Tribunal Criminal Tribunal for the Former Yugoslavia

Page 263

1 Friday, 21st January, 2000

2 [Open session]

3 [Status Conference]

4 [The accused entered court]

5 --- Upon commencing at 10.30 a.m.

6 THE REGISTRAR: Good morning, Your Honours.

7 Case number IT-98-30-PT. The Prosecutor versus

8 Miroslav Kvocka, Milojica Kos, Mladjo Radic and Zoran

9 Zigic.

10 JUDGE MAY: Appearances, please.

11 MR. NIEMANN: Your Honours, please, good

12 morning. My name is Niemann and I appear with my

13 colleagues, Mr. Keegan and Mr. Waidyaratne, for the

14 Prosecution, if Your Honours please.

15 JUDGE MAY: Defence.

16 MR. SIMIC: [Interpretation] Good morning,

17 Your Honours. Krstan Simic, attorney at law from Banja

18 Luka, for Mr. Kvocka.

19 MR. NIKOLIC: [Interpretation] Your Honours,

20 good morning. Zarko Nikolic, attorney at law,

21 appearing for Milojica Kos, together with Mr. Nikolic.

22 MR. FILA: [Interpretation] Good morning, Your

23 Honours. Toma Fila, attorney at law, with Mr. Zoran

24 Jovanovic, Defence counsel for Radic.

25 MR. TOSIC: [Interpretation] Good morning,

Page 264

1 Your Honours. I am Simo Tosic, attorney at law from

2 Banja Luka, and I appear for Mr. Zigic.

3 JUDGE MAY: The purpose of this Status

4 Conference is to review the progress. Of course, some

5 progress has been made in relation to depositions, and

6 I understand there will be a meeting concerning the

7 depositions hearing after this hearing. And we welcome

8 the progress which is being made and the work which has

9 been done, I may say, on that particular topic.

10 The matters which we have to deal with -- I

11 should begin by saying, subject to this, there are, of

12 course, only two of us sitting. Judge Robinson is

13 absent for urgent personal reasons, as I hope everyone

14 has been informed.

15 That being so, normally, of course, motions

16 are heard by three people, three judges, I should say.

17 What we have in mind is hearing any argument. We

18 shall, of course, not be able to make any decisions

19 until we are fully constituted next Tuesday. But

20 meanwhile we would propose hearing any oral submissions

21 that anybody wants to make about the motions today, and

22 we will deliver our orders when we are fully

23 constituted after next Tuesday.

24 If there is any objection to that course,

25 would anybody state it now, and we'll hear any

Page 265

1 submissions. If there are no objections, we'll go

2 along -- we'll go on to consider the various motions.

3 Any objections?

4 MR. NIEMANN: No objections from the

5 Prosecution, Your Honour.

6 JUDGE MAY: Any Defence counsel want to make

7 any objections?

8 MR. SIMIC: [Interpretation] Defence counsel

9 also has no objections. No objections, Your Honour.

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15 JUDGE MAY: Very well. We'll go into closed

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12 [Open session]

13 JUDGE MAY: Are we back in open session?

14 THE REGISTRAR: Yes.

15 JUDGE MAY: As I said, dealing with

16 depositions, Messrs. Radic and Kvocka have filed

17 motions to add to their list, and Mr. Zigic has applied

18 to vary his list. There's quite a number of witnesses

19 it's sought to add. There is a withdrawal in one

20 case. We have discussed this. It seems sensible, in

21 fact, not to make any order on these particular motions

22 at this stage, because the whole question of

23 depositions is going to be considered after this

24 hearing. And when you've heard what the presiding

25 officer says, it may be that it will make a difference

Page 269

1 to the applications. So at this stage, we won't deal

2 with those, unless there is anything somebody wants to

3 say about them. Very well.

4 The next matter is the issue of protective

5 measures for deposition witnesses, and, well, it may be

6 sensible to deal with those. As I understand it,

7 there's no objection to our making orders for

8 protective measures.

9 MR. NIEMANN: Your Honours, only in

10 relation -- we filed a motion in relation to the motion

11 that was filed on behalf of the defendant Mr. Zigic.

12 JUDGE MAY: Yes, I've got that in mind. I'll

13 come to that next.

14 MR. NIEMANN: But other than that, no, Your

15 Honour.

16 JUDGE MAY: I'll deal with these matters one

17 by one, and perhaps if I could have a word with the

18 legal officer, the presiding officer.

19 [Trial Chamber confers]

20 JUDGE MAY: In principle, we will make an

21 order for protective measures. It may be that the

22 presiding officer will be able to advise us as to

23 precisely what's needed. But in principle, the order

24 will be made.

25 That brings us to the question of safe

Page 270

1 conduct, which Mr. Niemann mentions, and to that you've

2 objected.

3 MR. NIEMANN: Yes, Your Honours.

4 Your Honours, our objection is not so much to

5 the order ultimately being made in relation to safe

6 conduct, provided that can be established, but on our

7 reading of the material filed on behalf of the

8 defendant Mr. Zigic, it occurs to us that, indeed, the

9 statements would suggest the contrary; that is, that

10 there's nothing contained in them that would suggest we

11 would be seeking to indict them in any event, and

12 therefore the order itself would not appear to be

13 justified. That being the case, it's the position that

14 we've taken is that these orders are of a serious

15 nature and that if they are sought, they should be

16 sought on the basis of the establishment of some prima

17 facie need, and we submit that that hasn't been

18 demonstrated.

19 Secondly, Your Honours, our second objection

20 relates to the request that there be constraints placed

21 on the Prosecutor with respect to any subsequent

22 indictment, and in our submission, Your Honours, the

23 request for safe conduct has -- there's no necessity

24 for that to go that far. The restraint is upon the

25 Prosecutor in effecting arrest or indicting at the

Page 271

1 particular hearing. We accept -- provided there is a

2 justification for it, we accept that is a reasonable

3 constraint, and it's one which has been imposed upon us

4 in other cases. We raise no objection to that, subject

5 to the prima facie basis being established.

6 But with respect to a constraint upon any

7 subsequent indictment, we submit two things, Your

8 Honours; firstly, that this accused has no standing to

9 seek a constraint upon the Prosecutor's executive

10 function in relation to indicting, on subsequent

11 occasion, another person for whom they don't act. I

12 mean a witness and an accused are different, and we

13 submit, Your Honours, that in any event, that sort of

14 intrusion on the role of the Prosecutor in filing an

15 indictment is unjustified.

