Tribunal Criminal Tribunal for the Former Yugoslavia

Page 173

1 Thursday, 22 April 2004

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE EL MAHDI: [Interpretation] Good afternoon, everyone.

7 Madam Registrar, would you please call the case.

8 THE REGISTRAR: Good afternoon, Your Honour. Case Number

9 IT-00-41-PT, The Prosecutor versus Pasko Ljubicic.

10 JUDGE EL MAHDI: [Interpretation] Thank you very much,

11 Madam Registrar.

12 Mr. Ljubicic, can you hear me? You may remain seated. No need to

13 stand up.

14 Can you hear me in a language that you understand?

15 THE ACCUSED: [Interpretation] Your Honour, yes, I can.

16 JUDGE EL MAHDI: [Interpretation] Thank you.

17 For the record, let us have the appearances, please.

18 MR. HARMON: Good afternoon, Judge El Mahdi. My name is Mark

19 Harmon. Appearing with me is Mr. Hasan Younis who is the case manager.

20 And good afternoon, Mr. Jonjic.

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

22 Yes, for the Defence, please.

23 MR. JONJIC: [Interpretation] Good afternoon, Your Honour. My name

24 is Tomislav Jonjic, representing Mr. Ljubicic in this case. Good

25 afternoon to my colleague Mr. Harmon as well.

Page 174

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

2 This session today is dedicated to a number of issues that are

3 pending at the moment. I have been notified of the correspondence

4 regarding the documents that have been sought by the Defence. I'm now

5 speaking in general terms because we are sitting now in public. If

6 there's any need to deal with the issues that would warrant a private

7 session, would the parties please let me know of that in order to avoid

8 any misunderstanding.

9 Having said that, I think that the Defence has asked for access to

10 a number of documents from two states concerned, and I would like to be

11 sure that what I was able to conclude on the basis of the correspondence

12 that I have seen regarding the states in question and the Defence, that we

13 are progressing in the right direction, that the Defence does not have any

14 major objection, and that the Defence is satisfied, if not fully, but then

15 at least to the extent that they do not feel that they have been

16 handicapped as far as the rights of the Defence are concerned.

17 I should like to hear a confirmation of this from Mr. Jonjic

18 because I think it is our mission, a mission of all of us, to ensure that

19 the rights of the Defence are fully and completely protected. So

20 Mr. Jonjic, I'm giving you the floor.

21 MR. JONJIC: [Interpretation] Thank you, Your Honour. I think it

22 would be the most reasonable approach to start with the issue of

23 disclosure by Bosnia and Herzegovina, since this request of the Defence

24 was submitted earlier, chronologically speaking.

25 The government of BH, as it is clear from the correspondence and

Page 175

1 the submissions that have been transmitted to the Chamber, handed over to

2 the Defence on two occasions a couple of hundred documents. However,

3 since this did not cover everything that was the subject of the request,

4 we had to communicate on several occasions also with the mediation of the

5 Chamber with a view of obtaining the remainder of the documents. A little

6 more than a month ago, the government of the federation through the

7 mediation of the Croatian liaison officer in The Hague informed the

8 Defence that they were able to inspect the central archives of the BH Army

9 with the objective of locating the documents which were subject of the

10 order, but that have not been in the meantime handed over to the Defence.

11 This permission of the government therefore concerns only the

12 documents described in the binding order, not documents generally

13 speaking. We are not talking about a general access to the archives of

14 the BH army.

15 JUDGE EL MAHDI: [Interpretation] I apologise for interrupting you.

16 I'm referring to the letter dated 13th of April. Are you aware of that

17 letter?

18 MR. JONJIC: [Interpretation] Yes, I am, Your Honour.

19 JUDGE EL MAHDI: [Interpretation] Very well. Please go on.

20 MR. JONJIC: [Interpretation] Having received this information from

21 the Croatian liaison officer, our investigator, pro bono investigator,

22 Mr. Goran Sijlic [phoen] on the 1st of April this year paid a visit to the

23 BH army central archives. And on that occasion, he was given access to a

24 certain number of documents referred to in the binding order. In view of

25 the fact that the list of these documents is contained in the confidential

Page 176

1 part of our submission, actually, in the confidential part of the binding

2 decision, I do not wish to identify now which particular documents were

3 given to the investigator. All the more so because we informed thereon

4 the Trial Chamber on the 16th of April.

