Tribunal Criminal Tribunal for the Former Yugoslavia

Page 93

1 Thursday, 25 September 2003

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.02 p.m.

6 JUDGE EL MAHDI: [Interpretation] I wish good afternoon to everyone

7 here present as well as to the public gallery.

8 If Madam Registrar would be kindly -- kind enough to call the

9 case.

10 THE REGISTRAR: Case number IT-00-41-PT, the Prosecutor versus

11 Pasko Ljubicic.

12 JUDGE EL MAHDI: [Interpretation] Thank you, ma'am.

13 I would kindly ask the parties to introduce themselves for the

14 record, please.

15 MR. HARMON: Good afternoon, Your Honour. My name is Mark Harmon

16 appearing for the Office of the Prosecutor. To my right is Ms. Magda

17 Karagiannakis and to her right Mr. Fergal Gaynor and to my right

18 Ms. Donnica Henry Frijlink, the case manager.

19 JUDGE EL MAHDI: [Interpretation] Thank you, counsel. And for the

20 Defence, please.

21 MR. JONJIC: [Interpretation] Good afternoon, Your Honour. I am

22 Tomislav Jonjic, Defence counsel for the accused Pasko Ljubicic, and here

23 is my co-counsel Mrs. Nika Pinter, attorney-at-law from Zagreb, Croatia.

24 JUDGE EL MAHDI: [Interpretation] Thank you, counsel.

25 I should like to remind you that this Status Conference was

Page 94

1 convened according to Article 65 bis of the Statute to discuss the main

2 problems that have to be reviewed before the beginning of the trial. I do

3 not need to remind you that the objectives at which this Article 65 bis is

4 aimed is to ensure a speedy preparation for the trial but also at giving

5 the accused the opportunity to express himself by raising the issues to

6 which he would like to draw the attention of the Tribunal such as his

7 health condition. I would, therefore, like to ask Mr. Ljubicic whether he

8 can hear me in a language he understands.

9 THE ACCUSED: [Interpretation] Good afternoon, Your Honour. I can

10 hear you perfectly. As for my health, I have --

11 JUDGE EL MAHDI: [Interpretation] No, no. I'm going to interrupt

12 you. Later on during the hearing we will have much more time to discuss

13 that. You can now sit down.

14 I should like to remind you that this is our fifth Status

15 Conference in this case. We convened the last time on the 23rd of May,

16 and I believe that it is now time to move forward without wasting more

17 time.

18 I would like to finalise today certain outstanding issues. I have

19 established a schedule for this Status Conference, and I have, myself,

20 identified four items to be discussed, but I also invite the parties to

21 raise any additional issue without hesitation should they feel that is

22 necessary.

23 The first item is the state of communications concerning

24 disclosure of documents between parties. The second item is the situation

25 in the matter of disclosure of documents containing elements of evidence

Page 95

1 on the part of Croatia and Bosnia and Herzegovina. The third item is the

2 pending, still pending, investigation regarding the transcripts from other

3 cases under Article 82 -- 92 bis of the Rules of Procedure. And the

4 fourth item is to attempt to make an estimate as to the duration of the

5 trial, including the number the witnesses.

6 Therefore, we will later have an opportunity to hear from

7 Mr. Ljubicic.

8 Do the parties have any issue to add to this agenda? I should

9 like to ask the Prosecutor to take the floor first.

10 MR. HARMON: Your Honour, we have none. Thank you.

11 JUDGE EL MAHDI: [Interpretation] Thank you very much. And

12 Mr. Jonjic?

13 MR. JONJIC: [Interpretation] The Defence has nothing either, Your

14 Honour.

15 JUDGE EL MAHDI: [Interpretation] Thank you, counsel. So shall we

16 begin with the first item which concerns the disclosure of evidence under

17 Article 65 -- 66, Rule 66.

18 I have received today a transcript of a session held yesterday

19 between the two parties under Rule 65 ter. Through the good offices of

20 Mr. Harhoff, Senior Legal Officer, I would like to make sure that I have

21 properly understood the situation.

