Tribunal Criminal Tribunal for the Former Yugoslavia

Page 22

1 Thursday, 18 December 2003

2 [Status Conference]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 3.59 p.m.

6 JUDGE POCAR: Please be seated.

7 Good afternoon to everybody.

8 Mr. Registrar, could you please call the case.

9 THE REGISTRAR: Good afternoon, Your Honours. This is case number

10 IT-98-34-A, the Prosecutor versus Mladen Naletilic and Vinko Martinovic.

11 JUDGE POCAR: Thank you.

12 May I call for appearances. For the appellants.

13 MR. HENNESSY: Good afternoon, Your Honour. My name is

14 Matt Hennessy, representing with Christopher Meek, Mladen Naletilic.

15 JUDGE POCAR: Thank you.

16 MR. PAR: [Interpretation] Good afternoon, Your Honours. I am

17 Zelimir Par, attorney from Sarajevo, and my colleague, Mr. Kurt Kerns is

18 here with me, and together we are representing Vinko Martinovic.

19 JUDGE POCAR: I thank you.

20 May I turn to the Prosecution.

21 MR. FARRELL: Good afternoon, Your Honour. Appearing for the

22 Prosecution today is Norman Farrell, Mr. Steffen Wirth, and our case

23 manager is Ms. Lourdes Galicia. During the Status Conference, Mr. Wirth

24 will be addressing you on any issues, and if I can be of any assistance,

25 I'll step in, but he's been working on the case while I've been on other

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1 matters this past week. Thank you.

2 JUDGE POCAR: Thank you, Mr. Farrell.

3 May I ask the appellants if they can hear me and follow the

4 proceedings. I think it's the case. Thank you.

5 Well, as you know, the purpose of the Status Conference is to

6 first to allow any person in custody, as the appellants are, the

7 opportunity to raise any issues in relation to their detention. Is there

8 any concern of this kind to be raised in this Status Conference?

9 MR. HENNESSY: Well, Your Honour, Mr. Naletilic has asked to

10 address the Court as to some matters, but as far as to the circumstances

11 of his detention, no, he has no complaints, other than he is detained.

12 But no, no problems with the manner of detention.

13 JUDGE POCAR: I thank you.

14 Any complaint as concerning the appellant Martinovic?

15 MR. PAR: [Interpretation] Your Honours, we have no complaints. We

16 spoke with our client today, and he doesn't have any questions that he

17 would need to voice, so thank you.

18 JUDGE POCAR: Thank you.

19 Now, if there is no concern of this kind to be taken up, let me

20 try to turn to the other aspect of the Status Conference, that is, to see

21 where the appeal stands at this stage.

22 I think the appellate filings have been completed now. As to the

23 Prosecution appeal, the appeal brief is in. So are the responses of

24 Mr. Naletilic and Martinovic, and we have a consolidated reply of the

25 Prosecution. So I think as to that appeal all the briefs are in.

Page 24

1 The same applies to the appeal of Mr. Naletilic, where all the

2 briefs have been filed, and the same applies as far as the appeal of

3 Mr. Martinovic is concerned. Am I correct?

4 MR. HENNESSY: As to Naletilic, yes, sir.

5 MR. PAR: [Interpretation] Yes, and also for Martinovic.

6 JUDGE POCAR: I thank you.

7 So now let's turn to pending issues. There is still, as far as

8 the appeal -- or as far as Mr. Naletilic is concerned, there is pending a

9 Rule 115 motion that the Appeals Chamber is considering and will deal with

10 as soon as possible.

11 I think this is the only pending motion, except for motions

12 concerning protective measures. But if you want to deal with them, we

13 should go into a private session, I guess, because there are -- it's a

14 question of protected witnesses, actually. If the parties want to discuss

15 this. If not, then we don't have to address them, and we don't have to go

16 into private session. But perhaps -- please, Mr. Meek.

17 MR. MEEK: May it please the Court, I would like to go into

18 private session for just a moment.

