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1 Monday, 26 July 2004

2 [Open session]

3 [The appellant entered court]

4 --- Upon commencing at 2.35 p.m.

5 THE INTERPRETER: Microphone, please, Your Honour. Microphone for

6 the Judge.

7 JUDGE GUNEY: [Interpretation] Madam Registrar, would you please

8 call the case.

9 THE REGISTRAR: Yes, Your Honour. Good afternoon. This is case

10 number IT-02-60/1-A, the Prosecutor versus Momir Nikolic.

11 JUDGE GUNEY: [Interpretation] Thank you. Mr. Nikolic, can you

12 hear the proceedings in a language you understand?

13 THE APPELLANT: [Interpretation] Your Honour, yes, I can follow the

14 proceedings.

15 JUDGE GUNEY: [Interpretation] Thank you. May I have the

16 appearances, please, and we'll start with the Prosecution.

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

18 Prosecution is Norman Farrell, Ms. Marie-Ursula Kind, and Ms. Susan

19 Grogan. Thank you.

20 JUDGE GUNEY: [Interpretation] Thank you.

21 MS. LINDSAY: Good morning, Your Honour. Virginia Lindsay on

22 behalf of Momir Nikolic.

23 JUDGE GUNEY: [Interpretation] Thank you. With respect to the

24 subject of the Status Conference, pursuant to Rule 65 bis (B) of the Rules

25 of Procedure and Evidence, a Status Conference shall be convened within

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1 120 days after the appeal has been filed. And then 120 days to give the

2 person in custody to file a plea and stating any other matters of business

3 he has.

4 In this particular case, this is the second Status Conference

5 we're holding, and this Status Conference has as its object to allow the

6 appellant to raise any preoccupations he has with respect to the

7 conditions of detention or his state of health, including the mental and

8 physical condition of that person.

9 Mr. Nikolic or his counsel, would you like to tell us anything in

10 that regard which comes under Rule 65 bis (B)?

11 MS. LINDSAY: No, Your Honour, I don't believe we have any

12 representations to make in that regard.

13 JUDGE GUNEY: [Interpretation] Thank you. Now with respect to

14 moving forward in the appeals case: As you know, during the last Status

15 Conference, we informed the appellant, and it is the duty of informing the

16 appellant how things stand in the appeals case, and in that sense, the

17 Trial Chamber recognised that the accused, on the 24th of May, 2004, filed

18 an appeal, an appellant's brief, and the Prosecutor responded on the 5th

19 of July, 2004. Now, as far as those two filings are concerned and those

20 two briefs, I have asked that any confidential elements be redacted from

21 the brief so that we can have public versions of the appellant brief.

22 Mr. Nikolic, I should also like to inform you on this occasion, actually

23 to remind you that in keeping with our decision of the 15th of July, 2004,

24 your response must be filed by the 5th of August, 2004. So that is the

25 deadline for you to respond to the response made to your appellant brief.

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1 So that, then, is the deadline which you have to meet. The

2 Chamber would also like to say that it has to see to another matter, an

3 appeal lodged by the Prosecution for certain things to be deleted from the

4 appellant's brief, and that was filed on the 5th of June, 2004. It seems

5 that Mr. Nikolic has agreed to having those matters deleted and redacted

6 from the brief, in -- but he insists on keeping paragraphs 122 and 174, as

7 well as paragraph 227 in part. I should like to inform the parties that

8 the request made by the Defence to extend the deadline and to enable the

9 filing of a response refers to the two briefs, the first on the 28th of

10 June, 2004, and all this will be dealt with when the first brief is

11 considered. The Appeals Chamber has also received a request by the

12 Defence. It is a request seeking additional evidence, and the date that

13 was filed was the 18th of June, 2004. And then on the 21st of June, 2004,

14 we received an additional brief in that regard.

15 So in fact, the Appeals Chamber has received all the briefs and

16 the Chamber will rule on the proposals and requests made in its full

17 composition.

18 Now, as to any further matters, I have nothing more to put forward

19 at this present Status Conference, so I'm just going to ask the parties

20 whether they wish to take the floor, whether anybody wishes to make any

21 remarks or make any comments. Shall we start with the Defence.