22 The Prosecutor has confirmed that he has completed disclosure of

23 evidence accompanying, supporting the indictment. That is one. Second,

24 the Prosecutor has disclosed, under Rule 66 (ii), copies of all witness

25 statements of all witnesses that are intended to be called, as well as all

Page 96

1 the statements taken under Rule 92. But I have remarked that the

2 Prosecution intends to invite other witnesses apart from those initially

3 listed, and the Prosecution is referring to one, two, or perhaps more

4 witnesses.

5 Is the Prosecution not able to give us a final number and the

6 identity of these witnesses?

7 MR. HARMON: Your Honour, we have identified two witnesses. We

8 are conducting a mission to interview one of those witnesses, I believe,

9 next week. We will make an assessment as to whether that witness has

10 information that would be valuable to the Trial Chamber, and if we

11 conclude that his evidence is information that the Trial Chamber should

12 hear, we will identify him as a witness for the trial, and we will submit

13 his statement immediately to the Defence.

14 Likewise, in -- on the week of the -- the second week of October,

15 we will be interviewing another witness who we have identified, and the

16 same applies to that witness as well.

17 JUDGE EL MAHDI: [Interpretation] Very well. So if I have

18 understood correctly, it is all in all two additional witnesses.

19 MR. HARMON: That is correct. There is a third witness, but I

20 cannot go into details as to that witness at this particular hearing. So

21 there are three potential new witnesses, two of whom we will be

22 interviewing, a third I cannot, at this point in time, discuss in public.

23 JUDGE EL MAHDI: [Interpretation] Do you wish later, perhaps, to

24 into private session for that or do you prefer to postpone this altogether

25 until the next conference, for instance?

Page 97

1 MR. HARMON: I will be preparing written submissions that will

2 address the issue.

3 JUDGE EL MAHDI: [Interpretation] Thank you, counsel.

4 MR. HARMON: Your Honour, I'm sorry to interrupt.

5 JUDGE EL MAHDI: [Interpretation] Yes, please.

6 MR. HARMON: It has been brought to my attention that there are

7 pending motions filed on the 8th of September, and it is identification --

8 the Prosecutor's notification concerning two witnesses. So in addition to

9 the three I have identified just a moment ago, there is before the Court

10 the motion that is pending concerning two witnesses, but the Court has

11 already that information before it.

12 JUDGE EL MAHDI: [Interpretation] Two out of the three or two plus

13 three?

14 MR. HARMON: [Previous translation continues] ...

15 JUDGE EL MAHDI: [Interpretation] Thank you.

16 And on the part of the Defence, are there any remarks to be made

17 on this point?

18 MR. JONJIC: [Interpretation] No, Your Honour. We see no need to

19 add to what we said at yesterday's session, yesterday's 65 ter hearing.

20 JUDGE EL MAHDI: [Interpretation] Thank you, counsel, but there is,

21 nevertheless, one issue that is a bit of a concern to me. If I understood

22 correctly, you raised yesterday the issue of translation. You said you

23 received documents that were not translated. Is this matter settled or

24 have you settled anything with the Prosecution? Do you have an agreement

25 with them that these documents will be translated within an acceptable

Page 98

1 time frame?

2 MR. JONJIC: [Interpretation] Thank you, Your Honour. There is

3 between the Prosecution and the Defence team a difference regarding the

4 list of disclosed documents and their translation into a language the

5 accused understands. I received a letter today from Mr. Harmon in which

6 he suggests a way in which to solve this matter. I cannot tell you

7 anything precise about whether translations will be available to the

8 Defence, because we have received these documents on a CD-ROM, and that

9 requires more time for review and comparison.

10 So I stand by my suggestion made yesterday, and that is that the

11 Defence will very shortly inform Mr. Harmon and Mr. Harhoff about the

12 status of this translation, and I believe we will settle this matter very

13 soon. Thank you.

14 JUDGE EL MAHDI: [Interpretation] Thank you, counsel. I am very

15 happy to hear that there is a communication between the parties and a

16 goodwill to find agreement.

