1 Wednesday, 18th March 1998
3 (The accused entered court)
4 JUDGE JORDA: You may be seated. You do not
5 have your headsets on but you can see my gesture, so
6 I am sure you understand what I mean.
7 We are meeting for a status conference.
8 First, let me ask whether the accused hear me -- do you
9 hear me -- in your own language? Please remain seated.
10 Do the interpreters hear? Mr Kordic, do you
11 hear me.
12 MR KORDIC: Thank you for asking. We hear
13 you very well.
14 MR CERKEZ: I can also hear you.
15 JUDGE JORDA: Does the Defence? The
16 Prosecution? You do not have to identify yourselves --
17 we know one another. The first comment I would like to
18 make is that this is a status conference which had been
19 scheduled. You know how the judges of this Trial
20 Chamber are interested in ensuring that the proceedings
21 go forward as quickly as we would like them to.
22 However, you see that we are wearing our
23 robes, we are not wearing civilian dress. We have many
24 things to say during this status conference because
25 certain things have occurred since the last time we
1 met. Two things happened -- two submissions, one from
2 the Office of the Prosecutor and one from the Defence.
3 In respect of what came from the Office of
4 the Prosecutor, this was a request for permission to
5 amend the indictment. In a few moments, we will ask
6 the Prosecutor not to tell us about the content of the
7 amendment, because he could only do it according to the
8 text and without the Defence being here, but at least
9 give us the scope of the changes to the indictment and
10 then there is the request for disqualification, which
11 was presented by the accused and the defendants -- that
12 is the disqualification of two judges of this Trial
13 Chamber, Judge Riad and myself.
14 The Tribunal, like all Tribunals, is familiar
15 with the request for disqualification and the request
16 will be responded to according to the procedures in
17 place in this Tribunal, but since this is a public
18 hearing I would like to say that the judges' concern
19 has always been to ensure, once again, despite any
20 difficulties that we have here -- physical difficulties
21 -- that is we have only one courtroom for the time
22 being -- to be sure these trials move forward quickly.
23 Therefore I wanted to take advantage of the fact this
24 is a public hearing to say if the Kordic hearing has
25 not yet begun it is because we are first of all being
1 asked for authorisation to amendment the indictment,
2 which is not a request from the judges but from the
3 Prosecution, and also a request for a disqualification
4 of the judges, which does not come from the judges but
5 from the Defence.
6 All these motions are things you are entitled
7 to ask for -- both the Prosecution or the Defence. You
8 use your rights as you feel they should be used, but
9 you should remember that, when one uses or makes use of
10 a right, this also has to take into consideration the
11 time periods for them and, therefore, this means that
12 the trial will experience a certain amount of delay,
13 which cannot be avoided.
14 First of all, as regards the
15 disqualification, it will not be decided on here --
16 will not be reviewed by the judges themselves but
17 I wanted to say to the Defence that, by taking --
18 making use of its rights and doing what it considers
19 best for the accused, if the judges who are speaking to
20 you now -- I am speaking not only for myself but on
21 behalf of my colleague Judge Riad, if we are to be
22 disqualified or if we disqualify ourselves other judges
23 will take over the case.
24 So the public understands what is going on,
25 the Rules of Procedure and Evidence has stated that
1 there is a provision for the disqualification of
2 judges; either judges who consider that they must
3 disqualify themselves because they do not feel
4 comfortable for many reasons -- we know this in our
5 national legal system which means the judge would
6 disqualify himself -- or there could be objective
7 causes for his doing so.
8 I need not say anything further about this,
9 other than to be sure that the request is still
10 up-to-date and I turn to the Defence and ask is there
11 anything new in that request, but, for the time being,
12 the request is in the hands of the Bureau of the
13 International Tribunal, which is the only organ which
14 has the authorisation for making that decision.
15 Therefore, the Bureau will decide on the fate of that
17 On that point, there are no specific comments
18 to be added, I suppose, in your submissions, either the
19 Defence or from the Prosecution. Is there anything new
20 that you wanted to add? Go ahead, please. Please
21 record your name.
22 MR NAUMOVSKI: Mr Naumovski, and I am counsel
23 for the Defence, counsel for Dario Kordic.
24 May it please your Honours, and colleagues,
25 the Defence of Mr Dario Kordic abides by its motion for
1 disqualification. We have provided all the arguments
2 in our written motions but with respect to the
3 Prosecution's response, I would like to make several
4 additional comments, if I may.