16 Unless I can help Your Honours in any other

17 matters, we rely on our submissions.

18 JUDGE MAY: Mr. Niemann, in our experience,

19 safe conducts are granted on occasion, but they are

20 limited purely to the occasion of giving evidence.

21 MR. NIEMANN: That's right, Your Honours, and

22 we submit that that should be the basis of any order

23 that Your Honours would seek to make.

24 JUDGE MAY: Yes, as we have done in the

25 past. Very well. Thank you. We'll hear from the

Page 272

1 Defence on this particular point.

2 MR. TOSIC: [Interpretation] Your Honours, as

3 for the Defence in these constraints. In view of the

4 status of the accused, and the status of the witnesses,

5 on one occasion, as I mentioned on the previous Status

6 Conference, Mile Ratkovic was supposed to be heard by

7 one of the investigators, but he did not make a

8 statement. In my absence, I didn't know what his

9 status was, whether he was a suspect, a witness, and

10 whether he was a witness for the Prosecution or witness

11 for the Defence. I don't think that we are interfering

12 with the rights of the Prosecutor, but, at any rate,

13 when a witness makes a statement, the witness has to

14 have certain obligations, in view of his own status.

15 He should not be put in a position to be a suspect, if

16 he is giving testimony anyway.

17 I had this concrete example in the case of

18 this Tribunal in relation to another one of my clients,

19 who doesn't know whether he is going to be a witness in

20 a certain case, and whether he is going to be a suspect

21 with regard to another matter. So that is why I

22 brought this up. Thank you.

23 JUDGE MAY: Thank you. We'll consider this

24 and give a ruling in due course.

25 The next matter concerns the disclosure of a

Page 273

1 videotape of an interview with the Prosecution by

2 Mr. Kvocka and a number of photographs described as

3 photo boards shown to Prosecution witnesses during

4 questioning.

5 Dealing with the photo boards first. As I

6 understand it, the Prosecution have undertaken to

7 disclose any photo board, or any relevant part of the

8 photo board that will be used during the trial or which

9 might contain any exculpatory material.

10 Is that the position?

11 MR. KEEGAN: It is, Your Honour.

12 JUDGE MAY: When are you going to do that,

13 Mr. Keegan?

14 MR. KEEGAN: In the course of disclosure,

15 Your Honour -- I mean, we intended to disclose

16 additional material later on. Not a specific

17 timetable; just a normal course of disclosure.

18 Certainly well before the beginning of the trial.

19 JUDGE MAY: We'll have to come back to

20 disclosure at some stage.

21 MR. KEEGAN: Yes, Your Honour.

22 JUDGE MAY: To timetable it. Are you in a

23 position, while you are on your feet, are you in a

24 position to comply with a disclosure order fairly

25 rapidly, if we were to make one?

Page 274

1 MR. KEEGAN: Yes, Your Honour.

2 JUDGE MAY: Now, the next matter is the

3 videotape of the accused's interview. Mr. Keegan, are

4 you dealing with that again?

5 MR. KEEGAN: Yes, Your Honour.

6 JUDGE MAY: Can I draw your attention to Rule

7 66(A)(i), which provides for the disclosure of any

8 prior statements obtained by the Prosecutor from the

9 accused. Maybe there is no dispute about this, in

10 which case it's unnecessary for me to refer to this

11 Rule.

12 MR. KEEGAN: Yes, Your Honour, there is no

13 dispute, but this is -- as I understand it, that

14 relates to a statement by an accused to that accused.

15 This request relates to a statement by another accused;

16 in effect, a witness, if you will, a statement from a

17 witness.

18 JUDGE MAY: Very well. Then let us find out

19 the precise position.

20 Who does it relate to?

21 MR. KEEGAN: This is a request for the --

22 well, he asked for the videotapes of interviews of the

23 other accused in this matter. He asked for the --

24 excuse me, the videotape -- the interview of Kos, and

25 it's Mr. Kvocka's counsel who is making that request.

Page 275

1 So, in effect, we are dealing with a witness statement,

2 if you will, here.

3 JUDGE MAY: So it's not his own statement;

4 it's the statement of a co-accused?

5 MR. KEEGAN: Yes, Your Honour. And our

6 position merely is that this is treated as any other

7 piece of potential evidence, as the Prosecutor

8 determines that there is a basis for disclosure under

9 the Rules. Either we intend to offer it into evidence

10 or, pursuant to Rule 68, it needs to be disclosed to

11 the Defence; we will do so. The tapes are in the --

12 are now being transcribed, and until such time as there

13 is an official transcription of the videotape, it's an

14 incomplete piece of evidence, if you will. And we are

15 not in a position to make a final determination of its

16 relative status vis-à-vis disclosure.

17 As soon as we have a final transcript, and we

18 make that determination, we will then disclose, if

19 required under the Rules, or as we are obligated to.

20 JUDGE MAY: I am thinking aloud. Normally,

21 at least in a domestic jurisdiction, the accused would

22 have access to statements to the police by their

23 co-accused.

24 MR. KEEGAN: They do, Your Honour, except to

25 the extent that that statement may contain information

Page 276

1 that is wholly unrelated to the particular case, and

2 there may be requirements for protection of some or all

3 of that information for other reasons. All I am simply

4 saying is we are trying to treat this as we do any

5 other piece of evidence, and we need an official

6 transcription before we can be certain as to exactly

7 what the contents of the videotape are and what

8 portions, if any, or all, need to be disclosed. That's

9 all.

10 JUDGE MAY: In the normal course of events,

11 you would disclose it, unless there was material which

12 for some reason or another you think should not be

13 disclosed?

14 MR. KEEGAN: Correct, Your Honour.

15 JUDGE MAY: Very well. When are you going to

16 deal with this, please?

17 MR. KEEGAN: It's obviously a very lengthy

18 transcript, Your Honour. It's in the process of being

19 transcribed. I would anticipate it will be done within

20 another two to three weeks. But, it's -- in the course

21 of events, with all the other pressing matters for

22 disclosure and translation, we are doing the best we

23 can.

