decision with respect
2 to the storing of documents, so I wanted to ask the Trial Chamber to make
3 all the documents public, because I was afraid that I would be
4 transgressing in some way.
5 JUDGE HUNT: There is a very wide distinction between documents
6 being made public and being disclosed to the other party. Ex parte means
7 that you have moved without telling the Prosecution that you have sought
8 that order or that the order has been made, and I don't understand why
9 that was done. Protective measures are to prevent material becoming
10 public. That's a very different matter.
11 MR. NAUMOVSKI: [Interpretation] We simply followed what the
12 Prosecution did. The Prosecution also sought certain documents ex parte
13 from some countries, and we did that with respect to third countries, the
14 United Nations, and so on and so forth, so that it seems to have become
15 standard practice by the Prosecution. And with respect to
16 Bosnia-Herzegovina, at least at first, we wanted to come into possession
17 of the documents for us to be able to work with them before presenting our
18 evidence and case, and we undertook an extensive correspondence with the
19 officials of the Bosnia-Herzegovina federation and the state of
20 Bosnia-Herzegovina which did not give off any results, was not fruitful.
21 But the Prosecutor did know that we were seeking these documents from
22 Bosnia-Herzegovina, because we brought this up at a public session.
23 Confidential annexes were perhaps not known, the annex was confidential,
24 but it was common knowledge that we were seeking documents both from the
25 United Nations and from other countries as well, the European Union, and
1 so on and so forth.
2 JUDGE HUNT: The fundamental principle in every case is that ex
3 parte proceedings should be entertained only where it is thought to be
4 necessary in the interests of justice to do so, that is, justice to
5 everyone concerned; where the disclosure to the other party or parties in
6 the proceeding or the information conveyed by the application or of the
7 fact of the application itself would be likely to prejudice unfairly
8 either the party making the application or some person or persons involved
9 in or related to that application. And I'm reading from a statement which
10 has been repeated in many, many, decisions of this Tribunal. And if it
11 has been the general practice, it's about time it stopped. But anyway,
12 we'll have to deal with that problem later.
13 My concern with your application is that if you do not put on your
14 brief and the Prosecution works its very slow way through these documents,
15 you are never going to put it on because there will be a constant dribble
16 of documents. Why can you not put on your brief now, as you should, and
17 when these materials become available, you will get a very sympathetic
18 hearing to add those matters to your brief. But we have to get this
19 appeal underway. Your clients are in custody, they've been in custody for
20 a very long time, and the Appeals Chamber has to get on with its appeals.
21 MR. NAUMOVSKI: [Interpretation] I accept that absolutely, Your
22 Honour, and I am ready and willing that all the documents filed ex parte
23 previously to be available to the public, but I don't know what the fate
24 of the discovery material was that we're receiving from the Prosecution,
25 whether I can publicise it or not. So it was along those lines that I
1 asked for instructions from the Court. But let me go back to the
2 principle again, if I may, Your Honour. The document that we received on
3 the basis of which we make our motion is a crucial document, because
4 throughout our entire proceedings which went on for a full eight months,
5 we discussed intensively persecutions, who attacked whom in the Lasva
6 Valley, whether both parties and sides were ready or not. And so I was
7 flabbergasted to hear that the Prosecution had in his hands the document
8 in October last year, that is to say, before we wound up our case in
9 chief, and that is a key document, to my mind. And on the other hand, the
10 Prosecution has been given access and insight to the archive in Zagreb, as
11 are we, so it is a minimum of equality of arms if we have the same the
12 Prosecution had and we're hearing for the first time that those archives,
13 in fact, do exist because the response we got from Herzegovina attached to
14 the motion filed shows that that archive does not exist. Now suddenly it
15 has turned up.
16 I know that we filed our motion late yesterday, but let me try to
17 justify myself by saying on the 14th of this month I received a letter
18 from the Prosecution containing a document. On the 18th of this month,
19 Mr. Kordic, in the afternoon, received the judgement in Croatian and I
20 filed the Prosecution and the Cerkez Defence of these two motions on
21 Wednesday, the 20th. Unfortunately I handed it over to the Trial Chamber
22 yesterday. Of course, I don't wish to justify myself, and I'm sorry that
23 Your Honour received the document only yesterday, but that's how things
24 went. Thank you.
25 JUDGE HUNT: I'd like an answer to my question. Perhaps I'll ask
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 it in a different way. Have you got any other grounds of appeal other
2 than the one based on this document?
