Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 Friday, 5th September 1997

2 (2.30 pm)

3 (In closed session)










13 Pages 1-26 redacted closed session













Page 27

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (3.25 pm)

6 (A short break)

7 (3.50 pm)

8 (In open session)

9 JUDGE McDONALD: You may be seated, Mr. Dokmanovic. The

10 first matter that the Trial Chamber would like to

11 consider is the assignment of counsel.

12 Mr. Fila had been temporarily assigned as counsel

13 for Mr. Dokmanovic, Mr. Dokmanovic then filed his

14 declaration of means. That was reviewed by the

15 Registry. The Registry then determined that

16 Mr. Dokmanovic was not indigent, and therefore withdrew

17 its -- did not withdraw its temporary assignment but

18 declined to appoint Mr. Fila as counsel. Mr. Fila, on

19 behalf of the Defence, has filed one or perhaps two

20 motions challenging the decision of the Registry.

21 In one of the motions, or perhaps it was filed by

22 itself, there was a statement of services attached to

23 that. The Trial Chamber has reviewed all the material

24 that was used by the Registry in making its

25 determination, as well as a filing that was made by the

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1 Registry yesterday, and has determined that

2 Mr. Dokmanovic should be assigned counsel from this

3 moment on; that in fact he is indigent.

4 The Registrar determined that the value of the

5 accused's disposable assets and capital is 80,000

6 Deutschmarks. That includes real property, with an

7 estimated value of 2,000 dinars. The accused has

8 asserted that the property has a lesser value, and in

9 any case, it cannot be sold, seemingly because of the

10 conditions prevailing in Croatia. Finding that there is

11 a dispute as to the value of the property and its

12 disposability, the Trial Chamber will exclude that

13 property from the calculation to determine the accused's

14 indigency until that matter can be resolved under the

15 direction of the Registrar.

16 Thus the value of the disposable assets and

17 capital of the accused is such that he should be

18 considered indigent at this time. The Trial Chamber

19 requests the Registrar to appoint counsel for the

20 accused.

21 Further, the Trial Chamber directs Mr. Fila to

22 submit an itemisation of services performed by the

23 accused in the form requested by the Registry, including

24 a specific statement of exact services performed, the

25 date of those services, the attorney performing those

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1 services and the hourly rate claimed. The Registry

2 shall determine the amount of the fee, if any, to which

3 Mr. Fila is entitled for services performed thus far.

4 What that means, Mr. Fila, is that I looked at the

5 statement that was attached to one of the motions, and

6 it simply was a conclusionary statement, it just said

7 that for services performed from July 31st, I believe,

8 through August 31st -- was it 50,000 Deutschmarks? You

9 should submit -- but I would suggest that you contact

10 the Registry, because the Registry has its procedures

11 for the receipt of claims -- to the Registry an

12 itemisation of services. You cannot just submit

13 a statement saying, "Four months' time, this is the

14 amount". You need to include those items that

15 I suggested.

16 So that should resolve the request for assignment

17 of counsel. You understand that, at least as of this

18 moment forward, the accused will be entitled to an

19 assignment of counsel. You have been assigned, Mr. Fila,

20 through the conclusion of the hearing on Monday, so

21 actually assignment of counsel should take place on

22 Tuesday, and that will then be left to the Registry to

23 make the determination as to the counsel to be

24 appointed.

25 There is another motion that has been filed by the

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1 Defence, and it is a request for Rule 61 materials. It

2 is a motion entitled "Preliminary Motion" that was filed

3 on July 8th 1997, and Defence counsel says:

4 "Pursuant to Article 61, Rules of Procedure and

5 Evidence of the International Criminal Tribunal for the

6 Former Yugoslavia, the Defence counsel is requesting to

7 receive all the evidence and other materials that were

8 shown for Vukovar Hospital case", et cetera.

9 The Prosecution responded to that motion on July

10 21st 1997 and in the response, the Prosecutor states:

11 "Rule 61B of the Rules of Procedure and Evidence

12 does not appear to apply to the discovery process. The

13 Prosecutor has no objection to the Defence obtaining

14 materials from the Rule 61 hearing that are in the

15 public domain. Should the Defence wish to obtain items

16 from the Prosecutor through the discovery process,

17 however, application should be made under Rule 66B."

