Tribunal Criminal Tribunal for the Former Yugoslavia

Page 27

1 Wednesday, 18 October 2006

2 [Status Conference]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 8.08 a.m.

6 JUDGE MERON: Please be seated.

7 You may have taken note of the fact that we do not have a court

8 officer in court. There is no one from the Registry, but I don't believe

9 that I should inconvenience the parties and myself by waiting longer. If

10 we can all be here on time, so can the representatives of the Registry,

11 and I will make a note of that.

12 May I ask the transcript person to spell my name correctly. Thank

13 you. You might want to correct already the spelling you made. Did you?

14 I don't see it on my screen but I trust you.

15 Okay. Well, I will myself call the case. We are meeting for a

16 Status Conference in the case of Prosecutor against Brdjanin. I will now

17 call for the appearance of the parties. The Prosecution please.

18 MS. MARGETTS: Your Honours, Katharina Margetts for the

19 Prosecution together with Senior Appeals Counsel, Mr. Peter Kremer, and

20 our case manager Ms. Lourdes Galicia. Thank you.

21 JUDGE MERON: Thank you.

22 For the Defence.

23 MR. ACKERMAN: Your Honour, I'm John Ackerman for Mr. Brdjanin.

24 JUDGE MERON: Thank you, Mr. Ackerman.

25 JUDGE MERON: Mr. Brdjanin, will you stand up, please.

Page 28

1 [The accused stands]

2 JUDGE MERON: Can you hear me in a language that you understand,

3 Mr. Brdjanin.

4 THE APPELLANT: [Interpretation] Good morning, Your Honour, I can

5 understand and follow the proceedings in a language I understand.

6 JUDGE MERON: Thank you, Mr. Brdjanin. You may be seated.

7 [The accused sits down]

8 This is a Status Conference called in accordance with 65 bis of

9 the Rules of Procedure and Evidence. Rule 65 bis (B) requires a Status

10 Conference to be convened within 120 days of the last Status Conference to

11 allow any person in custody pending appeal the opportunity to raise issues

12 in the relation thereto, including the mental and physical condition of

13 that person. The last Status Conference in this case was held on 28 June

14 2006. Almost 120 days have now passed since that Status Conference.

15 Mr. Brdjanin, at the last Status Conference, you asked whether you

16 were entitled to have a copy of the filings in your appeal translated into

17 your own language. I have checked with the Registry about this and they

18 have informed me that you are only entitled to have decisions of the

19 Tribunal translated, not filings made by the parties. This answer is not

20 in your favour, but I did want to let you know that I have followed up on

21 your question. In this regard, it is important to note that your counsel,

22 Mr. Ackerman, can read the filings and communicate with you in regard to

23 their content.

24 Mr. Brdjanin, I would like to ask you if you have any issues that

25 you would like to raise at this time, any problems or concerns regarding

Page 29

1 your mental or physical well being?

2 THE APPELLANT: [Interpretation] Your Honour, before I tell you

3 about my mental and physical well being, I would just like to express my

4 regret about the wrong translation. I didn't ask about any submissions to

5 be translated. What I actually wanted was to have a translation of the

6 appeal, but since there was a mistake in the translation, I discussed this

7 with my counsel what pertained to the appeal so I think that there was a

8 misunderstanding here.

9 Thank you very much for listening to me.

10 As for my physical and mental well being, I am in a situation that

11 is appropriate to my years and appropriate to the situation that I am in.

12 As the saying goes in my country, I am keeping up.

13 JUDGE MERON: Thank you. Thank you, Mr. Brdjanin. Of course you

14 are entitled only to translations of the decisions of the Tribunal.

15 As you know, the Appeals Chamber has scheduled all our arguments

16 in this appeal for the afternoon of Thursday, December 7th, and the full

17 day of Friday, December 8th. The Appeals Chamber may soon issue a further

18 order identifying what time should be devoted to what arguments and

19 perhaps -- and to which parties and perhaps specifying the questions for

20 the parties.

21 Before concluding the Status Conference, may I ask counsel for the

22 Prosecution and Defence whether there are other issues they would like to

23 raise at this time.

24 Ms. Margetts.

25 MS. MARGETTS: No, Your Honours. The only question I was about to

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1 raise was concerning any questions which Your Honour might have and you've

2 already addressed that and we'd obviously very grateful to receive those

3 questions as early as possible to focus our preparations.

4 Thank you.

5 JUDGE MERON: Thank you, Ms. Margetts. This is certainly our

6 object. Our experience has been that listing the questions in advance in

7 the Scheduling Order does make preparation for the oral argument easier

8 for both parties, and I intend to do so.