5 JUDGE JORDA: Yes, proceed, but be careful
6 -- we are not talking about looking at the request for
7 the disqualification of the two Judges Riad and Jorda
8 at this point. If you have anything specific or formal
9 to say, I have already told you that you do not have to
10 make any comments about the disqualification of the
11 judges. You filed a brief, I have told you -- I just
12 want to be sure that it is up-to-date and I suppose it
13 is, because it is 20 February, but I just wanted to be
14 sure. Therefore, you do not have to make any comments
15 and I would go even further and would say I would not
16 like -- I think I am speaking for Judge Riad -- you can
17 also respond in writing, and that would be submitted to
18 the Bureau. You understand why I do not want to be
19 involved in any discussion here about the excusing of
20 the judges, but if we are talking about any factual
21 changes or comments -- but it cannot go beyond that
23 MR NAUMOVSKI: Absolutely. In fact, I was
24 prompted by your question whether the Defence had any
25 additional comments and in relation to the response
1 which the Defence received last week, I was around but
2 I did not get around to responding, but what I could do
3 is I could, next week, provide a written reply to the
4 response and then we can just proceed and conclude this
6 JUDGE JORDA: Then I would ask you to file
7 your additional written comments very quickly -- not to
8 the Trial Chamber but to the Registry, which will give
9 it to the Bureau. I of course will not be part of the
10 composition of the Bureau which will rule on the
11 request. Therefore, if you agree, I invite you to
12 supplement your comments, but as quickly as you can,
13 perhaps tomorrow, if possible -- give it to the
14 Registry, because I think that the Tribunal, or rather
15 the Bureau of the Tribunal wants to settle the issue
16 very quickly and I think that is in the interests of
17 the accused, and in your interests as well as the
18 Prosecution and the two judges who are here. This is my
19 comment. Please do what you have to do quickly.
20 Turning to the Office of the Prosecutor, do
21 you have any factual or formal things that you would
22 like to add?
23 MR HARMON: Good afternoon, your Honours,
24 President and counsel. No, we have nothing additional
25 to add.
1 JUDGE JORDA: We now move to the second
2 point in this status conference, which is the request
3 for leave to amend the indictment. Mr Prosecutor,
4 I give you the floor to explain what the substantive or
5 form of changes you wish to make -- mostly form,
6 I suppose. We give you the floor.
7 MR HARMON: Mr President, my colleague
8 Mr Scott will address the court in respect of that
9 issue. Thank you.
10 JUDGE JORDA: Mr Scott?
11 MR SCOTT: May it please the court, my name
12 it Kenneth Scott. It is my privilege to address this
13 court for the first time. What I would like to do,
14 your Honour, as the court has indicated, is to go
15 through in a formal way how the amendments are
16 different than the original indictment. I would take
17 the opportunity briefly to say, and understanding the
18 court's instructions, I believe we are on the same
19 page, that it is the position of the Office of the
20 Prosecutor as to the underlying facts and evidentiary
21 material, that it would not be appropriate for Defence
22 counsel to participate in the confirmation process, if
23 you could view it in that respect. But we understand
24 that, as to the motion for leave to amend, that any
25 objections they may make such as that the amendment
1 itself, for reasons unrelated to the underlying facts,
2 are somehow unfair or prejudicial, we understand they
3 could certainly make that sort of argument.
4 If we were to get into -- I understand the
5 court is not asking --
6 JUDGE JORDA: Excuse me, Mr Scott. Would
7 you like to explain how you interpreted the text that
8 covered modification of the indictment -- I think it is
9 Rule 50. You first have to ask for leave to amend the
10 indictment -- is that not correct?
11 MR SCOTT: That is correct. We certainly --
12 we believe that is a process between the court and the
13 Office of the Prosecutor, in a similar way as it would
14 be for an original indictment. There has to be some
15 sort of a process by which the court or some organ or
16 component of the court confirms the charges, so to
17 speak, in the amended indictment. But it is our
18 position, your Honour, and we do not know of any law of
19 any domestic jurisdiction that would be contrary, that,
20 as to the charging decision made by the Prosecutor in
21 proposing an indictment, and as to the confirmation
22 process, whether there is sufficient supporting
23 material for the indictment to be confirmed, it is our
24 position that there is no Defence role and, with all
25 respect, to be played in that process.
1 Certainly once there is a charge -- at the
2 moment, there is no charge, there is only the original
3 indictment -- once there is a new amended indictment
4 and there are charges that in fact have been filed and
5 made of record with the court, and made a public
6 document, we certainly understand that the accused have
7 every right to contest the charges, to file whatever
8 pre-trial motions they wish to make, but not to
9 participate in the process in terms of the
10 underlying -- and I am using the shorthand phrase, to
11 say the "confirmation" process that would be similar to
12 what takes place in an original indictment.
13 I think we are together on that, in the sense
14 that the court has asked for us to address essentially
15 the form and scope of the indictment and the amendments
16 and the changes and has indicated that it does not wish
17 us to get into evidentiary detail in terms of the
18 underlying supporting material -- at least that is what
19 I understood the court to say.
20 So, I guess with that proviso or further
21 explanation, your Honour, and Mr President, I would go
22 forward to indicate that it is clear that there have
23 been some changes -- certainly no denying that -- there
24 are some additional counts, and in some respects
25 different counts in the proposed amendment indictment.