18 Has that motion been resolved? I gather not.

19 Mr. Fila, if it has not been resolved, what do you mean

20 by "materials that were shown for the Vukovar Hospital

21 case", and what do you mean, Mr. Niemann, by "the public

22 domain"? Let me hear from Mr. Fila first. What do you

23 want, Mr. Fila?

24 MR. FILA: Your Honour, everything I wanted, I received. As

25 you know, Mr. Dokmanovic's name was added to the

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1 indictment against Mrksic, Sljivancanin and Radic, and

2 when that indictment was shown, I do not know how to put

3 it here, together with the indictment, a certain number

4 of materials has been submitted. Whatever I requested

5 I have received in French, but however, that evidence

6 should have been translated into Serbo-Croatian for the

7 accused, and that translation has not yet been done, so

8 I received everything I requested from the Prosecutor

9 and I can only thank him for that.

10 I did not request Rule 66B to be applied. When

11 I am ready to proceed in that respect, I will also be

12 prepared to disclose my evidence, and I am still in the

13 procedure of gathering evidence.

14 JUDGE McDONALD: Mr. Niemann?

15 MR. NIEMANN: Yes, your Honour. To answer your Honour's

16 question, "public domain", what we meant by that was the

17 Rule 61 hearing was a public hearing, and by "public

18 domain" we mean that which was tendered during the

19 course of that hearing. Of course, once there is

20 a Rule 61 hearing, and there are transcripts taken of

21 evidence and things tendered in the course of that

22 proceedings, it no longer becomes in the possession of

23 the Prosecutor, it is in the possession of the

24 Registrar, and from the Registrar there to the world at

25 large, should people be able to obtain it from the

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1 Registrar upon request.

2 So we certainly had no objection to that, except

3 that during the Rule 61 hearing we applied for and

4 obtained from Judge Jorda, who was presiding, certain

5 orders in relation to some of the witnesses, and in

6 relation to that which was ordered to remain

7 confidential, then we would maintain that those orders

8 should still be adhered to and that they are not in the

9 public domain. That is the information that was the

10 subject of the order.

11 So insofar as anything else is concerned, we have

12 no objection. We have our copy of the transcript, and

13 we have, of course, copies of some of the material, much

14 of it, I would say, a large percentage of which has been

15 given to Mr. Fila, as he has already indicated. Things

16 like video recordings of the proceedings and things of

17 that nature are not in the possession of the Prosecutor

18 but are in the possession of the Registrar, but we have

19 no objection, should the Registrar wish to provide that

20 material.

21 Should there be anything else, we say it would

22 fall under Rule 66B. I do not know whether I have made

23 myself clear, but that is what we understand.

24 JUDGE McDONALD: You have answered it clearly, but I hear

25 something else from Mr. Fila. Mr. Fila says he has

Page 33

1 received everything, but he may be referring to Rule 66

2 material as opposed to Rule 61 material.

3 MR. NIEMANN: I think he may. In terms of Rule 61 we

4 certainly have not supplied any more than -- let me put

5 it this way: we have provided quite a lot of material

6 which was used in the Rule 61 hearing because it is the

7 same material.

8 JUDGE McDONALD: Mr. Fila, has this motion that you filed on

9 July 8th been satisfied?

10 MR. FILA: Your Honour, I am satisfied, and I also received

11 all the documents that had been seized at the arrest,

12 I have no further requests. I have received everything

13 I have asked for. The only thing I am asking for is for

14 the material to be translated into the language that the

15 accused understands. Nothing else. Everything else

16 that I had requested I have received.

17 JUDGE McDONALD: There is a transcript of the Rule 61

18 proceeding, and what the Prosecution is saying, since

19 that was an open proceeding, a transcript was made of

20 the proceeding, just as a transcript is being made now

21 that we are in open session -- of course, even when it

22 was in closed session a transcript was made.

23 MR. FILA: I have received that.

24 JUDGE McDONALD: You have that transcript? Okay, fine.

25 Then I will consider that this motion that you filed on

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1 July 8th has been satisfied.

