Tribunal Criminal Tribunal for the Former Yugoslavia

Page 45

1 Monday, 25 November 2002

2 [Status Conference]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 3.31 p.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Case number IT-98-33-A, the Prosecutor versus

8 Radislav Krstic.

9 JUDGE HUNT: Appearances, please. Prosecution.

10 MR. FARRELL: Thank you. Good afternoon, Your Honour. For the

11 Prosecution this afternoon is Norman Farrell, Mr. Mathias Marcussen, and

12 Nicola Bonfield.

13 JUDGE HUNT: Thank you.

14 And for the appellant?

15 MR. PETRUSIC: [Interpretation] Good afternoon, Your Honour. My

16 name is Nenad Petrusic. I am representing the Defence of General Krstic.

17 JUDGE HUNT: Thank you, Mr. Petrusic.

18 General Krstic, are you able to hear the proceedings in a language

19 which you understand? There's no need for you to stand up to answer.

20 THE APPELLANT: [Interpretation] I can hear you.

21 JUDGE HUNT: Thank you.

22 Well, Mr. Farrell, we've got a very large status report which you

23 filed on the 15th of November.

24 MR. FARRELL: Yes, Your Honour.

25 JUDGE HUNT: Is that sort of the agenda for the hearing?

Page 46

1 MR. FARRELL: Mr. Petrusic and the Prosecution met this afternoon,

2 earlier on, and there's some information I can update you with, if you

3 wish --


5 MR. FARRELL: -- now, at this point. If I can -- it may be

6 easiest just simply to refer to the status report, if you have it in front

7 of you, Your Honour.

8 JUDGE HUNT: Thank you.

9 MR. FARRELL: Page 6 of the status report, paragraph 15.


11 MR. FARRELL: These are the remaining issues to be done by the

12 Prosecution. At the bottom of page 6, following after paragraph 15, is a

13 box, and I'll just walk you through that, if I may.


15 MR. FARRELL: The first is some outstanding disclosure that was to

16 be disclosed within ten days. That has taken place and was couriered to

17 Mr. Petrusic on the 15th of November.

18 JUDGE HUNT: Yes. Is that the first box?

19 MR. FARRELL: Yes, that's the first box, Your Honour, where it

20 says "Description: Disclosure of a few documents."


22 MR. FARRELL: Those were just some remaining matters which have

23 been subsequently disclosed.

24 The second box, which is the -- relates to post-judgement material

25 that, as a result of the Defence's invocation of Rule 66(B), the

Page 47

1 Prosecution will bring a motion to the Court asking to withhold certain

2 documents that they would normally get under 66(B), because of security or

3 other concerns, that would fall under 66(C). So it's simply -- it's

4 material which may fall under Rule 66(B), but the Prosecution will ask

5 that it be permitted to withhold it, with the Court's agreement. That

6 motion, we had indicated, would be filed within ten days, so it should

7 have been filed today, Your Honour. I've informed the Defence, and I

8 apologise: We won't be able to file that probably for another seven days,

9 but it's pretty much done. So that remains outstanding.

10 JUDGE HUNT: You've no doubt become aware, have you, that in seven

11 days' time I'll be on home leave?

12 MR. FARRELL: I'm sorry. I wasn't completely aware of that. I'll

13 try and get it done before then. But in any event --

14 JUDGE HUNT: Well, no, because I should imagine that Rule 66(C)

15 does not fall within the remit of a Pre-Appeal Judge.

16 MR. FARRELL: That would be true. You're right.

17 JUDGE HUNT: I did deal with it once in a trial but it was with

18 the agreement of the other members of the Trial Chamber. I made a ruling

19 under 66(C) by myself, but I think this would have to be with the approval

20 of the other Judges of the Appeals Chamber, and so far as I can see from

21 past experience, it is unlikely to be devolved upon me.

22 MR. FARRELL: This may cause some difficulty with the anticipated

23 scheduling if this matter then isn't --

24 JUDGE HUNT: No. No, no, because, unfortunately, I've had to

25 divulge where I'm going to be, and there's a means of communication which

Page 48

1 no doubt I will be pestered with over the next two weeks.

