Tribunal Criminal Tribunal for the Former Yugoslavia

Page 30

1 Thursday, 18 October 2001

2 [Status Conference]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 10.02 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Good morning, Your Honour. Case number

8 IT-95-14/2-A --

9 [Technical difficulty]

10 THE REGISTRAR: -- Kordic and Mario Cerkez.

11 JUDGE HUNT: Appearances, please.

12 MR. FARRELL: Thank you. For the Prosecution, Mr. Norman Farrell,

13 Mr. Fabricio Guarglia, and Mr. Wolfgang Sakulin is the case manager.

14 JUDGE HUNT: Thanks, Mr. Farrell.

15 For Mr. Kordic.

16 MR. NAUMOVSKI: [Interpretation] Your Honour, my name is Mitko

17 Naumovski, a lawyer from Zagreb, and I am Defence counsel for Dario

18 Kordic.

19 JUDGE HUNT: Thank you. For Mr. Cerkez?

20 MR. KOVACIC: Your Honour, representing Mario Cerkez, Bozidar

21 Kovacic, lawyer from Croatia.

22 JUDGE HUNT: Now, Dario Kordic, are you able to hear the

23 proceedings in a language which you understand?

24 THE APPELLANT KORDIC: [Interpretation] Good morning. Thank you

25 for your question. Yes, I do understand everything on the agenda today.

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1 JUDGE HUNT: Thank you. Yes. And Mario Cerkez, are you able to

2 hear the proceedings in a language which you understand?

3 THE APPELLANT CERKEZ: [Interpretation] Good morning, Your Honour.

4 I don't hear because the channel is not adjusted properly.

5 JUDGE HUNT: He needs his channel adjusted. I finally got it on

6 the transcript.

7 Now, are you able to hear the proceedings in a language which you

8 understand, sir?

9 THE APPELLANT CERKEZ: [Interpretation] I understand you, Your

10 Honour, but I do not -- I'm not getting the interpretation.

11 JUDGE HUNT: Well, we'll have that fixed up. You sit down,

12 please, sir. Thank you.

13 THE APPELLANT CERKEZ: [Interpretation] Thank you.

14 MR. KOVACIC: Your Honour, it seems that nobody is receiving

15 Croatian channel, at least on this part of the courtroom.

16 JUDGE HUNT: I think in this courtroom the B/C/S/ is channel 6.

17 We'll wait and see whether they can fix it for us.

18 This is a Status Conference called in accordance with the

19 provisions of Rule 65 ter. Now, are there any matters relating to --

20 Sorry. 65 bis. -- relating to the physical or mental condition of the

21 accused that either wants to raise before we turn to the outstanding

22 matters for the hearing of the appeal?

23 MR. NAUMOVSKI: [Interpretation] The Defence of Mr. Kordic has no

24 issues it wishes to raise, Your Honour.

25 JUDGE HUNT: Thank you.

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1 What about on behalf of Mr. Cerkez?

2 MR. KOVACIC: [Interpretation] Mr. President, we also have no

3 problems regarding these issues.

4 JUDGE HUNT: Thank you very much. Well, now, I have signed a

5 decision authorising Mr. Kordic's -- I'm sorry -- Mr. Cerkez's reply brief

6 to exceed the page limit, and we've got the usual "me too" application

7 from Mr. Kordic. What is the Prosecution's attitude towards that one,

8 Mr. Farrell?

9 MR. FARRELL: The Prosecution has no objection, Your Honour. My

10 apologies. The same as the previous one. The Prosecution has no

11 objection.

12 JUDGE HUNT: Very well. We will make an order accordingly.

13 Now, before we leave this question of replies, I hope that counsel

14 for the two appellants will understand that we do have their appellants'

15 briefs and they are being read and there is no need to repeat what you

16 said in there in response to what the Prosecution has put in its

17 response. We really are able to deal with things by going back to see

18 whether they have been dealt with in your motion, and it is unnecessary

19 for you to keep repeating the same thing over and over again. And

20 particularly, I hope that each of you counsel for the appellants will

21 stick to the particular brief that you are filing your reply in.