19 JUDGE POCAR: Fine. Let's go into private session, then.

20 [Private session]

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17 [Open session]

18 THE REGISTRAR: We are in open session, Your Honour.

19 JUDGE POCAR: Fine. So Mr. Hennessy.

20 MR. HENNESSY: Thank you, Your Honour.

21 Just at this time, based on what was represented by the

22 Prosecution in the last Status Conference that there were documents that

23 were going to be produced that -- pursuant to their continuing

24 responsibility under Rule 68, some documents have been produced, and I'd

25 call upon the Court at this time to inquire whether we have everything

Page 30

1 that they conceive as being within their Rule 68 duties, or if not, when

2 might we expect those things? That's my first issue.

3 JUDGE POCAR: The Prosecution. Can the Prosecution address this

4 point raised by the Defence?

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

6 Your Honour, the Prosecution does periodic comprehensive reviews

7 of any new material that is coming into our possession every six months,

8 on average every six months. In addition, if we become aware of any

9 material that could be particularly relevant to the proceedings, we also

10 review that material. At this point in time, we have concluded the last

11 review around the end of October and disclosed anything that we found at

12 that point in time. At that point in time, therefore, we are not aware of

13 any further material that could fulfil the requirements of Rule 68.

14 However, as I explained, we will continue to do our periodical reviews of

15 new material that may come in our possession. Thank you.

16 JUDGE POCAR: I thank you.

17 Mr. Hennessy.

18 MR. HENNESSY: Yes. If I may, Your Honour. As to another issue:

19 We some time ago submitted documents for translation which we recovered, I

20 see we, the Defence recovered since trial from the former Yugoslavia.

21 Those documents I anticipate will be made part of a Rule 115 following --

22 filing, and I simply apprise the Court of our intent to do so. And my

23 reason for informing the Court of this is that my concern is that here one

24 day in the near future, I presume, oral arguments will be set on the

25 appeal, and my first inquiry from the Prosecution, I just want to be sure

Page 31

1 that we have at least as far as they are aware everything that they

2 conceive as being within Rule 68; on top of that, we have documents in

3 translation that we've yet to receive in proper form for filing on a Rule

4 115 motion; and third, I inform the Court that I've just been notified

5 that we have recovered additional documents in the former Yugoslavia that

6 will have to be submitted for translation. So I would just raise it at

7 this time in case the Court is attempting or considering scheduling oral

8 arguments in the near future. I would ask that any such arguments be

9 delayed until a ruling on any existing 115 motion or, as I've already

10 said, the to-be-filed 115 motion.

11 And I've just been reminded, Your Honour: There's also some

12 documents that have been turned over to us by the Prosecution which are in

13 translation as well, which I'm not sure yet whether they will be part of

14 an additional filing. The documents were given to us, I believe, on

15 August 29th.

16 JUDGE POCAR: Mr. Hennessy, you know that according to the Rules,

17 there are deadlines for filing motions under Article 115. Of course, if

18 good cause is shown, these deadlines can be extended. So if -- are you

19 referring to documents that have been disclosed by the Prosecution after

20 the deadline had expired and you use them, of course you can make use of

21 them. If it's other material, you have to show that you got -- that that

22 material was available to you after the expiry of the deadline, because we

23 cannot go on with the appeals forever.

24 Now, if you are preparing a new 115 filing, first, please do it as

25 quickly as possible. In your estimates, how much will that require? How

Page 32

1 long?

2 MR. HENNESSY: Well, that's why I'm bringing it up, because we're

3 here at a Status Conference, I'm giving you the status, and that is that

4 we have not received them from translation. So at this point I'm waiting

5 to --

6 JUDGE POCAR: When are you expecting to receive them from

7 translation? What date were you given when you gave them for translation?

8 MR. HENNESSY: I'm being told that the translation department says

9 that we should have them sometime in January. That's all I've been told

10 at present. But they've had these documents for some time already. I

11 think two weeks, I'm being told.