2 MR. FARRELL: My apologies. Regarding the third -- the third

3 item, the third box, if I may. This relates to material that is -- was in

4 the possession of the Prosecution pre-judgement, and as you recall,

5 counsel for the appellant had asked to be provided with all material that

6 falls under certain categories pre-judgement for the purpose of their

7 review to see whether there was any Rule 68 material which was withheld by

8 the Prosecution.

9 I've spoken with Mr. Petrusic, and I leave it for him to confirm.

10 I think this is a matter we can resolve ourselves. There's one matter

11 that I have to get back to Mr. Petrusic on, and it's my understanding that

12 Mr. Petrusic has undertaken to accept the assurances of the Prosecution

13 with respect to those documents. If that's his understanding of our

14 discussion this afternoon, I think this third item will not have to be

15 brought by motion before the Appeals Chamber.

16 JUDGE HUNT: The confidential sources, is that a Rule 70 point or

17 is it some other confidential basis?

18 MR. FARRELL: No. For those ones, it would be the equivalent of

19 Rule 66(C) where material can be withheld because of security concerns or

20 investigative concerns. It's more the investigative concerns. The

21 difficulty we had in characterising this was that Rule 66(B) wasn't

22 invoked at trial. The reason we're giving them was just on the agreement

23 between counsel for the purposes of them being able to successfully argue

24 their appeal, or at least bringing it. So there's no applicable Rule that

25 we have to seek the order of the Court to withhold it. There's no

Page 49

1 obligation to disclose it. So that was the dilemma we found ourselves

2 in. We had material that the Defence wanted access to from trial. We

3 agreed to disclose most of the intercepts and the other things from trial,

4 but there are some that come from sources that are for investigative

5 purposes the Prosecution doesn't wish to disclose.

6 JUDGE HUNT: But what is the resolution of the tension between

7 Rule 66(C) and Rule 68? Is there some way of disclosing material in a

8 redacted form?

9 MR. FARRELL: For anything -- for material, for example, in the

10 one -- the category above, which would be that which on appeal should be

11 disclosed to the appellant under 66(B) but may be from what we would call

12 an investigative source, in those circumstances, we've undertaken with

13 Mr. Petrusic to make efforts if there is anything in there that is

14 Rule 68, we would find a way to get it to them. And the ones that we're

15 asking you to -- the Court, under Rule 66(C), not to give would be matters

16 that fall under 66(B), material for the preparation of the defence but are

17 not Rule 68.

18 Does that make sense?

19 JUDGE HUNT: Nevertheless, material which is relevant to the

20 preparation of the defence includes material which is relevant to the

21 preparation of an appeal.

22 MR. FARRELL: I'm sorry. Yes. Preparation of the case, yes.

23 JUDGE HUNT: Yes. And it would include matters which were

24 relevant. I must say the Rule 66(C) matter that I dealt with was of very

25 peripheral nature. There was quite a body of it, but it was all quite

Page 50

1 peripheral, and it had been sought specifically by the accused as part of

2 a much larger bundle of documents that had been seized somewhere. So I

3 didn't have to worry about this, because there was clearly nothing in it

4 which was relevant to anything which had been raised by the accused as an

5 issue in the trial and appeared to be unlikely to be relevant to any

6 matter he could raise in the trial.

7 But I'm a little worried where something falls clearly within

8 66(B), which is material you have, which would be relevant to the

9 preparation of the appeal simply because it was on a confidential basis if

10 there was some way of disclosing it. Now, from what you've said, you're

11 obviously attempting to get around that problem.

12 MR. FARRELL: The Rule 68 material we will certainly find a way

13 around the problem and go back to the source if it's necessary, find a way

14 and disclose it without -- in redacted form if possible.

15 For the confidential sources that do not provide -- or sensitive

16 investigative sources - "confidential sources" may be an improper word -

17 investigative sources which do not provide Rule 68 but, as you've

18 indicated, provide Rule 66(B) material, for preparation of the case, we do

19 have some concerns about disclosing them because of the very sensitive

20 nature of the information, and it's those ones which we respectfully

21 submit are rather peripheral. 66(B) also includes inculpatory material.

22 So if their statement is purely inculpatory but it is material to the

23 preparation of the defence in the sense that it relates directly to his

24 case.