1 I would tell the court, with all respect,
2 that there has been in fact a substantial amount of
3 additional evidence which has been gathered since
4 1995. Certainly the process is not static and there is
5 -- there has also been substantial additional analysis
6 of old evidence, if you will, and new evidence.
7 We do believe, however, that with the one
8 exception of the persecution count that has been added
9 against Mr Cerkez in the second count of the amended
10 indictment, that for all practical purposes the
11 fundamental character of the indictments have not
12 changed. The fundamental theory of the indictments are
13 similar. We believe the defendants have always
14 been --
15 JUDGE JORDA: Let me interrupt you for a
16 moment, Mr Scott. I think that there is a prior
17 point. You raise the question as to whether or not the
18 Defence should be present during this explanation -- is
19 that your prior point?
20 MR SCOTT: That is correct.
21 JUDGE JORDA: At the same time you are
22 saying to us that the Defence should not be here, but
23 despite your concern you are explaining this indictment
24 and you are going further and you have the Defence
25 participating. Let me consult with my colleagues and
1 see if we are interpreting the same way that you are in
2 respect of this Rule. In that case the Defence would
3 withdraw, of course once we have dealt with all the
4 other matters in the status conference -- do you agree
5 on that point?
6 MR SCOTT: Yes.
7 JUDGE JORDA: If you would give me a moment,
8 I would like to consult with my colleagues on the
11 JUDGE JORDA: Unanimously the Trial Chamber
12 interprets the Rules as you did, Mr Scott. Therefore,
13 the explanations which you are going to give have to be
14 understood as part of the explanations for the request
15 for leave to amend the indictment and this should be
16 done ex parte without the Defence being present. What
17 I suggest, in agreement with my colleagues, is that we
18 stop for one moment this point, but that we finish with
19 the status conference in order to take advantage of the
20 Defence presence and ask whether they have any other
21 points they want to take up.
22 First of all, let me turn to the Defence; are
23 there any other points you would like to take up within
24 the scope of the status conference and not in relation
25 to the leave for a request to amend -- request for
1 leave to amend the indictment. Please remind me of
2 your names.
3 MR KOVAVIC: Attorney from Rijeka.
4 Mr President, I just wanted to add to this discussion,
5 I really do not want to enter it, but we started with
6 your last decision of 28 January 1998 by which we were
7 invited to take part in the Prosecution's request to
8 amend the indictment, so we responded to that and we
9 expected to be given an opportunity to provide further
10 arguments in response to this reply. So, without
11 entering into the arguments about amending the
12 indictment, I believe that we should be given an
13 opportunity to give some comments in the sense of
14 replying to the Prosecutor's request to amend the
16 JUDGE JORDA: You consider that, on the
17 principle itself of authorisation, you have come -- let
18 me turn to Mr Scott. You have heard the Defence
19 comment, which is not requesting leave to discuss the
20 contents of the amendment but to make some comments
21 about the principle of authorisation.
22 MR SCOTT: Yes, your Honour. I think it is
23 the position of the Office of the Prosecutor that, as
24 to the type of objections or opposition that would not
25 be related to the underlying factual material or
1 perhaps the legal theories, if you will, of the
2 charging document, that such objections could be
3 heard. I give an example as to -- while not agreeing
4 with it, the example of, for instance, undue delay. An
5 objection could be made on the grounds of undue delay
6 which would have nothing to do with the underlying
7 merits of the proposed indictment. There could be
8 absolutely thorough factual support for the charge and
9 apart from the merits of that charge the Defence could
10 raise the argument that, because of unreasonable delay,
11 the leave to amend should not be granted.
12 So, I think it is a principle distinction
13 that the Prosecutor certainly does not wish to take
14 away any legitimate rights of the accused to object to
15 parts of the indictment process that do not relate to
16 confirmation of what I would call, if I can use the
17 shorthand term, the confirmation process, just as they
18 would not be able to participate in the confirmation of
19 an original indictment with a single judge of the
20 court. That is our position, your Honour -- if I have
21 been clear, I hope.
22 JUDGE JORDA: On this point, with the
23 Prosecutor's agreement, do you have some comments to
24 make about this request for leave to amend the
25 indictment but not the contents, which would go back to
1 your request of 20 February 1998. Go ahead, please.
2 MR NAUMOVSKI: I was going to make a comment
3 in that direction, and having heard the learned
4 colleague the Prosecutor, I may not have understood him
5 fully. There have already been some discussions that
6 were held in this Trial Chamber about this leave to
7 amend the indictment and I believe that the Defence can
8 take part in it and as Defence counsel for Mr Dario
9 Kordic I can say the following: during the first
10 conversation with Mr Harmon, which we had during our
11 first status conference, the Prosecution pointed out
12 that it was going to amend the indictment.