24 [Trial Chamber confers]

25 JUDGE MAY: Mr. Keegan, we'll hear the

Page 277

1 Defence about this. Clearly, it's a matter which

2 should be resolved one way or another. We would have

3 in mind to order disclosure within three weeks, or an

4 indication of parts undisclosed, something along those

5 lines, so that we get the matter into hand.

6 MR. KEEGAN: Yes, Your Honour. And in my

7 discussions with Mr. Niemann, I mean, there was an

8 intent to disclose it. It's simply a matter of waiting

9 for the process. That was the only issue.

10 JUDGE MAY: Yes. Very well.

11 Mr. Simic, that's the order which we have in

12 mind to make, unless you've got any submissions about

13 it.

14 MR. SIMIC: [Interpretation] Your Honour, I

15 accept the arguments presented by my colleagues from

16 the Prosecution; however, I raised this issue for the

17 following reason: At the last Status Conference

18 Mr. Fila opposed the disclosure of such documents. I

19 got video recordings from the Prosecutor with

20 Mr. Radic's statements, and I thought that this was the

21 natural course to take. But in view of the objections

22 taken by Mr. Radic's Defence, I believe, on the basis

23 of Rule 68, the Defence is entitled to such evidence as

24 well, and that is why we sent this request, so that the

25 Prosecutor could give us all this evidence, which we

Page 278

1 consider to be essential and material, and this could

2 also support Mr. Kvocka's Defence. So I accept this

3 three-week deadline. Thank you.

4 JUDGE MAY: Thank you.

5 MR. NIKOLIC: [Interpretation] Your Honours,

6 Mr. Kos's Defence also believes that the Defence

7 attorneys for the other accused should be given such

8 material. As far as the accused Mr. Kos is concerned,

9 we don't think that there is anything that would be of

10 a discreditory nature, and that is why we agreed to

11 this. But may I mention, in passing now, that in that

12 case the Defence of Mr. Kos is going to ask the

13 Prosecutor to submit tapes with the statements of

14 Mr. Radic, the accused Mr. Radic.

15 MR. TOSIC: [Interpretation] Your Honours,

16 Zoran Zigic's Defence presented a request to the

17 Prosecutor for the disclosure of these materials in

18 good time, so perhaps this was an omission made by the

19 Prosecutor. We agree that this be submitted; and in

20 good time, a month ago, we asked for this disclosure,

21 just like Mr. Simic asked for Mr. Kvocka.

22 So I don't want to go into all of that

23 again. I don't think there is any need for us to

24 submit a new request. I believe that there is no need

25 for us to require this once again. And we also agree

Page 279

1 with what my colleague, Mr. Nikolic, Defence attorney

2 for Mr. Kos, said. Thank you.

3 MR. FILA: [Interpretation] Your Honours, the

4 reason why I opposed this last time is one that stands

5 until the present day. It is not that the Defence

6 attorneys for others should see what others have been

7 saying. These tapes can be abused by it being released

8 to the public, especially only certain segments, that

9 something was said this way or that way.

10 So what I think is that in the order it

11 should be stated that the tapes may not be disclosed to

12 anyone else. That is the only thing I asked for. I

13 think this is only natural. And I thank you.

14 JUDGE MAY: Yes.

15 MR. KEEGAN: Yes, Your Honour. Just for the

16 record, we did of course respond to the request from

17 Mr. Tosic, and informed him, in essence, the same way

18 we responded to this motion, that we were in the

19 process of getting the videotapes transcribed. And if

20 there was discloseable material pursuant to our

21 obligations, we would disclose it. That's certainly

22 our intent. It's just a question of the resources.

23 These are particularly difficult to

24 transcribe, based on the nature of the interview and

25 the quality of the equipment. And we obviously agree

Page 280

1 to the protective measures, although I think they would

2 be covered by the existing orders in any event.

3 JUDGE MAY: We will make any order subject to

4 particular protective measures in this case. So that's

5 probably right, that the broad order covers it. But we

6 will specifically identify these items as not to be

7 disclosed, as indeed they should not be.

8 The final matter, as far as motions are

9 concerned, is a motion on behalf of Mr. Kvocka for his

10 provisional release.

11 As I said earlier, this is not a matter which

12 we can deal with or make any order in respect of in the

13 absence of Judge Robinson. We can hear any oral

14 submissions that anybody wants to make, if that's

15 agreeable. Bear in mind, of course, that we have the

16 written submissions already. But, Mr. Simic, if there

17 is anything you would like to add, we would, of course,

18 hear you.

19 MR. SIMIC: [Interpretation] Your Honour,

20 first of all, I agree for my submission to be heard

21 today and for the decision to be made when the Trial

22 Chamber is complete.

23 As is usually, we submitted a motion

24 explaining our position, requesting the application of

25 Rule 65 and for the provisional release of Mr. Kvocka,

Page 281

1 for him to defend himself from freedom. We will not go

2 through all the reasons which we have cited in our

3 submission, but we would like to point to some

4 particular facts that we consider important.

5 Having in mind such a sensitive question as

6 this, which has already been discussed before the

7 International Tribunal, the concept of criminal law

8 resides on the presumption of innocence, that a person

9 is innocent until proved guilty. And this is also

10 accepted in the Statute of the Tribunal, according to

11 Rule 21(3). Based on this concept, many points are

12 then developed as far as overall criminal law is

13 concerned, and, of course, an important issue in this

14 respect is the issue of detention.

15 Of course, we will all agree that in the

16 concept of modern criminal law, it is accepted that

17 detention is an exceptional matter because it affects

18 the most subtle aspects of a person's freedom, his

19 relations to his family, restrictions on his movement.

20 So detention is a measure which could be applied

21 exceptionally, but the general rule is that people are

22 free to move freely, to perform the functions that they

23 are supposed to perform by nature and society, until

24 the time that they are pronounced guilty and

25 sentenced.

Page 282

1 The question of detention before the Tribunal

2 was also discussed at a round table which was organised

3 in November in 1998 in Belgrade, and it was organised

4 by the Fund for Humanitarian Rights. It was attended

5 by experts on this matter, including Ambassador

6 Scheffer from the United States, who was representing

7 the U.S. government on issues of war crimes.

8 Unfortunately, Madame Arbour, then the Prosecutor, and

9 President McDonald were unable to attend at that time

10 because the Yugoslav authorities did not issue them

11 visas in order to enter the FRY. It would have been

12 very beneficial if the President and the Prosecutor had

13 been able to attend.

