Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Tuesday, 26 September 2006

 2                          [Status Conference]

 3                          [Open session]

 4                          --- Upon commencing at 4.00 p.m.

 5            JUDGE THELIN:  Good afternoon.  Could we please have the case

 6    called.

 7            THE REGISTRAR:  Your Honour, this is case number IT-04-79-PT, the

 8    Prosecutor versus Mico Stanisic.

 9            JUDGE THELIN:  And the representations for the Prosecution?

10            MR. TIEGER:  Good afternoon, Your Honour.  I'm Alan Tieger.  I

11    appear on behalf of the OTP with Ms. Anna Richterova and Mr. Wilhelm

12    Wijermars, our case manager.

13            JUDGE THELIN:  Thank you.  And for the Defence?

14            Mr. BEZBRADICA: Good afternoon, Your Honour.  My name is Stevo

15    Bezbradica and I am here on behalf of the accused Mr. Mico Stanisic.  With

16    me here are Mr. Slobodan Cvijetic my legal consultant, and Tatjana Savic,

17    my case manager.

18            JUDGE THELIN:  Thank you.  This is the regular Status Conference.

19    The last one was held in June.  I'm happy to see that representation is

20    plentiful on both sides, especially happy to see Mrs. Richterova.

21            We seem to be, on my reckoning, fairly well on time when it comes

22    to compliance with the existing work plan.  Some outstanding motions are

23    pending, and we will deal with those.  Before I go into that, I would like

24    to raise, Mr. Bezbradica, the question of your filing of special Defence

25    and alibi notice.  As you are aware, as the Prosecution is aware, we asked

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 1    for a clarification on your filing, and I think your latest filing was on

 2    the 15th of September, if I'm not misjudging.

 3            I would like to say that it could be said that it is a mere

 4    repetition of what you said before.  Would you like to add something to

 5    that?

 6            MR. BEZBRADICA:  Yes, Your Honour.  Under your order, we filed my

 7    clarification, but it is not really the same like the last time.  And I

 8    would just like to explain our position about everything.  I really

 9    apologise, but I don't like that you consider something in wrong way,

10    because we don't like to make anything hard for you, and we are fully

11    aware about our obligation --

12            JUDGE THELIN:  Sorry may I interrupt you.  It is not a question of

13    making it hard for me.  It is taking your client's interest at heart, Mr.

14    Bezbradica.

15            MR. BEZBRADICA:  Yes, okay.  I fully -- I said under my submission

16    in that filing, and -- but at this stage, in respect of special

17    difference, we don't have any special difference.  I just confirm

18    yesterday's submission.  In respect of alibi, at this stage we are in a

19    difficult position because at this stage I don't have in my hand the exact

20    name of the witness which I can provide you.

21            I have my client instruction to offer to the Defence alibi, in

22    that way I already explained my first filing there.  But at this stage I

23    can't tell you the exact name, the exact name of places and time where my

24    client was at the time that the crime occurred.

25            Since my investigative work would be finished, I will advise you

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 1    about everything at a later stage and only at this stage I can tell you,

 2    Your Honour, about this problem.  It means that by doing everything

 3    honestly, in my client's best interest.  But for example if I tell you

 4    something, give you some name at this stage, but if my investigator is not

 5    finished his work, there could be some trouble for my client especially

 6    because I know that I have to provide to the Prosecution the right

 7    information about that.

 8            Thank you.

 9            JUDGE THELIN:  Well, thank you for that, Mr. Bezbradica.  Anything

10    that the Prosecution wants to offer on this point?

11            MR. TIEGER:  I believe I mentioned this yesterday, Your Honour.  I

12    only bring it to your individual attention because it was mentioned before

13    the senior legal officer, and that is the possibility of parsing-out the

14    response.  I just bring that to the Court's attention so that it may be

15    considered.  Rule 67 contemplates a number of factors, including

16    notification of the place or places at which the accused claims to have

17    been present, et cetera, and the provision of names and addresses.  It may

18    be the case that it is helpful that, to the extent a portion of 67(a) can

19    be complied with, while other aspects are awaiting investigative

20    attention, that the Defence could submit materials accordingly.  On the

21    other hand, if the Court concludes it is preferable to wait until the

22    process is completed, then we leave that to the discretion of the Court.

