Tribunal Criminal Tribunal for the Former Yugoslavia

Page 95

1 Thursday, 28 September 2000

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.06 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: [Interpretation] Case IT-97-25-PT, the Prosecutor

8 against Milorad Krnojelac.

9 JUDGE HUNT: Appearances for the Prosecution.

10 MR. STEWART: Good morning, Your Honours. My name is James

11 Stewart, chief of prosecutions. I would like to introduce counsel who

12 will have conduct of this case on behalf of the Office of the Prosecutor:

13 Hildegard Uertz-Retzlaff, who will be lead counsel, and Peggy Kuo. May I

14 say for the record, Your Honour, that they will be assisted by William

15 Smith who is not in court today.

16 I would also like to note the presence of George Huber, case

17 manager, who is leaving us on October the 20th and will be replaced in the

18 court. He is going to UNMIK after having served with us, I would say, in

19 a distinguished fashion, and we are grateful to him. But he is leaving us

20 on October 20th.

21 That is the Prosecution appearance. Thank you.

22 JUDGE HUNT: Thank you very much.

23 MR. BAKRAC: [Interpretation] Good morning, Your Honour. Attorney

24 Mihajlo Bakrac as lead counsel for the defendant, Milorad Krnojelac. I am

25 on my own today, but there are some indications that a trial will be

Page 96

1 scheduled so I will ask for permission to have a co-counsel, attorney

2 Miroslav Vasic, who has been my legal advisor up till now.

3 JUDGE HUNT: When you say you have asked for permission to have

4 Mr. Vasic, have you organised with the Defence Counsel Unit or the

5 Registrar for him to be appointed as co-counsel for the trial?

6 MR. BAKRAC: [Interpretation] No, Your Honour. Bearing in mind the

7 last Status Conference of the 28th of July, there were some indications

8 that this trial might begin in January. So we thought because of some

9 standpoints of the Registry that it was too early to ask for the

10 appointment of a co-counsel. However, since I have heard today that the

11 trial might begin in late October or early November, then I will do

12 everything very quickly in order to get the co-counsel as soon as

13 possible.

14 JUDGE HUNT: As long as you understand that it's for you to make

15 the application and not for the trial court to give you permission.

16 That's all that's necessary.

17 In relation to the previous Status Conference, we said that it

18 "may" not be until January, but you certainly were given no indication

19 that it would not be before January, if it was possible. It has now

20 turned out to be possible because of the progress in the preceding case in

21 the list.

22 Now, the time when the Trial Chamber proposes to commence the

23 trial is on Monday, the 30th of October, and it's necessary, therefore, to

24 fix the various stages that have to be complied with before the trial

25 commences.

Page 97

1 The latest that a Pre-Trial Conference could usefully be held, and

2 indeed the latest that it is possible to hold it, is Wednesday, the 25th

3 of October; that's the preceding Wednesday. Again, working backwards, the

4 Defence pre-trial brief must be in seven days beforehand, at least seven

5 days beforehand, which makes the Defence pre-trial brief Wednesday, the

6 18th of October. In order to give the Defence an opportunity of filling

7 in the last-minute details, having seen the Prosecution pre-trial brief,

8 the proposal is that the Prosecution pre-trial brief be filed by

9 Wednesday, the 11th of October.

10 I'll hear what the parties have to say about that in a moment, but

11 I think that we should perhaps deal with the Status Conference in relation

12 to ongoing matters first.

13 Ms. Uertz-Retzlaff, is it preferable I ask you about that, or

14 should I ask Mr. Stewart about it?

15 MS. UERTZ-RETZLAFF: Your Honour, I think I will answer the

16 questions you have on the details.

17 JUDGE HUNT: Thank you very much, indeed. Rule 66(A)(i)

18 supporting material has all now been disclosed in unredacted form, we've

19 been told. There's nothing additional there?

20 MS. UERTZ-RETZLAFF: Yes, it was complied with.

21 JUDGE HUNT: Yes, thank you. And Rule 66(A)(ii), also we were

22 told that that has been supplied, with all the statements in unredacted

23 form.

24 MS. UERTZ-RETZLAFF: Yes, Your Honour.

25 JUDGE HUNT: You've had two interviews. Is it proposed that there

Page 98

1 be any further interviews before the trial?

2 MS. UERTZ-RETZLAFF: No, Your Honour, this is not planned.

3 JUDGE HUNT: Thank you. Of course, you are aware of the

4 requirements of Rule 68 for the continuing obligation to disclose

5 exculpatory material.