17 There is a minor point, counsel, that I should like to know more

18 about, namely, do you reckon on availing yourself of the opportunity to

19 apply Rule 66(B)?

20 MR. JONJIC: [Interpretation] Your Honour, the Defence has not yet

21 made a final decision on this issue in view of the fact that, as I said,

22 we received a great amount of material on CD-ROM, but we will make a

23 decision shortly after we have reviewed this. We will simply be able to

24 judge very soon whether we will need to do that or not.

25 JUDGE EL MAHDI: [Interpretation] Thank you, counsel. Very well.

Page 99

1 I am now speaking to Mr. Harmon. Where are we as to the

2 application of Rule 68 exculpatory material?

3 MR. HARMON: Your Honour, yesterday Ms. Karagiannakis supplied a

4 report on our efforts to comply fully with Rule 68. I'm prepared to turn

5 the floor over to Ms. Karagiannakis and she can expand if necessary on

6 what she said yesterday in the 65 ter conference.

7 JUDGE EL MAHDI: [Interpretation] Yes. Yes. I would have liked to

8 hear, as usual, the status of this disclosure, briefly if you can.

9 MS. KARAGIANNAKIS: Your Honour, the Prosecution's happy to report

10 that we've made substantial progress on the Rule 68 disclosure. The -- we

11 have reviewed the two main archives that should contain information

12 relevant to this case, those being the archives of the ABiH and also the

13 Croatian archives.

14 In respect of the archives of the ABiH, we created a spreadsheet

15 containing the Rule 68 documents and also gave those documents plus the

16 entire archive to the Defence in searchable CD-ROM fashion so they are

17 able not only to see the documents that we've identified as Rule 68 but

18 also able to search the archive themselves to find any other material they

19 may think is relevant to the conduct of their defence.

20 This was --

21 JUDGE EL MAHDI: [Interpretation] Allow me to interrupt you, but

22 isn't disclosure of everything to the Defence a way to avoid all these

23 complications?

24 MS. KARAGIANNAKIS: Your Honour, the jurisprudence of this court

25 requires us to identify Rule 68 material, and we have done so by providing

Page 100

1 a separate smaller spreadsheet, not of all the material but of the

2 material that has been identified by us as Rule 68. We've just given the

3 remainder of the material to them just in case they want to search it.

4 JUDGE EL MAHDI: [Interpretation] Thank you very much.

5 MS. KARAGIANNAKIS: That was provided to the Defence on the 18th

6 of September.

7 In relation to the Croatian archives, a search has been made.

8 Rule 68 documents have been identified. Those documents were burnt onto

9 CD-ROM and given -- disclosed to the Defence today.

10 We have also a third category of documents that we've looked at

11 and that is statements. On the 10th of September, we disclosed ten

12 statements under Rule 68 to the Defence and hopefully this afternoon or

13 tomorrow morning we will be in a position to disclose an additional eight

14 or ten additional statements to the Defence under the Rule.

15 Finally, we have also conducted, through our own research for the

16 preparation of this case, searches and identified 31 documents

17 which -- which could fall under the ambit of Rule 68, and they were

18 disclosed in hard copy to the Defence on the 18th of September. The

19 issue -- that is our Rule 68 disclosure as it stands today. Obviously

20 Rule 68 is an ongoing obligation, and the Prosecutor will continue to

21 search for relevant materials.

22 JUDGE EL MAHDI: [Interpretation] Thank you. Thank you very much.

23 Very well.

24 We shall then pass to the second item that I would like,

25 nevertheless, to ask Madam Registrar to go into private session, please.

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11 [Open session]

12 JUDGE EL MAHDI: [Interpretation] Yes. Are we in open session?

13 Thank you.

14 The third issue that I would like to raise is the request

15 concerning the admission of transcripts from other cases pursuant to Rule

16 92 bis of the Rules of Procedure and Evidence. If I have understood this

17 correctly, this matter was discussed yesterday by the parties, and the

18 parties are still in disagreement. The Defence stands by its position,

19 namely, it quite simply dismisses this request made by the Prosecution.