23            JUDGE THELIN:  Thank you.  First of all, I will note on the record

24    no special Defence is going to be offered by the accused.  I don't think

25    we have that on the record before, but we note that now.  Mr. Bezbradica.

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 1            MR. BEZBRADICA:  Yes.  I concur we don't have any special Defence

 2    at this stage.

 3            JUDGE THELIN:  Thank you.  Any light of the Prosecution's

 4    benevolent approach, i.e., understanding fully your problems, I think the

 5    best course of action would be for you to file as soon as you have the

 6    resources at hand and if you've done your research that you contemplate

 7    that you then file everything in this respect, rather than do it

 8    incrementally.  Is that clear enough, Mr. Bezbradica?

 9            MR. BEZBRADICA:  Yeah, it is, thank you.

10            JUDGE THELIN:  Thank you.

11            If we then turn to the two outstanding motions we have.  One is

12    obviously of importance.  Also the pre-trial brief to be filed first from

13    the Prosecution then obviously from the Defence side as well.  And I'm

14    referring to the Prosecution's motion for judicial notice of facts of

15    common knowledge and adjudicated facts and we have had a impressive number

16    of facts from the Prosecution.  We also, Mr. Bezbradica, obviously have

17    your response, and there seems to be a gap between the two, i.e., you, if

18    I have my calculations right, do not object to judicial notice taken of

19    some 86 adjudicated facts out of, I think, some 700 plus.

20            This is a point, I think, of importance and I understand this was

21    also raised and touched upon at some length during the 65 ter conference

22    yesterday.

23            The position the Chamber takes at this point is first one of

24    clarification, I think it's in need from the Prosecution side to clarify

25    the issue on those claimed adjudicated facts which are subject to appeal.

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 1    In order for the Chamber to, obviously depending on the response from the

 2    accused, to assess this fully, I think it is needed to have some clear

 3    linkage between various portions of the judgements under appeal, and the

 4    facts adjudicated in order for us to make a proper assessment.

 5            Do you care to comment on that now, Mr. Tieger?

 6            MR. TIEGER:  I would be pleased to, Your Honour.  As the Court

 7    indicated, that matter was raised yesterday at the 65 ter conference.  At

 8    that time I advised Mr. Cubbon that I understood paragraph 26 as

 9    specifying precisely the basis that he articulated during the conference,

10    that is that none of the adjudicated -- of the specified adjudicated facts

11    were the subject of challenge in any of the pending appeals, and,

12    therefore the appellate process would not affect those -- the adjudication

13    of those facts.

14            I indicated, however, that I would confirm that my reading of

15    paragraph 26 and my understanding was accurate, and I have done so.  Ms.

16    Richterova and I related that to our learned friends today, during a

17    conference, and they are now aware of the fact that all of the listed

18    facts adjudicated in the Brdjanin, Galic and Simic case are not the

19    subject of challenge in those appeals.

20            JUDGE THELIN:  Thank you.  Your comment to that, Mr. Bezbradica?

21            MR. BEZBRADICA:  Yes, Your Honour.

22            Yesterday already we gave our submission -- our position in

23    respect of this, this issue.  But at this stage, just a short comment I

24    put already my submission everything, and my position is supported by the

25    recent -- the Court decision like in the Prlic test or Krajisnik test and

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 1    under our opinion, these facts, which are subject on appeal can be

 2    considered by the Court as adjudicated facts.

 3            Thank you.

 4            JUDGE THELIN:  Thank you.  I also have the question, Mr. Tieger,

 5    of supporting documents when it relates to the two facts of common

 6    knowledge which you put forward.  I think, unless Mr. Bezbradica is happy

 7    to proceed on the basis that they're absent, I think it would be helpful

 8    if you could file those documents as well.

 9            MR. TIEGER:  Your Honour --

10            JUDGE THELIN:  Footnotes 13 to 15, I believe.

11            MR. TIEGER:  I completely agree, Your Honour.  In fact we provided

12    those documents to the Defence during the meeting I mentioned earlier and

13    we have those here with us today to provide to the Court and the Registry

14    as well.

15            JUDGE THELIN:  I take it by your body language, Mr. Bezbradica,

16    that you agree that that is a fact at the moment?