22 Counsel for Mr. Cerkez put forward the rather extraordinary

23 proposition that counsel -- every counsel would be likely to take

24 advantage of any document that he's filing to raise issues in relation to

25 anything he wants to, whether it's relating to the particular motion or

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1 the particular appeal in question. Now, that, with all due respect, is

2 not the way in which the system will work. You will have plenty of

3 opportunity at the hearing of the appeal to deal with anything you want to

4 orally, and if you do file -- include within a document you file matters

5 relating to some other proceeding, such as the Prosecution appeal, and you

6 put something in your reply -- in your -- I'm sorry. I'll start that

7 again. If you are dealing with your own appeal, in your reply to the

8 Prosecution's appeal, it may well be missed. I confess to having a fairly

9 logical mind and I have read through the documents relating to each of

10 them and I read them separately. If you deal with one issue in a

11 different proceeding, it may not be noticed and you may well find that

12 it's overlooked. So please try to keep to the point of the particular

13 proceedings in which you're filing a document.

14 Now, Mr. Farrell, there has been a problem that has arisen which I

15 should draw to everyone's attention. I am involved in the trial of the

16 three Muslim generals, and in some correspondence which counsel for one of

17 the accused there is having with a trial attorney in that matter, it seems

18 that the Sarajevo archive, if that's the correct expression, in any event,

19 the documents which were taken between the 11th and the 19th of October,

20 2000, are about to be returned to the ABiH. Now, if that's so, it's going

21 to be very difficult, in the light of the promise which the Prosecution

22 has made, to voluntarily disclose that material to the appellants in this

23 case if we rule that there is a legitimate forensic purpose for them

24 seeing it.

25 MR. FARRELL: If I may respond to that.

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2 MR. FARRELL: My understanding is that the Prosecution will be

3 sending back copies of the documents from the -- what's called the

4 Sarajevo collection, that the originals will remain with the Prosecution,

5 that that is ongoing right now and should be fulfilled shortly. If Your

6 Honour is of the view that to comply with the order -- I mean, sorry, to

7 fulfil the request of the Defence counsel, the Court wishes to request

8 that copies of the documents which have been given over -- we still have

9 the documents in our possession, the originals. We are just sending back

10 the copies. And that's a normal practice, as I'm sure you're aware.

11 JUDGE HUNT: I know the Prosecution, once they have something,

12 don't like giving out documents to anybody, but these are documents which

13 were seized pursuant to a search warrant and the letter signed by a Ms.

14 Cynthia Fairweather quite clearly says the material will be returned but

15 copies will be made of anything which the three Muslim general accused

16 persons wish to have copied.

17 MR. FARRELL: Sorry. I missed that.

18 JUDGE HUNT: It says quite clearly in this letter the material

19 will be returned but copies will be made for anything that the three

20 Muslim generals, whose names I haven't quite got round to learning how to

21 pronounce, if they need copies of anything, they will have copies made

22 before the material is returned. Now, if you say the originals have been

23 kept and only copies are being sent back, that's quite different to what

24 Ms. Fairweather is saying.

25 MR. FARRELL: I'm sorry. I made a mistake, Your Honour. I read

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1 the letter as the Prosecution envisages that copies of the documents that

2 were taken in the archives will be taken back on or around the 19th of

3 October. That's the way I read the letter, and I confirmed with the trial

4 team for Hadzihasanovic that we will retain the originals, Your Honour.

5 JUDGE HUNT: You are better at pronunciation of the name than I

6 am. I haven't had the chance to practice it. Anyway, I don't read it

7 that way, but if that's the way it was intended, then we are safe.