5 The individual who accompanied the investigator who was supposed

6 to provide him assistance and who was familiar with the way the central

7 archives of the BH army functions informed him, the investigator, that is,

8 on that occasion that so far as other documents are concerned, other

9 documents from the binding order which had not been handed over, the

10 government of the Federation of BH does not have such documents at all.

11 In other words, the assistant, the person who assisted the investigator,

12 declared on that occasion that part of the documents that we have not yet

13 received can probably be found at the Office of the Prosecutor.

14 As for the remainder, it is quite possible that such documents do

15 not exist at all; namely, that they have either been destroyed or lost.

16 Since we cannot in any way verify the accuracy of the statements made by

17 this employee of the BH army archives, at the 65 ter meeting held two days

18 ago, we discussed possible ways for the Defence to obtain those documents

19 as well.

20 So we agreed in principle that a meeting would be held, a meeting

21 of the representatives of the Defence and the Prosecution with a view of

22 facilitating for the Defence an inspection of the database that the OTP

23 has kindly provided to the Defence in an electronic form, which database,

24 however, is so extensive, without help of the OTP, it would be impossible

25 for us to go through the exercise. Since at the moment we don't know what

Page 177

1 the results of this cooperation with the OTP will be, in my capacity as

2 Defence counsel of Mr. Ljubicic, at the 65 ter meeting held two days ago,

3 I stated, fully aware, of course, of the potential consequences of my

4 words, that if it turns out that certain documents remain missing, that

5 fact is not going to be used by the Defence for either some kind of alibi

6 or excuse to postpone the beginning of the trial.

7 We're fully aware of the fact that the trial date is decided upon

8 by the President of the Tribunal. However, since we are faced with the

9 fact that Mr. Ljubicic is -- has been in detention for more than 29

10 months, we are prepared to make a sacrifice. And should such a decision

11 be reached by the President of the Tribunal, we are ready to go on trial

12 without waiting for the documents that are still pending and that the

13 Government of the BH still has to hand over pursuant to the binding order.

14 Your Honour, that would be the situation as regards the compliance

15 of the government of BH with the binding order.

16 I may now move on to the problems regarding the communication with

17 the Government of the BH. But if you have questions, I'll be pleased to

18 answer them.

19 JUDGE EL MAHDI: [Interpretation] Thank you very much. I think I

20 would like to hear the Prosecution first of all so that we can reach a

21 satisfying conclusion for both parties. However, before I do that, let me

22 make a remark. You say, at least this is the interpretation that I have

23 received, that you will be prepared to make a sacrifice as Defence counsel

24 in view of the fact that the trial date has been set in this case. This

25 worries me a little. I'm not very happy with the -- with your impression.

Page 178

1 There should not be any sacrifice in justice, which we all have to respect

2 here. And I think that everybody has to act in such a manner so that the

3 final imperative, the truth, can be achieved. I had to make this remark.

4 I felt it necessary.

5 So before I give the floor to Mr. Harmon, I would like to hear you

6 once again on the issue that I just raised. And after that, I will turn

7 to Mr. Harmon, who I would like to tell us about the possibilities of

8 helping the Defence in their research. Because it seems to me -- I

9 understand that it is a very difficult task for them. The Defence at the

10 same time, if I understand correctly, appreciates your kind gesture in

11 allowing them to inspect your databases and your documents.

12 However, if this task is left to the Defence only, it seems that

13 the exercise is going to be time-consuming. So I should like to hear you

14 on this, Mr. Harmon. Thank you.

15 MR. HARMON: Your Honour, we have provided to the Defence on the

16 18th of September 2003 the entire collection of documents that we had

17 seized from the Army and the Presidency of BiH. And that archives of ours

18 that we submitted to the Defence was provided on a CD, a searchable CD.

19 The Defence was also provided with a search engine. And this is the kind

20 of an engine that can facilitate going through this large volume -- large

21 set of documents to find what they may be looking for.

22 So what we seized, in particular, the Defence has on CD-ROM. And

23 they can do that work quite easily with the available tools. If

24 Mr. Jonjic would like to contact me, and we have a good relationship, if

25 he would like to contact me and identify any problem that exists in

Page 179

1 respect of this search engine that we have provided for him, we can see if

2 there's a defect in that search engine. It seems to me, one, that given

3 these documents were provided in September of 2003, there has been a lot

4 of time to take a look at the documents that we have given to them. Two,

5 if there are a select number of documents that Mr. Jonjic will identify

6 with specificity, perhaps I can call upon my staff to search for them.

