Tribunal Criminal Tribunal for the Former Yugoslavia

Page 49

1 Tuesday, 23 November 2004

2 [Status Conference]

3 [Open Session]

4 [The appellants entered court]

5 --- Upon commencing at 4.01 p.m.

6 JUDGE POCAR: Good afternoon to everybody. This Status Conference

7 is called to order.

8 Madam Registrar, will you please call the case.

9 THE REGISTRAR: Good afternoon, Your Honour. Case number

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

11 JUDGE POCAR: Thank you.

12 May I now call for the appearances for the Prosecution, please.

13 MS. KIND: Good afternoon, Your Honour. Appearing for the

14 Prosecution today will be myself, Marie-Ursula Kind, with my colleagues,

15 Mr. Norman Farrell and Ms. Susan Lamb, as well as Mrs. Lourdes Galicia,

16 our case manager. Thank you.

17 JUDGE POCAR: Thank you.

18 For Mr. Martinovic, please.

19 MR. PAR: [Interpretation] Good afternoon, Your Honour. I am

20 Zelimir Par, with my colleague, Kurt Kerns, from the United States of

21 America.

22 JUDGE POCAR: Thank you.

23 And for Mr. Naletilic?

24 MR. HENNESSY: Good afternoon, Your Honour. Matt Hennessy and

25 Chris Meek appearing for appellant Mladen Naletilic.

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1 JUDGE POCAR: Thank you.

2 Now, I noted that the last Status Conference was held on the 26th

3 of July, so almost four months ago. As the parties know, the purpose of

4 this Status Conference is, first, to allow the appellants to raise

5 concerns they have relating to their detention, to the appeal in general,

6 and then to discuss any issue concerning the status of the case.

7 As to the first question, may I ask the appellants if they have

8 any concern to raise now.

9 MR. HENNESSY: Your Honour, as to Mladen Naletilic, no concerns as

10 to detention at this point.

11 JUDGE POCAR: Thank you.

12 Any problems concerning Mr. Martinovic?

13 MR. PAR: [Interpretation] No detention-related problems, Your

14 Honour.

15 JUDGE POCAR: Thank you.

16 We can then move to the status of the case. As the parties know,

17 some motions have been filed. There is -- some motions have been disposed

18 by the Appeals Chamber, whereby the parties -- the appellants sought to

19 have additional evidence admitted pursuant to Rule 115 of the Rules of

20 Procedure and Evidence. There is one pending motion to that effect, that

21 is Naletilic motion for leave to file a second 115 motion, which is under

22 consideration by the Chamber, and the Chamber will deliver a decision in

23 due course.

24 When coming here, actually, I received an additional motion, a

25 third motion filed by Mr. Naletilic, to present additional evidence

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1 pursuant to Rule 115, an incorporated motion for leave to file the same.

2 I had no chance to read it fully, I just went through the list of the

3 documents the admission of which is sought. The motion will be, of

4 course, considered by the Appeals Chamber and then the Appeals Chamber

5 will take action upon it, but, of course, we will wait for the response of

6 the Prosecution and the reply, as the case may be, by the appellant.

7 Having said that, what I, perhaps, would like to be informed by

8 the parties is whether there are other possible motions that will be filed

9 in this context. Remember that in July, the Prosecution informed both the

10 Defence and the Court that they had come in possession of documents they

11 had not yet considered, and they -- of course, while they didn't know, the

12 Prosecution didn't know what was in these documents, not having read them,

13 but they put us on notice that possibly they could contain material to be

14 disclosed to the Defence.

15 May I ask the Prosecution how far are they with the consideration

16 of these documents, and, as the case may be, if additional documents came

17 into their possession to be considered.

18 The Prosecution, please, Ms. Kind.

19 MS. KIND: Your Honour, we have considered the previous material,

20 but we would also like to inform the Court that presently there is

21 material that is being reviewed, and we have informed counsel for

22 Mr. Naletilic already by letter of last week, and we are about to inform

23 counsel for Mr. Martinovic of this material. It is material which has

24 come into our possession in October. And we will set out all these

25 matters in the status report, which we had intended to file before the

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1 Status Conference, and we apologise that we didn't manage to put it in in

2 time.

3 But I may just inform you that it's a bulk of material, numerous

4 binders - a total of approximately 65 binders - and about 45 binders of

5 this material, it turns out that these are actually copies of material

6 that is available in the HVO state archive. And we have informed the

7 Defence of Mr. Naletilic already of this. This material is available to

8 the Defence.

