1 Thursday, 29 April 2004
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.31 p.m.
6 JUDGE LIU: Mr. Court Deputy, call the case, please.
7 THE REGISTRAR: Good afternoon, Your Honour. This is Case Number
8 IT-95-12-PT, The Prosecutor versus Ivica Rajic.
9 JUDGE LIU: Thank you very much. May I have the appearances,
10 please. For the Prosecution.
11 MS. D'AOUST: Good afternoon, Your Honour. For the Prosecution,
12 my name is Josee D'Aoust. With me today is Mr. Roeland Bos, and our case
13 manager, Mrs. Lakshmie Walpita.
14 JUDGE LIU: Ms. D'Aoust.
15 MS. D'AOUST: Yes, Your Honour.
16 JUDGE LIU: Where is Mr. Scott?
17 MS. D'AOUST: I'm so sorry, Your Honour. Mr. Scott could not be
18 here today. He is out of the country. He apologises for his absence and
19 asked me to attend in his place. But he is out of the country and could
20 not attend the Status Conference today, unfortunately.
21 JUDGE LIU: You mean, you have been entrusted by Mr. Scott to
23 MS. D'AOUST: Yes, exactly, Your Honour.
24 JUDGE LIU: Thank you.
25 And for the Defence.
1 MR. OLUJIC: [Interpretation] Good afternoon, Your Honour. I'm
2 Zeljko Olujic, attorney-at-law from Zagreb, Croatia. I'm counsel for
3 Mr. Ivica Rajic. Colleague Doris Kosta is on the Defence team with me.
4 However, she is not present today. So I'm appearing on behalf of my
5 client alone today. Thank you.
6 JUDGE LIU: Thank you very much. Mr. Rajic, can you hear the
7 proceedings in a language that you understand?
8 THE ACCUSED: [Interpretation] Thank you.
9 JUDGE LIU: Thank you. If you have any problems in following the
10 proceedings, please do not be hesitant to let me know. You may sit down,
12 Following the filing of the amended indictment on the 14th
13 January, a second initial appearance of the accused was held on the 29th
14 January 2004. The Trial Chamber is required pursuant to Rule 65 bis to
15 hold a Status Conference within 120 days of the initial appearance of the
16 accused to organise the exchange between the parties to ensure expeditious
17 preparation for the trial and to allow the accused to raise any issues in
18 relation to the status of his case, including his mental and physical
20 Mr. Rajic, would you please stand up. Do you have anything to
21 complain at this stage concerning your conditions in the Detention Unit?
22 THE ACCUSED: [Interpretation] I have no complaints.
23 JUDGE LIU: How about your health?
24 THE ACCUSED: [Interpretation] It is fine. Thank you.
25 JUDGE LIU: Thank you very much. You may sit down, please.
1 The Defence filed a second motion challenging the form of
2 indictment on 23rd of February 2004 following the submission of the
3 amended indictment by the Prosecution on the 14th of January 2004. The
4 Prosecution responded on the 5th of March 2004, and the Trial Chamber
5 issued its decision on the 27th of April 2004.
6 In that decision, we request the Prosecution within 30 days of the
7 date of this decision to clarify the apparent inconsistencies on a number
8 of the victims as presented in the paragraphs 16 and 17. Now I turn to
9 the Prosecution. I want to know how much time and in what form do you
10 need to file something concerning the amendment in this aspect?
11 MS. D'AOUST: Yes, Your Honour. We -- the clarification can be
12 done very shortly. We don't need much delay to do that. And we can file
13 an amendment to those paragraphs indicating the reason, or we can file an
14 explanation with the Trial Chamber and counsel.
15 JUDGE LIU: Yes. Do you think you need another amended
17 MS. D'AOUST: I think that the clarification can be -- maybe
18 expressed without the amending indictment because the facts are there. It
19 may, as the Court requests us to need to clarify, but I don't think it
20 needs an amended indictment. Maybe clarification can be filed with the
22 JUDGE LIU: Thank you very much.
23 The next issue is about disclosure. Pursuant to Rule 66(A)(i),
24 the Prosecution shall provide the accused with copies of the supporting
25 material and all prior statements obtained by the Prosecution from the
1 accused within 30 days of the initial appearance of the accused. The
2 supporting materials submitted in support of the amended indictment was
3 provided to the Defence on the 15th of January 2004, except for the B/C/S
4 translation for four English documents which were provided on 29th January
5 following the initial appearance. As far as the Chamber knows, the Rule
6 66(A)(i) has therefore been complied with.