12 JUDGE POCAR: Well, I will not set you any specific deadline now,

13 but I wanted only to -- that you are aware that when you submit a filing,

14 you must give the reasons in the -- in your request why you come after the

15 deadline which are specifically the reasons, in order that the Chamber may

16 appreciate and justify the late filing or not.

17 MR. HENNESSY: Yes, sir. Thank you, Judge.

18 JUDGE POCAR: Any other issue to be dealt with?

19 MR. KERNS: Your Honour, Kurt Kerns, if I may. I just wanted to

20 make sure the record was clear with regard to these disclosure because if

21 I understand what my colleague just said, the last status report August

22 29th mentions that they have received a bunch of documentation within the

23 last three weeks prior to August 29th. They basically then go on to say

24 we're going to give that to the Defence but we don't know when. At the

25 end of the Status Conference last time, Your Honour ordered the

Page 33

1 Prosecution to basically provide us with a time line as to when that would

2 be provided. If I hear my colleague correctly, I think what he said was

3 we've completed that review from the August 29th disclosure and we did

4 that in October, and right now we have everything. But if I misunderstood

5 that representation, I'd like to know, because as far as I understand that

6 representation, it is they have completed that review of the information

7 mentioned in paragraph 7 of their status report and everything was given

8 to us in October. Is that what they're saying?

9 JUDGE POCAR: Can the Prosecution maybe clarify for the benefit of

10 the Defence?

11 MR. WIRTH: Yes, Your Honour. The review of the material that has

12 been mentioned during the last Status Conference on 28th August has been

13 completed, and everything that the Prosecution found that could be Rule 68

14 has been provided to the Defence, to the appellants, sorry.

15 JUDGE POCAR: I thank you.

16 Any other issue to be raised now?

17 MR. MEEK: Just for the record, we just received the English

18 translation today, when we walked into court. And again, perhaps the

19 Court could inquire as to the Office of the Prosecutor when they expect to

20 have the approximately 16 documents that were in B/C/S only translated

21 into English. That's the ones they handed us on the 29th of August. We

22 still have not received them in English, and neither Mr. Hennessy nor I

23 can read B/C/S. So until we read those, this is hampering us, obviously,

24 Your Honour. If we believe that they are relevant Rule 115, we don't know

25 that until we read them. And I still have not heard when we might have

Page 34

1 those translated. Only two were in English, I think approximately 16 were

2 untranslated.

3 JUDGE POCAR: Can the Prosecution give any information on this?

4 MR. WIRTH: Yes. We are expecting the outstanding translations to

5 be completed roughly by the end of January. We have to note, however,

6 that we were only informed by the appellant that they had problems with

7 the B/C/S versions of the documents very recently, and since counsel for

8 the appellant have to communicate with the appellant who -- which they

9 presumably have to do in B/C/S, we did not -- we were not aware that there

10 was a problem. Thank you.

11 JUDGE POCAR: I thank you.

12 MR. MEEK: Very briefly. My colleagues, neither one of the

13 colleagues here from the OTP were present on the 29th, but I want to

14 inform the Court that I was informed that we would be getting the English

15 translations, and so that's -- they're indicating we haven't talked to

16 them, we didn't -- we talked to them on the 29th and we were informed that

17 we would get them.

18 MR. FARRELL: Just let me indicate, Your Honour: If that was the

19 case, please accept our apologies. I wasn't on the case at the time, and

20 we will certainly endeavour to get them to you as soon as possible, if

21 that was the representation. Thank you.

22 JUDGE POCAR: Thank you, Mr. Farrell.

23 Well, is there any other issue that the parties would like to

24 raise at this stage? Mr. Hennessy.