9 Mr. Ackerman.

10 MR. ACKERMAN: Yes, Your Honour, I have two matters.

11 One pretty much directly related to what we just spoke about. It

12 seems to me that in a case where we have filed very comprehensive briefs

13 and are not permitted to make argument to you that would be outside those

14 briefs, new argument, things of that nature, that a day and a half of time

15 set aside to make our presentations and submissions to you is quite

16 excessive, and I would strongly suggest that we could make the submissions

17 in this case in a half a day of sitting and limit us to like a half hour

18 to make an initial presentation to you and then spend the rest of the time

19 responding to your questions because that's the heart of what really is --

20 goes on in these hearings.

21 It makes no sense for us to stand here for a day and a half and

22 read our briefs to you or paraphrase our briefs to you. You've read them,

23 you know what they say, and we can't go outside them, so I think it would

24 just be unproductive for the hearing to proceed that way. A list of

25 questions, of course, would be extremely helpful because that way we would

Page 31

1 have a chance to reflect on and prepare our answers and give a

2 comprehensive response rather than something coming off the top of our

3 heads.

4 The second thing I would like to bring to your attention is this:

5 We were recently provided and alerted to a huge archive of material, much

6 of which has potential relevance to the issues in this case. This was

7 brought to our attention by the Office of the Prosecutor. They have

8 recently acquired numerous archives from Republika Srpska which have been

9 placed in the electronic disclosure system. In addition, we were provided

10 with a few thousand pages, I would say, of material developed in other

11 trials in this Tribunal that are relevant or potentially relevant to this

12 case.

13 As Your Honour probably knows, I am lead counsel in a category 3

14 trial that's also going on in this Tribunal at this time, so upon

15 receiving that material, I immediately started the process of trying to

16 get some persons assigned to the case to assist me in working through that

17 material and determining whether any of it is of a nature that would need

18 to be the subject of a motion presented to the Appeals Chamber.

19 I think today finally after many technical problems, a lawyer

20 from Banja Luka will be appointed to assist in this matter. Most of this

21 material, all of it that comes out of the archives in Banja Luka, is in

22 B/C/S so I'm of no value in going through it. I have Mr. Brdjanin looking

23 through the spreadsheets that we were provided, and I will have this

24 lawyer from Banja Luka then available to actually go through the documents

25 themselves, the ones that are flagged as being maybe pertinent to this

Page 32

1 case. I've also asked for the assignment of a co-counsel who is also

2 familiar with the issues in this case, but that matter seems to have

3 become completely stalled, and I have no idea what will happen to it.

4 In any event, all that puts me in a position where I can't say to

5 you that we will really be ready to submit this matter to you on the 7th

6 and 8th of December, and so what I would suggest very respectfully, Your

7 Honour, I know that a lot of time has gone by but this is pretty recent

8 material is that the Appeals Chamber consider giving us perhaps until the

9 1st of February to make a determination as to whether or not an additional

10 presentation must be filed with you. Just the spreadsheets alone for the

11 material that has been disclosed exceed a thousand pages, so just the

12 little descriptions of each document is 1.000 pages of spreadsheets. Just

13 going through those is an enormous task all by itself. And then if we

14 have to select out of that a number of documents and go through those

15 documents, which it's inevitable that we will, I can't imagine that we can

16 actually complete that task before the 1st of February. And I'm trying to

17 make it as short as possible because I know you don't and I don't want to

18 delay this matter any longer than it's already gone. But I think it's

19 important in the interest of justice that Mr. Brdjanin have the

20 opportunity for counsel assigned to his case to at least look at this

21 material and become familiar with it and determine whether or not it could

22 affect the outcome of this case.

23 I have taken pains to have persons assigned to the case who are

24 very familiar with the issues so that nobody has to spend a bunch of time

25 learning the Brdjanin case. Everybody I'm asking to be assigned who will

Page 33

1 be working with us on this have -- has previously worked on the case so

2 they have knowledge. So I'm doing the best that I can to speed it up as

3 much as possible, Your Honour, and we have run into some technical snags

4 but I think it's now moving forward.

5 JUDGE MERON: Let me understand, Mr. Ackerman, what is exactly in

6 your mind, the significance of the date of 1st of February that you have

7 mentioned.

8 MR. ACKERMAN: Your Honour, I think the only significance is that

9 I believe that considering there's going to be a fairly large recess in

10 December, that that would give us enough days between now and then to get

11 through that material and make a determination as to whether we need to

12 file an application with the Chamber for the admission of some additional

13 evidence.

14 JUDGE MERON: But do you have a problem with our having the

15 hearing as scheduled?