7 The Defence requested further information on the source of a
8 series of documents obtained by the Prosecution from the archives of the
9 secret service of the Republic of Croatia in order to be able to check
10 their authenticity. I believe that the Defence referred to about 10 to 20
11 million pages. The Defence was supposed to draw the least of those
12 documents for which it sought further information. I would like to know
13 whether the parties have already solved this issue or not. And this time,
14 I'll give the floor to the Defence first.
15 MR. OLUJIC: [Interpretation] Thank you, Your Honour. It is true,
16 as you have stated, that on the 15th of January 2004 we received
17 additional material. We have been working on it. We have studied it. It
18 is also true that the Defence raised an objection at the last Status
19 Conference where we stated that it would be fair on the part of the OTP
20 and in order to reach the truth if they could at least roughly give us an
21 indication how they gained access to certain material at the Croatian
22 State archives. It is true, as you have stated, Your Honour, that on that
23 occasion I said that that involved 10 million pages put in different
24 boxes. In the meantime, the archives service has started selectioning
25 that material, and we have already managed to carry out some
1 authentication, however, not in its entirety. I will ask from my learned
2 friend Mr. Scott in accordance with your instructions to be given
3 information as to sources so that I can verify the authenticity of the
5 What I can say is that I have managed to track down about 70 per
6 cent of the material because the archives has classified some of the
7 material, so the Defence was able to verify the authenticity. However,
8 for a small portion of material, we will need the additional information.
9 And in accordance with your instructions, I will request this additional
10 information from the Prosecution within the following month. Thank you.
11 JUDGE LIU: Could I turn to the Prosecution on this issue.
12 MS. D'AOUST: Regarding the request, Your Honour, as it was
13 mentioned at the last initial appearance, it's difficult for us to provide
14 specific information if we don't necessarily know which documents are
15 causing a problem. But if Defence counsel wants to be a little bit
16 precise and tell us which document in question he would like to have
17 information, if it's in -- if we're able, we will provide the information
18 to Defence counsel.
19 JUDGE LIU: Thank you very much. I'm surprised to hear that
20 there's so many documents involved in this case. I think as a principle,
21 we should reduce the paperwork as much as possible at this stage. And
22 the -- I believe that all those documents first of all should be related
23 to this very case, and there should be some probative value. Thirdly,
24 those documents could possibly be used during the trial proceedings. If
25 we spend a lot of energy on seeking those documents and at last we do not
1 use it, what's the purpose to go into that amount of the documents?
2 Although the Defence counsel said that they have already finished about 70
3 per cent of those documents, the left documents will still amount to
4 thousands of pages. I hope the parties could meet together to have this
5 problem solved. And it is my belief that Defence counsel is waiting to
6 submit a list for those documents they want to know the source. But
7 Defence counsel have to remember at this stage or at any stage, the
8 Prosecution has the obligation to disclosure, but it's within the scope of
9 the Rules and Procedures. They could and they shouldn't be the
10 investigator and the detective for the Defence team.
11 As for the authenticity of some documents which might be a subject
12 matter in the trial stage, I hope the parties will bear in mind the
13 comments of the Pre-Trial Judge.
14 MS. D'AOUST: With the permission of the Court, maybe I shall
15 clarify something, Your Honour. As it was mentioned by the Defence
16 counsel in the initial appearance, the Defence counsel referred to
17 millions of documents. And we -- I believe that we indicated to the Court
18 that we were not aware of those millions of documents. We have submitted
19 documents which are relevant to that case, and I believe that there's
20 probably in all total about a hundred documents that we've submitted for
21 the supporting material. I would need to verify the precise amount,
22 especially for the material in support of the amended indictment. It was
23 one binder, and I think that it was about that. Maybe 75 or a hundred
24 documents. So I'm not aware as we also informed the Court at the initial
25 appearance about the tens of millions of documents. But of the material
1 we submitted or transferred to the Defence, if the Defence within those
2 hundred or more documents have any question, then we of course will answer
3 his question.
4 JUDGE LIU: I hope the parties could meet after this sitting to
5 clarify this issue. But the principle is that the disclosure should be
6 within the scope of the Rules and Procedures.
7 Regarding the disclosure obligation under Rule 66(A)(ii), the
8 Prosecution indicated that at the Status Conference of the 3rd November
9 2003 that it fulfilled its obligation under this Rule except for 25 to 30
10 per cent of the documents which still needed to be translated from B/C/S
11 to English or from English to B/C/S. Has the translation been completed
12 by now and has it been provided to the Defence team? Yes.
13 MS. D'AOUST: Yes, Your Honour. On the issue of the disclosure,
14 we met with the Defence counsel prior to this hearing. And we informed
15 him that there was several documents and material that was ready for him.
16 He indicated to us how he would prefer us to transmit the documents. This
17 will be done. From the documents, I believe that there are two or three
18 still-outstanding translation to come. But as soon as we have, we will
19 transmit it to the Defence counsel.