25 MR. HENNESSY: Your Honour, as I forecast, the appellant

Page 35

1 Mr. Naletilic had asked to address the Court this afternoon, very briefly.

2 JUDGE POCAR: It should be done very briefly. Please,

3 Mr. Naletilic.

4 THE APPELLANT NALETILIC: [Interpretation] Thank you, Your Honour.

5 I wanted to remind you: At the last Status Conference, we were speaking

6 precisely about this same problem, and that is, the K56 proceedings in the

7 Mostar court. It's obvious that none of you read those 30 statements

8 which were provided to the Mostar court, and they are actually about

9 precisely what I spoke about at the last sentence, and that is that I did

10 not step into Sovici, and I had no command responsibility at all. Why am

11 I saying this?

12 Your Honour, during the proceedings, we did not have these 30

13 statements regarding Sovici and Doljani, nor did the Prosecution provide

14 us, before the witnesses were questioned, but they gave us some of them

15 after the -- all the Prosecution witnesses were questioned. So we were

16 directly damaged or prejudiced in these proceedings.

17 I really do not wish to take up too much of your time. I can see

18 that we're all a little bit tense here. But I would just like to

19 emphasise, Your Honour, that I have already been in prison for seven

20 years, and I cannot think ill of the Prosecutor when they say it will

21 come, it's going to come at the end of January, or we will give something,

22 and something we will not. But again, I would like to ask you, Your

23 Honour, if it's true that you did really intervene, because we really have

24 received some of those documents. I don't know whether that was after

25 your intervention or not. But I would like to ask you that the entire

Page 36

1 proceedings conducted in the Mostar court against the 26 persons, for the

2 same acts that I have been convicted of here, I would like to have the

3 whole case material from those cases here, and then we can look and see

4 what we require and what we don't.

5 In any of those statements, the Convicts' Battalion is never

6 mentioned. Tutici is mentioned. The Convicts' Battalion is not mentioned

7 here and it's not mentioned here, the persecution of the civilians, that I

8 was convicted of here. There are names, there are the acts that they

9 committed, but Tuta is not mentioned in any of those transcripts.

10 So if we have the same rights as the Prosecution, I would request

11 that you allow us that the Prosecutor from Mostar then hands over all

12 those documents to us.

13 Thank you very much.

14 JUDGE POCAR: Mr. Naletilic, I listened to you, but, first, this

15 Status Conference we cannot argue the merits of the case. And second, the

16 arguments you are making should be made by your counsel. I mean, you have

17 counsel, and counsel will raise these arguments in due course if they

18 consider it appropriate. So it's difficult for me to take it from you

19 without the assistance of your counsel.

20 THE APPELLANT NALETILIC: [Interpretation] Your Honours, just one

21 second. If you allow me --

22 JUDGE POCAR: Mr. Naletilic, I cannot go on in a private debate on

23 these issues. I mean, I see your counsel remains silent, but probably

24 they will raise the issue in due course when they deem it appropriate.

25 MR. HENNESSY: And we intend to, Judge, and part of the delay and

Page 37

1 a source of Mr. Naletilic's aggravation, I'll call it, is delay in getting

2 the documents translated, and once they're translated we will file

3 something with the Court in due course.

4 JUDGE POCAR: Thank you, Mr. Hennessy. Of course, I perfectly

5 understand the feeling of the appellant, but I'm sure the Defence is

6 taking care of his position.

7 Any other matter? Mr. Farrell.

8 MR. FARRELL: This really isn't a matter of much concern,

9 Your Honour, it's just that I think January 10th, which is the date on

10 which the appellants are to file, I think that's a Saturday, so it may be

11 better that it's noted as the 12th. If that's my understanding of the

12 deadline that you set I think the 10th is a Saturday. That's all. Other

13 than that, thank you very much.

14 JUDGE POCAR: I thank you, Mr. Farrell. So let it be the 12th.

15 You're correct, it's a Saturday, the 10th. I didn't think of it.

16 So if there is no other matter to be raised now, we can adjourn.

17 This Status Conference stands adjourned.

18 --- Whereupon the Status Conference adjourned at

19 4.30 p.m.