14 But this is a very delicate legal issue,

15 there is no doubt about that, and one of the

16 conclusions was the Tribunal will receive a proposal to

17 review all of these issues and consider, to date,

18 practice and also its own regulations where detention

19 is imposed as obligatory, as an obligation, detention

20 which, in the Rules of Procedure and Evidence, is

21 contrary to the concept which has been adopted in

22 modern criminal law, that detention is an exceptional

23 measure and is only imposed in exceptional

24 circumstances.

25 Of course, we have in mind that the work of

Page 283

1 the International Tribunal is specific. It has a

2 different concept of law. But this concept of law

3 cannot be contrary to all of the ideas which are

4 prevalent in modern criminal law today.

5 The accused are accused of serious crimes,

6 but we are also aware, as practice has shown, that

7 there are people with varying degrees of

8 responsibility, and we can see that this is reflected

9 in different sentences passed by the Tribunal, as the

10 sentences show for Mr. Aleksovski and Mr. Jelisic, who

11 was sentenced to 40 years.

12 So we are aware that each Trial Chamber can

13 decide whether a person can be trusted, whether they

14 have enough responsibility, in light of the fact that

15 every person is innocent until proved guilty. And for

16 that reason, I believe that this question should be

17 opened up before the Tribunal in the spirit of the

18 ideas prevalent in contemporary law and, of course,

19 without prejudice to the fact that the persons who are

20 before you here, and others who will be before you

21 here, have been accused of serious crimes but,

22 nevertheless, they are people.

23 The institute of detention has two main

24 elements which we need to review. The first is the

25 guarantee that the accused will appear before the Trial

Page 284

1 Chamber. So we have to create a secure mechanism and

2 system that the accused will not use his release in

3 order to unable proceedings to continue or prevent the

4 carrying out of justice.

5 The second question which we need to consider

6 is whether the accused, by being released, if he is

7 granted this confidence by the Trial Chamber, will

8 influence or tamper with witnesses, and having in mind

9 the nature of this case, these would mostly be

10 victims.

11 So we need to consider these two questions

12 regarding Mr. Kvocka, and we need to stick to concrete

13 facts.

14 I had a meeting with Mr. Blewett, the Deputy

15 Prosecutor, yesterday, and we reached a high degree of

16 agreement, accord, on these questions, especially

17 concerning the fact that the political and social

18 situation in Bosnia and Herzegovina is still quite

19 complex and that it was essential to open up true

20 processes of cooperation which are, first of all, in

21 the interests of justice, on one side, and also in the

22 interests of the accused, because these processes of

23 cooperation will create possibilities for the carrying

24 out of justice. But also there will be a possibility,

25 for people who are in this position, to exercise more

Page 285

1 easily their right to defence, easier access for them

2 to documents, or for them to have a more substantial

3 logical support.

4 We also agreed that the results have not been

5 great in this aspect, and I will not deny this here

6 today. But I do have to say, in order for you to

7 understand this issue about the results, that a person

8 has to be well informed about the circumstances in the

9 Federal Republic of Yugoslavia and Bosnia and

10 Herzegovina and the Republika Srpska.

11 The government is facing a particular problem

12 as far as the implementation of the Dayton Accords is

13 concerned, and this is a question that concerns

14 cooperation with The Hague Tribunal. So all political

15 options are viewed in the light of cooperation with the

16 Tribunal as an institution which needs to ensure a

17 lasting and stable peace in the region and, in a

18 certain way, so that in the future we would avoid

19 conflicts like this.

20 All the indictments and all the

21 publicly-indicted persons have been -- the Republika

22 Srpska has been informed about that, but all of the

23 people sitting here have never received those

24 indictments. They were never handed to them, because

25 up until 1998 there was an obstruction of everything

Page 286

1 that came from the Tribunal and everything that had

2 anything to do -- any connection with the Tribunal.

3 This is true, and I substantiate these claims with an

4 interview by Mr. Kvocka.

5 Mr. Kvocka, several days before his arrest,

6 gave an interview to Mr. Chris Bennett, a person who is

7 the deputy of the director of the International Crisis

8 Group. This interview was published in the news

9 Slobodna Bosna. This magazine is published in the

10 Federation of Bosnia and Herzegovina.

11 A day earlier, Mr. Kvocka gave a public

12 interview to Channel 5 of British Television. He gave

13 this openly in his front yard, where it was taped, and

14 he literally said that he never received an indictment,

15 that no one had ever informed -- gave him any

16 information regarding this, and everything that he

17 knows, he knows from the media, from the press. And as

18 he said, everybody already knew about this; this was

19 public knowledge.

20 Mr. Kvocka also said clearly and concisely

21 that he was not afraid, that he was moving freely

22 throughout Prijedor, that he was passing by members of

23 SFOR, and he was even afraid that because of that

24 statement of his, members of SFOR would have problems,

25 because they were not arresting him even though there

Page 287

1 was a warrant issued, and that he absolutely had no

2 intention of running; he had no intention of running

3 away. He confirmed this just three days after the

4 publication of that interview. Mr. Kvocka was arrested

5 then.

6 He is one of the few people who were arrested

7 in a dignified manner, without any use of force,

8 because simply his interview seemed to be an invitation

9 for the arrest. And that is why we believe that the

10 Trial Chamber should, to a sufficient degree,

11 appreciate the specific circumstances, and that is that

12 Mr. Kvocka was not arrested, nor that he had any

13 information about that, and that he had no intention to

14 run, which he indicated before he was arrested. This

15 is the question that we need to discuss.

16 The second question: There are specific

17 relationships in the Republika Srpska. If Mr. Kvocka

18 had received the indictment, in view of the attitude

19 towards the Tribunal, the satirisation of the Tribunal

20 and denial of its existence, and having in mind that

21 his wife is a Bosniak, and because of the security of

22 his family, Mr. Kvocka was not in a position to turn

23 himself in, and we are not hiding that.

24 Even if Mr. Kvocka had been handed the

25 indictment and had he waited, Mr. Kvocka was in his

Page 288

1 house, waiting to be arrested, because during any kind

2 of arrest, tensions are raised, political tensions, and

3 this is very difficult to explain. I think this fact

4 also needs to be taken into account.