8 MR. FARRELL: That's my understanding, Your Honour.

9 JUDGE HUNT: That's good.

10 Now, we recently received from the two appellants their arguments

11 as to whether there is a legitimate forensic purpose, and Mr. Farrell, I

12 hope that the Prosecution will take a slightly better attitude towards the

13 arguments put, whether they be good or bad, than has already been

14 disclosed in the document which was filed on the 2nd of August. That's

15 the explanation for the fact that these documents weren't disclosed

16 earlier, the very long one with Mr. Reid's report.

17 MR. FARRELL: Yes.

18 JUDGE HUNT: Paragraphs 38 and 39, they are demonstrating how

19 they, you say, these documents could not possibly be exculpatory, and you

20 latch on to one of them. "All correspondence from January 1st, 1990

21 through to March 1994 between Mr. Izetbegovic and Mr. Milosevic," and the

22 response reads this: "Not only is part of the time period of this

23 request, that is, from January 1st, 1990, outside the time frame of the

24 indictment, but it is also -- but it is outside the temporal jurisdiction

25 of the Tribunal."

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1 Now, that really must be one of the most absurd answers I have

2 read for a very long time. What happens if Mr. Milosevic wrote a letter

3 to Mr. Izetbegovic back at the beginning of 1990 and said this is what we

4 propose to do and we would be happy if you could start up a war for us to

5 enable us to take over the Croat area?

6 MR. FARRELL: Certainly if there was material in there, as you

7 suggest, there's no doubt that the Prosecution --

8 JUDGE HUNT: Well, why put that as an answer? It is totally not

9 an answer. Merely because the document might be outside the time frame of

10 the indictment and precedes the jurisdictional limits of this Tribunal has

11 nothing to do with it.

12 MR. FARRELL: With respect, I completely understand. I accept

13 your comment. The issue is, with respect -- I accept what you're saying

14 that the very nature of its time frame may in of and of itself not

15 determine its exculpatory nature, clearly. The way it was meant - and I

16 apologise, it was inartfully worded - is that absent any showing that

17 there is some any relevance to the document, this may be another factor

18 that you would consider.

19 JUDGE HUNT: That's another matter, but what concerns me in this

20 matter is what appears to have got out of control at the trial in this

21 constant bickering between counsel for each party, both sides taking smart

22 points on each other, seems to have crept in here, and it's not really

23 very appropriate. Now, the Prosecutor often puts forward the submission

24 that the Prosecution counsel are ministers of justice. That phrase, if

25 you look into the history of it, is directed solely to the obligation of a

Page 37

1 Prosecution to reveal material to the Defence, and the basis of it, of

2 course, is very clear, because the Prosecution has the better opportunity

3 of obtaining information, and that without such an obligation by the

4 Prosecution, very few defendants would be able to fight the case fairly.

5 That's a situation which is exacerbated in the international field

6 in which we work, because you have got the power to go in and seize

7 documents there which the Defence doesn't have. Now, there are all sorts

8 of arguments about equality of arms about documents which have yet to be

9 resolved. My preferred view is: Is there a legitimate forensic purpose?

10 And I hope that when the Prosecution is giving us their response to the

11 material that came in the other day, that they will look at it as a

12 minister of justice and without taking points like that.

13 MR. FARRELL: Thank you for your observations.

14 JUDGE HUNT: I just thought the time has come to try and spike

15 this constant bickering or point-taking before it gets too bad.

16 MR. FARRELL: Thank you for your comments.

17 JUDGE HUNT: Right. Well, now, is there anything else that either

18 side wants to raise? Very well. Well, we'll make that order in favour of

19 Mr. Kordic, that he's got the additional pages. It's probably too late to

20 make any observations about it in this case, but that practice direction,

21 to my view, is of assistance only where it manages to restrain parties

22 from putting in hundreds and hundreds of pages. If you go over a few, I

23 don't think there's going to be any problem.

24 Very well, then. Thank you for your attendance. I'll now

25 adjourn.

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1 --- Whereupon the Status Conference adjourned at

2 10.18 a.m.