3 MR. NAUMOVSKI: [Interpretation] Your Honour, we will be objecting,
4 and we have several grounds for that against the judgement made which do
5 not refer to this document, the one that we're discussing now. I
6 apologise to the interpreters for going so fast.
7 JUDGE HUNT: Why is it, then, that you cannot file your appellant
8 brief in relation to those other grounds of appeal?
9 MR. NAUMOVSKI: [Interpretation] Your Honour, what you're asking me
10 now is contained in I think paragraph 11 of our motion, where we request
11 additional time to file an appeal and not linked to insight into these
12 archives, for the reasons we stipulate, and one of the reasons is that
13 when Mr. Kordic read the judgement on the 18th, in the afternoon, and the
14 19th and 20th, I talked to him yesterday, we read it together, he found
15 certain nuances in the judgement that he was not aware of until a few days
16 ago, and he was not aware of it because I was not able to translate the
17 entire judgement for him, nor was I able to feel these and note these
18 nuances. I'm not ashamed to say that. And that is why I think in the
19 interests of justice and in order to protect the rights of the accused to
20 a fair trial, that now Mr. Kordic has himself read the judgement, he
21 should be given more time to go into a study of the judgement and take
22 note of some of the things he wishes to take note of. So we don't want 90
23 more days. What we are requesting for is an additional 30 days in that
24 alternative case.
25 But if I may just remind Your Honour that we feel that it is of
1 crucial importance to see the archive, because the archive might
2 determine --
3 JUDGE HUNT: Please. Please. I don't want you to repeat
4 yourself. I'm asking you why you can't put on your appellant's brief by
5 the time specified and add the material relating to that document later.
6 Now, you say, do you, that you do not speak either English or French?
7 MR. NAUMOVSKI: [Interpretation] I don't speak French at all, Your
8 Honour. I do speak English and I know it well enough for general purposes
9 of communication, but the Registry of the Tribunal has not officially
10 approved my English, nor do I know English sufficiently to be able to
11 translate the judgement. And throughout the trial I used the Croatian
13 JUDGE HUNT: Then you might like to explain to me how you are
14 qualified to appear as counsel in this case, because the Rules provide
15 that you must speak one or the other of the languages unless there are
16 special circumstances shown to the Registrar who rules that you may
17 proceed in the Croatian language.
18 MR. NAUMOVSKI: [Interpretation] As far as I know, this was applied
19 for attorneys designated by the Court to be ex officio Defence counsel. I
20 was appointed counsel by Mr. Kordic himself. But let me note that during
21 the trial I had co-counsel from the United States, and of course English
22 was their mother tongue.
23 JUDGE HUNT: The Rule is quite specific, and it is of general
24 application. It's not just those counsel who are assigned by the Tribunal
25 to appear for an accused. Counsel shall be considered qualified to
1 represent a suspect or accused if counsel satisfies the Registrar that he
2 speaks one of the two working languages of the Tribunal. Now, that is of
3 general application. And there is a proviso in Rule 44(B) that the
4 Registrar may permit somebody who does not speak either of the two working
5 languages of the Tribunal to appear where the interests of justice so
6 demand, but I do not understand how you can say that you are here as
7 counsel if you are not qualified to be so.
8 MR. NAUMOVSKI: [Interpretation] With all due respect, Your Honour,
9 I am not quite sure that the Rule was in force in October 1997, when
10 Mr. Kordic appointed me as his Defence counsel. That condition was not
11 laid down by the Registrar at that time for me. Now, whether I'm
12 qualified for the job or not, I don't wish to go into that and judge, but
13 with respect to my knowledge of English, because the case is so specific
14 and everything else, I had my colleagues to help me with my English, so we
15 find ourselves faced with a very specific situation now.
16 JUDGE HUNT: No, but, Mr. Naumovski, what I'm trying to point out
17 to you is that it is the -- the Rule about time for filing briefs proceeds
18 upon the basis that counsel is qualified to appear, which means that he
19 speaks one of the working languages of the Tribunal. Where there is --
20 where he appears as co-counsel, then it is usually regarded as being in
21 the interests of justice that he should be allowed to stay there because
22 he does have somebody who can read the judgements and such things. And I
23 just find it slightly curious that being unqualified to appear as counsel,
24 you are using that fact in order to get an extension of time.