25 JUDGE HUNT: Well, it would be relevant under 66(B) if the

Page 51

1 Prosecution proposed to use it as part of its case. Well, that's hardly

2 relevant on the appeal unless it's something to do with rebuttal evidence

3 under Rule 115. But Rule 66(B) also deals with copies of Prosecution

4 witness statements --

5 MR. FARRELL: That's correct.

6 JUDGE HUNT: -- when a decision has been made to call those

7 witnesses. Well, that's obviously not applicable to an appeal.

8 "... copies of statements of all witnesses" -- wait a minute.

9 I'm looking at the wrong part of it.

10 "... intended for use by the Prosecution as evidence at trial,

11 material for preparation of the defence or obtained from or belonged to

12 the accused."

13 Now, you suggest, do you, that that phrase "material to the

14 preparation of the appeal" would not include material or need not include

15 material which is purely inculpatory.

16 MR. FARRELL: Sorry.

17 JUDGE HUNT: That's what I understood you to be saying, that this

18 material, some of it, is purely inculpatory, and you don't want to

19 disclose it because it's going to be embarrassing to your investigators,

20 and if it is purely inculpatory, there's no need for it to be disclosed.

21 MR. FARRELL: Yes, in summary there. There may be a reason under

22 66(C) which overrides evidence though potentially discloseable under Rule

23 66(B) it's inculpatory.

24 JUDGE HUNT: Well, it depends upon whether you're going to use it

25 or attempt to use it. And if you're going to use it, you've got to

Page 52

1 disclose it.

2 MR. FARRELL: Absolutely.

3 JUDGE HUNT: But it may be in a certain redacted form. That's the

4 way I see the relationship between (B) and (C), paragraphs (B) and (C) of

5 Rule 66.

6 MR. FARRELL: I think the Prosecution will file the motion and for

7 some of the material we will only be seeking redacted form. For some of

8 the material if we're not, we'll set out exactly why, and if the Court

9 doesn't accept that, then we'll, of course, file it based on whatever

10 protective measures the Court so orders.

11 JUDGE HUNT: Yes. Well, that seems to be the logical way of

12 dealing with it, but some of the statements you make in your submissions

13 had me worried. For example, in paragraph 11: "The Prosecution is under

14 no obligation to disclose this material under Rule 66(B) as it was

15 available during trial."

16 MR. FARRELL: There's been no 66(B) invoked during trial, and the

17 material that they're asking for in relation to pre-judgement material,

18 they have no right to. There's pre-judgement material, Your Honour.

19 JUDGE HUNT: Yes. But as it was available during the trial.

20 Available to whom? To the Defence?

21 MR. FARRELL: Yes. The decision in the Rwanda case of --

22 JUDGE HUNT: No, no. Let's get it straight, because this is

23 hardly clear. Are you saying that because it was available to the Defence

24 during trial --

25 MR. FARRELL: If they invoked Rule 66(B) during trial, it would

Page 53

1 have been available to them, yes.

2 JUDGE HUNT: If they had invoked Rule 66(B).

3 MR. FARRELL: Right. Yes.

4 JUDGE HUNT: So that they are faced with the proposition that in

5 order to get something which would normally be available, made available

6 to them under 66(B), because the Prosecution were going to use it or

7 whatever, they have to say, "All right. Well, we'll invoke reciprocal

8 disclosure in order to get it."

9 MR. FARRELL: Under the Rules, there's a regime for this matter,

10 and if they do not invoke Rule 66(B) during trial, they can't invoke Rule

11 66(B) on appeal and ask for it to be somehow bounced back to the trial

12 stage when they didn't invoke reciprocal disclosure. That's the decision

13 in the Rutaganda Appeals Chamber decision. And my understanding is they

14 said Rule 66(B) invoked on appeal means that any material that's come into

15 the possession of the Prosecution post-judgement and doesn't apply to

16 pre-judgement material. So that paragraph refers to their request to

17 material which was available at trial if they invoked Rule 66(B) but

18 didn't and have now asked us for any material that falls in a particular

19 category of documents. And the Prosecution's position is if it's Rule 68,

20 it should have been disclosed during trial, and if not, it be disclosed

21 now.

