1 Thursday, 30 June 2005
2 [Status conference]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE SCHOMBURG: Good morning, everybody. Please be seated.
7 Madam Registrar, may I please ask you to call the case.
8 THE REGISTRAR: Good morning, Your Honour. Case number
9 IT-01-42-A, the Prosecutor versus Pavle Strugar.
10 JUDGE SCHOMBURG: Thank you very much. And the appearances,
11 please, for the Prosecution?
12 MR. McKEON: Good morning, Your Honour. Appearing for the
13 Prosecution, Mark McKeon. To my right is my co-counsel, Mr. Xavier Tracol
14 and to my left is our case manager, Victoria McCreath.
15 JUDGE SCHOMBURG: And for the Defence, please.
16 MR. RODIC: [Interpretation] Good morning, Your Honour. I appear
17 on behalf of General Strugar. My name is Goran Rodic, attorney at law
18 from Podgorica.
19 JUDGE SCHOMBURG: May I ask you, Mr. Strugar, can you follow the
20 proceedings in a language you can understand?
21 THE APPELLANT: [Interpretation] Yes, I can, Your Honour.
22 JUDGE SCHOMBURG: Whilst you just have the floor, may I ask you at
23 this time only whether you have any complaints about the conditions in the
24 United Nations Detention Unit? I want on purpose to split the question
25 and come back to the question of your health later on during this Status
1 Conference. Do you have any complaints?
2 THE APPELLANT: [Interpretation] None.
3 JUDGE SCHOMBURG: Okay. Thank you.
4 Applying Rule 65 ter, together with Rule 107, of course, obliges
5 the Appeals Chamber and the Pre-Appeal Judge to try to hear this case as
6 expeditiously as possible, and on my own agenda, I have foreseen that we
7 discuss today questions of filings, questions of health, and then how to
8 streamline the case.
9 So let us start with the filings. I think we received most of the
10 filings. In any event, all of the filings that are due until today.
11 There was a request by the Defence for extension of time. Please correct
12 me if I'm wrong, is the translation into B/C/S was filed the 13th of June
13 2005, meaning that the Defence, Appellant's brief, as such, is due on 8
14 July 2005.
15 Are there any other filings due or to be expected, in particular
16 filings under Rule 115 on additional evidence? Defence, please.
17 THE INTERPRETER: Microphone for counsel, please.
18 MR. RODIC: [Interpretation] Your Honour, at this point in time,
19 the Defence will not be filing anything like that. Likewise, there is no
20 additional evidence at this point in time. We are still investigating
21 regardless of the judgement. This is of course related to difficulties
22 regarding where we come from, both in terms of evidence and in terms of
23 witnesses. As soon as we have something new, we shall of course go to the
24 Chamber and alert the Chamber immediately should there be any new evidence
25 emerging in due time.
1 JUDGE SCHOMBURG: Yes. Maybe you have seen the development in the
2 jurisprudence of the Appeals Chamber being more and more reluctant with
3 the admission of additional evidence since the files have been opened in
4 nearly the entire former Yugoslavia and there is in principle no need for
5 additional evidence but of course this rule exists and if you find
6 something, please alert us well in advance, that we can deal with this
7 case as expeditiously as possible. But may I ask you one question? You
8 filed the 27th June 2005 your Defence response brief. This file was filed
9 confidential. Is there any purpose behind this? And if so -- if need may
10 be, we could go into private session for an explanation or -- please
11 understand that it was only possible for me to have a kind of perusal of
12 this document but I can't see something which warrants to have this
13 document as a confidential one.
14 MR. RODIC: [Interpretation] Your Honour, in compliance with the
15 confidential nature of the document, can we go into private session for a
16 moment, please?
17 JUDGE SCHOMBURG: Private session, please.
18 [Private session]
11 Pages 4-5 redacted. Private session.
14 [Open session]
15 JUDGE SCHOMBURG: Is there any plan by the Prosecution to file any
16 motion under Rule 115?
17 MR. McKEON: No, Your Honour. We have no such plan.
18 JUDGE SCHOMBURG: Okay. Then let's discuss the development of
19 this case. As I said beforehand, it's our duty and in this case as a
20 Pre-Appeal Judge, my own duty, to take care that the exchanges between the
21 parties and everything around this takes place in a way that ensures
22 expeditious preparation of the appeal. I have to tell you that as things
23 stand now, on the waiting list for appeals, the case here in the ICTY,
24 it's called Prosecutor versus Strugar, it would be the other way around in
25 the ICTY, he is under number 11 of the cases to be heard. But at the same
1 time, there is a substantial likelihood that three appeal judgements would
2 be rendered in due course, that de facto it would be number 8, but this
3 does not mean that in fact it's the 8th case in line. We will all try,
4 and we shall try all our very best, that we hear the case as soon as
5 possible and is therefore always the attempt to stick to the time limits
6 as foreseen in the rules.
7 I appreciate that in all likelihood, as things stand now, there
8 will be no 115 motion and we can proceed as soon as possible the moment we
9 have all necessary filings under the rules, the response and reply.