17            MR. BEZBRADICA:  Yes, Your Honour.  This afternoon Ms. Richterova

18    gave to me everything, and she pointed everything that is -- what she put

19    in the motion, in these materials.  Thank you.

20            MR. TIEGER:  Your Honour, may I, with the Court's indulgence,

21    focus a bit further, for two reasons on the ajudicated-fact issue.

22            Number 1, just for purposes of clarification, I see that the

23    record indicates that Mr. Bezbradica said in reference to the Prlic test

24    or the Krajisnik test that it's the Defence opinion that facts which are

25    subject -- that those facts which are subject on appeal can be considered

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 1    by the Court as adjudicated facts.

 2            I think the dispute, as it currently exists between the parties

 3    now is that there is no longer any question that the Prosecution attempted

 4    to identify facts from those three cases which are not in dispute.

 5            The Defence understands that but says, nevertheless, its position

 6    is that those facts should not be considered until the appellate process

 7    has been completed.  So I think that is the dispute that the Court will

 8    have to consider.

 9            I would only mention that it is my recollection of the Krajisnik

10    case -- and I haven't done the -- haven't looked since yesterday's

11    discussion at the particular facts at issue there -- that facts from

12    earlier cases which were not in dispute during the appellant process were

13    considered.

14            I would also say that we will also be bringing to the Defence's

15    attention other aspects of their motion which we consider misplaced, and

16    that would include the following:  There is an assertion that a number of

17    the adjudicated facts reflect legal conclusions, rather than factual

18    assertions.  Again, our review of those facts seems to indicate the

19    contrary.  I refer, for example, to facts simply identifying the

20    destruction of mosques or buildings.

21            There is an assertion that certain adjudicated facts do not

22    precisely reflect the language of the judgement itself.  Again, to the

23    extent we've checked that, that assertion appears to be contradicted by

24    the exact correspondence between the language in the listed adjudicated

25    facts and the language of the judgement itself.  But we will bring those

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 1    specific issues to the attention of the Defence and hopefully, since that

 2    appears to be the basis for rejection of those particular adjudicated

 3    facts, it will bridge the gap further.

 4            JUDGE THELIN:  Thank you, Mr. Tieger, for underscoring and

 5    clarifying these points.

 6            The way the Chamber sees this at the moment is two perspectives.

 7    One is obviously efforts should be made to try to come to an agreement on

 8    this whole area, i.e., both the facts of common knowledge which are in

 9    dispute as well as adjudicated facts, and try to transform them into

10    agreed facts in general.  As we now stand, I think we only have from the

11    indictment paragraph 25 which is, as far as Mr. Bezbradica is concerned,

12    is a fact that should be agreed.  And I think obviously we should, from

13    the party's side, try to reach an understanding to a large extent as

14    possible.

15            Obviously again, Mr. Bezbradica, in the interests of your client

16    who is now presently on provisional release, once the trial starts

17    obviously that will come to an end, if not before.  And that means that

18    every aspect of shortening this trial is something that is in the vital

19    interest of your client, and I think that should be an encouragement for

20    you to review your position on this.  And I know that you are, or I

21    understand that you are meeting with your client on Wednesday, and I would

22    encourage you to -- to him convey the understanding that this is an

23    important area which could considerably shorten the trial period.  And

24    hence, should be taken seriously, without compromising whatever legal

25    position you're taking now at the moment.

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 1            The second aspect of this is that once we have a clear, final --

 2    well, nothing is final here, but at least as final as you can get at this

 3    stage, position on this area of facts of common knowledge and adjudicated

 4    facts, the Chamber will obviously try to have its decision on the disputed

 5    area handed down in such a time that it would be possible for the parties

 6    to take that into consideration while drafting the pre-trial briefs,

 7    because I -- this is obviously linked to one another.

 8            With that, I think a time period should be set for the efforts of

 9    the parties to try to come to an agreement and I propose and encourage you

10    to file not only any clarification you deem to be necessary in response

11    to -- the Prosecution in response to what the Defence has filed, but also

12    report as to where you are on the discussions in this area, and that

13    should be done not later than the 6th of October, i.e., Friday of next

14    week.  That will give you time, Mr. Bezbradica, after consultations with

15    your client.  And the fact that you may not be here in The Hague, I don't

16    think should prevent you from addressing this and communicating with the

17    Prosecution and vice versa on this topic.

18            So any matter that you need to bring to the Chamber, including

19    report on how successful you have been in trying to come to an agreement

20    on this area, should be filed not later than 6th of October.