13 From this first announcement until today,
14 about five months have elapsed. First the initial
15 indictment, which was confirmed, was issued, that is,
16 it was confirmed in November of 1995, and the accused
17 Dario Kordic has been in detention since early August
18 1997. So the Prosecutor, about the time when Mr Kordic
19 was detained, announced the amendment of the
20 indictment. According to Rule 20, 21 the accused has
21 the right to a trial without undue delay and he has the
22 right to be informed of all the charges that were
23 raised against him, so Dario Kordic was in detention
24 for about five months before he was informed that the
25 indictment was going to be amended. It only starts in
1 October and continues today.
2 We agree that it is up to the Prosecutor as
3 to how they are going to structure their case. However,
4 this cannot be at the expense of the right of the
5 accused, because, by amending the indictment, the
6 beginning of the trial is being delayed indefinitely.
7 The Prosecution has advised the court that
8 they are not prepared to discuss this issue and I do
9 not want to be misunderstood. I think that it is a
10 matter of tactics in order to slow down this proceeding
11 and to put off the start of the trial itself.
12 Without wanting to enter into the contents of
13 the text, I understand the procedure here and the
14 Defence also did not have enough time to familiarise
15 itself with the supporting materials. Despite all of
16 that, I say I have to point out that in the Prosecution
17 motion for leave to amend the indictment, some well
18 established facts were submitted and the original
19 indictment charges a time period of 12 months, whereas
20 now they are trying to extend it to 28 months.
21 Also, it now expands the geographical area,
22 which used just to be the Lasva River valley, to a much
23 wider area.
24 We submit that the Prosecutor -- since the
25 time of the confirmation of the original indictment,
1 more than two years and four months have passed, and,
2 given the fact that the accused, Dario Kordic, has been
3 in detention for over six months, we submit that the
4 Prosecutor has passed the moment when they could amend
5 the indictment.
6 We also know that this amendment of the
7 indictment has been hinted at a long time ago, but it
8 took them five months actually to start the process, so
9 we feel that this is a conscious delay of the
10 proceedings. Certain Rules have been spelled out very
11 clearly and among them are the rights of the accused,
12 who has the right to be tried without undue delay.
13 Of course, that is respecting the equal hands
14 of both sides, the equal hands of both sides, and this
15 has to be considered and, also, the Rules, or the
16 principles of justice and fairness also need to be
17 taken into account.
18 Therefore, we believe that the Prosecution is
19 too late in trying to amend the indictment, because
20 only now are they trying to bring additional charges,
21 which really would mean that it is a new indictment --
22 if the amendment of the indictment is such that it will
23 really be a new indictment, I think that that may not
24 be what the Trial Chamber has actually invited the
25 Prosecution to do, which is to amend the existing
2 This is in slightly greater detail than the
3 Defence counsel of Dario Kordic has indicated in its
4 written motion, but we felt it necessary to repeat that
5 leave to amend the indictment should not be granted,
6 because, by doing so, the accused, Dario Kordic, would
7 be placed in an absolutely unequal position and his
8 rights, envisaged by the Rules of Procedure, would be
9 absolutely violated.
10 May my learned friend forgive me, but I think
11 that the first thought he expressed shows that he, by
12 interpreting the Rules regarding any amendment of the
13 indictment, is actually supporting inequality before
14 the Tribunal and the Defence wishes to underline that
15 equality is the fundamental principle which the Defence
16 will abide by fully.
17 We would also like to thank the Trial Chamber
18 for allowing the Defence counsel to express its views
19 regarding this motion for leave to amend the
20 indictment, because it confirms the right of equality
21 of parties, and due to which the Defence is given this
22 opportunity to express its views regarding the motion
23 for leave to amend. Without wishing to enter into any
24 factual matters, which the Defence is familiar with, as
25 it has received the draft amendment, I still feel it
1 necessary to underline that, in this proposal, the
2 geographical area is being expanded, as is the
3 timeframe, and certain well known facts are referred
4 to, which were familiar to the Prosecution at the time
5 the original indictment was submitted.
6 I will not of course go into those facts,
7 because your Honours will have the occasion to review
8 those when ruling on the motion of the Prosecution, but
9 the Defence wishes to underline this, because that
10 serves as the basis for the Defence's position, that
11 this request is, first of all, absolutely too late and,
12 secondly, that it changes the whole course of
14 Should the Trial Chamber rule in favour, then
15 I am afraid that we will not be able to respect the
16 timeframes that we agreed on at the first status
17 conference. Therefore, the proposal of the Defence of
18 Mr Dario Kordic is not to grant leave to amend the
19 indictment, because, in our view, the Prosecution is
20 too late in submitting this motion for leave to amend
21 the indictment. Thank you, your Honours.
22 JUDGE JORDA: Mr Kovavic, on behalf of
23 Mr Cerkez you would like to speak -- not to repeat
24 everything but of course it is proper for you to make
25 formal comments. You will now be able to speak on
1 behalf of your client, Mr Cerkez. Say whatever you
2 wish to say.