20 Mr. Jonjic, is it your position that these transcripts, this

21 testimony, has direct results, direct consequences on the conduct of the

22 accused? Is this a matter of law are you raising or is it a matter of

23 convenience? I would like to be clear on this point. Does this -- is

24 this a matter of public interest in this case or are you saying that it is

25 contrary to the letter and the spirit of Rule 92 bis and that the Trial

Page 107

1 Chamber should dismiss the Prosecution's request? I'm not certain about

2 this. What is your position exactly?

3 MR. JONJIC: [Interpretation] Thank you, Your Honour. The Defence

4 replied on the 18th of July, 2003, a reply to the motion of the

5 Prosecution and stated the reasons for which it was against having these

6 transcripts admitted.

7 As discussed at the meeting yesterday, the 65 ter meeting, the

8 Defence stands by its position and holds that in the case of all the

9 transcripts suggested in the Prosecution's request, the matters at stake

10 concerned the Prosecution's case in an essential manner. And by admitting

11 these transcripts, we would violate the accused's right to a fair defence

12 which are guaranteed by the Tribunal Statute and the Rules of Procedure

13 and Evidence.

14 The Defence counsel considers that the accused's right to

15 cross-examine witnesses is one of his fundamental rights, which must by no

16 means be violated, not at any cost. Especially not in order to expedite

17 the affair. On the other hand, the Defence is aware that by admitting

18 these transcripts, the accused's right to cross-examination would be

19 restricted. And given that this is a matter of testimony that concerned

20 the conduct of the accused quite directly or the conduct of persons who in

21 the amended indictment were subordinate to him, the Defence counsel

22 considers that in such a case, his right to a fair trial would be

23 violated.

24 This is why we are against admitting these transcripts. But if

25 the Trial Chamber decides that they should be admitted, then it is the

Page 108

1 Defence's position that all the testimony given by these witnesses before

2 this Tribunal should be admitted, all the testimony given in other cases

3 and not just the testimony suggested by the Prosecutor in his submission.

4 The reason for this is that a number of witnesses listed in the

5 Prosecution's submission testified with regard to various cases over a

6 long period of time. Circumstances have changed in the meantime. Many

7 facts have come to light, much evidence has come to light which casts a

8 different light on this testimony.

9 In other cases, the Defence was not in a position or perhaps was

10 not interested in cross-examining witnesses in such a manner.

11 In the present situation, the Defence holds that is in a position

12 to put questions which would not only cast doubt on the credibility but

13 would also significantly affect their contribution to establishing the

14 truth in this case.

15 An additional reason is that these witnesses were examined in

16 other cases in which the accused did not necessarily have the same

17 interests, and I'm using an euphemism. Their interests were not the same

18 as the accused Ljubicic. So for the sake of protecting the interests of

19 the accused and to establish truth, we believe that witnesses should come

20 before the Trial Chamber and be cross-examined both by the Prosecution and

21 by the Defence. The time that would be saved in this way, by admitting

22 these transcripts, by accepting the Prosecution's request, is not

23 significant in the Defence's opinion, and we therefore don't think that

24 the rights of the accused should be violated for the sake of saving time.

25 Thank you very much.

Page 109

1 JUDGE EL MAHDI: [Interpretation] Thank you, Mr. Jonjic, but I must

2 remind you about two or three points. I would like to draw your attention

3 to Rule 92 bis (D), to the wording of that Rule, and my question concerns

4 this Rule, because paragraph (D) says, and I quote: "A Chamber may admit

5 a transcript of evidence given by a witness in proceedings before the

6 Tribunal which goes to proof of a matter other than the acts and conduct

7 of the accused."

8 My question is: Are you raising this objection on the grounds

9 that the testimony attempts to prove an issue that directly concerns an

10 act or the conduct of the accused, or are you demanding that these

11 witnesses be cross-examined?

12 MR. JONJIC: [Interpretation] Your Honour, as it says in the

13 Defence's response to this submission, the Defence's position is that the

14 testimony of the witnesses whose -- for whom you want to admit the

15 transcripts concern the conduct and the acts of the accused since he was

16 accused on the basis of command and responsibility and on his individual

17 responsibility although his name may not be directly mentioned, this

18 concerns testimonies that concern him directly.

