1 Friday, 25 September 2009
2 [Status Conference]
3 [The accused entered court]
4 --- Upon commencing at 2.24 p.m.
5 JUDGE LIU: Good afternoon, ladies and gentlemen.
6 Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good afternoon, Your Honour.
8 Good afternoon, everyone in and around the courtroom.
9 This is case number IT-05-87-A, the Prosecutor versus
10 Sainovic et al.
11 JUDGE LIU: Thank you very much.
12 Could I now please have the appearances of the parties.
13 For the Prosecution.
14 MR. KREMER: Yes, Your Honour, Peter Kremer and Laurel Baig
15 appearing for the Prosecution; assisted by our case manager,
16 Lourdes Galicia
17 JUDGE LIU: Thank you very much.
18 And for the Defence.
19 MR. PETROVIC: Good afternoon, Your Honour. My name is
20 Vladimir Petrovic. I'm a lawyer, and I'm Defence counsel for
21 Nikola Sainovic.
22 MR. VISNJIC: Your Honour, Tomislav Visnjic and Peter Robinson on
23 behalf of General Dragoljub Ojdanic.
24 MR. ALEKSIC: [Interpretation] Good afternoon, Your Honour. I am
25 Aleksandar Aleksic, co-counsel for General Pavkovic. And we have
1 Cathy MacDaid, our legal assistant, in the courtroom with us. Thank you.
2 MR. BAKRAC: Good afternoon, Your Honour. Counsel Mihajlo Bakrac
3 and Djuro Cepic for General Lazarevic.
4 MR. LUKIC: [Interpretation] Branko Lukic and Dan Ivetic for
5 Mr. Lukic.
6 JUDGE LIU: Thank you.
7 Before I commence, I would like to know whether all the
8 appellants can follow the proceedings in a language they could
10 So, Mr. Sainovic, can you follow the proceedings in a language
11 that you can understand?
12 THE ACCUSED SAINOVIC: [Interpretation] Yes, Your Honour.
13 JUDGE LIU: Thank you very much.
14 Mr. Ojdanic?
15 THE ACCUSED OJDANIC: [Interpretation] Yes.
16 JUDGE LIU: Mr. Pavkovic?
17 THE ACCUSED PAVKOVIC: [Interpretation] Yes, Your Honour.
18 JUDGE LIU: Thank you very much.
19 Mr. Lazarevic?
20 THE ACCUSED LAZAREVIC: [Interpretation] Yes.
21 JUDGE LIU: Mr. Lukic?
22 THE ACCUSED LUKIC: [Interpretation] Yes, Your Honour.
23 JUDGE LIU: Thank you. Thank you very much.
24 This status conference is called in accordance with Rule 65 bis
25 of the Rules of Procedure and Evidence.
1 Rule 65 bis (B) requires a status conference to be convened
2 within 120 days after the filing of a notice of appeal, and thereafter
3 within 120 days after the last status conference to allow any person in
4 custody pending appeal the opportunity to raise issues in relation
5 thereto, including the mental and the physical condition of that person.
6 In the present case, the notice of appeal was filed on the
7 27th May 2009
8 scheduled a day after the expiration of the 120-day period. Today's
9 status conference was scheduled by an order issued on the 11th of
10 September, 2009.
11 First, I would like to inquire into the status of the detention
12 conditions and the health situation of all the appellants. If you have
13 any concerns in relation to the detention conditions or your state of
14 health, I would invite you to raise them now. If you wish, this
15 discussion can take place in private session.
16 Yes, Mr. Aleksic.
17 MR. ALEKSIC: [Interpretation] Your Honour, my client,
18 General Pavkovic, would like to address the Court and tell you of his
19 health conditions, so I agree that we move into private session for that.
20 Thank you.
21 MR. BAKRAC: [Interpretation] Your Honour --
22 JUDGE LIU: Yes.
23 MR. BAKRAC: [Interpretation] Your Honour, with your permission,
24 General Lazarevic, my client, would also like to address the Court with
25 respect to his state of health, so we can use the private session for him
1 to do that too.