16 MR. ACKERMAN: Well, if you have the hearings as scheduled, then

17 we would be -- it may be that we would have to just do it over again and

18 we could have a supplemental hearing if that would -- and that would of

19 course work. We could have the hearings as scheduled and still make the

20 filing and maybe have additional hearings at a later time after some

21 additional briefing.

22 JUDGE MERON: Your 115 motions can be submitted even after the

23 hearings.

24 MR. ACKERMAN: I understand that. I just thought it might be more

25 efficient to get the matter dealt with before the hearing.

Page 34

1 JUDGE MERON: I understand. Let me hear the view of the

2 Prosecution on that.

3 MS. MARGETTS: Thank you, Your Honour.

4 JUDGE MERON: I would like your views, please, on the two matters.

5 MS. MARGETTS: Yes. With respect to the first matter of limiting

6 the time for the oral arguments, I'd just like to briefly raise one issue

7 that we would like obviously the Chamber to use its discretion in light of

8 any questions you might have that appropriate time will be given to the

9 parties to address those questions, which might be more time than counsel

10 has just suggested. And also there is a necessity for the Prosecution's

11 appeal at least to make certain additional submissions, not outside of the

12 issues dealt with in the briefs, but with respect to recent jurisprudence

13 we'd just like to bring to the Chamber's attention, for example. So

14 that's one matter.

15 With respect to the disclosure of material --

16 JUDGE MERON: Wait, wait, let us finish the first matter first.

17 It has been the recent practice of the Appeals Chamber usually to

18 fix one day for the appeal hearings. Out of the concern for the

19 complexity of this case and the many issues that arise in this case, I

20 felt that I should allow for a day and a half. Maybe in view of the fact

21 that you do not really object to the suggestions made by Mr. Ackerman,

22 what occurs to me is that we might, in our Scheduling Order, suggest --

23 proceed on the basis that we will hold hearings on Thursday afternoon and

24 Friday morning and I would -- if the Bench is agreeable to that, and I

25 will of course have to consult them, we would then keep Friday afternoon

Page 35

1 in the reserve, should something -- should it be -- become clear in the

2 course of the proceedings that one of the parties or both require more

3 time, we would then be able to give them a little bit more time.

4 That will be acceptable to you, Mr. Ackerman.

5 MR. ACKERMAN: Your Honour, I think that's a very sensible

6 suggestion. I appreciate it.

7 JUDGE MERON: Now, let us move on to the perhaps more complicated

8 matter, the possibility at this late stage, the Defence may wish still to

9 submit Rule 115 motions.

10 I would like to hear the Prosecution on that.

11 MS. MARGETTS: Yes, Your Honour. Thank you.

12 As I understand, the Defence has just raised three issues. One is

13 the notification letter we have sent to the Defence, I believe couple of

14 months ago, notifying them of an archive that has been collected in

15 Banja Luka, and we have been informed by the local authorities that this

16 archive was accessible to both the Defence and the Prosecution so that

17 either party could go down there and search for material.

18 There is limited documentary material that we brought back from

19 that archive which has been placed on the EDS. From our initial review of

20 that material, this -- a large amount of that material is not directly

21 relevant to this case because it relates to east Bosnia, the Drina Corps,

22 and Sarajevo, and those documents that are relevant as we can see from our

23 initial review to an extent are old documents that have been collected

24 from other places in the Republika Srpska and centralised in this new

25 archive. So while we obviously have to wait for any additional evidence

Page 36

1 motion to be filed to be able to deal with specific documents that come

2 up, we believe that not a large amount of new material would come out of

3 this selection.

4 And then the second matter Mr. Ackerman raised was in relation to

5 the disclosure of transcripts and --

6 JUDGE MERON: Wait a second. It's not clear to me since when have

7 the parties been aware of that -- the existence of that archive. Only

8 from the time you wrote a letter, a notification to the Defence or did the

9 Defence know about it earlier?

10 MS. MARGETTS: We are unaware of that. We have been informed of

11 the existence of that archive, I believe, in June or July of this year,

12 and members of the Prosecution's office and we know members of the Defence

13 in other cases have been down in Banja Luka accessing this archive. And

14 we have notified the Defence of the disclosure of documents on the EDS

15 from that archive at -- on the 22nd of August, I believe, when the

16 material was processed and placed on the electronic disclosure suite.

17 JUDGE MERON: So what has happened, assuming that this date is

18 22nd of August, Mr. Ackerman, have you been able since then or did you

19 consult those records?

