Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Wednesday, 9 January 2008

 2                          [Open session]

 3                          [Status Conference]

 4                          --- Upon commencing at 3.04 p.m.

 5            JUDGE THELIN:  Good afternoon, and happy new year to everyone,

 6    regardless of where they are in the calender.  I realise, Mr. Bezbradica,

 7    that you still have some time to go before you reach new year, according

 8    to your calender.  But nevertheless, happy new year.

 9            Could we have the case called, please.

10            THE REGISTRAR:  Yes, Your Honour.

11            Good afternoon, Your Honour.  Good afternoon everyone in and

12    around the courtroom.  This is case number IT-04-79-PT, the Prosecutor

13    versus Mico Stanisic.  Thank you, Your Honour.

14            JUDGE THELIN:  Thank you.  And the representation.  Prosecution.

15            MS. RICHTEROVA:  Good afternoon, Your Honour.  Anna Richterova and

16    Karen Beausey for the Prosecution, together with Willem Wijermars, our

17    case manager.

18            JUDGE THELIN:  Thank you.  And for the Defence.

19            MR. BEZBRADICA:  Good afternoon, Your Honour.  Stevo Bezbradica,

20    counsel for the accused, Mico Stanisic, and our legal consultant,

21    Mr. Slobodan Cvijetic.  Thank you.

22            JUDGE THELIN:  Thank you.

23            I think it's fair to say that the case has now reached a state

24    where we could look with some confidence into the trial phase, and I would

25    like to start out by disclosing what I know as to the matters at hand when

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 1    it come to scheduling.

 2            I think within a time period which is not going to be specified,

 3    but could happen this or possibly beginning of next month, this case will

 4    be transferred to a Trial Chamber, and that means that this case, if we

 5    look at scheduling, would probably be scheduled to commence somewhere

 6    between Easter and before the summer recess.  It's difficult to pinpoint a

 7    time.  As parties are aware and I have said so on previous occasions, the

 8    matter of scheduling is in the hand of overriding interests, and cases

 9    could change when they are slotted for and docketed but I think it's safe

10    to say now that this case has now matured to such a state that it is

11    pretty much on the top of the list.

12            I know, Mr. Bezbradica, that you have requested a three-month

13    notice and you consider yourself to be put on notice by this, which we

14    have now imparted in the courtroom.

15            With those introductory remarks, I would like to make sure that we

16    have the same understanding as to issues that are outstanding.

17            And let me say, these outstanding issues, which are motions

18    pending, some of them will probably be taken in by the new Trial Chamber

19    and others will be taken in the composition which we have at the moment.

20    And as I said, I am not ready to - no one is - to say when this transfer

21    will be effected.

22            The motions that I have on my list, and that is the same list that

23    was discussed with the senior legal officer yesterday at the 65 ter

24    conference, is a motion for protective measures from the Prosecution,

25    filed confidentially on the 28th of February, 2007.  And we have an old

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 1    motion from the Defence regarding Prosecution's noncompliance with Rule 65

 2    ter (E) and a corrigendum on both of those are from the 16th of March and

 3    8th of May respectively.  And then we have a motion from the Prosecution

 4    for leave to amend the revised amended indictment which was filed on the

 5    9th of May, last year.

 6            We have two Defence motions dealing with the question of the

 7    rescinding or varying the delayed disclosures in two cases, one in the

 8    Brdjanin case and one in the Krajisnik case.  And finally on the back of

 9    the decision which was issued by the Chamber on the 14th of December last

10    year on adjudicated facts, there is a request by the Defence for

11    certification to appeal that decision, a request which the Prosecution

12    responded to on the 7th of January this year.

13            Those are my record, the outstanding motions that we have to deal

14    with.  Does that meet with the parties' understanding as well?

15    Ms. Richterova?

16            MS. RICHTEROVA:  Yes, that's correct, we are not aware of any

17    other outstanding motions.

