Tribunal Criminal Tribunal for the Former Yugoslavia

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1 Friday, 15 May 1998.

2 (In closed session)

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5 --- Recess taken at 11.40 a.m.

6 --- Upon resuming at 12.15 p.m.

7 (In open session)

8 JUDGE CASSESE: We are in a position to make

9 a ruling on the Prosecutor's motion.

10 The motion is denied. However, in the next

11 few days, we shall issue a detailed order setting out

12 the strict conditions on which disclosure shall be made

13 pursuant to Rule 66A, so that this shall be carried out

14 60 days before the date to be set for trial. It is a

15 question, of course, we will discuss later on in closed

16 session in the status conference.

17 We may now move to our next item to be

18 discussed in open session; namely, the request by one

19 Defence counsel about the return of -- I have so many

20 papers here -- about the return of the documents; I am

21 referring to the motion filed on the 8th of May by

22 counsel for Vlatko Kupreskic for the return of

23 documents contained in a briefcase.

24 I see there that this motion, that it was

25 agreed between the Defence counsel and the Prosecutor

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1 that yesterday they would meet to try to come to some

2 sort of agreement. I wonder whether such agreement has

3 been reached so that we can dispose of this issue right

4 away.

5 Prosecutor?

6 MR. MOSKOWITZ: Thank you, Your Honour.

7 We have, in fact, met on a couple of

8 occasions in the last week. The latest meeting was

9 yesterday for the purpose of actually examining the

10 briefcase which we had understood, through Defence

11 counsel, was still in the possession of Mr. Kupreskic

12 at the detention facility.

13 A member of our staff went to the detention

14 facility and met Defence counsel there, but it turns

15 out that, in fact, the bag or the briefcase had been

16 sent weeks before back to Bosnia and was not available

17 for either party to examine.

18 So I think it is safe to conclude that at

19 this point there is a disagreement over what was in the

20 bag. I think Defence counsel maintains that about 13,

21 14 documents were in the bag that were not returned.

22 We have carefully reviewed our inventories and have

23 also established a chain of custody, and we are

24 convinced that those items were not in the bag.

25 JUDGE CASSESE: Thank you. May I ask Defence

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1 counsel for Vlatko Kupreskic to state his position?

2 MR. PAR: Yes, Your Honour. In accordance

3 with the decision of the Trial Chamber, we had two

4 meetings with our learned colleagues from the

5 Prosecutor's Office regarding the establishing of the

6 possible missing of some of the contents.

7 Finally, at our meeting yesterday, we

8 concluded that we were not able to resolve this matter

9 ourselves, and we presented our stance to the

10 Prosecution; namely, that we would be informing the

11 Trial Chamber of our position and applying to the Trial

12 Chamber that a proper report be drawn up on the

13 circulation, the movement of all the items contained

14 from the date of the arrest.

15 The accused Vlatko Kupreskic, prior to his

16 arrest, because he had contacted and had the intention

17 to contact this Trial Chamber, this Court, had put

18 together all the relevant documents which he thought

19 would count him in good stead for the Defence. Those

20 are the documents that we are asking for today. All

21 those documents were in his briefcase at the time of

22 his arrest and were seized from him. When he was

23 transferred to the detention facility, he submitted to

24 the Prosecutor's Office that briefcase with a portion

25 of the documents.

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1 As we know, the exact documents that were in

2 the briefcase, we then found out subsequently that some

3 of them were missing and asked for them to be traced.

4 We established yesterday, without doubt, that

5 there were 14 documents of high relevance to us that

6 are missing. Since the answer, that these documents

7 are not in the possession of the Prosecutor, is an

8 answer that we consider unacceptable, and we demand

9 that this be exactly established whether it was the

10 representatives of the Prosecutor's Office in Sarajevo

11 who were first in possession of these documents or

12 perhaps are being held by this office here.

13 As we are unable to resolve this matter in

14 direct contact with the Prosecutor's Office, we kindly

15 apply to the Trial Chamber to order the Prosecutor to

16 trace the movement of the contents of the bag and who

17 had contact with the contents of the bag from the time

18 of their seizure in Sarajevo to this point in time.

19 In another sentence, allow me to say why this

20 is so essential to us. This is material proof,

21 material evidence which the Defence considers vital and

22 relevant and have to do with his health condition, the

23 fact that he did not belong to any army structures and

24 units, and documents having to do with the accused's

25 movement at the relevant times. So if we are denied

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1 these documents, we shall be denied material evidence

2 which is relevant to all the counts of the indictment.

3 So I ask the Trial Chamber to make it

4 incumbent upon the Prosecutor to trace the movement and

5 the context in relation to the contents of the

6 briefcase.

7 Thank you.

8 JUDGE CASSESE: Yes. We have decided that we

9 will order the Prosecutor to submit to the Trial

10 Chamber a report, a detailed report, tracing the

11 movements of the contents of the briefcase or bag so

12 that it is clear why those 14 documents are missing.

13 Of course, no one doubts the good faith and

14 professionalism of the Prosecution. It is probably a

15 small hiccup somewhere that has happened, and I hope it

16 will be possible for the Prosecution to find out where

17 the documents are to be found so that the Defence will

18 be handed over the 14 missing documents.

19 MR. MOSKOWITZ: Yes, Your Honour. In fact,

20 we have done a search, a chain-of-custody search, to

21 assure ourselves that no documents were missing, and,

22 of course, I am prepared to do an oral presentation on

23 that chain of custody today, if the Court desires, or

24 we will be happy to submit a report as well.

25 I might also add that it has often happened

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1 to me that I think I place something in my briefcase

2 and I do not place it in my briefcase. So we certainly

3 do not assume that these documents are missing as a

4 result of anything that the Office of the Prosecutor

5 has done.

6 I can briefly give an overview of the chain

7 of custody for the briefcase at this time, if the Court

8 would desire, or we will submit a report at a later

9 date, if the Court would desire.

10 JUDGE CASSESE: It is better that you should

11 submit a detailed written report so that we comply with

12 the requests of the Defence counsel.

13 We now are in a position to move to our

14 status conference, which will be held in-camera, to go

15 through various matters which are of great importance.

16 I was reminded that I should set a time for

17 the submission of the report. Could we say one week?

18 The written report we were discussing before.

19 MR. MOSKOWITZ: That's fine, Your Honour.

20 --- Proceedings move into closed session

21 status conference

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