3 MR KOVAVIC: Thank you, Mr President and your
4 Honours. I, too, have no intention of going into the
5 substance of the proposed amended indictment. I would,
6 like my learned colleague, limit myself to certain
7 conditions which we need to go into, or, rather,
8 I would draw attention to a few points which I feel the
9 Trial Chamber should bear in mind when making a ruling
10 regarding the confirmation of the indictment.
11 First of all, Defence counsel, or, rather,
12 I as Defence counsel for the second accused, Mr Cerkez,
13 appreciate very much the decision of the Trial Chamber
14 of 28 January granting us this possibility to voice our
15 opinion regarding the motion of the Prosecution seeking
16 leave to amend the indictment.
17 Nonetheless, unfortunately, the Rules do not
18 envisage the Defence receiving the supporting material,
19 which limits our possibilities regarding comments on
20 the grounds or the supporting material for the
21 indictment. However, from the Prosecution's motion
22 itself dated 11 February, it is quite clear that some
23 very significant and substantive changes are being
24 proposed to the indictment.
25 In a sense, one might say that this would in
1 fact be a substitution of the original indictment by a
2 new one. For us lawyers, numbers are not the best
3 argument, but, in the original indictment six persons
4 were charged for 13 counts on 13 pages of the brief.
5 The proposed amended indictment charges two persons
6 with 44 counts, each with 22 counts, on 22 pages of
7 document. Therefore, this, in itself, shows that a
8 much broader and larger document is involved.
9 The Defence is not aware of whether such
10 important changes are based on existing or new
11 evidence, as we have not seen the supporting material.
12 When talking about existing evidence, we are referring
13 to the material the Prosecutor had in its possession at
14 least during the initial appearance of the accused.
15 The Defence believes that the proposed
16 amendment is based on evidence which the Prosecutor had
17 in its possession at the time the indictment was
18 issued, so that, actually, the Prosecution is resorting
19 to delaying tactics -- rather than being prompted by
20 new evidence, which would require that he seek leave to
21 amend the indictment.
22 Accordingly, as Defence counsel, I would
23 propose that the Trial Chamber rule on the
24 Prosecution's motion for leave to amend only after the
25 Prosecution manages to persuade the Trial Chamber that
1 the proposed amendments are predominantly, in their
2 majority, based on new evidence, because, if they are
3 based on old evidence, then this is mere tactics,
4 whereby the right of the accused to a fair and
5 expeditious trial is being violated.
6 Of course, the Defence counsel retains the
7 right to prepare motions in the case that the Trial
8 Chamber confirms the amended indictment, and with our
9 motions we will contest the proposed amendments in
10 their entirety or in parts. Thank you, your Honours.
11 JUDGE JORDA: Mr Scott, this is the first
12 part of our proceedings today having to do with the
13 very principle of amending the indictment. You have
14 heard the major argument presented by the accuseds'
15 attorneys, namely, that this will all delay the trial.
16 Let me remind you that on 27 January, when we had a
17 status conference, you said that the trial could begin
18 at the end of September. Are you still maintaining
19 that date in respect of the changes that you request
20 within the indictment?
21 MR SCOTT: Yes, your Honour, that is
22 correct. The Office of the Prosecutor's position has
23 not changed about that. We believe that, again, while
24 indeed there have been some changes to the original
25 indictment, that there should be nothing that would
1 interfere with the trial going forward about that time.
2 JUDGE JORDA: Very well. As for the second
3 point, you heard what the Defence attorneys said in
4 respect of this principle of granting leave to make the
5 amendments. The attorneys are concerned, and are
6 saying that, in the end, you are making significant
7 changes to the scope of both the geographic and legal
8 areas, which is not, in their opinion, a normal thing
9 to do and that this might give you the authorisation to
10 look for new evidence, whereas in fact everything
11 should have been ready for the last year and a half or
12 two years -- at least since 1995 when the indictment
13 was confirmed. What do you think about what I have
14 just said?
15 MR SCOTT: May it please the court, let me
16 just say that I do not believe the Office of the
17 Prosecutor would be doing its job if we simply stopped
18 investigating. The defendants, I would remind the
19 court, were fugitives for a two-year period. During
20 that time the Office of the Prosecutor has engaged in
21 extensive investigation in the former Yugoslavia.