6 MS. UERTZ-RETZLAFF: Yes, Your Honour. The Prosecution is aware

7 of the Rule, and we have prepared a further submission to Defence counsel

8 for today originating especially from the Kunarac case, where we have

9 heard Defence witnesses speaking about the general conditions in Foca; we

10 think that these materials should go to Defence counsel in this case as

11 well. We have prepared these materials to hand over today. We actually

12 had planned to give this earlier, but Defence counsel were not available

13 to meet with us before today.

14 JUDGE HUNT: Well, that will be good, if you can give that to them

15 today.

16 MS. UERTZ-RETZLAFF: What we also want to disclose today is the

17 transcripts in both languages of the Krnojelac interviews. They were only

18 finished yesterday.

19 JUDGE HUNT: All right. Well, thank you very much.

20 I did mention this on the last occasion of the Status Conference,

21 about the documents to be used by the Prosecution. It is preferable, as

22 before, to have them numbered but not called an exhibit. It seems to

23 cause immense problems for everybody if they're called an exhibit. It's

24 very easy to write "exhibit" on them if they become an exhibit.

25 So when you prepare those very helpful books of documents and

Page 99

1 photographs, et cetera, if they could be numbered as before but without

2 the word "exhibit" on them, and the numbering will be used both to

3 identify them and then if they become an exhibit, as an exhibit.

4 Otherwise, we have no way of knowing when we look at these papers whether

5 they are an exhibit or not without reference to another list, which is not

6 always easy to link up.

7 MS. UERTZ-RETZLAFF: Your Honour, you will receive the trial

8 binders as in the previous case, and we will assure you that we will call

9 it an identification number and not an exhibit number.

10 JUDGE HUNT: Good. Thank you very much.

11 Now, Mr. Bakrac, there seems to be some puzzlement on behalf of

12 some of your colleagues about what has to be disclosed in the Defence

13 pre-trial brief. It is not sufficient simply to say that all of the

14 material upon which the Prosecution relies is denied or not accepted. If

15 there is any case which you propose to put forward in relation to the

16 Prosecution witnesses, your obligation under the Rules is to disclose it

17 in your pre-trial brief.

18 For example, if it is going to be the case that a Prosecution

19 witness was not even on duty, or not within the KP Dom at the time when he

20 says that he was, that is material which should be disclosed in the

21 pre-trial brief. Do you understand the extent of this? The previous

22 pre-trial brief by a Defence that I saw, the first one after the new Rule,

23 seemed to ignore that obligation completely.

24 Are there any defences which the Defence relies upon and have to

25 be notified under Rule 67(A)(ii), alibi or anything like that?

Page 100

1 MR. BAKRAC: [Interpretation] Your Honour, I hope that I have

2 understood the essence of the pre-trial brief as you have set it out, and

3 the Defence will do its best to do everything that should be done in the

4 pre-trial brief.

5 As for Rule 67, any alibi defence or other special defence, at

6 present we do not have any such evidence that might point in that

7 direction. Therefore, when talking about an alibi, we shall have a clear

8 defence case with respect to the duties and obligations of the accused in

9 his work in KP Dom. But we cannot deny the fact that during the period

10 referred to in the indictment he was in the KP Dom with, of course,

11 interruptions; he was not there on certain days, and so on. But I think

12 we should not look for an alibi, because, overall, in the period for which

13 the accused is indicted, he was in the KP Dom with shorter and longer

14 interruptions.

15 But all this will be set out in the pre-trial brief, and later in

16 the trial itself. Thank you.

17 JUDGE HUNT: One of the matters which you raised during one of

18 those many motions on the form of the indictment was the precise nature of

19 your client's duties, and, as I recall, your point was that he was in

20 charge of only one part of the prison, not the part where these people who

21 are the victims were kept. That's a matter which we would expect to see

22 some detail of in your pre-trial Defence brief.

23 MR. BAKRAC: [Interpretation] Your Honours, of course that's

24 possible, we will do that in the pre-trial brief; although I had thought

25 perhaps that it would be better to deal with that in greater detail in the

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Page 102

1 opening argument, after the finalisation of the case of the Prosecution.

2 But of course we can touch upon that issue in the pre-trial brief too.

3 JUDGE HUNT: When I say "some detail of it," I have in mind not

4 the detail you would give in an opening argument, but we want to know the

5 general nature of the case based upon this differentiation in his duties.