5 Another question which concerns the status of

6 detention is the effect on victims. I have to say that

7 the indictment and also the evidence disclosed by the

8 Prosecution does not place Mr. Kvocka in any situation

9 in which he personally undertook any act which could

10 have elements of a war crime in relation to any

11 particular person. He never insulted anybody. He

12 never hurt anybody. What's more, according to the

13 information from the indictment in accordance with Rule

14 18 of the Statute, Mr. Kvocka was not even present in a

15 situation without reacting, if there had been any

16 incidents. So in such a situation, there is no fear

17 that Mr. Kvocka could influence anybody, anybody,

18 regarding their testimony or the execution or the

19 carrying out of justice.

20 Mr. Kvocka is a police officer, a person who,

21 in his class, was among the top ten students, a person

22 who, as an exceptional police officer, was chosen to

23 provide security to the Yugoslav embassy in France by

24 the former Yugoslav. He worked there for two years,

25 and he showed some exceptional work then. He performed

Page 289

1 the same job -- he was supposed to perform the same job

2 in Rio de Janeiro, but for family reasons, he was not

3 able to go.

4 So I appeal to the Trial Chamber, in making

5 its decision and in considering the objective criteria,

6 to take into account also the situation in Republika

7 Srpska, which is very difficult to explain and

8 difficult to understand, difficult to describe. It is

9 difficult to explain what happened in '92 and '91. We

10 will need time to understand that.

11 I must point out that the government of

12 Republika Srpska has issued guarantees, and in issuing

13 these guarantees the government of Republika Srpska set

14 out from -- it checked the past and the professional

15 career and the record of Mr. Kvocka. His two sisters

16 are married to Bosniaks; they still are to this day.

17 One of them is a victim of this civil war and is a

18 refugee now.

19 His wife's family have also become refugees,

20 so Mr. Kvocka really is in a specific situation. His

21 family in Banja Luka is under serious pressure. And in

22 the facts that you have probably become familiar with,

23 you are aware of the status of mixed marriages. And we

24 have a document of uncontested facts from the

25 Prosecutor, asking us to accept that mixed marriage was

Page 290

1 the biggest heresy at that time. And of course what

2 went on at that time will be something that we discuss

3 during the case itself. So I don't need to go into any

4 details about that now.

5 I would like to add that in the meantime

6 Mr. Kvocka's wife is ill. She has some form of

7 cancer. So now she's undergoing medical treatment.

8 She's quite afraid. And I believe that provisional

9 release of Mr. Kvocka would be -- constitute major

10 support to his wife, who has had to bear a heavy burden

11 during the civil war.

12 I know that this, in principle, is not a

13 reason which needs to be taken into consideration in

14 particular, but in view of the overall situation, I

15 hope that some special understanding will be shown for

16 that.

17 I have been working with Mr. Kvocka for the

18 past two years, as his Defence attorney. The Defence

19 is ready to accept other orders. It is also prepared

20 to submit bail for the provisional release. If the

21 Trial Chamber should request additional guarantees, we

22 are prepared to accept this, because we really believe

23 that Kvocka has an interest to appear before the Trial

24 Chamber in order to fight -- in order to prove his

25 innocence.

Page 291

1 He believes he is innocent, and the most

2 important thing to him is to prove that innocence. He

3 does not intend to run away. He said as much before

4 his arrest. And Mr. Kvocka also has no place to run.

5 His wife is unemployed. He's here. He has two

6 children.

7 It has been said that he is suspected of war

8 crimes, so Mr. Kvocka, even if he did have such an

9 intention, has absolutely no place to run. And he does

10 not have any intention of running.

11 Due to the above, I believe that a decision

12 on provisional release would be socially responsible,

13 from the aspect of opening up the process that I talked

14 about, the process of cooperation between the Tribunal

15 and institutions of Republika Srpska.

16 I would also like to inform you that at this

17 moment the activities are being undertaken to adopt

18 such a law. In the assembly, we would like to adopt a

19 law which would regulate relations between institutions

20 of Republika Srpska and the International Tribunal. If

21 we should succeed in adopting such a law, we would

22 create what we have said, and that is cooperation

23 between the Court and institutions -- government

24 institutions of Republika Srpska, as well as protected

25 citizens.

Page 292

1 So such a decision, a favourable decision,

2 would be a good contribution in order for this process

3 to receive the force that it should have.

4 We really need to have confidence and trust

5 in people. This is a Tribunal for war crimes, and the

6 persons before you have been accused for war crimes,

7 and there will be more such persons who are still to be

8 accused. We are aware of that. But simply this trust

9 and confidence has to be mutual. In talks which I had,

10 there is always the question of the first step.

11 JUDGE MAY: Mr. Simic, I don't want to

12 interrupt you, but I think you've had about 20

13 minutes. Anything else you want to add?

14 MR. SIMIC: [Interpretation] No, Your Honour.

15 I just wish to add that I expect, in view of the

16 complexity of the situation, I think that it would be

17 very useful for the first step to be made by the

18 Tribunal. And, believe me, the results of such a first

19 step would become evident very soon. Thank you.

20 JUDGE MAY: Mr. Keegan, we have your

21 response, which we have just received. Is there

22 anything you want to add to it?

23 MR. KEEGAN: Just briefly, in light of the

24 submissions this morning. I certainly won't repeat our

25 submission. Of course, the starting point here is that

Page 293

1 there is a confirmed indictment; that is, an accepted

2 prima facie case of serious violations of International

3 Humanitarian Law committed by this accused. And, of

4 course, the length of detention is not in and of itself

5 determinative of the issue. So we get to the standards

6 to be applied.

7 As indicated in the brief, while we would

8 certainly welcome a change in the law on cooperation

9 in Republika Srpska, the fact is that the law of that

10 entity still states that they will not turn over anyone

11 to this Tribunal. And the actions heretofore of that

12 entity should speak louder than the representations of

13 what hopefully may be a change in policy. And we would

14 welcome that.

15 But that being the case, if in fact it

16 appears that Republika Srpska would not turn over this

17 person, based on past behaviour, and the current state

18 of their law, it would leave it to the accused to

19 somehow deliver himself before this Tribunal, if he

20 were to be provisionally released.

21 And I note the statements of counsel, that

22 the accused could not turn himself in earlier on the

23 basis of the indictment, due to the potential pressure

24 on his family. We would suggest there is certainly

25 nothing to indicate that that pressure would be any

Page 294

1 different now, should he be released, and it perhaps

2 would be even greater, thereby preventing him from

3 returning on his own.