22 I think it is absolutely the duty of the Prosecutor to
23 continue to gather and act on new evidence and on new
24 and fresh assessment of both old, if you will, and new
1 I think that that sometimes can, if you will,
2 cut both ways. I think the Office of the Prosecutor
3 has shown an even hand, and, based upon reassessment of
4 evidence, some accused have been released. I think it
5 is absolutely consistent and in fact called for by the
6 Articles of the Tribunal and the Prosecutor's
7 professional obligations, that indeed investigation and
8 analysis and assessment continue at all times, and the
9 Prosecutor has acted consistent with those obligations.
10 We submit, your Honour, that it is true and
11 it is apparent on the face of the indictment that some
12 of the geography has changed and some of the time
13 periods have changed, but we return to the position
14 that I stated to the court some minutes ago, that, in
15 their basic character, the changes are not
16 fundamentally different, that these accused have been
17 on fair notice for a substantial period of time as to
18 the nature and character of these basic charges and
19 that the amended indictment, which we believe to be
20 superior and we believe are appropriate, or certainly
21 we would not have tendered, it is nonetheless
22 consistent with the basic theories of Prosecution that
23 were in the original indictment.
24 If the court wishes, we can proceed on a
25 count by count basis. I do not know if we need to do
1 that at this particular point. I remind -- I would
2 respond to several points by the Defence. There was
3 early notice -- in fact there is a record of 21 October
4 1997, with Defence counsel, in which the Prosecutor's
5 intent to seek an amendment was stated. This is not
6 something that has come about lately; it was stated
7 literally within days of the defendants, the accused,
8 coming into custody. I submit to the court that, given
9 the complexity of these investigations, the complexity
10 of these facts, it is not unreasonable for the
11 Prosecutor to have taken something less than three and
12 a half months from the date of custody to filing its
13 proposed amendments on 11 February, as this court
14 ordered us to. I do not believe in any way that that
15 time can be characterised as unreasonable.
16 We believe that the amendment process is
17 legitimate; the Rules clearly contemplate the
18 Prosecutor's ability to seek an amendment. Again, we
19 submit that the time that has passed between custody --
20 not today's date -- the amended indictment was filed on
21 11 February and the time between the defendants coming
22 into custody, after being fugitives for more than two
23 years, and allowing a three and a half month time for
24 an amended indictment of a complex nature to be filed
25 is not at all unreasonable.
1 I can assure learned counsel that this is not
2 a tactical ploy. We believe it a principled position
3 by the Office of the Prosecutor, that this is the way
4 the process should work in terms of the issues about
5 the confirmation process and that the underlying
6 material should not in fact be debated; that the Office
7 of the Prosecutor is committed to that position as a
8 matter of principle.
9 Again, I would submit to the court that I do
10 not know of any domestic jurisdiction which allows the
11 accused to participate in the charging decision.
12 Certainly, once a defendant or accused has been
13 charged, they can file whatever motions attacking the
14 charges that they wish to, but they do not sit in the
15 Prosecutor's Office or in the Chambers of the court and
16 make the decision whether a charge should be filed.
17 We submit, your Honour, that the amended
18 indictment is absolutely appropriate. It accurately
19 reflects these accused's conduct. It is timely, and it
20 would be I think truly -- if I can use the word -- a
21 shame if the Prosecutor was not allowed to amend an
22 indictment after a continuing investigation in the
23 former Yugoslavia for more than two years to reflect
24 those facts. We do not have a trial date at this
1 I understand that there may be certain parts
2 of the amended indictment that the Defence will want to
3 further respond to and investigate, but, your Honour,
4 we submit that there is ample time between now and the
5 end of September for them to do that.
6 With that, your Honour, unless the court has
7 additional questions or wants to proceed on any sort of
8 a count by count analysis, I will stop. Thank you,
9 your Honours.
10 JUDGE JORDA: Mr Naumovski, did you want to
11 add something?
12 MR NAUMOVSKI: Yes, Mr President. My learned
13 friend has now provided additional argument contesting
14 what we said a moment ago. I would agree immediately
15 with my learned friend regarding what he said, that
16 this was a very serious and complex case, but my friend
17 forgot to mention what is most important and that is
18 that, for a long time now, an almost identical, in
19 terms of the facts, trial is under way; that is, the
20 trial of General Blaskic. This fact throws fresh light
21 on what has been said by my learned friend.
22 The Prosecution, in the opinion of the
23 Defence of Dario Kordic, has had in its possession, for
24 a year and more, a whole series of evidentiary
25 material, which it will logically use in the indictment
1 against Dario Kordic, as has been announced in this
2 motion, and it is in that context that the timeframe is
3 being extended. Earlier, it was May 1992 to May 1993
4 and now it is November 1991 to 1 March 1994.
5 If there had been no Blaskic case, we could
6 agree in principle. Unfortunately, what we say stands,
7 that this proposal is not timely; it is too late. The
8 proposal to amend is not linked to the presence of the
9 accused. The indictment was confirmed already in
10 November 1995. Therefore, if the Prosecution, after a
11 certain amount of time, found new evidence, then she
12 should have sought leave long ago, regardless of
13 whether the accused were in custody or not.
14 I must also refer to another point mentioned
15 by the Prosecutor, and which was also raised at our
16 first status conference. I do not know why the
17 Prosecutor is trying to present the success of the
18 Defence as their success. Mr Santic and Skopljak were
19 not released thanks to the activities or efforts of the
20 Prosecution but exclusively to the efforts of the
21 accused and Defence counsels. It was their attorneys
22 who managed to achieve their release.
