Tribunal Criminal Tribunal for the Former Yugoslavia

Page 104

1 Wednesday, 18th March 1998

2 (2.50pm)

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

Page 105

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

Page 106

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

Page 107

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

16 request.

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

Page 108

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

22 scope.

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

Page 109

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

5 today.

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.

Page 110

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

Page 111

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.

Page 112

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.

Page 113

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

Page 114

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

9 bench.

10 (Pause).

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

Page 115

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

15 indictment.

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

Page 116

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

Page 117

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

Page 118

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,

Page 119

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

Page 120

1 indictment.

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

Page 121

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

13 proceedings.

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

Page 122

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

Page 123

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

Page 124

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

Page 125

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

25 evidence.

Page 126

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

Page 127

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.

Page 128

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

25 time.

Page 129

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

Page 130

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

Page 131

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

Page 132

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

Page 133

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

17 something?

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

Page 134

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

Page 135

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

7 time.

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

Page 136

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

23 for.

24 I will now close this chapter, turning to my

25 colleagues, and ask them whether they have any

Page 137

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

9 quickly.

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

Page 138

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

9 delay.

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,

Page 139

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

12 possible.

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.

17 (3.55pm)

18 (The hearing adjourned)