2 JUDGE LIU: Well, let me make sure, you know, about your
3 requests. You want a private session rather than an ex parte hearing?
4 MR. ALEKSIC: [Interpretation] Yes, yes, a private session, yes.
5 JUDGE LIU: Mr. Bakrac?
6 MR. BAKRAC: [Interpretation] Private session, too, yes.
7 JUDGE LIU: Thank you.
8 Now we'll go to the private session, please.
9 [Private session]
11 Pages 5-12 redacted. Private session.
25 [Open session]
1 THE REGISTRAR: Your Honour, we are back in open session.
2 JUDGE LIU: Thank you.
3 Before reaching into any issues that parties may wish to raise, I
4 would like to recount briefly the recent procedural history of this case.
5 In compliance with my decision of 23rd March 2009, all parties to
6 this case filed their notice of appeal on the 27th May 2009.
7 On 29th July 2009, counsel for Mr. Ojdanic filed a motion to
8 amend the seventh ground of his notice of appeal. The motion was granted
9 on the 2nd September 2009.
10 Two motions have been filed to amend Mr. Pavkovic's notice of
11 appeal. With respect to his first motion filed on 28th August 2009, the
12 Appeals Chamber found that Mr. Pavkovic demonstrated good cause for the
13 proposed amendments and duly granted the motion on the 9th September
15 A further motion to adopt and join the seventh ground of
16 Mr. Ojdanic's notice of appeal filed on the 15th of November, 2009, was
17 granted on the 22nd September 2009. In this regard, the Appeals Chamber
18 ordered Pavkovic to: First, file his appellant brief no later than
19 23rd September 2009, in compliance with my previous decision on extension
20 of time and word limits; secondly, file a newly-amended notice of appeal
21 no later than the 30th of September, 2009; and, thirdly, in full
22 compliance with the word limit imposed by the decision on the extension
23 of the word limit, amended appellant brief by the same date, clearly
24 identifying the changes which must be limited solely to the incorporation
25 of new ground of appeal.
1 On 10th August 2009
2 confidentially. A public version of the Prosecution's appeal brief was
3 filed on 21st August 2009
4 appeal brief on the 24th August 2009.
5 Pursuant to the decision of the 29th June 2009 and the 7th August
6 2009, counsels for Mr. Sainovic, Mr. Ojdanic, Mr. Pavkovic,
7 Mr. Lazarevic, and Mr. Lukic filed their respective appeals brief on the
8 23rd September 2009
9 filings in terms of their compliance with the said decision and
10 applicable provisions of the Rules and the Practice Directions. All
11 outstanding matters will be dealt with in due course.
12 That said, I would observe that on the 23rd September 2009
13 same day the appeals brief were due to be filed, counsel for
14 Mr. Lazarevic requested to file an appeal brief in excess of the word
15 limit imposed by the decision of the 8th of September, 2009. It is to
16 this request that I now turn to determine in my capacity as pre-appeal
18 In his request to exceed the word limit for the appeal brief,
19 counsel for Mr. Lazarevic requested a further extension of the word limit
20 of an additional 3.900 words. The Prosecution filed its response on the
21 same day opposing the motion. Lazarevic filed his reply on 24th
22 September 2009, seeking leave to reply to the response.
23 I recall, as a preliminary matter, that on appeal the moving
24 party is not required to seek leave to file a reply pursuant to the
25 Practice Direction on Procedures for the filing of the written
1 submissions in appeals proceedings before the International Tribunal,
2 dated 16th of September, 2005.
3 On the 8th September 2009, I granted, in part, the Defence motion
4 for the extension of the word limit and ordered Lazarevic to file an
5 appellant brief of no more than 45.000 words. As you'll hear, I have to
6 refer to this as the decision of the 8th of September, 2009.