22 MS. LINDSAY: Your Honour, I think it would be better if we

23 started with the Prosecution. I think they have representations to make.

24 JUDGE GUNEY: [Interpretation] Mr. Farrell, then.

25 MR. FARRELL: Thank you, Your Honour. Just to update you on some

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1 dealings between the Defence counsel and the Prosecution, if I may,

2 Your Honour.

3 First of all, Ms. Lindsay has indicated that she takes issue with

4 some of the representations in the Prosecution's response brief, and I've

5 met with her, and I'm more than willing to review the aspects of the

6 Prosecution's response brief that she takes issue with, and if there's any

7 mistakes or changes that have been made in the Prosecution's response

8 brief, the Prosecution, of course, will undertake to file a core agendum

9 corrigendum. Ms. Lindsay was quite fair. Instead of filing a motion she

10 brought to my attention some issues that she disputed in the Prosecution's

11 response, so I'm in the midst of looking at those and if there are some

12 things that can be corrected in the Prosecution's response brief, as

13 indicated, after looking at her representations, the Prosecution can file

14 a corrigendum. There's some dispute as to the wording of the original plea

15 agreement and the representations about the plea agreement.

16 I think the result, then, is that Ms. Lindsay has indicated to me

17 that if the Prosecution was to make some corrections to its response

18 brief, that she would then be in a position to file her reply brief but

19 that she may need some additional time, depending on what the Prosecution

20 can agree to, if the Prosecution changes some of the content of the

21 response brief.

22 The bottom line, quite simply, is that the appellant has alleged

23 that some of the representations in the Prosecution's response brief are

24 not completely consistent with the plea agreement. So with the Court's

25 indulgence, of course, I intend to review the Prosecution's response brief

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1 and ensure that it's consistent with the plea agreement at trial, and will

2 inform Ms. Lindsay and will, of course, as I said, file a corrigendum. I

3 think Ms. Lindsay may indicate that she may need more time if the

4 Prosecution's position is in any way altered or changed by any corrections

5 we have to make to our brief, and I've indicated to Ms. Lindsay if there's

6 any delay that's at the far -- as a result of the fault of the

7 Prosecution, that I wouldn't oppose a short period of time for her to

8 properly respond.

9 I think that generally covers the discussions that have taken

10 place between Ms. Lindsay and myself. At this stage, I don't think

11 there's anything for the Court to do except for it to be informed that the

12 Prosecution may file a corrigendum to some of the submissions it made in

13 its response brief, and simply to inform you as well, Your Honour, that

14 that may affect the time period that Ms. Lindsay may need to file her

15 reply. But I think that's a matter that will take a few days for me to

16 look at the response brief.

17 Thank you for your indulgence.

18 JUDGE GUNEY: [Interpretation] Thank you, Mr. Farrell. Thank you

19 for the explanations you have just provided us with.

20 You have the floor, madam.

21 MS. LINDSAY: Thank you, Your Honour. There's a couple of matters

22 I'd like to address. The first one is the corrections that are needed in

23 the Prosecution's response brief. I'd just like the Court to be aware

24 that we met on the 16th of April [sic] to discuss the issue of factual

25 inaccuracies in the response brief, and we met with both Mr. Farrell and

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1 Mr. McCloskey, and at that meeting, Mr. McCloskey confirmed that there are

2 in fact factual errors in the response brief. Since 16th of July, we've

3 tried to work with the Prosecution in order to resolve these issues, but

4 for whatever reasons it's -- the Prosecution has not been able to move

5 very quickly on this matter. So I would just like the Appeals Chamber to

6 be aware that there is a slight possibility and we're doing everything we

7 can to avoid it. It's not what we want to happen. But there is a

8 possibility that we will be filing a motion to vary our grounds of appeal

9 if we're unable to resolve the matter.

10 The other matter that I want to address is that a mistake that was

11 made by the Trial Prosecutor, Mr. McCloskey. Prior to Mr. Nikolic's

12 guilty plea, Mr. McCloskey knew that one of the named victims in the

13 indictment did not die in the circumstances that are set forth in the

14 indictment. And Mr. Farrell has agreed that this was a mistake and that

15 the indictment needs to be corrected and we're working together to try to

16 resolve that issue without resort to Rule 115 proceedings. But again,

17 there is a slight possibility that there will be an additional motion to

18 admit additional evidence.