25 MR. NAUMOVSKI: [Interpretation] Your Honour, I didn't wish to make
1 use of anything, but I think -- I considered it to be my duty to ask for
2 extra time because of Mr. Kordic and his ability to read through the
3 judgement, and as I say, our Defence case was composed of individuals who
4 have spoken Croatian and English for many years, but unfortunately I am
5 the only Defence counsel left for Mr. Kordic at this point in time. I
6 didn't want to exploit this as a fact, but I think that Mr. Kordic does
7 have the right to be accorded at least that extra month for the reasons I
8 have set out. Of course, with the Court's indulgence.
9 JUDGE HUNT: Well, it needs more than the Court's indulgence, as
10 you've put it, because it has already been made clear that the fact that
11 the accused is unable to read the original version of the judgement does
12 not prevent the time from running, although it is a matter to be taken
13 into account in extensions of time. And it has already been taken into
14 account. And at the time that that decision was given, it was indicated
15 that the decision would be available in the course of this month and it
16 has in fact been made available in B/C/S/ in the course of this month. So
17 that's a fact that has already been taken into account. So paragraph 11
18 of your motion, frankly, does not cut much ice, to use a colloquialism.
19 Is there anything else you want to add?
20 MR. NAUMOVSKI: [Interpretation] In respect of the motion, if you
21 think there's no need to go back to the archives of Bosnia-Herzegovina,
22 there is nothing else I really have to add, but if you do allow me a word
23 or two about the archives in addition to what I've already said, please.
24 JUDGE HUNT: Mr. Naumovski, that is a matter quite separate. So
25 far as I'm concerned, that is matter that you can add to your brief once
1 it's filed, but that brief is going to be filed either at the time already
2 specified or you might get an extension. It's a matter that I'll have to
3 consult on. But it is -- nevertheless, you are going to put that brief
4 on, and you will be granted leave, I can assure you, to add to it once you
5 have been able to investigate the archives.
6 The failure of the Prosecution to tell you about it before hand is
7 a matter that will have to be taken into account in relation to that
8 particular matter, but I'm worried at this stage only about your
9 application for an extension of time.
10 Now, there's nothing more you want to say about that?
11 MR. NAUMOVSKI: [Interpretation] No, Your Honour. Thank you.
12 JUDGE HUNT: Very well then.
13 Well, now, Mr. Yapa, do you want to say anything in relation to,
14 first of all, the ex parte nature of his documents? Even your letter has
15 been filed on an ex parte basis, which I regard as complete nonsense.
16 THE INTERPRETER: Microphone for counsel, please.
17 MR. YAPA: Mr. Norman Farrell will make reference to that because
18 we have material to indicate that earlier a document -- some document was
19 filed ex parte and it was under seal and it was not made available to us.
20 JUDGE HUNT: Yes, Mr. Farrell.
21 MR. FARRELL: Good morning, Your Honour. Just with respect to
22 your issue about the ex parte, the Prosecution agrees with your comments.
23 It doesn't see any particular reason in this case why they were filed ex
24 parte. With respect -- I'm sorry.
25 JUDGE HUNT: I am prepared to leave them on a confidential basis
1 because they may well be matters subject to protection orders, but I
2 propose, therefore, to direct that they be made available to the
4 Is there any reason for all of these orders to be sought ex
6 MR. FARRELL: On the basis of the material before you, at least at
7 this stage it doesn't appear -- there doesn't appear to be, no.
8 JUDGE HUNT: But the Prosecution has in the past sought them ex
10 MR. FARRELL: It appears that's the case, Your Honour.
11 JUDGE HUNT: And I'm not sure why.
12 MR. FARRELL: To be frank, I'm not sure why unless there is --
13 particular in this case.
14 JUDGE HUNT: You see, if a state -- they could be made ex parte
15 so far as the state in concerned. If you want documents from a state, you
16 can get an order without them being heard. The Rule specifically provides
17 for that. And if the state comes back and says, "We have security
18 concerns," that clearly must be heard ex parte. But it seems to me that
19 this practice that's grown up with both parties rushing off to Judges and
20 getting ex parte orders has just got to stop.
21 MR. FARRELL: I think we would probably agree with you to the
22 effect that it's unnecessary, certainly.
23 Just one comment. If we are requested to respond to this motion
24 for the reissuing of an order to Bosnia-Herzegovina --
25 JUDGE HUNT: Not at this stage.
1 MR. FARRELL: No, no, no. I have no submissions to make on it,
2 Your Honour, and we are not in a position to respond to the motion because
3 we've just received it.
4 If you are issuing an order that the ex parte nature be lifted and
5 the matter be confidential, we will be in a better position, obviously,
6 because then we can see the documents that are referred to.