7 But what I would like to hear from Mr. Jonjic is that documents

8 that we have already given them have been searched by them. You know, we

9 have our own work to do. And while I'm willing to cooperate and

10 appreciate the cooperation that Mr. Jonjic has made in respect of the

11 Office of the Prosecutor, and I am willing to reciprocate to some extent.

12 Indeed, finally with these documents in hand, Mr. Jonjic should be able to

13 find in the collection that we have given him the documents that he's

14 looking for.

15 JUDGE EL MAHDI: [Interpretation] Thank you, Mr. Harmon. I have no

16 doubts whatsoever, judging by your professional qualities, that you are

17 going to offer your assistance as much as possible to the Defence. And I

18 am grateful to you, and I invite you to get in touch in order to clarify

19 the matter.

20 My concern, however, I have to admit to you, is that I feel that

21 maybe Mr. Jonjic is in a situation which might be regarded as critical.

22 He may have encountered some difficulties in order to find his bearings in

23 the pile of documents. I'm very happy and I'm very grateful to the

24 Prosecution for offering their assistance as much as possible, that is, to

25 the Defence. And I believe that by getting in touch, by cooperating, we

Page 180

1 will arrive at the satisfying conclusions that will serve justice at the

2 end of the day. And for that reason, Mr. Harmon, I would like to thank

3 you.

4 I believe, Mr. Jonjic, that you have heard what the -- what

5 Mr. Harmon has told us. And I believe that with the assistance of the

6 other party, with your mutual cooperation, that you will arrive at an

7 agreeable solution. If there is no possibility to search, then we cannot

8 be sure that we will not find what we are looking for.

9 However, the search has to be done and it may prove to be useful.

10 Therefore, I invite you to continue cooperating with the Prosecution and

11 make the most of this generous offer that they have made to you.

12 Let's go back to the other issue which has to do with the

13 documents that have been requested from the Government of Croatia. Is

14 there anything that you wish to add to what you have submitted to the

15 Chamber in writing? What is the current situation with that?

16 MR. JONJIC: [Interpretation] Your Honours, if you will allow me, I

17 would like to go back to the issue of documents from Bosnia and

18 Herzegovina. There is no doubt that Mr. Harmon is right when he says that

19 the Prosecution on the 18th of September 2003 disclosed to the Defence in

20 an electronic form an ample number of documents originating from the BiH

21 army and together with that a search engine for searching those documents.

22 This part of the exercise the Defence has already completed. We have

23 reviewed those documents.

24 However, we're still missing a certain number of documents which

25 may be in the, so to speak, general database, which is accessible to all

Page 181

1 the Defence counsel. And the only issue that we have discussed - that was

2 two days ago at the 65 ter meeting - was whether there was any technical

3 possibility for the Prosecution to facilitate our search of this extensive

4 database which is not exclusively linked with this case, but it is a

5 general database.

6 JUDGE EL MAHDI: [Interpretation] If I understand you well, there

7 are -- they are snowed under their work, but they could maybe try and find

8 the means to help the Defence. Is that the gist of your request as much

9 as it is possible? So on this base, we may expect to arrive at concrete

10 solutions.

11 MR. JONJIC: [Interpretation] Yes, exactly, Your Honour. And this

12 is what I wanted to thank Mr. Harmon for.

13 The second thing that you've mentioned the is the sacrifice on the

14 part of the Defence. The term has been interpreted correctly, and I take

15 full responsibility for using this term, rather than blaming the

16 interpreters. It may have been an awkward term to use. But what I wanted

17 to say is as following: We are absolutely aware that there is a serious

18 risk that some of the documents that we have requested and that this

19 decision of the Trial Chamber refers to will never be located, will never

20 be found. And being fully aware of that, we do not wish to dwell upon this

21 issue and waste the Tribunal's precious time.

22 And we have to face the fact that my client has been incarcerated

23 for almost 30 months. And despite the risk that is entailed in the fact

24 that the documents may not be found, we are ready to go on trial. And

25 this is as far as Bosnia-Herzegovina documents are concerned.

Page 182

1 As far as the documents from Croatia are concerned, irrespective

2 of the fact that the correspondence has been confidential, there's no

3 reason for us to go into private session because the Defence does not have

4 anything to add to what has been submitted in writing on several

5 occasions. The last submission dates 5 April 2004. If we try and

6 summarise the situation as it is at the moment, we have to say that the

7 Government of the Republic of Croatia has placed at the disposal of the

8 Defence the majority of the requested documents, that we are still

9 requesting a number of them, a number which is not insignificant. And it

10 remains to be seen whether we are going to be able to locate these

11 documents in the rich archives of the Government of the Republic of

12 Croatia.

13 In any case, this and other pending issues that have been

14 mentioned in our written submissions, the Defence is going to inform the

15 Trial Chamber about those as soon as possible. And we do not want to use

16 problems with the Government of the Republic of Croatia as an excuse for

17 the rescheduling of the beginning of trial.