7 Mr. Lazarevic submits that this case involves a judgement of
8 unprecedented events and a voluminous trial record, and raises issues of
9 significant complexity. Lazarevic further submits that full quality and
10 effectiveness of Lazarevic's appeal brief will not be accomplished if the
11 Defence were to have to omit some parts of the appeal brief as it is
12 constructed at present, and that granting leave to exceed the word limit
13 by an additional 3.900 words is in the interests of justice and would not
14 prejudice the Prosecution in any way.
15 In response, the Prosecution submits that Lazarevic has failed to
16 show that the reconsideration of the word limit imposed by the decision
17 of the 8th September 2009 is warranted because it simply reiterates the
18 general assertions already made in his first motion, and that he has not
19 shown any clear error of reasoning in such decision.
20 In his reply, Lazarevic claims that he had to reduce his
21 appellant's brief considerably in order to comply with the decision of
22 the 8th September 2009
23 product of his team's best efforts in this regard. Lazarevic also
24 insists that the sought extension is rather minor in relation to the
25 complexity of the case and the need to have a meaningful appellant brief.
1 Considering that Lazarevic's request of a further extension of
2 the word limit effectively amounts to a request for reconsideration, I
3 recall that a Chamber or a pre-appeal Judge has the inherent discretion
4 and power to reconsider a previous decision in exceptional cases if the
5 requesting party has demonstrated a clear error of reasoning or that the
6 reconsideration is warranted to prevent an injustice.
7 The decision of the 8th September 2009 granted to Lazarevic is a
8 considerable extension of the word limit as compared to the word limit
9 provided in the relevant Practice Direction. Furthermore, from the
10 moment when the Defence team had started working on Mr. Lazarevic's
11 brief, they should have aimed to draft a more concise brief, since they
12 had no reason to expect that an extension of words would be granted to
13 them. I consider that, in his motion, Lazarevic has merely reiterated
14 the arguments and the general assertions contained in his first motion,
15 and I find, therefore, that Lazarevic has failed to identify the
16 existence of a clear error in the reasoning or the existence of
17 particular circumstances justifying reconsideration in order to prevent
18 an injustice.
19 For the foregoing reasons, I dismiss Lazarevic's motion and order
20 Lazarevic to re-file his appellant brief, consisting of no more than
21 45.000 words, no later than 2nd October 2009
22 appeal brief, in its current form, was filed on time, this decision does
23 not affect the dead-line set for the Prosecution's respective brief in
25 I further note that appellant's brief filed by the counsel for
1 Mr. Lukic also exceeds the word limit. A request to exceed the word
2 limit was included in his appeal brief which was filed on the
3 22nd September 2009
4 request, Lukic submits that although his Defence team have endeavoured to
5 comply with the word limit, they have been unable to reduce the word
6 limit in order to fulfill their professional duties to set out his
7 grounds of appeal.
8 I'm further seized of the Prosecution's motion for an order to
9 Lukic to file a brief in accordance with the Appeals Chamber's decision
10 which was filed today, 25th September 2009. The Prosecution submits that
11 Lukic has violated two Appeals Chamber's orders by filing an appellant
12 brief of 65.956 words, and requests that the Appeals Chamber order Lukic
13 comply with these orders and file a brief of no more than 40.000 words.
14 The Prosecution emphasizes that Lukic has already been granted an
15 extension of twice of the word limit mandated by the Practice Direction
16 and that twice -- the 15.000 words extension granted to other appellants
17 in this case. The Prosecution further submits that Lukic's attempts to
18 justify his excess by making general assertions and repeating arguments
19 from his previous motions, and that he has failed to demonstrate that a
20 reconsideration of the Appeals Chamber decision is warranted. Finally,
21 the Prosecution claimed that Lukic makes an additional argument in
22 Annexes B and D in his brief which he fails to include in his word
24 Now I would like to invite counsel for Mr. Lukic, if he's in a
25 position to do it right now, to respond orally to the Prosecution's
1 motion, to which the Prosecution may then reply.
