070215SC

Page 103

1 Thursday, 15 February 2007

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.01 p.m.

6 JUDGE THELIN: Good afternoon. Could we have the case called,

7 please.

8 THE REGISTRAR: Good afternoon, Your Honour. This is case number

9 IT-98-32/1-PT, the Prosecutor versus Milan Lukic and Sredoje Lukic.

10 JUDGE THELIN: Thank you, Madam Registrar. Before we proceed,

11 could I have an indication that both the accused can understand what is

12 being said. It is enough if you give me, both of you, a nod, to

13 acknowledge that you are receiving what I am saying in a language that you

14 can understand. Thumbs up from you. And a nod from you. I'm satisfied.

15 Thank you.

16 Could we then have the representation. Prosecution.

17 MR. HARMON: Mark Harmon on behalf of the Office of the

18 Prosecutor. Appearing with me, Carmela Javier, who is the case manager.

19 JUDGE THELIN: Thank you. And for the accused.

20 MR. YATVIN: Good afternoon, Your Honour. Alan Yatvin, of

21 Philadelphia, representing Milan Lukic, and with me is co-counsel Jelena

22 Lopicic-Jancic.

23 MR. CEPIC: Good afternoon, Your Honour. I am Djuro Cepic,

24 Defence counsel for Mr. Sredoje Lukic on my left-hand side. With me, Jens

25 Dieckmann is a co-counsel and Defence team.

Page 104

1 JUDGE THELIN: As you know, this is the first Status Conference

2 that I am, as Pre-trial Judge, chairing. This case has obviously been

3 characterised by the fact that we have a parallel proceeding going on in

4 the shape and form of an 11 bis referral. And it is -- I would like to

5 say that up front that it is a bit unfortunate that this happens in

6 circumstances where the Referral Bench is handing down its decision

7 without too much delay, problems should not normally occur. I am not

8 saying this in order to indicate that I am criticising another arm, as it

9 were, of the Tribunal, but I merely note that the 11 bis proceedings have

10 been ongoing since February last year. There was a meeting on the 15th of

11 September, also last year, where the parties put forward their arguments,

12 and now the Referral Bench have been considering the issue and no decision

13 has been announced as of yet.

14 Again, I'm not privy, obviously, to what the other Chamber is

15 doing. Now, as a decision by me, a day before the oral arguments in the

16 Referral Bench issue, or the 11 bis issue, was called, and that was in

17 order to obviously in anticipation of a swift decision by the Referral

18 Bench to suspend normal pre-trial proceedings. And I am certain that

19 counsel is aware of that decision. The more so, since this was challenged

20 by I think Mr. Yatvin. No, sorry, I'm wrong, it's Mr. Sredoje Lukic who

21 challenged the decision, and certification was denied.

22 That's where we are at this moment. I understood from the report

23 which the senior legal officer gave me late yesterday about what

24 transpired at the 65 ter conference that both accused now would like to

25 see the order of suspension lifted and that has to do with the fact that

Page 105

1 both counsel expressed concern of the fact that they are not able to what

2 they see as a job in the lack of discovery from the Prosecution.

3 The Prosecution on its hand, and I'm saying this in order to

4 facilitate the discussions, so I'm summarising where I think we are, and

5 then I will allow you to comment on it. The Prosecution quotes,

6 obviously, the need to not do what could be perceived to be unnecessary

7 work, i.e., were it to transpire that the case is referred, any work in a

8 pre-trial trial phase could be seen to be redundant. And obviously there

9 is merit to that position, given the fact that, were it not for the fact

10 that we have this parallel procedure, we would now a long time ago would

11 have had a work plan and proceeded to implement that plan, starting

12 obviously with the disclosure, which the Rules 66 and 65 dictate. And we

13 would probably have times for marking down when pre-trial briefs from both

14 sides should be submitted, and so on.

15 Would it, I Pat here just to give the parties an indication.

16 Would that be a fair assessment of what we are at this point? I give the

17 floor first to the Prosecution. Mr. Harmon.

18 MR. HARMON: Yes, we're quite satisfied with that summary,

19 Your Honour, thank you.

20 JUDGE THELIN: Thank you. Mr. Yatvin -- is that how to proceed,

21 protocol-wise? Mr. Yatvin first.

22 MR. YATVIN: Yes, Your Honour, quite succinctly put, that is

23 correct.

24 JUDGE THELIN: Thank you.

25 Mr. Cepic.

Page 106

1 MR. CEPIC: Thank you, Your Honour. I also can say that is

2 correct. Thank you.

3 JUDGE THELIN: Thank you. Well, when I then understood that

4 yesterday the issue of disclosure was raised again, I thought it proper,

5 in order to save everybody's time, to proceed -- to see whether indeed

6 things have changed since the 14th of September. From my perspective, at

7 this point, time has obviously been a factor. It's five months now since

8 the order to suspend the pre-trial proceeding. In order to assess whether

9 time in itself is enough to change that, and to see when -- whether there

10 could from now and in the foreseeable future be any indications from the

11 Referral Bench when they're ready to hand down the decision. I have

12 ordered, as you have seen, this morning that counsel for the two accused

13 are to submit in writing the reasons for the motion to reconsider the

14 suspension of the pre-trial proceedings. You have seven days in which to

15 do that.

16 Likewise, the Prosecution has seven days within which to respond

17 to this.

18 Any questions in relation to this order? Mr. Harmon?

19 MR. HARMON: No, there are none, Your Honour. Thank you.

20 MR. YATVIN: Not a question, but as a technical matter, I should

21 advise the Court that the motion was filed by Mr. Cepic, and because of

22 the timing of the order I did not join at that point. I have discussed

23 with Mr. Harmon rather than filing a completely separate motion, I would

24 just join the original motion. And I will do that in writing and then we

25 will probably file a joint motion on the reasons to keep this as

Page 107

1 consolidated as possible.

2 JUDGE THELIN: Thank you, Mr. Yatvin.

3 Mr. Cepic.

4 MR. CEPIC: No questions about this issue, Your Honour.

5 JUDGE THELIN: Thank you. I'm glad that you, Mr. Yatvin,

6 clarified the technicalities surrounding this. We are always very much

7 helped to have a joint motion from both of the accused. And I think from

8 that perspective there is no reason, as far as I can see, to dwell on any

9 other points that would follow from a pre-trial discussion.

10 Maybe the smoke has lifted as far as was happening, as I have

11 indicated in the Referral Bench, once we have the submissions on this

12 particular issue, whether the order of 14 September, 2006 should be

13 reconsidered; that is 14 days from now.

14 With that, I ask whether the parties have anything else to raise

15 during this Status Conference.

16 Mr. Harmon.

17 MR. HARMON: Your Honour, not on behalf of the Prosecution. Thank

18 you.

19 JUDGE THELIN: Thank you very much.

20 On behalf of the accused. Mr. Yatvin.

21 MR. YATVIN: Your Honour, I believe that the issue of disclosure

22 and the issues that flow from it are really our principal reason for

23 having requested a Status Conference in the first place. Thank you.

24 JUDGE THELIN: Thank you very much. Mr. Cepic.

25 MR. CEPIC: No, Your Honour. Thank you.

Page 108

1 JUDGE THELIN: I will also formally inquire as to whether the

2 accused have any issues they would like to raise, since this is an

3 opportunity for them, with or without the help of counsel. A shaking of a

4 head would be fine. Two shakes of a head. Thank you very much.

5 With that, I think that we have come to a close and I declare this

6 conference adjourned. Thank you.

7 --- Whereupon the hearing adjourned at 3.11 p.m.