6 I think you probably understand it. But it's insufficient just to have it

7 in a motion in relation to the form of the indictment. It does have to be

8 in this Defence pre-trial brief.

9 Now, Ms. Uertz-Retzlaff, there are a number of witnesses referred

10 to by the acronym FWS in the indictment, and some of the annexes also are

11 confidential which name the witnesses. There's no specific protective

12 measures for these. Will you be applying for use of pseudonyms during the

13 course of the hearing?

14 MS. UERTZ-RETZLAFF: Your Honour, at this point in time we are

15 recontacting all the witnesses, and we specifically ask for their needs.

16 Most of the witnesses up till now hadn't asked for anything like this, but

17 now seeing their testimony coming closer, many of them now get afraid and

18 do ask for protective measures. When we have contacted our witnesses, we

19 will file a motion in this regard, and it will probably include a lot of

20 requests for confidentiality, that is, the use of pseudonyms, and also

21 face distortion. Up to now we have not had a witness who asked for more

22 than that.

23 JUDGE HUNT: I don't want to dissuade any witness from asking for

24 it, but voice distortion is the one which causes the most problems because

25 we have to stop the hearings and everybody has to leave whilst the

Page 103

1 technicians work it all out with a particular witness. So perhaps if they

2 are offered some form of protective measure, but not too much emphasis on

3 the voice distortion, which, frankly, I do not think, makes very much

4 difference. You certainly can't hear the voice in the same way, but

5 having been in a number of cases where voice identification has been

6 raised, very few people can identify a voice.

7 MS. UERTZ-RETZLAFF: Your Honour, we are aware of the problem, and

8 we will try to persuade the witnesses not to request that.

9 JUDGE HUNT: I'm not asking you to persuade them not to. I just

10 don't want you to try to persuade them to ask for it, that's all. A clear

11 but small distinction.

12 What about the timing of this? As long as it's in sufficient time

13 for the Defence to have a look at it and before the trial, there should be

14 no problem about this; and indeed we can deal with it during the course of

15 the running of the trial as well. But for your first few witnesses,

16 perhaps if you can get that done before the trial begins.

17 MS. UERTZ-RETZLAFF: I think we can manage to make an application

18 for all the witnesses who will request protective measures before the

19 next -- before the Pre-Trial Conference. That has to be cleared. I think

20 it will be cleared before that.

21 JUDGE HUNT: Thank you. Now, is there any other matter that you

22 want to raise at this stage?

23 MS. UERTZ-RETZLAFF: Yes, Your Honour.

24 It's the timing that worries the Prosecution. We would suggest to

25 allowing -- in regard to the Rules, there is a possibility, the Rules

Page 104

1 allow for a Pre-Trial Conference on the 27th of October, and the

2 Prosecution --

3 JUDGE HUNT: I've already said that the 25th is the last possible

4 one, unfortunately. We can't have it later than that. So that's the

5 Wednesday before the hearing.

6 MS. UERTZ-RETZLAFF: Yes. Counting back from this, the

7 Prosecution would suggest to have a little more time for the pre-trial

8 brief. The reason for this is that we haven't had the possibility to

9 discuss admissions and contested matters with the Defence counsel due to

10 problems of scheduling. We had planned to do that last week but it was

11 not possible.

12 What the problem is is we have, actually, 220 proposals for

13 admissions by the parties and we have to work through these proposals. We

14 will start working on this today, but we don't think that we can manage to

15 finish it today. We need some more days to do that.

16 In addition, we have to go with Defence counsel through our list

17 of exhibits, and it very much depends on the admissions and how the

18 Defence counsel stands on our exhibits. It very much depends on the

19 outcome of these discussions which exhibits will be presented and which

20 witnesses will be presented, and what we can say about admitted matters

21 and matters in dispute. We actually need some time for this.

22 JUDGE HUNT: I can I understand that. If we delayed the

23 Prosecution pre-trial brief date, the Defence pre-trial date would also

24 have to be delayed, so there would be less than seven days between the

25 Defence pre-trial brief and the Pre-Trial Conference. If you're prepared

Page 105

1 to concede that, then we could deal with it.

2 MS. UERTZ-RETZLAFF: Yes, Your Honour.

3 JUDGE HUNT: There wouldn't be very much room to manoeuvre, but

4 certainly that would give you some room.