4 So it is in fact the circumstances that all

5 the evidence indicates, that neither the government nor

6 this accused would be willing to ensure his return

7 before this Tribunal, if he were to be released.

8 With respect to the threat of others, we have

9 certainly briefed that fully in our response. We

10 believe that nothing in the submissions indicate any

11 different, other than that the release of this

12 individual would raise the significant potential of

13 threat to witnesses and victims, either by the accused

14 himself, or by others who might be involved by his

15 release and, in an effort to prevent him from having to

16 return, attempt to influence or threaten witnesses.

17 Once those two issues are determined, and

18 they are the two most important issues, the question of

19 potential threat to others and, of course, the

20 indications of his willingness or ability to return for

21 a trial, there is also, of course, the impact that such

22 a provisional release would have on others, including

23 international institutions, the public in general, and

24 victims and witnesses in other cases. And we believe,

25 once those first two criteria are reviewed, this

Page 295

1 additional criteria is also important for

2 consideration.

3 The Prosecution position is that he should

4 not be granted provisional release. And unless I can

5 assist you with any further issues, Your Honour, those

6 would be my submissions.

7 JUDGE MAY: Thank you, Mr. Keegan. We'll

8 consider this matter in due course, and give our

9 judgement.

10 Mr. Simic, you've taken up a lot of time --

11 MR. SIMIC: [Interpretation] Your Honours, I

12 would just like to respond very briefly.

13 JUDGE MAY: Very, very briefly.

14 MR. SIMIC: [Interpretation] Just two

15 sentences, please. It is quite understandable that

16 detention can be ordered only in a prima facie case,

17 that is to say, the Rules certainly took that as a

18 point of departure, that is to say, to order detention

19 against persons whose indictments were confirmed. When

20 I talked about pressures with regard to Mr. Kvocka

21 turning himself in, I talked about '97 and the

22 beginning of '98. The circumstances have changed

23 considerably now, and I would like the Trial Chamber to

24 take that into account in view of what the Prosecutor

25 said.

Page 296

1 That's all I wish to add. Thank you.

2 JUDGE MAY: Thank you. As I say, we will

3 consider these matters and deliver our judgement in due

4 course.

5 Mr. Niemann, I am going to deal next with the

6 progress of the case. Clearly, some progress has been

7 made, but the fact remains that these accused have been

8 in detention for nearly two years, and that is a matter

9 of concern.

10 MR. NIEMANN: Yes, Your Honour.

11 JUDGE MAY: And one which must be addressed

12 in terms, if possible, of getting the trial on.

13 Now, the position of the Trial Chamber is

14 this: that we are engaged on a trial in another case,

15 which began in the spring of last year, and is likely

16 to go on for most of this year. That said, it is

17 necessary to consider starting other cases, and that we

18 propose to do. We are not in a position today to say

19 when this case will start, or in what order we will

20 start other cases, but what we want to be in a position

21 to do is, if necessary, to be in a position to start it

22 in as short a time as possible.

23 So, to start with, how much notice would you

24 require of a trial date? Normally, of course, at a

25 Status Conference you fix a trial date and it's way in

Page 297

1 advance, and everybody can work to it. But we are not

2 in that position at the moment because of the

3 uncertainty of our work. But it might assist to know

4 how quickly we could get this case on, if the need

5 arose.

6 MR. NIEMANN: Your Honour, the most

7 convenient period for us to get this particular trial

8 started would be a 30-day period. That would give us

9 time to inform our witnesses that we are about to start

10 and get the matter ready for trial within 30 days of

11 receiving notice.

12 If that's considered too long, Your Honour,

13 we could discuss the possibility of what endeavours we

14 could put in place to do it shorter than that. But if

15 that was a period considered acceptable to the

16 Tribunal, that is a period that would certainly be

17 convenient to us.

18 JUDGE MAY: Yes. Well, that seems a

19 reasonable period to ask for, considering the work that

20 has got to go into it in getting the matter ready.

21 On that topic, perhaps I should turn to the

22 Defence and ask you what time period. Could you work

23 to a 30-day notice of a trial?

24 MR. FILA: [Interpretation] Your Honours, on

25 behalf of all the Defence counsel, I wish to say that

Page 298

1 30 days is fine with us. We know that the Prosecutor

2 had problems with the witnesses and, after all, we are

3 talking about events from 1992, and now is the year

4 2000, so this is a reasonable deadline.

5 However, with your permission, Your Honour, I

6 would like to propose something at this point in time,

7 if Mr. Niemann and his co-workers agree, something that

8 would speed up the proceedings even more.

9 We agreed, as you know, that we start with

10 depositions, and in this way the Defence would have

11 very little evidence to be presented at the trial

12 itself, 5 or 10 witnesses per accused or per Defence

13 attorney, which really is not too much.

14 However, I wish to avail myself of this

15 opportunity, having consulted my colleagues, Krstan

16 Simic and Zarko Nikolic, to propose something to you

17 which would speed up the proceedings even more and,

18 perhaps, reduce the number of witnesses the Prosecutor

19 has to bring before this Honourable Trial Chamber. And

20 that is to say, to have the trial start by the accused,

21 Kvocka and Radic and Kos, start by making their own

22 statements. So we could start that way, and perhaps

23 then the Prosecutor would need less evidence than

24 otherwise.

25 I am familiar with the statement made by the

Page 299

1 Honourable Judge Rodrigues, and that is to say that a

2 lot of time was wasted in General Blaskic's trial, and

3 this became obvious only at the very end.

4 We don't want this Trial Chamber to be in the

5 same position; that is to say, that at the very end of

6 the trial, the Trial Chamber realises that a lot of

7 time has been wasted for something that is not

8 contested. So if the Trial Chamber agrees, and if the

9 Prosecutor agrees, we could start with the three I

10 mentioned.

11 Mr. Zigic's situation is different. If he

12 wishes to testify, he can testify, but he doesn't have

13 to. But this is different. And he really has nothing

14 to do with the organisation of the camp, as the others

15 would speak about.

16 Thank you. I have thus concluded my remarks.

17 JUDGE MAY: I would draw your attention,

18 Mr. Fila, to a fairly new Rule, 84 bis, which, in fact,

19 I think probably caters for what you have in mind. And

20 it doesn't require anybody to consent to it, but allows

21 the accused to make a statement at that stage.