18            JUDGE THELIN:  Thank you.  Mr. Bezbradica?

19            MR. BEZBRADICA:  Yes, Your Honour, everything is correct.  Thank

20    you.

21            JUDGE THELIN:  Thank you.

22            If we then leave that for a moment aside and look ahead, there is,

23    since now the work plan has for all practical purposes been complied with

24    and followed, I would like to put a matter for consideration primarily by

25    the Prosecution to add to this, and that is the question of when 92 bis,

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 1    ter, quater and also the expert report on the 94 bis should be filed, and

 2    I understand the matter was discussed yesterday.  And is it possible to

 3    have an indication, Mrs. Richterova, when you would be prepared, from the

 4    Prosecution side, to have these filings in?

 5            MS. RICHTEROVA:  As we discussed yesterday, we would be ready to

 6    file it by the end of February.  Of course, we are fully in your hands.

 7    We are talking about motions pursuant to Rule 92 bis, 92 ter and 94.  The

 8    reason why we are asking for this time is that based on the Trial

 9    Chamber's decision regarding the adjudicated facts, we now have to review

10    all our witness statements.  Also, as we discussed yesterday, this

11    decision will have impact, significant in fact, on presentation of our

12    case regarding eight municipalities, and because we would really like to

13    streamline the case, our intention is to present evidence, as far as

14    possible, as much as possible, in the written form, and therefore we have

15    to re-evaluate all of our witnesses and also re-evaluate our 65 ter list

16    of witnesses.

17            So this is the reason why we are asking for the end of February.

18            JUDGE THELIN:  Thank you.

19            May I clarify so I understand this.  I understand, obviously, the

20    importance and the impact of the 14th of December decision, but am I right

21    in assuming that you, regardless of this, also are assessing your witness

22    list?

23            MS. RICHTEROVA:  Of course.  Of course, we are, and we have been

24    working on assessment of our witnesses, and not only witnesses, of course,

25    we are reviewing again the number of our exhibits.  And as we mentioned

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 1    yesterday, we intend to seek leave to amend both our 65 ter list of

 2    witnesses and list of exhibits.

 3            JUDGE THELIN:  Thank you, Mrs. Richterova.

 4            Well, I fully understand the work that you are addressing and the

 5    need for you to have sufficient time to do that, and I'm not opposed to

 6    the suggestion of giving you a time limit until the end of February this

 7    year, meaning that the 29th of February, 2008, is a time by which you

 8    should file 92 bis, 92 ter and 94 bis reports and statements.

 9            I understand from it that 92 quater is not on your mind at the

10    moment, but should you change your mind, that would be the time also for

11    that type of statement to be filed.

12            MS. RICHTEROVA:  Thank you, Your Honour.

13            And, in fact, I omitted 92 quater.  Yes, we will file also a

14    motion regarding Rule 92 quater.

15            JUDGE THELIN:  Thank you.

16            So with that decision, the work plan has now been amended

17    accordingly.

18            I also understand that when it comes to matters of disclosure,

19    parties, at earlier status conferences, had discussions on this, but this

20    seems to now be progressing with the meeting of minds of the parties, and

21    of course the Prosecution has the ongoing obligation to disclose under

22    Rule 68.

23            Do you have anything to comment on disclosure, Mr. Bezbradica?

24            MR. BEZBRADICA:  No, I don't have, Your Honour, only I can confirm

25    that regarding disclosure, at the moment everything is in order.  Thank

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 1    you.

 2            JUDGE THELIN:  Thank you.

 3            Well, with the noting of outstanding motions, the addition to set

 4    a new timetable regarding 92 bis and related statements and 94 bis, I do

 5    not have any other matters that I would like to raise with the parties,

 6    apart from the following:

 7            I'm aware that the issue of the decision of the 14th of December,

 8    in the sense that that is not final, i.e., the Chamber is now considering

 9    the motion from the Defence and the response from the Prosecution on the

10    question of certification of appeal, and that is obviously an uncertainty

11    that we will seek to have clarified as soon as is practically possible,

12    but given that uncertainty, I would certainly not at this point discourage

13    the parties to seek to engage in further discussions on the matters of

14    agreed facts and related matters.