5 MS. UERTZ-RETZLAFF: Yes, Your Honour.

6 JUDGE HUNT: I think that the Defence should have seven days to

7 consider your pre-trial brief before having to put the Defence pre-trial

8 brief on. It can be started, it can be started now, but the final

9 document will depend upon what is in your pre-trial brief.

10 MS. UERTZ-RETZLAFF: Yes, Your Honour. But I think the Rules do

11 not request such a -- seven days --

12 JUDGE HUNT: They do, actually. It must be seven days before the

13 Pre-Trial Conference.

14 MS. UERTZ-RETZLAFF: Yes. But the interval between the pre-trial

15 brief and the Defence brief does not need to be seven days. Given the

16 fact that the indictment is very detailed and there shouldn't be any

17 surprise in our pre-trial brief, the Prosecution thinks it's not necessary

18 for Defence counsel to actually have seven days. But, of course, we will

19 hear Mr. Bakrac, what he says to that. We would propose a shorter period

20 of time between the two briefs.

21 JUDGE HUNT: But are you not prepared -- I'm sorry. I should have

22 waited for the translation.

23 Are you not prepared to take less time yourself between the

24 Defence pre-trial and the Pre-Trial Conference?


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Page 107

1 JUDGE HUNT: You are?

2 MS. UERTZ-RETZLAFF: We are, of course.

3 JUDGE HUNT: I thought that you were insisting upon yours without

4 conceding the Defence.

5 Well, Mr. Bakrac, how long do you say you need to file your

6 pre-trial brief after receipt of the Prosecution pre-trial brief?

7 MR. BAKRAC: [Interpretation] Your Honour, I would like to thank my

8 learned colleague. The reason why we did not meet last week, as had been

9 agreed upon at the previous Status Conference, was the Defence's request

10 to move this seven days forward. And after all this time, the time

11 allowed for preparation is still very short.

12 What we talked about at the beginning of this Status Conference

13 has to do with our wish that the trial of this case begin. But after all

14 this time, I don't think it would serve our purpose very well. Of course,

15 I have due regard for the time of the Trial Chamber, but if we are to

16 start the trial on the 30th of October, we would not like to shorten the

17 time allowed to the Defence to get familiarised with all the material

18 presented by the Prosecution.

19 There are 220 proposals, as has been said, for admissions,

20 Mr. Vasic and I are alone in preparing this case, and the time we would

21 need for a serious review of these proposals should, in my opinion, be

22 longer.

23 If the Trial Chamber wouldn't mind, we would like the trial date

24 to be postponed a little. I repeat: If the Trial Chamber really wouldn't

25 mind and if it would not seriously disturb their plans, we would like to

Page 108

1 have the trial begin at a later date in order to be able to review all the

2 pre-trial issues. So once again, if it does not seriously upset the

3 schedule of the Trial Chamber, I would appreciate it very much if we were

4 given enough time to review all these proposals; and if the trial date

5 could be moved by 10 or 15 days forward to allow us enough time, to allow

6 us enough time to review, to respond to the Prosecution, et cetera, and

7 give all the answers to the questions that arise. Thank you.

8 JUDGE HUNT: Before we discuss that particular matter, though,

9 could I come back to my question? Once you have the Prosecution pre-trial

10 brief, how long do you need before you file your Defence pre-trial brief?

11 What I had proposed previously was seven days, which is, I think,

12 adequate; what the Prosecution has suggested is that you require less time

13 than that. So what do you say about the Prosecution's suggestion you

14 should have less than seven days to trial the Defence pre-trial brief?

15 MR. BAKRAC: [Interpretation] Your Honours, until we see the

16 Prosecution pre-trial brief, we don't know how much time we would need.

17 But I'm certain that less than seven days wouldn't be enough, for all the

18 reasons that I have already mentioned. Less than seven days would not be

19 enough to do our work conscientiously and thoroughly, in view of all the

20 issues that are going to be covered by the Prosecution pre-trial brief.

21 I share the opinion of the Trial Chamber that seven days is the

22 minimum required time for the preparation of the Defence pre-trial brief,

23 of course, with due regard for the Prosecution pre-trial brief and relying

24 on it. Thank you.

25 JUDGE HUNT: Good. Thank you.

Page 109

1 [Trial Chamber confers]

2 JUDGE HUNT: Mr. Bakrac, you, of course, have been in this case

3 since it began. I don't remember whether you appeared at the Initial

4 Appearance, but you've certainly been in it ever since we have been

5 hearing the repeated applications in relation to the form of the

6 indictment. We are not terribly sympathetic to any suggestion that you

7 are not aware of what the case is all about.