18 The Defence is not going to ask for a delay because of the fact

19 that we are still requesting a number of documents from the Government of

20 the Republic of Croatia. Thank you very much.

21 JUDGE EL MAHDI: [Interpretation] We are absolutely certain that

22 you possess very high professional qualities, and I'm very happy to hear

23 your interpretation of the -- that has given me some concern. If I

24 understand you well, the majority of documents have been provided to you.

25 I would like to ask Mr. Harmon now: Does the Prosecution have in

Page 183

1 their custody documents that were obtained from the archives of the

2 Government of Croatia? If I understand well, you have carried out a

3 search, and you do have access to the archives of the Government of

4 Croatia. You have even told us how many days you worked in those

5 archives. I don't know whether what you have in terms of the archives of

6 Bosnia and Herzegovina is available to you in terms of the archives of the

7 Government of Croatia. Are there any documents that might be of use to

8 the Defence and that might enable them to prepare their case? Do you have

9 any such documents in your custody?

10 MR. HARMON: Your Honour, we both have equal access to the

11 archives in Croatia. So we have gone, as you quite accurately note, we

12 have somebody who has gone down there and looked in those archives, and

13 that search has yielded certain documents to us. The Defence has done the

14 same.

15 Whatever documents that we have that may assist the Defence under

16 Rule 68 we have given to the Defence. The rest of the documents are

17 documents that we have retained. The Defence of this case is not spelled

18 out, so it's up to guesswork to determine what the actual Defence is. We

19 have given them what we are required to give under law and the rules and

20 procedure of this case.

21 JUDGE EL MAHDI: [Interpretation] I understand your position.

22 However, I also believe, and I hope you will agree with me, that according

23 to Article 68, there may be different interpretations, rather broad even,

24 so I would like to invite you and I would like to appeal to your

25 professionalism and to our common desire to arrive at the truth to address

Page 184

1 this issue as quickly as possible. I would like to -- you to throw a

2 second glance at those documents and see whether you have some documents

3 in your possession that are -- have been requested by the Defence, that

4 the Article 68 doesn't cover.

5 It's going to help us on our way to arriving at the truth.

6 MR. HARMON: My first comment, Your Honour, is for those of us who

7 have worked with Rule 68 for a long time, it's harder for -- it's hard for

8 me to imagine a more broadly drafted rule than Rule 68 until its most

9 recent amendment. It's very difficult, and often times, and indeed in

10 this case, I have invited the Defence to provide me with one of two

11 things, provide me with the general nature of the defence, in which case I

12 can focus my search and I can identify documents that may apply to those

13 that the Defence, in its general contours, they can get the documents

14 sooner to assist them.

15 Alternatively, if there are specific items they are identify with

16 precision, we can look for them.

17 JUDGE EL MAHDI: [Interpretation] I apologise for the interruption.

18 Are these documents that you have requested from the Government of

19 Croatia, are you a hundred per cent sure, a hundred per cent sure that

20 these documents are not in your possession, the documents that have been

21 requested from the Government of Croatia that is?

22 MR. HARMON: Your Honour, I can't say with a hundred per cent

23 certainty what you've asked me. I can meet with the Defence. The Defence

24 can give me a very precise list of documents. We can go back through our

25 archives and look for those documents. And that's the best I can do.

Page 185

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

2 I believe that in this spirit of cooperation, light will be shed

3 on that issue. I also believe that I don't need to remind you that you

4 can always count on Mr. Harhoff for his cooperation. He is really a very

5 dedicated person.

6 I would also like to say that I'm glad that the Prosecution has

7 confirmed what I have in front of me, and that is that the Prosecution is

8 going to call 53 witnesses, 40 of them in person, viva voce, and that the

9 Prosecution estimates that they will need 127 hours for their

10 examination-in-chief of these witnesses. Is this information correct,

11 Mr. Harmon?

12 MR. HARMON: Your Honour, it is almost correct. I can tell you

13 that we have not remained idle. When this submission was made to

14 Your Honours, it was a considerable period of time ago. In the meantime,

15 we have filed with the Court two motions identifying -- notification

16 regarding additional witnesses.

17 In addition to that, I have identified two more potential

18 witnesses. So our list is somewhat flexible in the sense of its numbers.