9 The other batch, the remaining binders, are other materials that

10 have been reviewed -- are in the process of being reviewed by the

11 Prosecution, and according to a current assessment of the situation, we

12 anticipate that we can make this material available, these 15 to 17

13 binders, in the electronic disclosure system, in the EDS, in approximately

14 two weeks.

15 This is as much as I can inform you at this point in time. But

16 I'm open to questions.

17 JUDGE POCAR: I thank you for this information that gives us some

18 idea of what is currently under consideration.

19 May I turn to the Defence, if they have any comment to make on

20 this. Mr. Hennessy?

21 MR. HENNESSY: Yes, thank you, Your Honour. Just as to those

22 documents, we won't know what comments we have until, at the earliest, two

23 weeks. We, of course, first have to see them. I think I understand

24 correctly that all these documents are in B/C/S, so there will be an

25 additional lag time for us - I say that, Chris Meek and myself not being

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1 B/C/S conversant - to familiarise ourselves with those documents. My

2 comments are, I don't have any comments yet, but I'm sure I will here in

3 the relatively near future. My only concern is that we have sufficient

4 time to review them.

5 On top of that -- I guess I won't be prepared to tell you how much

6 time we're going to need to review them until I actually see them. That's

7 the only comment I have on that.

8 JUDGE POCAR: Of course, Mr. Hennessy, I will not ask you now how

9 much time do you need to familiarise yourself with the documents because

10 you haven't seen them. I agree with that.

11 Mr. Meek?

12 MR. MEEK: Your Honour, I have a question for the Prosecution.

13 You set out that in July they informed us that they had come into these

14 new documents. My question is, are the 45 binders that they're speaking

15 of today, do those include the documents that you all came into possession

16 of in July, or are these additional documents?

17 JUDGE POCAR: Yes, the Prosecution?

18 MS. KIND: I'm sorry, Your Honour. Yes, these documents are

19 additional material, to my knowledge.

20 MR. MEEK: Okay. So therefore the documents you mentioned in

21 September are completely separate from these documents. That would be my

22 understanding.

23 JUDGE POCAR: You mean in July?

24 MR. MEEK: Yes, in July. These are separate documents; correct?

25 MS. KIND: Yes.

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1 MR. MEEK: Judge, the only concern that I would bring to your

2 attention today is that - and I'll ask for your guidance - since

3 Mr. Hennessy and I are not conversant in B/C/S, we made a request

4 approximately a month ago for some additional hours for an investigator to

5 look at the Zagreb archive documents, and we have heard absolutely nothing

6 from the Registry. So I would ask for your guidance on what we should do.

7 JUDGE POCAR: What do you mean, Mr. Meek; that you didn't receive

8 any translation of the documents? What's the point you are making

9 exactly?

10 MR. MEEK: The documents -- my understanding is that the documents

11 are in B/C/S and they are in the Zagreb archives, and we asked for some

12 hours for an investigator to review the documents who is conversant --

13 fluent in B/C/S. Obviously, Mr. Hennessy and I could go to Zagreb, but we

14 couldn't understand anything we would read in those documents. And we

15 requested to the Registry to grant us some additional hours for an

16 investigator to do that, and the Registry has not responded to us, yes,

17 no, or in any fashion whatsoever. So we're kind of hamstrung there. It's

18 not the Prosecution's fault, it's just that we haven't heard anything from

19 the Registry, and we think it's a reasonable request.

20 JUDGE POCAR: Does the Prosecution have any comments on this?

21 Mr. Farrell?

22 MR. FARRELL: Yes. I apologise and apologise to my colleague

23 Ms. Kind. I was the one who did the Status Conference back in July and so

24 she wasn't aware of the nature of my comments.

25 What had been brought to the Prosecutor's attention back in July

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1 had been that there was a new set of material placed on the Zagreb

2 archives. I informed, therefore, counsel, my learned colleagues, counsel

3 for Mr. Naletilic and Mr. Martinovic, that the Prosecution had been

4 informed, and I wanted to make sure that they were aware as well, that we

5 had been told that new material had been received in the Zagreb archives,

6 and therefore if they wanted to review it and get access to it, that was

7 for them to do, and if we came across anything that was Rule 68, we would

8 therefore inform them of it.

9 The material that Ms. Kind is speaking about is a separate set of

10 material that we just got at the beginning of October. That's a

11 completely separate set of material. It originates from the Zagreb

12 archives, but it is not the material that I had understood was new

13 material that came in the Zagreb archives in July.

14 In terms of Defence counsel's request for the ability to review

15 that material and their ability to get sufficient hours to review that

16 material, I, of course, leave it to the Registrar to address those

17 matters.