2 MR. FILA: Yes, thank you, your Honour.

3 JUDGE McDONALD: Let us talk again then about the language

4 issue, which I thought we had resolved at the Status

5 Conference. In a decision, Prosecutor v Zejnil Delalic,

6 filed on September 25th 1996, that Trial Chamber held,

7 and this Trial Chamber has indicated in the Status

8 Conference that we would follow the following:

9 "That discovery documents shall be made in the

10 language in which the item was originally obtained, if

11 that is the language of the accused; or in one of the

12 working languages of the International Tribunal, and any

13 translation desired shall be the responsibility of the

14 party requesting it."

15 That is item 2 in the disposition of that

16 decision. In item 1, the Trial Chamber held that:

17 "All items of evidence, including materials

18 submitted in support of the indictment, shall be

19 translated by the Registry into the language of the

20 accused."

21 There is a difference between evidence and

22 discovery documents. What that means is that not

23 everything that you receive from the Prosecutor will be

24 translated into the language of the accused, only if it

25 is evidence; that is documents or testimony, whatever is

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1 to be received into evidence during a proceeding, that

2 material will be translated into the language of the

3 accused, if it is not already in the language of the

4 accused, but discovery documents will not be translated

5 into the language of the accused, they will be given to

6 you in one of the working languages.

7 At the Status Conference, I tried to suggest that

8 it be given in French, and that is when Mr. Niemann

9 started frowning and he did not like that, because he

10 said one of the languages, French or English, and he

11 said that most of their documents are in English, so you

12 will get them in English. So you understand that?

13 MR. FILA: It is all right.

14 JUDGE McDONALD: Do you also understand that documents that

15 you filed are to be filed in either English or French?

16 Documents that you file, and I suppose we will just talk

17 about that now, are to be filed in either English or

18 French. This morning, the Registry has advised that you

19 submitted -- there is a list of documents here, perhaps

20 ten or so, and they are in Serbian. They will not be

21 accepted in that language. They have to be filed in

22 English or French by you. So do not submit them to the

23 Registry because they will just give them right back to

24 you.

25 Further, while we are talking about the filings,

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1 the handling of the motions by the Trial Chamber, as far

2 as I am concerned, has been complicated unduly for a

3 number of reasons: one, if a motion is filed and it is

4 filed as a confidential motion, for example, the

5 Prosecution files a motion as a confidential motion,

6 when you respond to that, Mr. Fila, your response should

7 also be confidential. These are things that perhaps you

8 did not understand, but there is a manual for

9 practitioners that really needs to be adhered to,

10 because it has caused a lot of difficulties. If a

11 motion is filed as confidential, the response is filed

12 as confidential.

13 If either party wishes to file a motion, state in

14 the caption of the motion what it is, identify what it

15 is. Parties are entitled to file preliminary motions,

16 but do not just call the motion "Preliminary Motion",

17 because then we will have perhaps seven or eight or more

18 preliminary motions. Instead, you may call it a

19 preliminary motion and then put a dash or put under it

20 "Assignment of Counsel", "Motion on the Form of the

21 Indictment", whatever, but it is imperative that you

22 identify on the cover sheet what is the substance of the

23 motion, because then the motion gets lost in our papers,

24 at least when I am trying to resolve the motions, and

25 I do not know what kind of preliminary motion it is. If

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1 it is a preliminary motion you can call it a preliminary

2 motion, but then identify under that the substantive

3 issue that you are addressing, whatever it may be, and

4 that will help us.

5 The other matter is that both sides are entitled

6 to file a motion and a response, and then a reply if

7 leave is granted, but if you file a motion and then a

8 response; if one party, say the Prosecutor, files a

9 motion and then, Mr. Fila, you file a response, do not,

10 Mr. Fila, at a later time, file something else called a

11 preliminary motion and then within that preliminary

12 motion respond again to an earlier motion. In other

13 words, you have filed a motion challenging the legality

14 of the arrest, the Prosecutor has responded to it, and

15 you have filed additional, what you have called

16 preliminary motions, but yet again that motion called

17 preliminary motion is more argument by you on the

18 legality of the arrest.

19 In order for the Trial Chamber to fully understand

20 your complete argument, it has been necessary to pick

21 from both your motion that you filed as well as

22 subsequent motions that you filed, and you keep adding

23 to it, and I understand that for -- Mr. Williamson, I am

24 not sure that you have appeared in trial, but Mr. Niemann

25 has appeared several times, so he should know all of

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1 these things I am saying. I do not know that he does,

2 but he should know, I am sure you do, but when you begin

3 it is sometimes difficult. It makes it extremely

4 difficult for the Trial Chamber to try to get a handle

5 on the responses in the motions if they are filed in

6 that way.