8 As Ms. Uertz-Retzlaff has said, it's a very detailed indictment;

9 in fact, it is now more detailed than it was when it began, mainly through

10 your efforts, if I may say so, and there should be no problem with the

11 case commencing. If there is any particular problem you have once the

12 case commences, that you're caught by surprise or there is some particular

13 matter that you have to do some further work on, that's a matter that can

14 be dealt with by negotiation with the Prosecution as to the order in which

15 the witnesses are called, and if necessary the Trial Chamber can deal with

16 it.

17 But we have a number of problems in the Tribunal at the moment,

18 and one of them is getting these trials going so that the ones behind you

19 can start. We have an enormous number of people in custody just simply

20 awaiting the commencement of their trials. And we really feel that the

21 two years you've had to prepare it so far is sufficient for you to be

22 ready for the Prosecution to commence.

23 However, in relation to the documentary requirements,

24 Ms. Uertz-Retzlaff, if we bring back the date of the Defence pre-trial to

25 Monday, the 23rd, that's two days before the pre-trial brief, that would

Page 110

1 give you until the 16th of October to put on the Prosecution pre-trial

2 brief. That would be at least some substantial advantage to you.

3 MS. UERTZ-RETZLAFF: Yes, Your Honour, that would be very

4 helpful.

5 JUDGE HUNT: All right, then. Well, then, if that's so, we'll

6 make those orders: that the Prosecution pre-trial brief be filed by

7 Monday, the 16th of October; the Defence pre-trial brief by the 23rd of

8 October; and the Pre-Trial Conference will take place on Wednesday, the

9 25th of October; the trial will commence on Monday, the 30th of October.

10 It will have to be interrupted for three days, Mr. Bakrac, in the

11 second week whilst we conclude the trial ahead of it, and the senior legal

12 officer will be in touch with you about other dates where there will be

13 some problems.

14 Now, is there any matter, Mr. Bakrac, that you wish to raise in

15 accordance with the Rule relating to Status Conferences?

16 MR. BAKRAC: [Interpretation] Your Honour, I have no further

17 matters to raise.

18 If you will only permit me to say something about your observation

19 before. I am afraid that perhaps we have not understood one another very

20 well.

21 Bearing in mind how long my defendant, Mr. Krnojelac, has been

22 awaiting the beginning of the trial, I have a lot of understanding for all

23 the accused waiting for their trials to begin. The only thing I wanted to

24 say was that I have enough time for matters in the pre-trial brief of the

25 Prosecution. I would like simply to have enough time to prepare a proper

Page 111

1 response to their pre-trial brief.

2 However, as for the beginning of the trial, my standpoint is the

3 same as that of my legal advisor, which was expressed at the last Status

4 Conference, and we do wish the trial to begin. I only wanted to ask for

5 more time to respond to the Prosecution pre-trial brief. I can only

6 assume what it will contain; but until I see it, I do not know whether

7 there will be matters in it which will require more time for a response.

8 That was my only remark -- well, not remark, but my only request.

9 Secondly, my learned friend said that there were 220 proposals.

10 We need time to look at them together with the accused and to meet with

11 the Prosecution with respect to these proposals for admissions, and that

12 was the only thing I wanted to raise.

13 I apologise to the Trial Chamber if there has been a

14 misunderstanding, but that was all I wanted to say. I have no other

15 issues to raise with respect to the Status Conference.

16 JUDGE HUNT: Well, thank you very much. We understand you more

17 perfectly now. If there is any particular problem once you get the

18 Prosecution pre-trial brief, that you need more than seven days, then that

19 is the time to raise it with the Trial Chamber. But at the moment, from

20 what must be anticipated, seven days does seem to be a pretty fair amount

21 of time for you. If Ms. Uertz-Retzlaff's promise that it will contain no

22 surprises is not honoured, well, then, we will probably look more

23 sympathetically at your problems.

24 Any other matter which either party wish to raise?

25 MS. UERTZ-RETZLAFF: No, Your Honour.

Page 112

1 JUDGE HUNT: Thank you very much, indeed. Thank you very much.

2 We look forward to seeing you at the Pre-Trial Conference on Wednesday,

3 the 25th of October. Hopefully, we don't need to see you before in

4 relation to this case. Thank you.

5 We'll adjourn now.

6 --- Whereupon the Status Conference adjourned at

7 10.38 a.m.