20 MR. ACKERMAN: Your Honour, the first thing I did was try to

21 figure out what was there and what I needed to -- in terms of resources to

22 be able to look at it. And so the first thing I did was just look

23 generally at what had been made available.

24 I must tell you, just being in total candid with the Court, I had

25 heard earlier that there was an archive that had been opened up in

Page 37

1 Banja Luka and I made inquiry of an associate in Banja Luka about that and

2 was told that he had made inquiries and that it was not true, that there

3 was an archive that had been opened up and then when I got the letter from

4 the Prosecution, I realised that there was one or at least that I was

5 being made aware of it at that point.

6 At that point, I then started trying to get a couple of people

7 assigned to the case to look into that matter and I told you we ran into

8 all kinds of technical problems. But that is now happening and our

9 associate and -- that is being assigned probably today in Banja Luka has

10 actually been in the archive and has been looking through and has actually

11 found some documents.

12 It may very well be the case, and it tends to me to be my feeling

13 right now that among the thousands of documents, there would be very few

14 that would have any relevance to this case, but the only way to make that

15 determination is to at least do a cursory examination of what's available,

16 and those from the east Drina Corps and Sarajevo and the Romanija Corps

17 are prima facie, I suppose, not relevant, although any one of those

18 documents could provide some significant new information about the way the

19 chain of command operated in the army in Republika Srpska during the

20 relevant time and may not. It's impossible to tell at this time.

21 But I think February 1st is not an unrealistic time for us to be

22 able to get through that material and I -- the Prosecution thinks there is

23 very little there that may be of interest to us but it's that very little

24 that I need to find and it's a bit like looking for a needle in a haystack

25 in some ways but there probably is some material there that is useful and

Page 38

1 as -- we are working through it. The process is underway.

2 JUDGE MERON: Thank you, Mr. Ackerman.

3 You still have a month and a half to the oral hearings, and I see

4 no reason why it would not become clear to you within the next week or two

5 whether there is something really important that would justify a 115

6 motion, and certainly you could try within next three weeks or so to

7 submit such a motion if you are really convinced there is something in it

8 which can help your client.

9 I must tell you that while I will consult the Bench about the

10 representations you have made, I certainly, as Presiding Judge, am not

11 inclined to postpone the hearings, oral hearings in this case for such a

12 long time. Mr. Brdjanin is entitled to a speedy trial. His day, he has

13 been waiting for his day in court and to postpone that in the present

14 situation where it is fairly iffy whether you really find something

15 significant would really not be the right course to follow. And again,

16 you still have quite a considerable time before the hearings.

17 But again, I will consult on this, my colleagues and I will see

18 how they feel.

19 Back to the Prosecution now and the other remaining issues.

20 MS. MARGETTS: Your Honour, I've got not much to add to that. I

21 mean, we would agree, be favourable to us to proceed with the hearing as

22 scheduled in light of the large amount of time.

23 Now, I just wanted to briefly mention the disclosure of

24 transcripts Mr. Ackerman has raised and clarify that a large amount of

25 those transcripts related from -- from a related case, the Krajisnik trial

Page 39

1 that has just been completed, and I believe it was around 20 witnesses

2 where portions of confidential transcripts were disclosed to the Defence

3 and in our view it should be possible to identify in a fairly short period

4 of time any material, if relevant, and most of the witnesses that we

5 indicated to the Defence testified in open session and were available to

6 the Defence.

7 Thank you very much, Your Honour. That was all I had to say on

8 this.

9 JUDGE MERON: Thank you.

10 I see Mr. Ackerman.

11 MR. ACKERMAN: Your Honour, just two things and then I'll be

12 finished.

13 What the Prosecution says about the transcript is absolutely true

14 and correct. We can get through those rapidly; I'm not worried about

15 those at all. I think we're probably maybe as much as halfway through

16 them already, so that's not a big problem.

17 With regard to the previous question about the date, I just want

18 to reflect in the record that Mr. Brdjanin is not insisting on his right

19 to a speedy hearing; in fact, it's his request that I am making today. He

20 asked me to make a request that he be given and his Banja Luka counsel be

21 given adequate time to work through these new documents and -- and it's

22 his suggestion that the hearing be held off until February, so I'm just

23 making that request on his behalf, Your Honour.

24 JUDGE MERON: Thank you. The record will reflect the points that

25 you have just made.

Page 40

1 If there are no other issues, I thank the parties for their

2 attendance and call the proceedings to a close. I look forward to seeing

3 you all at the oral argument and we will soon issue an additional

4 Scheduling Order which will clarify the date and also the duration of the

5 hearings.

6 Thank you very much.

7 --- Whereupon the Status Conference adjourned at

8 8.35 a.m.