10 In order to streamline the appeal and also, as the appeals brief,
11 as such, is still to be expected, may I give, as it is tradition in not
12 only in civil law systems, some judicial hints to the Defence? Please
13 don't misunderstand those hints as any attempt to limit your brief.
14 However, I was a little bit concerned when reading the notice of appeal.
15 I saw several times that the Defence asserts that all factual and legal
16 findings which permitted the Trial Chamber to find the accused Pavle
17 Strugar guilty of any offence were in error. You should be aware that
18 it's settled jurisprudence of the Trial Chamber that such a catch-all
19 clause would constitute an insufficient pleading, as not each and every
20 error of fact and/or law will lead to a miscarriage of justice or
21 invalidate the decision respectively. All these errors have and the
22 question whether they lead -- it leads to a miscarriage of justice or
23 invalidation of the decision, has to be precisely demonstrated by the
24 appealing party. Thus, the Appellant's brief has to be extremely specific
25 in this respect. And the same is true in relation to other of your 100
1 reasons of appeal. I would give also the judicial hint that you allege
2 that there were alleged errors of fact based on the lack of corroboration.
3 I only want to recall that it is the consistent jurisprudence of the ICTY
4 that no corroboration is required at all, save under certain
5 circumstances, but those would have to be explained in all detail.
6 And then the final judicial hint would be: As regards errors of
7 fact, the threshold is extremely high and you should be aware that only
8 where the events -- evidence relied on by the Trial Chamber could not have
9 been accepted by any reasonable trier of fact, or where the evaluation of
10 the evidence is wholly erroneous, may the Appeals Chamber substitute its
11 own finding for that of the Trial Chamber. This is only to alert you on
12 the limits we have in our work, and maybe already, based on these hints,
13 you may consider or reconsider the question whether upholding one or other
14 reason of appeal. It's custom whenever I'm acting as a Pre-Appeal Judge
15 that I not only give these hints but also to -- having been myself Defence
16 counsel, asking the Defence to focus on the real elements of concern of
17 the Defence, because sometimes it has happened that by too many reasons of
18 appeal, you hide and you refrain, and you let us refrain from looking on
19 the focus or having the focus on those elements and those errors you
20 believe are the most important ones. And therefore, it's always in favour
21 of the Defence and, of course, of Mr. Strugar himself, that we focus on
22 the central issues of the case.
23 Let me state in this connection that I'm always prepared to have
24 an in-camera meeting between all the parties in my office, applying Rule
25 65 ter (D)(iv) in conjunction with Rule 107, maybe to settle the one or
1 other dispute beforehand, that we then later, when it comes to the appeal
2 hearing, can really focus on the central points of both appeals.
3 Please don't hesitate to alert me if the one or the other or both
4 parties want to have such a meeting. Otherwise, it may be that the
5 Appeals Chamber proprio motu takes this measure.
6 Are there any other questions related to the filings and speeding
7 up of the appeal? The Defence, please.
8 MR. RODIC: [Interpretation] Thank you for your advice,
9 Your Honour. If there is anything I can do to clarify the situation in
10 relation to the appeal, as you defined it, the appeal is certain to focus
11 on the subject matter that you have just spoken about. There will be four
12 or five groups of arguments to our appeal. As far as that's concerned, I
13 don't think there will be any problems.
14 Likewise, I wish to thank you for being so prepared to help us
15 with organising meetings outside the Status Conferences that will be
16 scheduled. The Defence shall have further motions in that respect in all
18 As for all the other issues, the Defence would like to raise one
19 particular issue that you have referred to. I'm talking about
20 General Strugar's health, of course.
21 JUDGE SCHOMBURG: May I just interrupt you? We will come to the
22 let at the final point. Let's first discuss the filings on the subject
23 matter of the case and the health will be later -- at a later stage in
24 this hearing, and in all likelihood in private session. May I ask the
25 Prosecution is there any problem in relation to filings in the future and
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 any initiative to speed up proceedings?
2 MR. McKEON: No, Your Honour. At this point we don't anticipate
3 any problems. We will have to wait and see how the appeal brief looks to
4 see whether there are any problems generated by that, in terms of our
5 response in a timely fashion. But at there point we don't anticipate
6 anything and we will certainly consider any ways that we might speed up
7 the process and will bring them to the Court's attention if we have any
9 JUDGE SCHOMBURG: Thank you for this and I can only tell you and
10 of course both parties that time limits, they indicate only the maximum of
11 the time, and, of course, the Appeals Chamber would appreciate if you
12 could come with a response or reply even earlier than foreseen in the time
13 limits in our Rules.
14 Let's leave it with this for today, but then let's go to a more
15 specific point and let's please go for this purpose as we want to discuss
16 private issues, like the health condition of the Appellant in private
18 [Private session]
11 Pages 12-18 redacted. Private session.
9 JUDGE SCHOMBURG: Thank you very much for your cooperation. This
10 concludes this Status Conference.
11 --- Whereupon the Status Conference adjourned
12 at 9.43 a.m.