15            I understood from the conference yesterday that there were

16    discussions ongoing on the matters of agreed facts, some related to the

17    decision and some unrelated to it, and maybe I think it's proper also to

18    have that discussion on the record, so I turn to you first,

19    Mrs. Richterova, whether you would like to impart something on that.

20            MS. RICHTEROVA:  There have been ongoing discussion regarding

21    agreed facts, unfortunately not very successful.  Your Honour will

22    remember that during our last status conference, we discussed the

23    Prosecution proposal of approximately 60 agreed facts.  The Defence

24    counsel replied that his client object to all but 26 and that they would

25    provide us with explanation why the other facts are not suitable as agreed

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 1    facts, and at the same time they also offered that they would try to

 2    re-formulate or suggest some changes.  Unfortunately, it hasn't happened.

 3            What we have done is, based on the Trial Chamber's decision and at

 4    least based on these 26 agreed facts, we put together a list of facts to

 5    which both parties at various stages agreed, and it was the only purpose,

 6    the only rationale behind this list, so that we have one consolidated list

 7    of agreed facts which are comprised of adjudicated facts proposed by the

 8    Prosecution and agreed facts proposed -- adjudicated facts proposed by the

 9    Defence, and really agreed facts between parties.

10            We sent a letter to Mr. Bezbradica to review this list, and the

11    purpose was for him to review to check whether there are any typos, any

12    errors, and unfortunately we haven't heard anything from the Defence

13    counsel until now.

14            JUDGE THELIN:  Thank you, Mrs. Richterova.

15            And what do you have to say to this, Mr. Bezbradica?

16            MR. BEZBRADICA:  Your Honour, the situation is a little bit

17    different than the Prosecution now -- in her allegation.

18            We give our response to the Prosecution the 29th of November,

19    2007.  I am instructed that way, and we are not going more further in much

20    more details.  And I don't know -- also, in that letter we already

21    explained our proposal in some -- to the proposed facts, and I don't know

22    what we can do more than we've done in such way.

23            In regarding of submitted letters of Monday of this week, I

24    received that letter -- I find that letter, as I said yesterday, on Monday

25    afternoon.  I was flying from Belgrade to The Hague.  It wasn't possible

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 1    to check everything.

 2            The Prosecution asked us to provide them with our final position

 3    regarding that letter.  I'm not going to tell the Prosecution that we are

 4    not going to agree.  There is already agreed -- we have agreed facts and

 5    adjudicated facts and everything is clear, but there is -- the letter does

 6    not include the same issue.  The story is a little bit different, because

 7    they put some facts which are not considered as agreed facts.  And because

 8    of that, already mailed that letter to my client, and at this stage I'm

 9    waiting for his instruction.  I can't give final approval until -- until I

10    have with him further discussion about that.  And I will provide them with

11    our response shortly.  There is no doubt about that.

12            Thank you.

13            JUDGE THELIN:  Thank you, Mr. Bezbradica.

14            Well, there may be some misunderstanding as to the nature of

15    different types of facts, as can be seen from the decision handed down on

16    the 14th of December.  The Chamber considered that facts moved by the

17    Prosecution or, for that matter, from the other side, as adjudicated facts

18    and not opposed, as can be seen and noted down as agreed facts, and then

19    of course we would have a set of other facts which are unrelated to the

20    motions and the decision on the 14th of December, and I think it's

21    obviously helpful if there at least could be a common understanding

22    between the Defence and the Prosecution what you are talking about, and

23    from the Chamber's side we can obviously only encourage the parties to

24    come to and maximize the understanding.

25            I fully -- Mr. Bezbradica, I realise that you are bound to follow

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 1    instructions from your client.  That is your duty as a Defence counsel.