7 So if you file a motion, Mr. Fila, the Prosecutor

8 has 14 days to file a response. If you wish to file a

9 reply I think leave has to be requested, and then you

10 would call it a reply. But when you say reply, state

11 what it is, it is a "Reply to Prosecutor's Motion on X",

12 whatever it is, so that I know when I pick it up what it

13 is.

14 If you wish to file a supplemental motion; for

15 example, you filed a motion on the legality of the

16 arrest, the Prosecutor has filed a response, and you

17 think of additional arguments, you want to say more

18 things because more information comes to you, then file

19 a motion or a request for leave to file a supplemental

20 motion, or to submit matters supplemental to your first

21 motion challenging the legality of the arrest. So when

22 that comes in, then I know, "Oh, this is something else

23 that should go with that original motion challenging the

24 legality of the arrest", and then it makes it much

25 easier, because in the process, we do not want to lose

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1 anything that either side is submitting on a particular

2 issue.

3 Do not submit documents to the Registry in

4 Serbian, in any language other than English or French.

5 If you do submit documents to the Registry to be filed;

6 for example, attachments to a motion that you earlier

7 filed, once again, you have to put on the cover sheet,

8 "Supplemental Attachments to Defence Motion on Legality

9 of Arrest". That then has to be put on the cover sheet,

10 the first sheet of the motion, so the Registry knows

11 what to do with the attachments. When they get a stack

12 of papers they do not know what motion this is to be

13 attached to. You know, both of you know and you are

14 capable -- both of you know because you are handling the

15 case, so you know what you want it attached to, but the

16 Registry has a number of cases, a number of files, and

17 it will make their life easier if that be done.

18 In fact, I have asked them not to accept documents

19 if they are just given to them, because if there is not

20 the proper identification, if a document is lost or is

21 misfiled, then they will bear the responsibility that

22 really does not belong to them. Please handle that that

23 way. All documents to be filed in English or French,

24 and look again at the Delalic decision of September

25 25th 1996, and you will see in Items 1 and 2 what

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1 documents are to be given in the language of the

2 accused.

3 Mr. Fila, have you received all of the material

4 that accompanied the indictment, and have you received

5 that in the language of the accused? That you are

6 entitled to have in the language of the accused. It is

7 the position of the Trial Chamber that it is incumbent

8 upon the Prosecutor to submit that to the accused in the

9 language of the accused. The Defence does not have to

10 ask for the Registry to have that translated. Material

11 accompanying the indictment is to be given to the

12 Defence in the language of the accused. If that means

13 that the Prosecution has to ask the Registry to

14 translate it, then do it, because they are entitled to

15 have it in the language of the accused. Do you have

16 that?

17 MR. FILA: Your Honour, I have tried to explain to you that

18 the material was not received in the Serbian language,

19 and I was informed by the Registry that it would be done

20 by the end of September. That is evidence accompanying

21 the indictment that should be submitted to the Defence.

22 Ms. Lopicic has been informed of that.

23 As for the original documents that we are

24 submitting, we are submitting as we are receiving them,

25 those are documents in the Serbian language. As you

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1 say, I have no time to translate them; for example, this

2 document is the ID card of Mr. Dokmanovic who is in

3 detention. How can I submit it in English if it is in

4 Serbian? The weapons permit is also in Serbian, that

5 was all in the prison. The claim of the Prosecution was

6 that he carried a handgun without a permit, without an

7 adequate permit. The permit was in detention, they had

8 not seen it, and that was given to you as an original to

9 prove its existence. It was issued in Serbia and it is

10 in the Serbian language. How could I submit it in

11 English? In the document it indicates what it is.

12 JUDGE McDONALD: You submit it in Serbian --

13 MR. FILA: I understood that, both.

14 JUDGE McDONALD: Then attach the translation, because --

15 MR. FILA: Then to attach the translation, yes.

16 JUDGE McDONALD: But when I look at it, I will not know

17 whether it is a permit, since I do not speak Serbian.

18 If you wish, you can attach the original, but attach the

19 translation.