22 JUDGE HUNT: You're speaking to, I'm afraid, a non-French speaker,

23 and Rutaganda is only available in French, as I understand it, and I have

24 no idea what it says. So that this didn't make sense, but now it is

25 starting to make sense. That is the problem, of course, with the Rwanda

Page 54

1 Appeals Chamber, that so much of it is in French, and you're lucky to get

2 an English translation of it for something like two or three years. But

3 thank you for explaining that to me.

4 MR. FARRELL: At least, that's the position of the Prosecution. I

5 may have read it wrong, but that's my understanding of the decision, at

6 least the decision appended of Judge Shahabuddeen and Judge Jorda.

7 JUDGE HUNT: Right. Okay. Well, then, the next stage of your

8 box.

9 MR. FARRELL: Yes. Thank you, Your Honour. The fourth one on the

10 way, of them, is Rule 66(B), post-judgement, ongoing. Just to inform you

11 that there is material which has come into the possession of the

12 Prosecution since -- on November 5th -- I'm sorry, Your Honour. If I may

13 back up. On November 5, Mr. Petrusic attended in The Hague and received

14 reciprocal disclosure. Since that date, there has been material that's

15 come into our possession, or audiotapes, which we now have recorded, which

16 we will be disclosing to Mr. Petrusic. It's not a large item - sorry - a

17 large number of items, but I just wanted to tell you that there are, I

18 guess, about 15 items that we're reviewing. I don't know whether they all

19 fit under Rule 66(B) or not. They've just come in from ongoing

20 investigation. They will be reviewed and disclosed as soon as possible,

21 as required under Rule 66(B), to Mr. Petrusic.

22 JUDGE HUNT: Right. Well, then you complain that there's been

23 inadequate disclosure -- reciprocal disclosure.

24 MR. FARRELL: I can address that, if I may.


Page 55

1 MR. FARRELL: Thank you. Mr. Petrusic met with us today -- and

2 once again, I'll let Mr. Petrusic address this issue if I'm incorrect. He

3 has provided a certain amount of reciprocal disclosure today, a small

4 amount, but he's demonstrated that he brought what he could at this point

5 in time. He's indicated that for certain other matters, he would try and

6 get them as soon as possible; and for the recently disclosed ones, on

7 November 5th, it's completely understandable that he may not be in a

8 position at this stage to say which ones he's going to use in Court and

9 which would therefore fall under Rule 66(C). He's informed us that he

10 will attempt to give that to us as soon as possible. The Prosecution have

11 no objections with Mr. Petrusic's suggestions for reciprocal disclosure.

12 JUDGE HUNT: I'm a little concerned -- I'm sorry. I didn't wait

13 for the translation to finish. I'm a little concerned by the statement

14 that is made in paragraph 18. It says: "It is the Prosecution's position

15 that the source of the material which falls within Rule 67(C) is not

16 determinative of a party's reciprocal disclosure obligations." Now, is

17 that another shorthand statement? What about, for example, Rule 70?

18 MR. FARRELL: I'm sorry. It may be the way it's worded, and that

19 would be my mistake. This is in relation -- the Defence had indicated

20 that they didn't have to provide any Rule 66(C) material to the

21 Prosecution, under Rule 66(C), if they got it from the Prosecution. They

22 said that, well, we don't need to provide you -- and I don't want to

23 paraphrase. I'll let Mr. Petrusic state it. My understanding of the

24 correspondence we had with the Defence was that they said: Well, if we

25 got it from you as a result of disclosure at any point in time, then,

Page 56

1 under 66(C), we don't have to identify those documents which the Defence

2 intends to use as evidence on the appeal. And our position was: Well,

3 the source of the documents, being their coming from the Prosecution or

4 their coming from your own investigations, can't be the determinative

5 issue as to what you have to identify under Rule 67(C). The Prosecution

6 is entitled to see the documents that he intends to use as evidence at the

7 trial. And that statement is not meant to be a generic statement, and if

8 it is, that's my fault. It's meant to be a statement that since the

9 Defence received material from the Prosecution as a result of disclosure

10 at any point in time, that doesn't mean that it relieves them of the Rule

11 66(C) obligation. That was the purpose of the statement.

12 JUDGE HUNT: Well, you don't really want them to serve you with

13 all of the material which you've served them. What you are really after

14 is the identification of the material they wish to rely upon.