21            Any questions on this?  Mr. Bezbradica.

22            MR. BEZBRADICA:  Your Honour, just I would like to ask you for

23    some understanding and if you can give us a few days more, maybe 10th of

24    October, 11th of October, because it is true I'm flying to Belgrade

25    tomorrow, and I will be with my client a few days.  Also the rest of my

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 1    team is coming there on Saturday and we will have, again, like team

 2    meeting and we will discuss everything.  And I'm flying back to Australia

 3    on Monday.  I'll be there on Wednesday.  I will be really tired to fix

 4    everything.

 5            JUDGE THELIN:  I will give you the whole of Thursday.  The 12th of

 6    October.  I want to avoid the 13th which is a Friday for obvious reasons.

 7            MR. BEZBRADICA:  Thank you, Your Honour.

 8            JUDGE THELIN:  So the date is set for the 12th of October.

 9            MR. BEZBRADICA:  Thank you.

10            JUDGE THELIN:  And the extension then applies to the Prosecution

11    as well.

12            MR. TIEGER:  I understand.  If I could just make one observation

13    in connection with that, beginning with our appreciation for the Court's

14    efforts to make this process more concrete and the resolutions of disputes

15    finalised.

16            We did engage in a discussion, a fairly lengthy discussion with

17    our learned friends today, attempting to resolve any misunderstandings

18    about the facts identified as being potentially agreed upon.  The Court

19    may be aware that, for example, the Defence expressed some concern at the

20    65 ter conference that the Prosecution was seeking agreement on facts that

21    would essentially amount to a plea of guilt.  I think we straightened a

22    great deal of that out and also identified a process for moving forward.

23            I say that, not to undercut the Court's effort to move the issues

24    currently in dispute forward to resolution, a decision I commend, but also

25    to indicate my impression that this process can be an effective and

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 1    continuing one beyond the filing of the pre-trial brief and up to the

 2    onset of trial.  I think our continuing discussions will continue to

 3    identify issues that can be bridged so that the real issues in dispute can

 4    be identified and the trial cannot only be shortened when it happens, but

 5    that the time spent in trial can be devoted to the real issues, rather

 6    than to issues which, at the end, turned out not to have been disputed at

 7    all.

 8            JUDGE THELIN:  Thank you, Mr. Tieger.  As you said and I think I

 9    indicated, the matter will not be closed even if we try to bring it to a

10    speedy resolution before the filing of the pre-trial briefs, at least the

11    scope as it is now.

12            That, I think, deals with the one outstanding motion that we had.

13            The second one is a motion from you, Mr. Bezbradica, moving to

14    have your present assistant, Mr. Slobodan Cvijetic assigned as co-counsel.

15            Be aware that the Chamber is deliberating that and will hand out

16    its decision on this not before long.

17            With the outstanding motions now dealt with, I think it's proper,

18    then, to review the deadlines that we now have in the work plan regarding

19    the pre-trial briefs.  There was a motion which was supported by the

20    Defence from the Prosecution to vacate the order regarding the pre-trial

21    briefs.  It was denied last Monday.

22            Do the parties wish to move on this?  Are you happy with the times

23    as they are now?  I would think that if we now have a discussion which

24    could be fruitful on the adjudicated facts and related areas and report on

25    the 12th of October, I think it could be prudent and argued that maybe

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 1    that time should then be changed to a later date.

 2            Do you agree, Mr. Tieger?

 3            MR. TIEGER:  Thank you, Your Honour.  We do.

 4            JUDGE THELIN:  And what I propose is to change the present times

 5    in the work plan and have the 1st of December, instead of 1st of November

 6    as the filing date for the Prosecution pre-trial brief.  And in

 7    consequence, and taking maybe not due, but at least some notice of the

 8    fact that this is a holiday period, the time for the Defence will be the

 9    15th of January.

10            And as a consequence, the pre-trial conference which is now

11    scheduled for January, would then - and this has to be confirmed, later

12    determined -- it should now be reading February 2007.