20 As for the totality of the Rule 66(A)(ii) obligation, it is not
21 fully completed because there's some verification in -- concerning certain
22 matters that were raised that need to be fulfilled. But it is our
23 intention to fulfil it as soon as possible to respect Rule 66(A)(ii). And
24 part of the disclosure also is pursuant to 66(A)(ii) and 68.
25 JUDGE LIU: Thank you. Mr. Olujic, do you have any observations
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 concerning Rule 66(A)(ii) obligations?
2 MR. OLUJIC: [Interpretation] Your Honour, I do not have any. As
3 my learned friend has said today, I had a meeting with my colleagues from
4 the OTP, and I was told that certain documents would be provided to us.
5 Since this involves a large quantity of material, I asked that this
6 material be delivered to me in Zagreb where I practice law. I don't think
7 that this would pose a problem to the Prosecution. They promised to
8 comply, and I expect to receive these documents within a short space of
10 JUDGE LIU: Thank you.
11 The next issue is about Rule 68. Any observations from either
12 parties regarding the disclosure of the exculpatory material pursuant to
13 Rule 68? Yes, Ms. D'Aoust.
14 MS. D'AOUST: Like I informed the Court a little bit earlier, we
15 have started to verify for exculpatory material. We are going in that
16 disclosure to disclose those material. We understand that our obligation
17 is an ongoing one, and we're doing the effort to fully respect that
18 obligation also.
19 JUDGE LIU: Any comments from Defence counsel on that issue?
20 MR. OLUJIC: [Interpretation] No, I have no comment. We expect
21 this to be updated and to be carried out as soon as possible. Otherwise,
22 we have no complaints or any other comments regarding that.
23 JUDGE LIU: Yes. And another issue is the inspection of the
24 materials. The Defence requested to inspect the books, documents,
25 photographs or other objects in the Prosecutor's custody. Any issue to be
1 raised in this regard?
2 MR. OLUJIC: [Interpretation] Your Honour, no. I have nothing to
3 raise. However, the strategy of our Defence is such that we are focussing
4 on the time relevant for the indictment. So all of the materials,
5 videotapes, and photographs, I will request them following the additional
6 material that I will receive. And I do not expect to encounter any
8 JUDGE LIU: Thank you.
9 Under Rule 65 ter (H), the Pre-Trial Judge shall record the points
10 of agreement and disagreement on matters of law and fact. In this
11 connection, the Pre-Trial Judge may order the parties to file written
12 submissions with either the Pre-Trial Judge or the Trial Chamber. Did the
13 parties already meet on this matter? Could they reach the agreement or
14 disagreement on certain matters? It is the intention of the Trial Chamber
15 to ask the parties in due course to file a document summarising those
16 points of agreement and disagreement they should reach. And you are,
17 therefore, encouraged to meet and consider this matter as soon as
19 Any progress in this aspect?
20 MS. D'AOUST: No, Your Honour. We haven't -- Defence counsel and
21 Prosecution haven't met yet to discuss such matter. It is something that
22 was briefly mentioned before, and I think that it is something that both
23 parties envisioned seriously. But it has not been at the present time
25 JUDGE LIU: Yes. Well -- yes, Mr. Olujic.
1 MR. OLUJIC: [Interpretation] I have nothing to add, Your Honour.
2 My learned friend has stated the facts as they are. I believe that very
3 soon we will be able to find an agreement on agreed facts in order to
4 facilitate the work of all of us, and especially our efforts aimed at
5 establishing the truth.
6 JUDGE LIU: Thank you very much. I appreciate the effort made by
7 the two parties in this aspect. We hope we could speed up the preparation
8 work in this case.
9 At this stage, are there any other matters that the parties would
10 like to raise? From the Prosecution.
11 MS. D'AOUST: Yes, Your Honour. There is one last issue that I
12 wanted to raise with the Court. As the Court may know, and I've raised it
13 prior this hearing with my colleague, Mr. Olujic is acting for Mr. Rajic
14 in this case. But in another case, Mr. Olujic also act for another
15 accused. And we believe that during the initial appearance on the other
16 accused, the possibility of a conflict of interest was raised. And since
17 this case is, of course, related to it, we believe that it was our duty
18 just to inform the Court that there may be a possibility of a conflict of
20 JUDGE LIU: Thank you for your information. What's your position
21 on this issue?
22 MS. D'AOUST: Of course we understand that the decision on the
23 fact that if there is or not a conflict of interest is not up at all to
24 the Prosecutor. But we would like to indicate that we have serious
25 concern that there may be a possible conflict of interest. And by saying
1 this, it has nothing to do, and I wouldn't want the Defence counsel to
2 understand that I'm putting his professionalism in question, but I thought
3 that it was our duty to raise it and to express our concerns.