23 Of course that does not prevent the
24 Prosecutor from continuing its investigations -- that
25 is quite understandable -- but I appeal to this
1 honourable Trial Chamber to review the supporting
2 material in that context. We have reason to believe
3 that these are predominantly old materials, which the
4 Prosecutor was familiar with long before it sought
5 leave to amend the indictment.
6 I must say, as Defence counsel of Dario
7 Kordic, that I also fail to understand a sentence
8 uttered by my learned friend, and that is that this
9 Trial Chamber has really no other possibility but to
10 accept the Prosecutor's motion for leave. The Defence
11 feels quite the opposite. We see no reason why the
12 Trial Chamber could not reject this motion. There was
13 a decision at the beginning of this month in the
14 Kovacevic case that was rejected and it is the right of
15 the Defence to voice its opinion in that context, too.
16 For this reason, in particular, I feel that
17 the additional arguments submitted by my learned friend
18 are unfounded and I stand by the proposal of the
19 Defence counsel of Mr Dario Kordic that the Trial
20 Chamber should reject the Prosecution's motion for
21 leave to amend, on the grounds that the Prosecution
22 held in its own hands, to put it figuratively, the
23 whole case against Dario Kordic long, long before he
24 came here, even, and it is in that context that we
25 allege that the motion for leave to amend the
1 indictment is in any case too late -- not timely.
2 I understand the efforts of the Prosecution
3 to carry out fresh investigation, to seek new
4 evidentiary material, and thereby to strengthen
5 indictments against the accused, but, in the opinion of
6 the Defence, it is impermissible to use old evidence,
7 or, rather, the evidence that the Prosecution has had
8 possession of for a long time whenever the Prosecution
9 sees fit. In our view, that is impermissible, because
10 the right of the accused to a fair and expeditious
11 trial, and to be informed immediately of the charges
12 against him, is flagrantly being violated and therefore
13 I propose that the motion be dismissed. Thank you,
14 your Honours.
15 JUDGE JORDA: Mr Kovavic, additional
16 comments? Do not reargue, though.
17 MR KOVAVIC: Mr President, I will not. Thank
18 you. Just two sentences in response to what has been
19 said by Mr Scott. It has been reiterated that the
20 Prosecution, at least from 21 October, has been stating
21 its intent to amend the indictment. We are aware of
22 that announcement. It has entered the record.
23 The only question now is that, now that we
24 have received the draft of the new indictment, is it
25 the result of fresh evidence, new evidence? Our
1 colleague has said that there is some new evidence, but
2 we must ask how much new evidence? Because, if we are
3 talking about very significant amounts of new material
4 -- a very significant expansion of the indictment, or
5 if we are talking about just a drop of new evidence,
6 1 per cent, then this small amount cannot be an excuse
7 for waiting for so long.
8 If we are really dealing with new evidence,
9 then obviously the Prosecutor is entitled to seek a new
10 indictment. So, I repeat once again: I appeal to the
11 Trial Chamber to ask the Prosecution to state clearly
12 which part of the amendments is based on the
13 evidentiary material it had in its possession at the
14 time of the original indictment, and to what extent is
15 it new evidentiary material.
16 JUDGE JORDA: Mr Scott, did you want to add
18 MR SCOTT: Your Honour, if I could make three
19 very short points in response. Number 1, I believe the
20 record will show that the dismissals were on the
21 voluntary motion of the Prosecutor and not based on any
22 Defence motion or effort. I think the court's records
23 will speak for themselves.
24 Secondly, in terms of the expeditiousness of
25 trial, we are not coming in here asking for a trial
1 date to change -- in response to the President's
2 question a few minutes ago, we stated our position
3 that, in terms of the trial date, we believe it fair
4 and appropriate that the trial date be about the time
5 that has been discussed in the prior court hearing. So
6 the Prosecutor does not come here and is making no
7 motion at this time to delay the trial date whatsoever.
8 The issues of an expeditious trial are
9 governed by international standards. I refer very
10 briefly, without belabouring this issue, to the Trial
11 Chamber's decision -- the second decision in the
12 Blaskic case on a motion for provisional release, in
13 which this court reviewed a number of applicable
14 authorities, including the rulings of the European
15 Court of Human Rights and found the type of time
16 periods that are being discussed here to be well within
17 -- well within the permissible periods of pre-trial
18 detention. There are cases -- we are not advocating
19 the position here, but there are cases in which up to a
20 five-year detention period has been held not
21 unreasonable. We believe in this case that we are well
22 within the time of reasonableness, that the amendments
23 are appropriate.