7 I'm not in a position -- I'm sorry, I don't know at this stage
8 whether the order of the Trial Chamber issuing the order to
9 Bosnia-Herzegovina and the basis for that order which is now under --
10 which is now referred to, whether that was ex parte as well.
11 JUDGE HUNT: It was.
12 MR. FARRELL: If we're to respond to this motion in writing, which
13 we will do within the required time set out by the practice direction, if
14 all that material could be made available on a confidential basis so we're
15 in a position it to least assess it, to respond. That was the only
16 comment, Your Honour.
17 JUDGE HUNT: Very well, then. I shall make an order that the
18 material which accompanied the motion will be made available to the
19 Prosecution on a confidential basis.
20 MR. FARRELL: Thank you.
21 JUDGE HUNT: Is there anything that the Prosecution wants to say
22 about the extension of time sought? Bearing in mind that it has a very
23 real interest in the matter, which is consistent with that of the two
25 MR. FARRELL: The Prosecution is in a position and will be in a
1 position with respect to our brief on August the 9th. The Court's
2 previous order, in paragraph 16, referred to the extension on the basis
3 that the B/C/S version was not available. The Prosecution, though it
4 doesn't oppose strenuously, obviously if it's necessary in the
5 circumstances of this case doesn't see a reason for the extension per se.
6 JUDGE HUNT: All right, then. Thank you very much.
7 MR. KOVACIC: Your Honour?
8 JUDGE HUNT: Yes.
9 MR. KOVACIC: If I may add also the position of the Cerkez Defence
10 on the same issue which was just discussed.
11 JUDGE HUNT: If you seek to join the motion, you will obviously
12 have to file a document, but I'm happy to hear what you have to say in
13 support of it. But you should take into account what I've already said,
14 that you can get on with -- you've got other grounds of appeal, and you
15 can get those -- the brief filed in relation to those grounds by that date
16 in August. But if you want to say something about it, please do.
17 MR. KOVACIC: [Interpretation] Of course, Your Honour. I shall
18 formally join in this motion in writing, but since we are discussing its
19 very substance now, I would like to add something to that which is
20 specific from the point of view of the Cerkez Defence.
21 In your first decision allowing us extension of time - and I
22 studied it with due care to see which direction the whole thing was moving
23 in, and today this was repeated once again - one of the key issues that
24 seems to appear now is to strike a balance, it would seem, between the
25 right of the accused to speedy trial and, on the other hand, his right to
1 resort to all available means, including the time that is needed for
2 preparing proper and good defence.
3 This trial has been on practically since 1977 [as interpreted].
4 We think that quite a bit of time was lost in the pre-trial stage, but
5 that is not important any more. The trial stage was very speedy. I would
6 even say that it was too speedy and to the detriment of our defence, but
7 even that is of no consequence right now. The point now is that right
8 now, we are concerned in view of the rights of the accused concerning the
9 speed of the trial.
10 On the other hand, there are new documents. That is a fact. And
11 now yet again we are extending that particular right or, rather, time.
12 Are we, on the other hand, infringing upon his other basic right to defend
13 himself properly?
14 Another question I would like to bring up in connection with
15 extension of time is a very practical issue in terms of preparing the
17 I, for one, am working on this appeal in accordance with your
18 recent ruling, and that is that it should be completed by the 9th of
19 August this year. I'm specifically referring to one legal issue and two
20 issues of procedure, and I'm working on that. Another group of issues
21 that we are dealing with in the appeal is mainly factual matters. It has
22 to do with the value of some of the evidence that the Chamber ruled on as
23 they did. And I must say that in one or two places in the draft, after I
24 received some documents from the Prosecution on the basis of Rule 68,
25 exculpatory material, that is, and this was a package of 262 documents - I
1 haven't seen the actual documents yet, but I've seen the list - once we
2 saw these documents, we had to go back to that which was already written,
3 and actually, we had to look at the whole matter in another way and to
4 change it from a substantial point of view at one particular point.
5 So is it opportune or is it rational for us to write that part of
6 the appeal the way things stand right now, and then later, when we get new
7 documents and perhaps when we carry out some new investigations in
8 relation to some of the new documents, for example, the documents from the
9 Bosnian archives, are we going to add extra passages with respect to
10 certain very specific issues or not? Now, that is one of the dilemmas
11 that I see right now.