15 MR. FARRELL: Absolutely.

16 JUDGE HUNT: And if they do that, it would be sufficient.

17 MR. FARRELL: Yes. The original -- yes. The original discussion

18 was that they didn't -- it wasn't required because they received it from

19 us. I think Mr. Petrusic and I have discussed this issue. I don't think

20 there's any -- this statement doesn't cause any more concern between us,

21 in any event.

22 JUDGE HUNT: It certainly did cause me some concern.

23 MR. FARRELL: Well, thank you for raising it.

24 JUDGE HUNT: Yes. What next?

25 MR. FARRELL: Those are the issues outstanding, as far as I'm

Page 57












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 58

1 aware, between the appellant and the Prosecution respondent in relation to

2 disclosure matters.

3 There are two other matters that I informed -- two or three other

4 matters I informed Mr. Petrusic I would get back to him on. I can speak

5 with him after the Status Conference, as I have the answers for him, but

6 they don't affect the matter presently before Your Honour.

7 JUDGE HUNT: Well, you do complain, for example, that there is no

8 submissions made by the appellant concerning the failure to comply with

9 Rule 68 at the trial.

10 MR. FARRELL: I was going to address this if we reached the issue

11 of the scheduling of this matter.

12 JUDGE HUNT: Well, we're going to get that eventually, so let's

13 discuss it.

14 MR. FARRELL: Thank you. In the Prosecution's submission, there

15 are two, I would think, two motions that will be coming your way, and our

16 way. One --

17 JUDGE HUNT: 115.

18 MR. FARRELL: Yes, of course, any material which they did not have

19 at trial, and that may even include some of the material that they claim

20 they didn't get because of the violation of Rule 68. It's my

21 understanding that there is an independent ground of appeal, which is that

22 the trial was unfair because Rule 68 was violated. Now, under the

23 jurisprudence of our Tribunal, you don't necessarily need to bring that in

24 under 115 to prove the unfairness of the proceedings, and that if that's a

25 separate matter and a separate ground of appeal on the material that was

Page 59

1 not disclosed, or allegedly not disclosed at trial, then that becomes a

2 separate motion -- or it probably would be a supplementary to the appeal

3 brief on the ground of appeal that there was a violation of Rule 68 and

4 now they have the evidence they intend to rely on to support it.

5 JUDGE HUNT: We are certainly made aware in courtroom I of when

6 the translation finishes, and I'm sorry if I've been travelling too

7 quickly for them.

8 There is a ground of appeal that the trial is not fair, and as I

9 understand from my brief reading of it, is that they rely upon the fact

10 there was a failure to comply with Rule 68. So there's a ground of appeal

11 directed solely to that. Now, in order to prove the non-compliance with

12 Rule 68, as I understand it, they're going to rely upon the material which

13 has since been disclosed of a pre-judgement time frame. So I'm not sure

14 that they have to actually tender that in order to establish their ground

15 of appeal. They just produce it. It's not being tendered necessarily as

16 additional evidence in the trial. It doesn't seem to me to fit within

17 Rule 115. So they can say: If we had had this at the trial, we could

18 have followed up all manner of lines of inquiry. And one would hope that

19 they might be able to give us more detail of what they would have expected

20 to find. But I don't see that as Rule 115 material. It's not being put

21 forward as additional evidence in the trial.

22 MR. FARRELL: I think we're in agreement here. That's why I was

23 distinguishing between the two, and --

24 JUDGE HUNT: Okay.

25 MR. FARRELL: Yes.

Page 60

1 JUDGE HUNT: But nevertheless, we're going to have to deal with

2 Rule 115. Now, may I raise this with you: Because of Rule 6, the old

3 form of Rule 115 presently applies in this appeal, which permits a motion

4 for fresh evidence 15 days before the day of hearing. Now, I'm sure that

5 those of us who have had to deal with a few appeals recently would

6 understand that that's a totally inadequate time frame, and if

7 Mr. Petrusic wants some chapter and verse, I'll give it to him. And I

8 propose to invite you to make an application under Rule 127, which is

9 required to be by way of motion - an oral motion would be

10 sufficient - that that time be changed. My contemplation at the moment

11 is, subject to anything which Mr. Petrusic may have put forward, is to

12 order any motion under 115 to be filed within the first week of term next

13 year, on the basis that the appeal will be heard sometime middle/late

14 February. That should, I hope, give the Prosecution sufficient time to

15 deal with it, and also to find any rebuttal material.