2 Yes, you have the floor, Mr. Lukic.
3 MR. LUKIC: Thank you, Your Honour. I will try two address this
4 issue as short as possible, and I have to stress that we really worked
5 tirelessly and diligently to reduce the brief to comply with the word
6 limit imposed on us by the Appeals Chamber, but we simply couldn't do it
7 within the time granted and still present the essence of all the grounds
8 and arguments and thus preserve our client's rights.
9 We wish to point out that already, one month before the due date,
10 we had asked for the enlargement of a word count because of the
11 complexity of the issues involved, and at that time we began to re-write
12 portions to get it down to 120.000 words, because at that moment we had
13 160.000 words.
14 We must stress again that this is a one-of-a-kind judgement,
15 without precedent, four volumes, 1.700 pages, 600.000 words.
16 I'm sorry that we did not address the word limit earlier than
17 25th of August, 2009, but we did not have any opportunity to explain that
18 issue in any status conference until now.
19 I'd like to stress that much smaller cases, as the case of
20 Naser Oric, was granted with 40.000 words, and that judgement and case
21 cannot be compared with this judgement and this case.
22 As I said, we started from 160.000 words and we cut it to
23 65.900 words, which is not a small feat. We had to work day and night to
24 get this done and still preserve the essence of the arguments on the
25 appeal. We, I would say, kicked out four of our grounds from the appeal
1 because we didn't have enough words to deal with them, and those grounds
2 we tried to disperse to other parts of the appeal and still we were able
3 to maintain at least the essence of those grounds.
4 We saw today that you rejected the motion filed by Mr. Lazarevic,
5 but still maintain our request, and we ask you to grant our appeal as it
6 is filed because we really couldn't cut it down further as we did. So we
7 think that we are less than 10 per cent -- we exceeded less than
8 10 per cent the original word limit, so less than 6.000, and we think
9 that in this case it should be -- Your Honour should grant our motion to
10 accept the appeal as it was filed.
11 We want to stress that we were the only police officer in this
12 trial, and we have to cover much more grounds than, for example, military
13 accused from this case. So we had to cover almost from the first until
14 the last page. We even -- as you might have the opportunity to see, we
15 might -- we had to cover even the Book 4, which was dealing with the
16 municipalities and various places of alleged crimes, so it also took a
17 big amount of words, and we had to do it.
18 Regarding the Prosecution's objection that we have some
19 additional arguments in our annexes, I have to tell you that in Annex B
20 we have the same in our appeal; we just repeated some grounds in Annex B,
21 so -- some words -- words -- and some words are included in Annex B.
22 In Annex C -- or Annex D. I just read the motion, so I'm a
23 bit -- yeah, in Annex D, it is true that we didn't include three
24 paragraphs in our word count. We just checked it. We didn't have time.
25 So that's true, but those are only three paragraphs, and there were
1 arguments in our Annex D that were not included in our original appeal.
2 So, once again, we beg you to accept our appeal as it was filed.
3 JUDGE LIU: Thank you.
4 MR. LUKIC: Thank you.
5 MR. LIU: Any reply from Prosecution? Mr. Kremer.
6 MR. KREMER: I don't think I can add anything to the submissions
7 that are made in our motion. I do point out, though, that the Lukic
8 appeal has had nearly three weeks to come to grips with your order of
9 September the 8th. They sought a reconsideration, which was dismissed,
10 and I would have thought that over the past week they would have been
11 able to comply with the initial order of September the 8th limiting their
12 appeal brief to 60.000.