12 My conclusion and my proposal, if I may say so, is that if we look
13 at the balance of these documents, I think that the right of the accused
14 to prepare himself actively in the -- for working on the defence overrides
15 the right to a speedy trial. I'm saying that because of the juncture that
16 we are at right now, because we have been at trial for about three and a
17 half years, almost four. Not exactly four but almost. So the time
18 required should be extended, because I'm convinced that the force of the
19 arguments presented and the method of approach applied will be far more
20 expedient from the point of view of the appellant and, of course, from the
21 point of view of the other party as well, notably the Chamber that will be
22 dealing with all of these matters.
23 My final proposal in this respect is based on striking a balance
24 between these two rights that I have referred to. So a moderate period of
25 time could be looked at, a month or two, for extending the deadline for
1 presenting the appellant's brief, because otherwise we will not be in a
2 position to use some of these new documents already in the basic
3 appellant's brief, or then perhaps we could add something later, as you
4 had suggested.
5 Your Honour, may I just go back to the initial debate that you had
6 with my colleague, Mr. Naumovski, and in part with the Prosecution, only
7 in a sentence or two. Perhaps the Defence is in a rather unfavourable
8 position because it asked for the Bosnian archives to be disclosed ex
9 parte. It is a fact that in October last year, during the trial itself,
10 it had to be quite clear, patently clear to the Prosecutor - and it was
11 clear to everyone in the courtroom, I assure you - that there are
12 documents from the Bosnian archives that are missing in the case, and that
13 was quite clear. We had an imbalance in discovery - I think that by
14 looking at all the files, you could have seen that for yourself - not only
15 in terms of numbers, but also in terms of substance. We got the brunt of
16 the documents we needed towards the very end. As far as my own defence is
17 concerned, we got the most important documents once I had completed my
18 Defence case, and in those days it was quite obvious that these were
19 documents that were coming from one side but not coming from the other
20 side, although both sides from the preparatory stage and the pre-trial
21 stage were trying, in all possible ways, to reach the Bosnian archives.
22 It is a fact that during the actual proceedings we did not have
23 any new documents coming in from the Bosnian government or from the
24 government of the Bosnian Federation, any of the entities. It was
25 necessary to have these documents, and on the other hand, they were not
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 there. All of us together - the Prosecution, the Prosecutors, and we, the
2 Defence counsel, either we personally or our own people - had access to
3 other documents and we all brought them to this courtroom, but nothing
4 came from the archives of Bosnia-Herzegovina. And that is the problem,
5 that those documents that originated from the Bosnian authorities - I'm
6 talking about predate in Bosnia - the first materials came with the
7 indictment. But as soon as these materials became disputed, challenged
8 during the proceedings, then no other documents came from Bosnia, and that
9 causes great concern, Your Honour. And now when we got this letter from
10 the Prosecution on the 18th of June, it is the first time that we see
11 directly in writing that there are archives in Bosnia-Herzegovina and that
12 there are relevant documents there.
13 The first documents that we got had to do with the 7th Muslim
14 Brigade, and it was referred to at least 200 times or 1.000 times. We can
15 do this -- we can find the actual number of references in the computers.
16 And now we get the first documents related to the 7th Muslim Brigade only
17 on the 18th of June, 2001. So I abide by my original proposals, and of
18 course I shall join Mr. Naumovski's proposal in writing as well. Thank
20 JUDGE HUNT: And what will happen when the Prosecution produces
21 another document that they have found in the course of their search
22 through this archive? You will then ask for another month so that you can
23 rewrite the whole of your facts. You have got to face up to reality in
24 this, that Appeals Chamber is not unfamiliar with this problem that
25 counsel want to do their briefs in the most perfect possible way and put
1 them on only after they've had every opportunity to search for every
2 document. But the Tribunal is obliged to get on with these things.
3 Now, I can ask you: You do, I assume, have other grounds of
4 appeal. You referred to a ground of -- a legal issue and two procedural
5 issues. Those two can be dealt with and put on, and we want you to feel
6 quite assured that there will be the opportunity to add other material if
7 you are allowed to put in other evidence, or generally about the fairness
8 of the trial. But there is no reason why you can't get on with something
9 now, and all of the other material that you've put forward, so far as I
10 can see, was implicit in your previous application. But anyway, it's a
11 matter that, as I say, I will have to consult about.