19 I haven't sat down and tried to eliminate some witnesses for the addition

20 of other witnesses, and I'm continuing to make assessments on information

21 that I get, and very good information that I get. And I am pursuing that

22 personally. And I will inform the Court when the Court -- I think at an

23 appropriate time when some additional decisions are made.

24 JUDGE EL MAHDI: [Interpretation] I understand your diplomatic

25 language. You're saying that the list is very flexible. However, this

Page 186

1 flexibility sometimes may go too far. Please, stay within the limits.

2 You may replace one witness by another, and these are the limits that will

3 be acceptable. And if I understand you well, we are still talking about

4 127 hours of examination-in-chief.

5 MR. HARMON: My figures were slightly different. I had 136 hours

6 of examination-in-chief. But it's not a great difference, and we can sort

7 that out.

8 JUDGE EL MAHDI: [Interpretation] Thank you very much, Mr. Harmon.

9 An approximate date, a rough date that has been suggested by --

10 yes, Mr. Harmon, you wanted to add something.

11 MR. HARMON: Well, I think I can account for the -- I believe I

12 can account for the difference between 127 and 136, and that is that I

13 mentioned --

14 JUDGE EL MAHDI: It is to be accurate, it's 127 and half an hour.

15 MR. HARMON: We then filed a notification regarding additional

16 witness, and time was added to those witnesses, and those subtractions

17 were made from the original for you. But we can make those adjustments.

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

19 So if I understand correctly, Mr. Harhoff is proposing that the

20 parties be ready to start right before, or rather in the first days of

21 July. I think that this has been agreed upon by the parties as well.

22 The last question that I need to look at concerns the health of

23 Mr. Ljubicic. So, Mr. Ljubicic, would you prefer to go -- for us to go

24 into private session or you don't think it will be necessary? It's really

25 up to you to say.

Page 187

1 THE ACCUSED: [Interpretation] Your Honour, I don't think it is

2 necessary for this session to be closed or private.

3 As for my health, it is very good for the time being. I do not

4 experience any problems or difficulties in the Detention Unit.

5 JUDGE EL MAHDI: [Interpretation] I'm glad to hear that. Thank you

6 very much. You may sit down, Mr. Ljubicic.

7 Anything else?

8 MR. HARMON: Your Honour, there is. I'm just -- have a query as

9 to what you just said, and that is that the parties should be ready to

10 start in the first days of July. Obviously, I take it Your Honour is

11 referring to starting trial in the first days of July, and any direction

12 that we are given we will abide by. But I'm currently in another trial,

13 as Your Honour knows. And the question I have is: There's a lot of

14 preparation that is required to get ready for a trial in July. And I'm

15 prepared to do that, without any reservation. But if it is an empty

16 exercise or an empty gesture that's going to affect other work that I do

17 and my colleagues do. So if -- what I would respectfully request from

18 Your Honour is if this is a firm date, then I would be satisfied to have

19 it announced. If it is not a firm date, then I would also request some

20 clarification on it because I have to set things in motion in order to get

21 witnesses here, start those arrangements. And it's a very, very difficult

22 thing to start and then disengage from.

23 JUDGE EL MAHDI: [Interpretation] Yes, thank you very much,

24 Mr. Harmon. I do understand your position. But I also understand the

25 position of the Defence. It is true Mr. Ljubicic has now spent quite some

Page 188

1 time in detention. As for the date, it is not a fixed date. It is not a

2 final date. For the time being, it is merely a proposal that I offer to

3 you. Because after all, parties have to agree on that, and there are

4 still pending issues. I am aware of that. And that the Defence would

5 like, and justly so, to verify. So with the help of Mr. Harhoff, I think

6 it will perhaps be more useful if you could propose, if you could suggest

7 a date. But I hope you're not going to wait for other cases to be

8 finished. Because it seems to me that the case you are currently engaged

9 in is likely to take some time.

10 So I hope that we will be able to come up finally with a solution

11 that will enable the Defence to get ready and also for you to prepare your

12 case. So to answer your question, the date, when I said the first days of

13 July, is only an approximative date. It's not a fixed or a final date.

14 MR. HARMON: All right. Thank you, Your Honour.

15 JUDGE EL MAHDI: [Interpretation] Thank you, too.

16 Anything else, Mr. Jonjic? Thank you.

17 Well, let me just wish you a lot of success in your future work.

18 Let me also thank the interpreters. The hearing is closed.

19 --- Whereupon the Status Conference adjourned

20 at 3.45 p.m.