19 I'm asking for ten days from when a correction is filed within

20 which to file Mr. Nikolic's reply brief. The factual errors in the

21 Prosecution's response brief arise from the factual basis of the guilty

22 plea, and as such, they impact directly upon the legal arguments in ground

23 III which deals with Mr. Nikolic's role in the crime and ground V(D)(3)

24 which involves the timing of the guilty plea.

25 Until I can be certain of the corrections made by the Prosecution,

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1 I am unable to advise Mr. Nikolic as to what course his appeal should

2 take. And I'm unable to draft his reply brief in relation to two very

3 important sections of the reply brief. And so for those reasons I would

4 respectfully request that the Prosecution be asked to state or this Court

5 set a date certain by which the Prosecution must respond to our request

6 for corrections, and that I then have ten days from the filing of any

7 corrections within which to file the reply brief. So those are my only

8 representations, Your Honour, unless you have any questions.

9 [Appeals Chamber and legal officer confer]

10 JUDGE GUNEY: [Interpretation] Mr. Farrell, would you like to

11 indicate when you will be ready to file a reply which will be corrected.

12 Thank you.

13 MR. FARRELL: Thank you. It's my hope that we'll be able to do it

14 by the end of the week. I'll make that representation to you,

15 Your Honour. The difficulty is, to be frank, I have five Status

16 Conferences this week, the Blaskic Appeals Chamber decision coming out,

17 the filing in the Simic brief tomorrow, and a filing in another brief on

18 Thursday. So all I can say is I'll do my best to get something by the end

19 of this week, or I'll indicate to the Court if I'm unable to. And while

20 I'm on my feet, I'd just like to note two matters. One, I don't -- it

21 might have just been a mistake, but one of the notations in the record

22 said that the Prosecution met with Ms. Lindsay on the 16th of April. I

23 think that might have been just -- I think it was July -- subsequently she

24 said the 16th of July and I think it was only just over a week ago Friday

25 that we met to discuss this on July 16th.

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1 And secondly, she had indicated that regarding one of the victims

2 in the indictment, that I had agreed that there was a mistake. I had

3 agreed that if this was the case, it would certainly be an issue that I

4 think would be problematic. I'd prefer to reserve my opinion on whether

5 there was any errors until I've had a chance to review the record, if you

6 don't mind. Thank you. If that's satisfactory to Your Honour,

7 Judge Guney, I'll give you either something by Friday, or certainly an

8 indication if I'm unable to make that deadline with the deadline when I

9 can file.

10 JUDGE GUNEY: [Interpretation] Thank you, Mr. Farrell. The

11 Prosecutor has indicated to us that he will be ready to file a corrected

12 representation not later than the end of this week.

13 You have the floor, Ms. Lindsay.

14 MS. LINDSAY: Thank you, Your Honour. If they do that, then if I

15 could have until the 10th of August, is what I would be requesting, an

16 additional five days. That would be ten days from when they file the

17 corrections.

18 JUDGE GUNEY: [Interpretation] You can request that, but you have

19 to do it in writing.

20 MS. LINDSAY: Very well, Your Honour.

21 JUDGE GUNEY: [Interpretation] Could you confirm, Mr. Farrell, what

22 you have -- can you confirm what Mr. Farrell has told us, that the meeting

23 took place in July, on the 16th of July, rather than on the 16th of April.

24 MS. LINDSAY: Yes, Your Honour. It was last Friday, the 16th of

25 July.

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1 JUDGE GUNEY: [Interpretation] Thank you. Are there any issues to

2 raise at this point?

3 MR. FARRELL: No. Thank you, Your Honour.

4 MS. LINDSAY: No, Your Honour.

5 JUDGE GUNEY: [Interpretation] I myself have no issues to raise at

6 this Status Conference, and if there are no other issues to raise, the

7 Status Conference can be adjourned. It is so decided. The Status

8 Conference is adjourned.

9 --- Whereupon the Status Conference adjourned at

10 2.56 p.m.