16 The Rule itself, Rule 115, I think was drafted by Judges who

17 didn't quite contemplate what was going to be involved in it, because, as

18 it presently stands, the Prosecution doesn't have to put forward its

19 rebuttal material until the Appeals Chamber rules that it's admissible.

20 And it is not really a very comfortable way of doing it, especially as the

21 Rule, as it presently stands, says that the decision on the admissibility

22 may be made after the hearing of the appeal. Now, I don't want there to

23 be any argument available to anybody if I simply just change the timing,

24 but if the Prosecution makes an oral motion that it be changed, I will

25 certainly give it very careful consideration, subject to anything

Page 61

1 Mr. Petrusic has to say.

2 MR. FARRELL: In light of the timing that's been proposed for the

3 possible hearing of the appeal, and in light of our experience in other

4 cases, we would certainly request for a variation of the time limit from

5 that which is required in the Rules. I think it's fair to say that 15

6 days would cause a somewhat onerous burden on the Prosecution, and

7 probably a worse one on the Court when we file our material. If that's

8 possible, the filing of the Defence material by the first week of January,

9 and a reasonable period of time thereafter for the Prosecution to review

10 the additional evidence, subject to what material is filed, of course. If

11 it's more towards the end of February, I think the Prosecution could find

12 a way to deal with this matter, and if that's -- if the Court grants the

13 motion under 127, that may be satisfactory.

14 JUDGE HUNT: What I would do is to suggest to both parties that if

15 there are any problems in the preparation during the months of January or

16 February for hearing the appeal, they can always have a Status Conference

17 called so that can be sorted out, although I'm glad to see that so far

18 counsel have managed to sort out most of these things themselves. But you

19 can always have a Status Conference renewed.

20 MR. FARRELL: Thank you.

21 JUDGE HUNT: Or a new Status Conference called. I will be back to

22 start work again yet on the 7th of January -- the 6th of January.

23 Is there anything else you want to raise, Mr. Farrell?

24 MR. FARRELL: No, thank you.

25 JUDGE HUNT: Right. Well, Mr. Petrusic, do you want to say

Page 62

1 anything about what has been said so far by Mr. Farrell?

2 MR. PETRUSIC: [Interpretation] Your Honour, when discussing what

3 my learned friend has said about his obligations from the status report of

4 the 15th of November, this afternoon we reached agreement, and I think

5 that we shall be able to relieve the Chamber of any obligations in this

6 respect.

7 An issue has been touched upon that I wish to mention, and that is

8 the Rule 115 obligation of the Defence and the old Rules, before July,

9 which applied. What I am concerned about is the voluminous amount of

10 material received under Rule 68, both before and after the judgement, and

11 the material received during reciprocal disclosure. I have looked through

12 a considerable amount of this material, and I have to say that I'm finding

13 highly relevant material which I cannot simply pass over due to lack of

14 time, conditionally speaking.

15 Let me be quite clear. I'm not asking for any additional time,

16 but, as I told the Prosecutor today, I am prepared to file the submission,

17 as you said, in the first week of January, and I believe this can be done

18 on the 9th of January. I don't know whether that's a Sunday or not. But

19 the amount of material is really enormous.

20 May I continue?

21 JUDGE HUNT: Yes. But the 9th of January is a Thursday, as I

22 understand it, so you'll be safe.

23 MR. PETRUSIC: [Interpretation] In any case, when making my plans,

24 I did look at the calendar, and I did pay attention to that. So it might

25 be in the middle of the week, maybe on Friday.

Page 63

1 THE INTERPRETER: Microphone, Your Honour, please.

2 [Trial Chamber and registrar confer]

3 JUDGE HUNT: We can make it the 10th, if you like, Mr. Petrusic.

4 I don't want to press you on this unfairly, but you understand that I'm

5 going to extend the time before the hearing of the appeal, that this

6 material has to be filed and the application to give the Prosecution

7 sufficient time to respond to it before the hearing of the appeal.