 2    But you also have a duty to offer your professional assessment of the case

 3    and give him a sound basis for his instructions to you.  I mean, the

 4    relationship between a principal and adviser is not a one-sided one, and

 5    I'm certainly not, Mr. Bezbradica, going to tell you how to perform your

 6    job, but I think it's important to remind ourselves that the Defence

 7    counsel is best serving his principal by offering him his assessment.  He

 8    may not like it, but that is the duty of a Defence counsel to do so,

 9    because the duty of the Defence counsel is to see to the interests of the

10    accused and not, for instance, to some other interests unrelated to the

11    matter.

12            And that brings me to a question which has been lingering for this

13    case from time to time, namely, that the parties should be encouraged not

14    only to discuss matters of agreed facts and related matters but also to

15    see whether the discussion could be broadened and maybe entail a change of

16    position totally and change of plea on the case of the accused.  And I

17    understand that this summer there were some discussions, and I understand

18    that there also was a meeting between the Prosecution and the accused.

19            Am I correct on this, Mrs. Richterova?

20            MS. RICHTEROVA:  Yes, Your Honour, and of course there was -- in

21    September we also sent another letter to Mr. Bezbradica and his client,

22    and of course the position is that there won't be any plea.

23            JUDGE THELIN:  Thank you.

24            Mr. Bezbradica, is that the understanding that you have as well?

25    Mr. Bezbradica?

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 1            MR. BEZBRADICA:  Your Honour, the situation is a little bit

 2    different.  It's correct that we have discussion in June/July last year

 3    and we put something in writing for the Prosecution, but I can't go

 4    further without my client.  It's not really -- it is a big issue.  And

 5    they never respond to our letter.  We put something there, but I never

 6    received their respond.

 7            Thank you.

 8            JUDGE THELIN:  Well, again, this may be a matter of misplaced

 9    communication or misunderstandings, but I will at this point only

10    encourage, obviously, both sides, but especially you, Mr. Bezbradica,

11    to -- even if it is a big issue, I'm certainly aware of that, but as

12    things develop and the case matures, a Defence would be in a better

13    position to assess whatever proposition is put to them from the

14    Prosecution. I'm not encouraging you to give up any of your right or

15    change your position as far as your present interests of the accused

16    dictate, but I certainly would encourage you to approach the matter with

17    maybe more vigour than so far has been the case.  And again I'm not privy

18    and I don't want to be privy with discussions which you have with your

19    client, but I reinforce that the duty of a Defence counsel is one of also

20    putting the matters to the accused in such a way that he is available to

21    make an informed decision.  And I'm certain, Mr. Bezbradica, that you have

22    done so.  I just want to have this said in order to avoid any

23    misunderstanding on it, and I'm certain that at this stage nothing is too

24    late.  If there is a dialogue on the questions of agreed facts that could

25    be broadened into other issues, I'm certain it's never too late for the

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 1    parties to have a new position on old issues, as it were.

 2            So this is -- I bring this up because -- to take away the

 3    perception that just because a case has reached a state where it has

 4    matured to be taken to trial, these discussions which have been ongoing

 5    should not cease.  On the contrary, I think it would be opportune to try

 6    to reinforce that, and I'm certain, Mr. Bezbradica, that you will convey

 7    to your client the position now as stated.

 8            I had not thought to raise any other matter, and just before we

 9    adjourn I'd like to hear whether the parties do have anything else that

10    they would like to raise at this status conference.

11            Mrs. Richterova?

12            MS. RICHTEROVA:  No, thank you, Your Honour, we have no other

13    matters to raise.

14            JUDGE THELIN:  Mr. Bezbradica.

15            MR. BEZBRADICA:  No, Your Honour, we don't have anything.  Thank

16    you.

17            JUDGE THELIN:  Thank you.

18            Well, with that, we now stand adjourned.

19                          --- Whereupon the Status Conference adjourned at

20                          3.26 p.m.