22 You might want to have a look at it and avail

23 yourself of that Rule.

24 MR. FILA: [Interpretation] I had a look at

25 it, Your Honour, and that is why I made this proposal.

Page 300

1 This concerns an entire testimony, a complete

2 testimony, as we do at the very end. This new Rule is

3 not very clear, what it actually envisages. Is it only

4 one statement. I suggest that an entire testimony be

5 heard, not a mere statement; an entire testimony.

6 That's the difference.

7 And that is why I need your agreement, as

8 well as that of Mr. Niemann. Because if somebody gives

9 this kind of testimony, then there is no

10 cross-examination. And this implies

11 cross-examination.

12 So that could really expedite the

13 proceedings, and speed up the trial itself, whereas

14 their regular statements, their ordinary statements, so

15 to speak, you can see on the tapes, those that were

16 made by the policemen at the prison in Scheveningen.

17 So that's a one-sided thing. That's the difference.

18 Thank you for your remarks, but, yes, I did

19 bear this in mind.

20 JUDGE MAY: I think the problem about the

21 suggestion, and we'll certainly consider it and it may

22 be possible, but again, without looking into it, I

23 think that the Rules of Procedure lay down a time for

24 the taking of evidence, starting with the Prosecution

25 and then going on to the Defence. Now, it may be that

Page 301

1 we could work another solution, but I don't know.

2 Thank you for the suggestion. Let's not

3 debate it now. We will consider it as to what can be

4 done.

5 If I could turn to the Prosecution now. If

6 30 days were the time of notice of trial, what seems to

7 be outstanding before the case is ready is the question

8 of disclosure, and I'm just turning to you to see how

9 rapidly, Mr. Niemann, that could be accomplished.

10 MR. NIEMANN: Your Honours, I think the only

11 issue that's of concern to us about disclosure is the

12 matter that my colleague Mr. Keegan discussed

13 concerning the translation issue. As far as I'm aware,

14 Your Honour, there are some translation materials which

15 are still awaited. If we were confronted with a

16 proposal to have the matter set down for trial, we

17 would go to the appropriate translation people and see

18 whether or not it could be accomplished. If we had any

19 difficulty in doing that, we would come back to Your

20 Honours on that. At the moment, because there is no

21 date, as such, it's difficult for us to argue any

22 specific urgency in relation to the nature of the work

23 that's being undertaken.

24 JUDGE MAY: Very well. But provided we can

25 be assured that matters of disclosure are being

Page 302

1 pursued, as it were, apart from that is there any

2 reason why you shouldn't disclose everything else? You

3 may have done. I don't know.

4 MR. NIEMANN: Your Honour, there's absolutely

5 no reason why anything that we have in our possession

6 shouldn't be disclosed. The only matters that I

7 understand are delayed are those which await

8 translation. And I intended this as no criticism of

9 the translation unit, You Honour, and I must add that.

10 As I understand it, there's nothing other than that.

11 JUDGE MAY: There is a great deal of work for

12 them to do, as we know.

13 Can I then turn to the more general aspect of

14 the case, and that is the size of the case.

15 We note with concern that in March of last

16 year we were told that the Prosecution case would

17 involve about 60 witnesses, with a time estimate of

18 eight weeks. In June, that had grown to 80 witnesses,

19 and I don't think we were given a time estimate. But

20 working on the basis which I remember Mr. Niemann

21 mentioned on about the first day I ever sat in this

22 Tribunal, each witness seems to take about a day, each

23 Prosecution witness. Unhappily, events over the last

24 two years have confirmed that, in my experience, that

25 we're not moving much faster than that, although it may

Page 303

1 be possible in some cases to do so. But that being so,

2 we have to look at this case in comparison with other

3 cases.

4 This case is in a fairly short time frame and

5 in a fairly short compass as far as place is

6 concerned. It's one place, or there are several places

7 but one locality, and within a relatively short

8 two-to-three-months time frame. Now, compared with

9 other cases in this Tribunal, that is a relatively

10 short compass, and we have been discussing this matter

11 and have come to the conclusion that we must ask the

12 Prosecution, if not require them, to reduce the scope

13 of their case. Now, I recognise that that's not always

14 an easy task, but we have to look at the other cases

15 that we have to try, the fact that there are not only

16 these accused in the detention unit; there are others

17 who are facing trial by this Chamber. I've told you

18 the position as far as the Trial Chamber's work is

19 concerned.

20 Given all those considerations, we think that

21 this case should be completed, as far as the

22 Prosecution are concerned, in eight weeks, as

23 originally envisaged, with about 60 witnesses.

24 Now, to this end we propose to set another

25 conference which will be conducted by the Pre-Trial

Page 304

1 Judge, Judge Bennouna. We have looked at our calendar,

2 and the only time which we can identify is Tuesday, the

3 15th of February, between 4.30 and 6.00. I'm sorry it

4 has to be so late, but the fact is that we have another

5 case to try and that must go on that day. But if we

6 finish that, as we normally do, at 4.00, then a hearing

7 can take place, as far as this case is concerned, at

8 4.30.

9 It is proposed that the Judge, the Pre-Trial

10 Judge, will go through the statements which are being

11 disclosed by the Prosecution, with a view to reducing

12 the number of witnesses and reducing the scope of the

13 case. So the Prosecution should be prepared for that

14 exercise in three weeks.

15 Now, we will hear any submissions, of course,

16 about that.

17 MR. NIEMANN: Your Honours, naturally we

18 would like to reflect upon what Your Honour said before

19 we say or have any concluded view on this. At the

20 outset, I think it's important for us to emphasise that

21 we are anxious to ensure that the case is reduced to

22 the absolute minimum that we can achieve in any event.

23 Your Honours, we agree entirely that the time

24 frame of the crimes that are alleged and the

25 geographical focus is limited, but we would submit that

Page 305

1 the allegations contain a very significant number of

2 events which we would argue are part and parcel of the

3 presentation of this Prosecution, and with the

4 mechanisms that we have available to us, we can only

5 best achieve this by calling witnesses.

6 Initially, we had rather optimistically hoped

7 that we could avail ourselves more of the deposition

8 process. We appreciate and understand the position of

9 the Defence, and we realise that they have particular

10 interests in Your Honours observing Prosecution

11 witnesses and their demeanour first-hand, which limited

12 the number of witnesses we could call by this process.