12 Is there anything more you want to add?
13 MR. KOVACIC: [Interpretation] No, Your Honour, nothing. But may I
14 just add one more sentence? I absolutely concur with what you have just
15 said. There would be no end to the proceedings involved if we were to
16 reason this way. That is why I said that we have to find a realistic
17 balance. In other words, to put it quite simply, when we see now that
18 there are documents that I had already given up on personally - I thought
19 we would never be getting them - let's see whether there is anything else
20 left that is of crucial importance. And as you said in one of your
21 rulings, it is in the cards. This dilemma will always exist. But do give
22 us some time so that we can at least from the outset agree on the
23 documents that exist. If other documents appear later, and I know that
24 there will be other documents appearing later, let us not go back to Court
25 every time and ask for further extensions. Of course, we can't do that,
1 because then we would disrupt the balance I was referring to and then
2 there would be no end to that.
3 I am actually calling for a reasonable approach, because right now
4 we have a situation whereby the documents have appeared. I don't want to
5 go into all the details, but I also have four or five documents that are
6 exculpatory, as the Prosecution had put it, for my Defence. But at any
7 rate, we are talking about 262 new documents. Your Honour, right now I
8 have no idea whatsoever whether I'm just going to file these documents in
9 the farthest shelf in my office or whether among them there are 20, 30, or
10 50 really useful documents. I don't know.
11 I am not asking for too much time, but I am asking for extra time
12 so that we can see what we have actually got now, and then we can see what
13 we can do with that. Then we file our appeal and then we see whether
14 something else appears, and then perhaps we shall come up with additions.
15 But as for the part that does not have to deal with facts, we are working
16 on that, as expected, and we have nothing further to add in that respect.
17 Thank you.
18 JUDGE HUNT: Can you tell me about these 262 new documents? You
19 say you haven't yet received them or you haven't had the chance to deal
20 with them?
21 MR. KOVACIC: [Interpretation] Your Honour, I have physically not
22 received them yet. The OTP is very cooperative. They phoned me, I think
23 it was this Tuesday. They phoned me to inform me that they have mailed a
24 compact disk with these documents to me. We tried to stop this from both
25 sides, because when you rely on DHL and other special postal services, it
1 takes at least a week for me to receive these documents. My office is at
2 the end of the world, so to speak. So I try to stop this, but to no
3 avail. It's on its way.
4 Yesterday the Prosecutors were kind enough to give me another
5 copy, and I just looked at the headings. I looked at the documents. They
6 are from the Zagreb archives, but it also has reference to exactly which
7 file, which box it refers to. And there are titles of the documents
8 involved, for the most part. So it's 262 documents. I looked at the list
9 last night at the hotel and I see some very interesting documents there.
10 I have to say that there are some specific subjects, for example, the
11 detention of detainees. We have hundreds of documents in relation to
12 that. But I see a few new documents in that respect. Perhaps they are of
13 interest. I don't know, but I have to look at them.
14 So I have certain reservations, but I see that there are some
15 documents that could be very interesting from the point of view of their
16 date as well. Because, Your Honour, we are dealing with a very long
17 period of time in this case, but the bad things that happened in the Lasva
18 Valley happened in April 1993 only, and that is why I focused on that
19 month of April when I looked at this list, and I see that a lot of the
20 documents refer to the month of April 1993. So I don't know. I expect
21 there to be quite a few interesting documents here, and also I have high
22 regard for what the Prosecution thinks in this respect. I'm pretty sure
23 they didn't send me something that was pointless.
24 I don't know whether you are familiar with the details, but before
25 that, on the 24th and 25th, we got 8 documents; on the 31st of May, 18
1 documents; and on the 18th of June, the documents from Bosnia that we have
2 been discussing today. I'm talking about the dates when I received these
3 documents in my office, and all of them were sent a few days before that,
4 of course.
5 JUDGE HUNT: Thank you. Well, at least we now have it on the
6 record so that when you come back to us, if you do, again, we'll know
7 something more about it. Thank you very much.
8 Was there anything more that has to be raised? Mr. Yapa, do you
9 want to raise anything?
10 MR. YAPA: No, Your Honour.
11 JUDGE HUNT: For Mr. Kordic?
12 MR. NAUMOVSKI: [Interpretation] No, Your Honour. No, Your
13 Honour. Thank you.
14 MR. KOVACIC: No, Your Honour. Thank you.
15 JUDGE HUNT: Thank you. Then a decision will be given on the
16 motion. But so far as Mr. Cerkez is involved, you had better get that
17 motion on as soon as possible joining in the application.
18 We'll now adjourn.
19 --- Whereupon the Status Conference at 10.56 a.m.