8 Unfortunately, we've become rather painfully aware of the inadequacies of

9 the 15 days that were provided for in the Rule. It is almost impossible

10 for the Prosecution to respond and, therefore, completely impossible for

11 the Appeals Chamber to be fully aware of the material at the time of the

12 hearing of the appeal.

13 If you think that you need longer, I will certainly listen to what

14 you want to say, but whatever happens, it's going to have to be a period

15 of at least six weeks, I think, between when you file it and when we can

16 have the appeal.

17 I also want to draw your attention to a recent amendment, further

18 recent amendment to 115. It was in October. And this was also inserted

19 as a consequence of the enormous problems that the Appeals Chamber has

20 found in understanding what this additional material relates to in many

21 cases. I'm sure the Prosecution has had a similar difficulty.

22 Rule 115 presently provides that: "The motion to present the

23 additional evidence shall clearly identify with precision the specific

24 finding of fact made by the Trial Chamber to which the additional evidence

25 is directed."

Page 64

1 Now, it may be very obvious, certainly to the appellant, what that

2 fact is, but sometimes when you get a huge bundle of material it's

3 difficult for people in a -- who receive it to work out what it's meant to

4 be relevant to and that the order that you file your motion will include

5 in it, I'm afraid, an obligation which is now imposed by that Rule.

6 This question of additional evidence has assumed alarmingly great

7 proportions of our time in appeals through no fault of anybody, really.

8 It's the sudden disclosure by some governments of material which they

9 should have disclosed a long time ago, and it's in the interests of

10 justice for all concerned, even for the Prosecutor, that these matters be

11 sorted out properly, and without the assistance of that identification of

12 the findings of fact in which each document is meant to relate, it is

13 enormously time-consuming, frustrating, and unnecessary for the Appeals

14 Chamber to have to go looking for it themselves.

15 So does that affect when you think you'll be ready to get your

16 motion on?

17 MR. PETRUSIC: [Interpretation] Your Honour, when I addressed you

18 previously, I said that in view of everything I have done so far, the

19 materials I have looked at and the evidence I have identified, and knowing

20 the amount of material I still have to go through, I hope and expect to be

21 ready or, rather, to file my motion or my submission on the 10th of

22 January.

23 JUDGE HUNT: If you have any particular trouble, you can always

24 seek an agreement from the Prosecution for an extension of time. I'm not

25 quite sure who is going to be acting as the Pre-Appeal Judge during my

Page 65

1 absence, but if you do get into trouble, then you should make an

2 application to the Appeals Chamber and somebody will be there to hear it.

3 But I imagine, bearing in mind the degree of cooperation that has so far

4 been exhibited by both counsel, that you should be able to sort it out

5 between yourselves, and when I return to work, no doubt you will be able

6 to present to me some sort of an agreed statement as to what has happened

7 and what alterations should be made to any Scheduling Order that's made.

8 I think we understand your problems, having been through them

9 ourselves in a few appeals so far, and we don't want to place any unfair

10 pressure on you. Our only concern is that this appeal should be heard at

11 its earliest date which is reasonable in the circumstances.

12 So if I order you to file any application under Rule 115 by the

13 10th of January, that order will be made on the understanding that you can

14 approach us or the Prosecution if you are having trouble complying with

15 it.

16 Now, the other matter raised by the Prosecution related to your

17 complaint of a non-compliance with Rule 68 during the course of the

18 trial. It would be preferable, if not necessary, for you to identify in

19 advance of the hearing the particular material which you now have which

20 you say the absence of it has prejudiced you during the course of the

21 trial. It's a point which is very much bound up with the additional

22 evidence that you will be tendering, I should think, but there may be some

23 material that you will rely upon not having had at the trial which caused

24 you a particular prejudice and that will be relevant to that ground of

25 appeal, but your submissions at the moment are understandably missing that

Page 66

1 particular detail.

2 Would you be able to provide that particular detail also by the

3 10th of January?

4 MR. PETRUSIC: [Interpretation] Yes. That is precisely what I'm

5 referring to, an all-inclusive submission referring both to the material

6 withheld during the trial and the material disclosed after the trial.

7 JUDGE HUNT: That, if I may say so, is a very sensible approach.

8 Thank you.

9 Now, is there anything else you want to do by way of -- to say by

10 way of answer to Mr. Farrell or any other point you want to raise?