20 Let us step back just a moment. When we had the

21 initial appearance, we asked the Prosecutor how long it

22 would take to provide documents that accompany the

23 indictment. The Prosecutor said 30 days, and it was not

24 very satisfactory to the Trial Chamber. We then later

25 learned that, in fact, the Prosecutor said he could get

Page 42

1 that to you -- oh my, it was in a week, less than a

2 week, is that not so, Mr. Niemann, Mr. Williamson?

3 MR. NIEMANN: Yes, your Honour.

4 JUDGE McDONALD: They then said they could get it to you in

5 a week. The initial appearance was in June, was it?

6 July 4th, okay. They said they would get it to you, but

7 they did not get it to you in Serbian, is that what you

8 are telling me?

9 MR. FILA: No, they gave it to me in the English language,

10 that is true, but there is evidence that they are

11 obliged to translate, not I, according to your decision,

12 if I have understood correctly. Those are documents,

13 evidence accompanying the indictment. That is not

14 ours. All your documents, everything that is said

15 today, I will be translating or rather Ms Lopicic.

16 There is no dispute in that.

17 JUDGE McDONALD: When did you then submit to the Registry

18 the material that the Prosecutor gave you a week or so

19 after July 4th, which was the material that accompanied

20 the indictment?

21 MR. FILA: This was Ms. Lopicic, she is the one who is here

22 permanently.

23 MS. LOPICIC: I just wanted to say that we later gave it to

24 the Prosecutor and to the Registrar to photocopy it, our

25 copy of the documents, and you decided to have it

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1 translated by August 1st, but that has not been

2 translated until today, and two weeks ago we received a

3 letter from Mr. Hines that by the end of September, all

4 the material will be translated for the accused,

5 Mr. Dokmanovic, to the Serbian language which he

6 understands, so it has been two months since the

7 documents were supposed to be translated, documents

8 directly related to the indictment. So Mr. Slavko

9 Dokmanovic knows only what I have translated for him

10 verbally, personally. He does not have any written

11 evidence in the Serbian or Serbo-Croatian language.

12 JUDGE McDONALD: When did you submit it to the Registry

13 asking that it be translated, since the Prosecution did

14 not give it to you in this Serbian language?

15 MS. LOPICIC: After I had received it, immediately after

16 that, and Mr. Beresford took it from me and then he

17 photocopied it. I think he photocopied it within a day

18 or two. I think it was after 24th July, because we

19 received it before 24th July. It was in the closed

20 session, that is when we received the material, and then

21 there was a need to photocopy it, and the Registrar

22 copied it, and then it was submitted for translation.

23 I even suggested that it be given to Mr. Dokmanovic in

24 part as it is translated, so that he has at least

25 something to read and to see what he is being charged

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1 with and to see the statements of witnesses, but even

2 that has not been done.

3 Then mid August we received an explanation from

4 Mr. Hines that, as I said, it would be translated to the

5 language of the accused by the end of September. I do

6 not know the exact dates.

7 JUDGE McDONALD: So no later than July 24th, you had

8 submitted everything that you see from the Prosecution

9 that accompanied the indictment, and asked the Registry

10 to translate it into the language of the accused.

11 MS. LOPICIC: After the 24th, because you reached your

12 decision on the 24th invoking the Delalic decision, that

13 only the supporting material was to be translated into

14 the Serbian language, and that the rest was incumbent

15 upon the Defence, so after 24th July, during that

16 week --

17 JUDGE McDONALD: That is the Status Conference on July 24th,

18 okay. You have not received anything?

19 MS. LOPICIC: No. Nothing in Serbo-Croatian, that is.

20 JUDGE McDONALD: At the Status Conference, I believe we said

21 that -- no, I guess that was at the initial appearance.

22 The time for filing preliminary motions is 60 days, but

23 that time would begin to run when the Defence received

24 all the documents accompanying the indictment. I am

25 sure I said that, because I was very concerned that the

Page 45

1 Prosecution said 30 days. So you still have not

2 received everything that accompanied the indictment?