19 JUDGE EL MAHDI: [Interpretation] So in your opinion, the

20 Prosecution's demand violates the letter and the spirit of paragraph (D)

21 of Rule 92 bis (D); is that correct?

22 A. That's correct, Your Honour.

23 JUDGE EL MAHDI: [Interpretation] Thank you. I would like to hear

24 what the Prosecution has to say about this matter very briefly, please.

25 Do you approve of the position of the Defence to the extent that the

Page 110

1 Defence says that this testimony has to do with the direct acts and

2 conduct of the accused? Do you agree with this? And therefore, it would

3 be a matter of violating the letter and the spirit of paragraph (D) under

4 Rule 92 bis?

5 MR. HARMON: Your Honour, I don't have the benefit of my pleadings

6 that I filed in this particular aspect of the case before me, but we filed

7 these fully aware of the existence of 92 bis (D) which says that such

8 written evidence is inadmissible if it goes to the acts or conduct of the

9 accused. After analysing the statements, we concluded a certain number of

10 pieces of -- a number of statements that would not run afoul of 92 bis

11 (D), and therefore we submitted those statements and a motion to seek

12 their admission under the Rule.

13 JUDGE EL MAHDI: [Interpretation] So you are claiming that this

14 does not contradict, it doesn't violate letter or the spirit of this Rule.

15 But I would also like you to respond to what the Defence claimed. If you

16 are demanding that certain witness transcripts be admitted in such

17 case -- in such a case, then you should request that all the transcripts

18 of witnesses. Is your position one that is in agreement with that of the

19 Defence, or do you have any objections to raise to this suggestion.

20 MR. HARMON: Well, my response, Your Honour, is such a response is

21 premature. First of all, the Trial Chamber has not ruled on the admission

22 of these statements under Rule 92 bis.

23 My second observation is 92 bis applies to the Defence as well and

24 should there be portions of transcripts of other cases that it wishes to

25 have considered by the Trial Chamber, it can, at the appropriate time,

Page 111

1 make a motion seeking admission of portions of other transcripts of other

2 proceedings. The admission of all of the transcripts from all of the

3 proceedings, I think, would be unduly burdensome on the Chamber, because I

4 am fully aware that some of these witnesses have testified in cases that

5 have absolutely no bearing on the events in Central Bosnia, and to burden

6 the Chamber with the admission of all of those transcripts and the burden

7 of going through those, I think, would be time-consuming and needlessly

8 not helpful to the issues that will be before the Court.

9 So my position at this point is, one, we should wait to see what

10 happens to the application made by the Prosecutor in respect of these 12

11 witnesses to see if the written evidence is admitted; two, if it is, the

12 Defence can avail itself to 92 bis (D) and seek admission of testimony or

13 relevant portions of these witnesses' testimony in other proceedings; and

14 three, I would oppose, at this point in time, the admission of all of the

15 transcripts of all of the previous testimonies of all of these witnesses

16 no matter what proceeding it took place in.

17 JUDGE EL MAHDI: [Interpretation] Thank you, Mr. Harmon. I think I

18 have understood your idea. It is your case. You are presenting the

19 Prosecution's case and, therefore, within these limits you are content to

20 present as evidence the transcripts whose admission you have requested

21 pursuant to Rule 92 bis. But I would like to ask you, whether you are

22 against these witnesses being cross-examined by the Defence.

23 MR. HARMON: I think that is a -- no, I am not is the first answer

24 and the direct answer to your question. I think it's up to the Trial

25 Chamber to make an assessment as to whether cross-examination, under the

Page 112

1 circumstances of this case, is something that would aid the Trial Chamber.

2 I have no objections to those witnesses being called before this Chamber

3 and being cross-examined, but I think, ultimately, it's for the Trial

4 Chamber to make a decision whether such cross-examination would be

5 beneficial.