11 MR. PETRUSIC: [Interpretation] No, Your Honour. I think all these

12 issues have already been resolved and that the remainder will be resolved

13 in the forthcoming period in the way stated by Mr. Farrell.

14 JUDGE HUNT: Well, thank you very much indeed. Oh, I should ask

15 is there anything you want to raise under Rule 65, the Status Conference

16 Rule, by way of problems your client may be having?

17 MR. PETRUSIC: [Interpretation] Your Honour, the problems, I would

18 say, are constant and permanent. Mostly it's a matter of my client's

19 health, the possible need for surgery. And I shall talk about this to

20 representatives of the Registry, so I think there will be no need to put

21 this forward at a hearing under Rule 65.

22 JUDGE HUNT: Rule 65 only gives you the opportunity of raising it

23 if you've got nowhere with the Registry, but I suggest you deal with them

24 first, and then if there is any further problem, I think your next avenue

25 of appeal is to the President. But anyway, thank you very much for

Page 67

1 raising it. I've certainly heard what you've had to say about

2 General Krstic's problems, which we all, I think, understand, and we hope

3 that they will be looked after.

4 Now, Mr. Farrell, assuming that you get the documents on the 10th

5 of January, what sort of period have you got in mind for responding to

6 that?

7 MR. FARRELL: It's hopeful that in three to four weeks we may be

8 in a position. I've asked Mr. Petrusic, under Rule 67(C), to provide the

9 documents in advance, which may assist us to get a jump-start on some of

10 this material, but it will depend primarily on the volume.

11 JUDGE HUNT: I hope it will be shorter than three to four weeks.

12 I understand your difficulty as well, but if you have got the material in

13 advance, if we are going to fix a hearing date towards the end of

14 February, it will have to be much shorter than three to four weeks.

15 MR. FARRELL: I guess it will depend on the material. I mean, if

16 both are coming in on the 10th, there will be a certain amount of new

17 material which is part of the Rule 68 ground of appeal supplementary

18 material, and 115 material. Both have to be addressed within the same

19 time frame. It's a little tight within three weeks, depending on the

20 volume, to be able to address both of those, but we'll certainly endeavour

21 to do so.

22 JUDGE HUNT: Well, is there any point other than making the order

23 for the filing of the Rule 115 material by the 10th of January? Is there

24 any point in making any further orders at this stage?

25 MR. FARRELL: I think one possibility I thought of, though I

Page 68

1 think, in fairness, Mr. Petrusic has indicated the time frame he can work

2 under, and I respect that, but only other possibility is the Rule 68

3 material is not additional evidence and is supplementary to his ground.

4 JUDGE HUNT: Well, he's going to do that by the 10th of January as

5 well.

6 MR. FARRELL: That's correct.

7 JUDGE HUNT: But what I'm concerned about, and what the senior

8 legal officer will be asking me later, is the hearing date.

9 MR. FARRELL: I'm hopeful that towards the end of February we can

10 make it.

11 JUDGE HUNT: I'm only wondering whether it's wise to make an order

12 which may have to be changed at short notice, whereas after the 10th of

13 January, you may be in a better position to be able to give a more

14 definite idea, and whilst we can pencil in a hearing date at the end of

15 February, which we'll notify the parties about, I think it's rather unwise

16 me making orders if they've got to be changed.

17 MR. FARRELL: I understand. I'm sorry. You're absolutely

18 correct. I think we would be willing to work towards the date at the end

19 of February. We will inform you within a few days after receiving the

20 material the time frame that we think we can operate under.

21 JUDGE HUNT: I think that would be the best way of dealing with

22 it.

23 MR. FARRELL: Thank you, Your Honour.

24 JUDGE HUNT: Is there anything else you want to say in reply?

25 MR. FARRELL: No thank you.

Page 69

1 JUDGE HUNT: Well, I'm very grateful to counsel on both sides for

2 the cooperation they're showing with each other. It seems to me that

3 there has to be an exception to the rule somewhere. This case is it.

4 It's an appeal where counsel actually speak to each other. It's very good

5 to see.

6 Thank you very much. I will now adjourn.

7 --- Whereupon the Status Conference adjourned

8 at 4.18 p.m.