3 MS. LOPICIC: We have received it in English, which is fine

4 with us for Defence counsel, but the accused is supposed

5 to receive it in a language he understands and he does

6 not understand either of the two working languages of

7 the Tribunal, he only understands Serbo-Croatian. This

8 is the problem and that is why we made our request. It

9 was promised to us that the Registrar would have it

10 translated into the language of the accused, and the

11 Prosecution told us that they had given us everything

12 that they had in relation to witness statements, the

13 supporting material of the indictment. We are staffed

14 with everything we have received, but the problem

15 remains with the translation. Mr. Dokmanovic should

16 receive it in a language he understands.

17 JUDGE McDONALD: I do not understand the reason why it has

18 taken or why it will take two months. The Trial Chamber

19 will ask and see what we can determine. We will also

20 ask that as it is being translated, you be given the

21 documents.

22 MS. LOPICIC: That is what I suggested. There is one

23 additional matter that I wanted to ask you about, your

24 Honour, in relation to the invoice of Mr. Fila for the

25 month of August. Mr. Fila submitted his invoice to

Page 46

1 Mr. Dokmanovic in the amount of 50,000 Deutschmarks, and

2 you now request an itemised invoice. Is he supposed to

3 give it to the Registrar and he will then acknowledge it

4 for the -- to certify the services rendered for the

5 month of August, including the plane ticket and

6 accommodation for the month of August, or not? Is that

7 going to be certified? If you can give us an

8 explanation in that regard, please, because I was the

9 one who drafted the invoice into English, because I am

10 responsible for translating documents.

11 JUDGE McDONALD: The statement should be itemised, yes, that

12 is the 50,000. The statement should be itemised, but

13 I am not stating that the Registrar is going to pay

14 that. When you say certified, I do not know what you

15 mean. I am not saying the Registrar is going to pay

16 that. There is still pending the issue of whether

17 Mr. Dokmanovic was indigent, we will say, before Monday,

18 because this coming Monday is when he will be assigned

19 counsel by the Registry, and the reason that there still

20 is an issue about that is that that property, that at

21 least the Registry value at 200,000 dinars, which the

22 Defence says is worth considerably less and in any case

23 cannot be sold, that is still open and that is something

24 that cannot be resolved by the Trial Chamber.

25 So what I am saying is that for past services

Page 47

1 rendered, that is a matter that the Trial Chamber is not

2 deciding on, is not deciding whether Mr. Fila is entitled

3 to be paid by either the Tribunal or by Mr. Dokmanovic.

4 That is something that we cannot resolve because that

5 issue of the value of the property and its disposability

6 is something that we cannot resolve, and we are asking

7 that you try to work that out with the Registry, and in

8 an effort to work that out with the Registry, this

9 statement of July 31st through August 31st should be

10 more specific than it is. I suggested things that

11 should be included, but I think it would be better if

12 you spoke with the Registry and asked the Registry what

13 are the kinds of things that she likes to have

14 itemised.

15 MS. LOPICIC: There is one more thing that I wish to add.

16 The Registrar believes that we are talking about 30

17 days. Does that mean that as of 31st July, Mr. Fila was

18 no longer on the list of the assigned counsel but

19 Mr. Dokmanovic was assigned to pay for him, because

20 Mr. Dokmanovic did not have any means to pay for

21 Mr. Fila's services for that month, until 31st August, so

22 he offered to him to sell his house and property that is

23 in the Republic of Croatia, but this is a problem, as

24 you know, and that was explained to you in his letter,

25 because it is very difficult for a Serb national to sell

Page 48

1 property in Croatia. That is why Mr. Fila has not

2 received any payment for the month of August to date,

3 nor could he receive any payment until further notice,

4 though we are talking about more than 40 days.

5 JUDGE JAN: You refer to a law in Croatia which prevents

6 Serbs from disposing of their properties.

7 MS. LOPICIC: Yes. We have a problem of 40 days, because

8 Mr. Fila has not received any money, and we do not expect

9 that it would be possible to sell the property in the

10 future either.

11 JUDGE McDONALD: I just asked Judge Odio Benito who was

12 handling that particular motion in my absence, and it is

13 her understanding that that will have to be verified

14 with the Registrar, that she extended the appointment of

15 Mr. Fila through the hearing on the illegality of the

16 arrest -- through the time that the Trial Chamber ruled

17 on Mr. Dokmanovic's request for assignment of counsel.