13            I understand that the parties are aware that this trial is

14    presently scheduled to start not next year, but things could happen -- and

15    I encourage both parties not to work with an eye to a trial at that stage,

16    but a trial that could be had once all the preparatory work, i.e., the

17    filing of the necessary briefs and pre-trial conferences that -- which

18    could happen in 2007.  And that's the understanding, because if every

19    court -- sorry, every case was handled with an eye on bureaucratic

20    scheduling take primacy, all of a sudden there would be a lot of empty

21    courtrooms.  So I hope the parties are well aware whatever comes out of

22    the scheduling group which is dealing with it, with this, would take a

23    second seat to the ambition of having this case brought to trial and be

24    ready for trial as soon as possible.

25            Again, Mr. Bezbradica, I think you would appreciate and your

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 1    client would appreciate that that is the process we should take. Any


 3            MR. BEZBRADICA:  No, Your Honour.  Thank you.

 4            JUDGE THELIN:  Mr. Tieger, are you happy with this as well?

 5            MR. TIEGER:  Yes, Your Honour.  Thank you.

 6            JUDGE THELIN:  Thank you.

 7            I'm trying to see here whether we have any other issue.  Obviously

 8    we note that the disclosure seems to be of no concern.  The Prosecution

 9    has filed 66 A(i) and (ii) disclosures timely and the Rule 61 (i) material

10    and the electronic disclosure system is undergoing.  So no, no comment I

11    take it on that.  That is satisfactory?  I see nods from the Defence and

12    from the Prosecution.

13            MR. TIEGER:  Yes.  Your Honour, I have no comment about that.

14    It's consistent with my understanding as well.  The only remaining comment

15    I would have about outstanding issues -- and it's not an outstanding issue

16    per se, although the subject has been broached at various times I noted it

17    in my review of the materials -- and that is the efforts -- the efforts on

18    behalf of both parties to identify the actual issues in dispute and,

19    insofar as possible, focus and refine the case will be ongoing in the

20    manner already described, and in a way alluded to during the 65 ter

21    conference.

22            And by that, I refer to a review of both the current indictment, a

23    review of the upcoming judgement in the Krajisnik case, to the extent it

24    may be of assistance, to either party, in focusing and refining the case,

25    to both in terms of the crime-base and any other aspects that may be

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 1    useful.

 2            So I'm anticipating the possibility of additional steps along

 3    those lines and, indeed, I noted also that the Court, in its initial

 4    written order on the motion to vacate, made reference to that as well.  So

 5    we will be looking at those factors and maybe bringing suggestions to the

 6    attention of our learned friends and the Court.

 7            JUDGE THELIN:  Thank you, Mr. Tieger.  I am encouraged by this and

 8    obviously tomorrow we will know more about the Krajisnik judgement.  Let

 9    me say that any direction that the indictment should take in this respect

10    is an amendment to cut it down and cut it down to wherever is acceptable

11    to the needs that the Prosecution seeks to preserve.

12            But from the Bench at this moment, it seems that this area and

13    these crime basis have been covered by a number of judgements and the

14    upcoming judgement tomorrow will only add to that.  And I think that will,

15    as I underscored before, Mr. Bezbradica, encourage you and your client to

16    take a serious look at possibilities of getting to the heart of your case.

17    I can understand and no one is asking you at this stage to change your

18    plea.  Far from it.  But obviously there are differences in approach which

19    you can take in responding to the indictment, and I think your client's

20    interest would be served, as would the Prosecution's willingness to review

21    the aspects and try to amend it in a way which will serve the interests of

22    justice.

23            With that, I don't see any other issue, unless the parties needs

24    to raise anything further?  No from the Prosecution?

25            MR. TIEGER:  That's correct, Your Honour.  Nothing from the

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 1    Prosecution.

 2            JUDGE THELIN:  And from Mr. Bezbradica?

 3            MR. BEZBRADICA:  No, Your Honour.  Thank you.

 4            JUDGE THELIN:  Thank you.  It means that we are looking forward

 5    then to the dates which we have laid down and the filings accordingly.

 6    And we will, if nothing either calls for it, have the next Status

 7    Conference within the regular period.  With that, we now stand adjourned.

 8                          --- Whereupon the Status Conference adjourned at

 9                          4.30 p.m.