24 My final point, your Honour, is that I think
25 much of our point -- much of the Prosecutor's point is
1 made by a comment by learned counsel that, indeed, had
2 these defendants appeared and surrendered at the same
3 time as Mr Blaskic, they would have been in the same
4 trial. This trial would be going on, even now, and
5 they would have in fact received a quicker trial,
6 because that trial would be well under way at this
8 The issue of the delay of this trial is not
9 the conduct of the Prosecution Office in seeking what
10 it believes are legitimate indictments or legitimate
11 amendments, excuse me, but the efforts to side track
12 and keep this Chamber from moving forward -- and
13 I would submit that it was the Defence and not the
14 Prosecutor which has filed a number of motions,
15 including the motion to disqualify. We ask that the
16 court again grant us leave to make the amendments.
17 Thank you.
18 JUDGE JORDA: I think we are going to stop
19 the proceedings here. Everyone has had a chance to say
20 what he had to say. I think we have really looked at
21 this issue, all the more so because the judges would
22 need to consult about the issue. But this discussion
23 has to be broken into two parts. We will only deal
24 with the first part, that is having to do with leave to
25 amend the indictment or not, which will mean we will
1 not hear the Prosecutor today, because, if two of these
2 Trial Chamber judges are disqualified, I think it would
3 be better for any new possible composition of judges to
4 hear the substantive arguments that the Prosecutor
5 would want to present, which would be the basis for his
6 amending the indictment.
7 However, insofar as we, for the time being,
8 are seized of the issue, the three of us judges do
9 consider that they are legitimately seized of the
10 previous question, which is a valid one, which is
11 substantive and also formal. This is the only one that
12 the three judges here today will rule on.
13 Either we will be disqualified or not and, if
14 we are, the new panel of judges will hear the
15 arguments, should the composition of this Trial Chamber
16 have given leave to amend the indictment, but it would
17 be the new Trial Chamber that would be fully competent
18 to rule on the contents of the indictment.
19 We are not accused here, of course, but we
20 will now continue with the ex parte discussion with the
21 Prosecutor, who would then give us all of the reasons
22 that would justify the modifications that he is asking
24 I will now close this chapter, turning to my
25 colleagues, and ask them whether they have any
1 additional things they would like to say. As regards
2 organisation of the trial, I think it might not be
3 suitable to say anything else right now, unless you do
4 have something to add, as part of the status
5 conference. I think we have mixed things up a little
6 bit today, but I think that the plenary has established
7 a pre-trial judge, and this pre-trial judge will have
8 many powers, which will help us all move things forward
10 Mr Naumovski, do you have anything else that
11 you would like to say in addition to what has already
12 been said?
13 MR NAUMOVSKI: Your Honour, listening to your
14 deliberations, I got the impression that, if
15 I understood correctly, in order to speed up the
16 process of a decision on the motion about a
17 disqualification of two judges of this Trial Chamber
18 and after a short consultation with my colleague, I am
19 going to withdraw my reply to the Prosecution in
20 response to our initial motion.
21 JUDGE JORDA: I am sorry, I did not quite
22 follow what you just said there. The first point I can
23 answer, I can understand. I wanted to say something
24 about the first point. Things must be transparent
25 here; since we have been asked to disqualify ourselves
1 we asked the Bureau to study the issue, but that
2 decision has not yet been taken. Otherwise we would
3 not have had this status conference, or I would have
4 given you the results, had a decision been taken. I
5 simply allow myself to say that if you had any
6 additional things that you wanted to add, that it would
7 be best to do them tomorrow, because I believe that the
8 Bureau will take its decision without any further
10 Now, I must say I did not understand the
11 second part of your comment, which seems to be
12 connected with the first. Would you please repeat what
13 the second part was?
14 MR NAUMOVSKI: Yes. Precisely, based on what
15 you just said, which I listened to carefully, I am
16 withdrawing the reply to the Prosecution's response to
17 our motion for disqualification of the judges, and I am
18 doing it precisely in order to speed up the process.
19 JUDGE JORDA: That seems proper, that is the
20 best way to work. If we remain here, you will have
21 time to perfect your arguments. Before closing this
22 issue I would like to ask the Prosecutor if there is
23 anything he would like to say about the Kordic trial?
24 MR SCOTT: No.
25 JUDGE JORDA: Before we end the hearing,
1 I would like to ask the accused, are your detention
2 conditions satisfactory to you, insofar as one can be
3 satisfied with detention conditions? Mr Kordic?
4 MR KORDIC: Your Honours, thank you for
5 asking. Your Honours, thank you for your kind
6 questions. In this regard, as I said before, I am
7 happy with the conditions there and I am hopeful that
8 the trial will start soon.
9 MR CERKEZ: Thank you for asking. I am
10 feeling well and there are no problems and I would only
11 wish for the trial to start as fast -- as soon as
13 JUDGE JORDA: Very well. We have completed
14 the status conference. Therefore we will see one
15 another again, or not see one another again. That is
16 not our decision. The court stands adjourned.
18 (The hearing adjourned)