13 We will do what we can to cooperate in every

14 way to achieve the objective that Your Honour set. The

15 only issue that I raise, though, Your Honours, is that

16 if Your Honours were to indicate an eight-week period,

17 if that was what was concluded as to be the maximum

18 reasonable time that can be available to us, we would

19 ask that we not be restricted by the number of

20 witnesses so much but by the time, because there are

21 means by which we can at least approach the Defence to

22 see whether some of the issues that can be resolved by

23 way of statements or whatever can be covered, thus

24 shortening the length of testimony of witnesses. So it

25 may be that we can get much more readily or rapidly to

Page 306

1 the kernel of the evidence, not necessarily by reducing

2 number of witnesses but by reducing the length of their

3 testimony in chief and in cross-examination.

4 But unless I can assist Your Honours with

5 other matters, that's our position at this stage, and

6 certainly we'll be in a position to address all these

7 matters on the 15th of February.

8 JUDGE BENNOUNA: [Interpretation] Thank you

9 very much, Mr. Niemann. I think that we need to

10 consider your proposal, and it can be of great help to

11 the Chamber, to try the case within a reasonable period

12 of time, to limit the length of statements, of

13 testimonies, keeping in mind that affidavits can

14 corroborate statements that have been given here or

15 testimonies that have been given here before the Trial

16 Chamber. Then we could limit the testimonies to what

17 is absolutely essential, and to new elements only, and

18 to what can confirm -- to confirm what has already been

19 said, then we can use affidavits and documents such as

20 these.

21 We keep in mind that you said that you want

22 to get in contact with the Defence in a spirit of

23 cooperation. That's the spirit of cooperation that has

24 been shown by Mr. Fila, when he said that he wants the

25 trial to be as fair and as speedy and efficient as

Page 307

1 possible. I think we can work in that spirit.

2 Now, I would like to invite you to think of

3 the proposal that was put forward by Mr. Fila earlier

4 on. You don't have to answer right away. He said that

5 maybe at the beginning of the trial, we could hear the

6 testimonies of Kvocka, Radic and Kos. If I understood

7 correctly, Mr. Fila wants to go beyond Rule 84 bis, and

8 we would like you to think about it. You don't have to

9 give us an answer straight away, but maybe we could

10 talk about it again during the hearing of the 15th of

11 February at 4.30 p.m.

12 As far as I'm concerned, I'm going to study

13 very carefully the summaries that you have handed

14 over. I'm going to study them. I think they are,

15 indeed, very useful because they are very detailed, and

16 I'm going to study them in order to see in what way we

17 can be as rational as possible as far as the witnesses

18 are concerned.

19 MR. NIEMANN: Thank you, Your Honours. Yes,

20 Your Honour, we will certainly consider very carefully

21 what Mr. Fila has suggested, and we will follow up with

22 him on any issues of clarification as to precisely what

23 he proposes. It's been my experience in other cases

24 that Mr. Fila has been very cooperative with this

25 Tribunal in endeavouring to reduce the length of the

Page 308

1 trials, and I feel some confidence that in discussions

2 that I may have with him, that we could have some

3 success in this regard.

4 JUDGE MAY: Could I perhaps add this: that,

5 of course, the shorter the trial is anticipated to be,

6 the easier it is for the Trial Chamber to accommodate

7 it within its calendar, if that is an incentive to

8 anybody.

9 MR. NIEMANN: It's certainly an incentive to

10 the Prosecution, Your Honour.

11 JUDGE MAY: Before we deal with questions of

12 review of detention under Rule 65 bis, which we are

13 required to do, are there any other matters which any

14 party wants to raise?

15 If there are no other matters, I will

16 formally ask if anybody, including the accused, wants

17 to raise any matters in relation to issues of

18 detention. Anybody want to say anything?

19 Yes, Mr. Zigic.

20 THE ACCUSED ZIGIC: [Interpretation] Thank

21 you, Your Honours.

22 Regarding detention, I don't have anything to

23 say, even though I do have some slight difficulties

24 there. But I would like to talk about some materials

25 that I have in possession in my room.

Page 309

1 On several occasions, we received from the

2 Prosecution translations of witnesses -- I'm sorry, I

3 apologise. Your Honour, I would like to -- you

4 mentioned numbers of 60 to 80 witnesses. In my room,

5 the information says 186. Out of those 186, I only

6 have 90. So the Prosecution has not given me 88

7 translations of statements, and here we are discussing

8 the start of trial. And it's a very big job for me to

9 look at completely new witness statements, 88 of them,

10 and I have still not received that. So I would need a

11 lot of time to read that, because I would like to

12 participate in my own case as much as possible.

13 Further, I would like to ask the Trial

14 Chamber if this is possible. It doesn't have to be an

15 order or a written instruction to the Prosecution, but

16 I am confused about materials that relate to witness

17 statements. The statements I have, the majority of

18 them are marked in three different ways, so a witness

19 is referred to as Witness 10, but then in other

20 material he's referred to as Number 20, and then in

21 something else again he's referred to as Number 50. So

22 I am completely confused, and I am sure that the

23 Prosecution must be confused too, because they have the

24 same witness. There is a lot of confusion here. We

25 really cannot find our way through all of that. And

Page 310

1 this is not only our problem, the problem of Defence,

2 but I believe of the Prosecution too.

3 So is it possible for the Prosecution to

4 introduce some kind of order, so if there are 186

5 witnesses, as we have been informed, to mark them from

6 1 to 186 so that we have a definite indication, so that

7 if Witness 57 appears tomorrow, we know that this is

8 Witness 57 and that this witness will not be referred

9 to by some other number?

10 Thank you, Your Honour. That is all I have

11 to say.

12 JUDGE MAY: Thank you, Mr. Zigic. Well, that

13 seems to me to be a matter which can be sorted out

14 between the Prosecution providing a witness list and

15 also the Defence, so that the accused is not confused

16 as to which witness is which. Perhaps, Mr. Keegan, you

17 could have a look at that.

18 MR. KEEGAN: Yes, Your Honour.

19 JUDGE MAY: Thank you.

20 Very well. We'll adjourn this matter. There

21 is a meeting as to depositions, and Judge Bennouna will

22 sit on the 15th of February for the next hearing.

23 --- Whereupon the Status Conference

24 adjourned at 11.52 a.m., sine die.

25

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