4 JUDGE LIU: Yes. Your concern is registered here in the
6 Could I hear from the Defence, Mr. Olujic, on this issue. Frankly
7 speaking, I myself am not familiar with the situation.
8 MR. OLUJIC: [Interpretation] Your Honour, my learned friend is
9 right when she says that just prior to entering the courtroom we discussed
10 this issue; namely, there is proceedings going before this trial against
11 Mr. Jadranko Prlic and Mr. Bruno Stojic and others. And Mr. Stojic has
12 entrusted me with his Defence. Before I agreed to act as Defence counsel
13 for Mr. Stojic, I have naturally studied and checked all the allegations
14 to determine whether there is a conflict of interest. This is my
15 professional responsibility. The code of ethics, both here before this
16 Tribunal and in the country where I come from, mandates that I do this. I
17 spoke about this with both of my clients, both with Mr. Rajic and with
18 Mr. Stojic. Both of them expressed no reservations, and they insisted
19 that I defend them here at this Tribunal.
20 I work together with my co-counsel, Doris Kosta, who is an
21 attorney-at-law in Split. We work together in this case. Why do I bring
22 this up? I bring this up because should a conflict of interest arise, I
23 would be the first one to step down, or rather I would choose which client
24 I would defend. Since this is first and foremost the right of the
25 accused, meaning not the right of the Prosecutor or Defence counsel or the
1 Chamber, but rather the right of the accused that is enshrined and
2 protected by main documents of this Tribunal, I believe that it is the
3 decision of the accused that should be taken into account.
4 However, the other case that I'm appearing in is also the case
5 heard by Trial Chamber I, meaning the same Chamber. Therefore, should the
6 Chamber question the moral dignity and professionalism of the Defence,
7 then the Chamber would make certain decisions in order to protect the
8 interests of the accused. Therefore, I am in contact with the officials
9 from the Registry and I turned over to them written statements of both of
10 my clients. And together with that, I provided a broad interpretation of
11 the conflict of interest as a concept and also attached some information
12 showing that there is no conflict of interest in this case or in these two
13 cases. However, we never know what can emerge, and should the conflict of
14 interest arise, then I'm sure we would undertake all steps in order to
15 safeguard the principles of justice, especially since there are several
16 Defence counsel in each case. We have the lead counsel and the
17 co-counsel, and each of them can take over should there be a need.
18 Your Honour, this is in brief my position. I believed that the
19 Chamber was aware of this situation; however, I see that I might have been
20 wrong because so far I have not received a decision on my appointment,
21 neither I nor the rest of my team. Therefore, I hope that we will receive
22 a decision from the Registry on that issue, although we know that the
23 final word rests with the Chamber. Thank you.
24 JUDGE LIU: Thank you very much. As I said before, this is the
25 first time for me as a Pre-Trial Judge in this case to hear there might be
1 a conflict of interest concerning the counsel. I have to say, first of
2 all, this matter is within the jurisdiction of the Registrar at this
3 stage. If we came to the trial stage and this matter greatly affects the
4 interests of the accused, the Trial Chamber may interfere in this issue.
5 But generally speaking, generally speaking, it's within the mandate of the
6 Registrar. So any filings should go to the Registrar.
7 Secondly, we have no doubt about the professional responsibility
8 and the code of ethics on the part of the Defence counsel at this stage.
9 And it's very difficult at this stage to predict how the trial proceedings
10 will go. For instance, if one of the accused plead guilty or for his own
11 interests he will blame the other witness -- the other accused. So there
12 might be a potential, potential conflict of interest in the future.
13 Lastly, I believe the free will of the accused should be taken into due
14 account because it is, after all, the accuseds who retain the counsel.
15 And what is important in this aspect whether the accused is informed, well
16 informed, about legal consequences of the conflict of interest of the
17 counsels in this matter. It is a very technical issue concerning the
18 conflict of interest of the counsels, and nobody could predict what will
19 happen in the future, in the middle of the trial, or even after the trial.
20 So I will consult with the Registrar on this issue to see whether they
21 could get in touch with the accused himself to make sure the accused,
22 Mr. Rajic, has made a decision free, out of his free will and well
23 informed about all the consequences of that potential issue. I think
24 that's all I could say at this stage.
25 Are there any other matters that the parties would like to raise?
1 MS. D'AOUST: No, Your Honour.
2 JUDGE LIU: Thank you.
3 Mr. Olujic.
4 MR. OLUJIC: [Interpretation] No, Your Honour.
5 JUDGE LIU: Thank you.
6 So the hearing is adjourned.
7 --- Whereupon the Status Conference adjourned at
8 3.06 p.m.