13 I find it, also in passing, strange that at the time of their
14 application asking for 120.000 words, they had already prepared 160.000
15 words when the word limit was only 30.000. It shows some sort of lack of
16 logic on the part of the Defence team, that they waited so late and now
17 they're attempting to, at this last moment by filing something in excess
18 of the word limit, ignore an order that this Chamber has made twice,
19 directing them to comply with a word limit that is, quite frankly, very
21 Those are my submissions.
22 JUDGE LIU: Thank you very much.
23 Well, I will take into consideration of the submissions by both
24 parties, and I believe that a written decision will be issued in due
25 course, after taking into consideration the submissions by the parties,
1 probably during the next week.
2 Turning back to the status of this case, let me recall that in
3 accordance with the decision of the 27th July and the 7th August 2009,
4 the Defence respondents' brief was due no later than 2nd November 2009
5 which means that the Prosecution will have to file their reply brief by
6 the 17th November 2009
7 no later than 2nd November 2009. And the respective Defence reply brief
8 should be filed by the 17th November 2009. Consequently, 17th November
9 2009 should be the date when the briefing will be complete with respect
10 to all the appeals.
11 While the Appeals Chamber appreciates the considerable scope of
12 this case, I would impress upon all parties the importance of adhering to
13 the timetable prescribed and the word limits imposed. Although a degree
14 of flexibility with respect to both those matters has been demonstrated
15 so far, this should not be misconstrued by the parties as a
16 carte blanche. The consistent failure to comply with the Appeals Chamber
17 ruling may result in the imposition of sanctions.
18 Finally, there have been a few decisions rendered by the
19 Appeals Chamber in relation to Mr. Lazarevic's and Mr. Pavkovic's
20 requests for provisional release. While there is no need to elaborate on
21 this matter at the present hearing, I simply note that we have received a
22 satisfactory status report regarding Mr. Lazarevic's provisional release,
23 and as concerning Mr. Pavkovic, it should be filed in the course of next
24 week. Other than that, there are at present no outstanding issues in
25 this regard.
1 At this point, I would like to ask the parties whether they have
2 any other issues that they would like to raise at this stage.
3 Mr. Kremer?
4 MR. KREMER: Yes, Your Honour. In light of your last comment in
5 respect of the provision of the response or responses to the appeal
6 briefs of the appellants, I can inform Your Honour that we will be filing
7 a motion on Monday for an extension of time to respond, given the volume
8 of materials that were filed this week and the time that it will take to
9 make sure that we deal with all of the issues properly, having regard to
10 the fact that we're responding, in part, to five appeals, but also have
11 to deal with ensuring that there is a consistency of approach to each of
12 the appeals to the extent that the issues overlap, and that is a question
13 or a problem that the individual accused did not have to concern
14 themselves with. We're currently considering what amount of time would
15 be reasonable, and a decision will be taken on Monday, and we will file
16 our motion with the Chamber on Monday morning.
17 JUDGE LIU: Thank you very much for informing me about this
19 Anything else?
20 MR. KREMER: No, Your Honour.
21 JUDGE LIU: Thank you.
22 Now I turn to the Defence counsel.
23 And counsel for Mr. Sainovic, please.
24 MR. PETROVIC: [Interpretation] Your Honour, we have no issues
25 that we'd like to raise. Thank you.
1 JUDGE LIU: Thank you very much.
2 The counsel for Ojdanic, please.
3 MR. VISNJIC: [Interpretation] Your Honour, no special issues
4 either. Thank you.
5 JUDGE LIU: Thank you very much.
6 The counsel for Pavkovic.
7 MR. ALEKSIC: [Interpretation] Nothing to raise, Your Honour.
8 Thank you.
9 JUDGE LIU: The counsel for Lazarevic, please.
10 MR. BAKRAC: [Interpretation] Thank you, Your Honour. No
11 additional questions.
12 JUDGE LIU: The counsel for Mr. Lukic, please.
13 MR. LUKIC: Your Honour, we don't have anything new to raise.
14 Thank you.
15 JUDGE LIU: Well, I believe that that's all for today's status
17 I thank the parties for their attention, and I adjourn these
19 --- Whereupon the Status Conference adjourned
20 at 3.23 p.m.