18 Thank you. And I'm sorry if that wasn't clear from the beginning.

19 JUDGE POCAR: I thank you, Mr. Farrell, for this clarification.

20 Well, as to the question of the Registry, this should be addressed

21 by the Registry. But, of course, I will myself ask the Registry to

22 consider the matter.

23 Mr. Par, do you have any comment to make?

24 MR. PAR: [Interpretation] I too have one comment to make in

25 connection with our Defence's position in relation to these documents they

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1 have referred to.

2 Your first question was whether the Defence intends to file any

3 other motions. Under the present circumstances, and in view of the fact

4 that we have received the decision rejecting our request for any further

5 evidence, which was a decision that deeply disappointed our client who

6 expected that, through additional evidence, he would be given a chance to

7 show what his true position is. However, we received this decision, and

8 we have a great interest in going through these new documents about which

9 we have not been officially informed so far, except through the Defence of

10 Mr. Naletilic.

11 In as far as I can see now, there are two different kinds of

12 documents. One set is from the Zagreb archive, those which allegedly

13 arrived in July. In relation to that, I would like to receive further and

14 more detailed information from the OTP in case they are in possession of

15 such information. Who delivered those documents, and how they were

16 obtained, which would enable us to go through the archive in Zagreb

17 ourselves and look for those documents in an adequate manner.

18 As for these new documents, we also have a great interest in

19 studying those to see what the nature of those documents is, and then

20 perhaps, in those documents, we might find exculpatory evidence, and we

21 reserve the right to file further motions pursuant to that.

22 Thank you very much, Your Honour.

23 JUDGE POCAR: I thank you.

24 Has the Prosecution any reaction to this? Mr. Farrell?

25 MR. FARRELL: I apologise for probably not clarifying things, Your

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1 Honour.

2 Just to make it clear, in July, the material that was identified

3 to the Defence was not in the Prosecution's possession. I had been

4 informed that new material had been placed in the Zagreb archive by our

5 field office, and I informed the Defence so they could go and look at it

6 themselves so they wouldn't think that we were withholding any

7 information. If Mr. Par would like to know what was in the Zagreb

8 archives that was added in July, I simply invite him to go down to Zagreb

9 and check for himself, if he doesn't mind.

10 With respect to the other material, we have obtained material in

11 October, as Ms. Kind has indicated. Some appears to have originated from

12 the Zagreb archive, some not, and we will make that material available in

13 due course.

14 JUDGE POCAR: I thank you, Mr. Farrell. As to the July material,

15 it's exactly how I understood it in July, that the material has been

16 placed in the archives and you gave notice to the defendants that that had

17 occurred in order that they could accede to this material if they wanted.

18 Of course, as to the new material, it's clear the Defence will have time

19 to review it and file additional motions under Rule 115, if appropriate

20 and if necessary. And the Chamber will duly consider these motions if

21 they will be filed.

22 Well, is there any other matter that the parties would raise at

23 this stage?

24 Mr. Hennessy?

25 MR. HENNESSY: Thank you, Your Honour. For Mr. Naletilic, nothing

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1 more at this time.

2 JUDGE POCAR: Thank you.

3 Mr. Par?

4 MR. PAR: [Interpretation] No further proposals to make. However,

5 my client wishes me to reiterate his discontent over the fact that our

6 motions were rejected. He expected that he would have a chance to say so

7 before this Trial Chamber and, in that way, present his own position.

8 JUDGE POCAR: I thank you, but I'm not in the position now to

9 discuss any decision taken by the full bench, as you may imagine.

10 MR. PAR: [Interpretation] We do have another situation, Your

11 Honour, based on what I have just said. My client wishes to address the

12 Chamber, or else for me, on his behalf, to address the Chamber, to say

13 that one of our motions was in relation to a witness who he believes to be

14 a key witness, and that this witness was in a position to unravel this

15 whole situation that was construed against him based on false evidence and

16 on obstruction on the part of certain witnesses that testified against

17 him. This is what my client now wishes me to inform you about. His

18 objective is simply to voice his discontent. For him, this was key

19 evidence. This evidence was overturned, and now he's no longer given a

20 chance to state his own position. That is his position, and I would

21 kindly ask you to try to take that position into account.

22 JUDGE POCAR: I thank you. I take note of your statement.

23 Any other matters the Prosecution would like to raise?

24 MS. KIND: Thank you, Your Honour. No, the Prosecution has no

25 further matters to raise. Thank you.

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1 JUDGE POCAR: I thank you.

2 If there are no other matters, we can adjourn. This Status

3 Conference stands adjourned.

4 --- Whereupon the Status Conference adjourned at

5 4.22 p.m.