6 JUDGE EL MAHDI: [Interpretation] Thank you, Mr. Harmon.

7 MR. HARMON: You're welcome.

8 JUDGE EL MAHDI: [Interpretation] I think at this stage, if I've

9 understood this correctly, the Defence is requesting that these witness be

10 cross-examined. So I will move onto the fourth item, namely the duration

11 of the trial, the estimate for the duration of the trial.

12 I suggest the following schedule: In my opinion, a period of two

13 months should be quite sufficient for the Prosecution to make its case,

14 and a month and a half is granted to make submissions for demands of

15 acquittal in accordance with 98 bis of the Rule. Two months are granted

16 to the Defence to present its version of the facts. One week is granted

17 for the accused to testify if he so desires, and then one week is granted

18 for the closing arguments of the parties.

19 I have made some calculations, and that gives a total of six

20 months, roughly speaking.

21 And I'm now addressing the parties: Does the Prosecution agree

22 with such an estimate in principle?

23 MR. HARMON: In principle, Your Honour, we agree with the

24 estimate. I'm agreeing on the basis that we will be in session five days

25 a week and we will have five hours per day of available court time.

Page 113

1 JUDGE EL MAHDI: Yes, at least.

2 MR. HARMON: Thank you.

3 JUDGE EL MAHDI: [Interpretation] Yes. And what about the Defence?

4 MR. JONJIC: [Interpretation] Thank you, Your Honour. The Defence

5 cannot give its view about the estimate or even your estimate except very

6 theoretically, because we don't know what witnesses and how many witnesses

7 will really be called by the Prosecution.

8 I should also like to remind the Trial Chamber that under the

9 decision on the admission of stipulated facts, a relatively great number

10 of stipulated facts from other cases has been admitted, and this decision

11 leaves the Defence the right to argue and challenge these adjudicated

12 facts from other cases.

13 If we decide to challenge some of these adjudicated facts, that

14 would prolong the proceedings a little but not much, and I believe your

15 estimate is pretty realistic.

16 JUDGE EL MAHDI: [Interpretation] Very well, sir. I can conclude

17 that roughly speaking, this time limit is reasonable.

18 Are there any other matters that the parties would like to raise

19 or discuss? Very well. In that case, I can see that no one has any

20 matters to raise. I'm going to turn to Mr. Ljubicic.

21 I would like to ask you whether there was anything at all that you

22 would like to add or whether there are any matters you would like to raise

23 other than those that concern your health, because if you're going to

24 discuss your health, we could perhaps go into private session at least, or

25 if you prefer, if everything is fine, we won't go into private session.

Page 114

1 Is there any issue you'd like to raise?

2 THE ACCUSED: [Interpretation] Your Honours, I believe there's no

3 need to go into private session.

4 As for requests or questions, I have none at the moment. I

5 believe my Defence team is informing me and keeping me posted of all

6 developments in the case, and I am satisfied with their work.

7 I have no objection to the treatment I'm getting at the Detention

8 Unit. I am fine, and my health is all right.

9 JUDGE EL MAHDI: [Interpretation] I'm glad to -- to hear what you

10 have said. I'm glad to hear your observations.

11 As far as your health is concerned, is there anything you would

12 like to say or is everything fine? I would like to be certain that

13 everything is fine and that you have no complaints.

14 THE ACCUSED: [Interpretation] On balance, everything is fine. I

15 do have an ulcer and I suffer from asthma, but those are old complaints

16 and they are under control.

17 JUDGE EL MAHDI: [Interpretation] But are you being treated? Are

18 you getting the necessary treatment?

19 THE ACCUSED: [Interpretation] Absolutely everything I need I am

20 getting at the Detention Unit.

21 JUDGE EL MAHDI: [Interpretation] Very well. I wish you good

22 health. Please sit down. Thank you.

23 I think that all I can do now is repeat that I wish the parties to

24 continue collaborating and to address the legal officer, Mr. Harhoff, who

25 is carefully following all the pre-trial cases. And once again, I wish

Page 115

1 you all a very good afternoon and until the next hearing perhaps.

2 The hearing is adjourned.

3 --- Whereupon the Status Conference

4 adjourned at 4.02 p.m.

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