090925SE

Page 1

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

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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

9 understand.

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.

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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, and at the parties' request this status conference was

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

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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

14 2009.

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.

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1 On 10th August 2009, the Prosecution filed their appeal brief

2 confidentially. A public version of the Prosecution's appeal brief was

3 filed on 21st August 2009. The Prosecution filed a corrigendum to his

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. The Appeals Chamber is currently assessing those

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, the

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

17 Judge.

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

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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, and that a current version of the brief is the

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.

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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. Given that Lazarevic's

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

24 response.

25 I further note that appellant's brief filed by the counsel for

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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, seeking an extension of 5.956 words. In this

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

23 account.

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

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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

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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

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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

20 reasonable.

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,

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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. The Prosecution respondent's brief are also due

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.

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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

18 information.

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.

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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

16 conference.

17 I thank the parties for their attention, and I adjourn these

18 proceedings.

19 --- Whereupon the Status Conference adjourned

20 at 3.23 p.m.