18 In other words, it is Judge Odio Benito's

19 understanding that Mr. Fila, of course, was assigned for

20 that certain period of time temporarily; then the

21 Registrar determined that he was not indigent and

22 withdrew the assignment; then there were motions filed

23 by the Defence challenging that, and then the Registrar

24 extended the original temporary assignment through the

25 date on which the Trial Chamber ruled on that challenge

Page 49

1 to the assignment. I do not have that in writing, but

2 that is something that needs to be resolved, because if

3 that is so then the temporary assignment was extended

4 through today which is when we rule.

5 MS. LOPICIC: We would request, your Honour --

6 JUDGE McDONALD: Then I go back to the first thing I said

7 before I changed my mind, that the assignment for

8 counsel then should run from today because he does need

9 counsel obviously for Monday and since, Mr. Fila, you

10 have been on the case, you should be present on Monday.

11 Speak with the Registry, and let us see if we can

12 determine just what was meant by that extension of

13 assignment, whether the Tribunal has to pay or not.

14 I guess that is the bottom line.

15 Does that answer the question?

16 MR. FILA: Your Honour, you would have seen me on Monday even

17 if you had decided otherwise. There is also a question

18 of ethics. I did not abandon my client because of these

19 problems, but let me answer your question. The

20 Registrar believes that I was not his counsel during the

21 month of August. There is a little slight difference

22 from what Judge Odio Benito is saying then.

23 JUDGE McDONALD: I think you were not, and then I think she

24 changed her position at some point -- but I will have

25 Judge Odio Benito explore that with the Registry -- and

Page 50

1 said, "Well, at least he will be appointed pending the

2 resolution of the issue".

3 In the preliminary motion by the accused filed on

4 August 6th, point number two requests that Mr. Dokmanovic

5 be allowed to receive visits from relatives, friends, as

6 well as to have contact with other prisoners in the UN

7 Detention Unit. Has that been resolved?

8 MR. FILA: Your Honour, eight days ago this has been granted

9 by the Commander of the Detention Unit; therefore

10 Mr. Dokmanovic enjoys all privileges that he has the

11 right to have.

12 JUDGE McDONALD: Then the third item: there was a request by

13 the accused to return:

14 "A small green piece of paper, ten by fifteen

15 centimetres, found in Mr. Dokmanovic's notebook, with

16 relevant information as well as firearms permit of

17 Mr. Slavko Dokmanovic."

18 Has that been resolved?

19 MR. FILA: I just told you that everything has been resolved.

20 There was a misunderstanding, because the Prosecutor was

21 speaking about a bag that was found in Mr. Dokmanovic's

22 possession during the arrest, but as they were probably

23 afraid because of the existence of a gun, they did not

24 realise that he had a wallet, and that wallet was in the

25 Detention Unit, and the wallet contained everything, his

Page 51

1 ID papers, gun permit and green paper, so I do not know

2 what kind of search they had to carry out in order to

3 find such a small wallet, but that is their problem.

4 JUDGE McDONALD: Originally the Prosecutor, I think, took

5 the position that there was no green piece of paper.

6 They found it, is that what you are saying?

7 MR. FILA: No, the Prosecution claimed that they had not

8 found it, but they could not find it because they were

9 looking for it somewhere else in the bag, and the paper

10 was in the wallet, and that is how they found it. They

11 found it in the wallet which was with the Commander

12 Officer of the Detention Unit.

13 I am satisfied that everything has been found and

14 we have submitted everything, but the problem is that

15 everything is originally in the Serbian language, all

16 pieces of paper are in Serbian. This is something we

17 are going to discuss later on. This is something that

18 he received from Mr. Curtis, and there was a telephone

19 number of Mr. Curtis and Christian, that is the paper

20 I am talking about. That is why it is a very important

21 piece of paper and you have it.

22 JUDGE McDONALD: I think that may be among the stack of

23 documents you tried to --

24 MR. FILA: This is what I am talking about.

25 JUDGE McDONALD: Is it in Serbian?

Page 52

1 MR. FILA: No, that is a piece of paper -- here, you can see

2 for yourself. I do not know exactly. This is the

3 original, and this was in the cell -- in the wallet, so

4 the Prosecutor could not find it there, could not find

5 it because the paper was in the Detention Unit

6 (Handed). So we have found everything, everything was

7 in the Detention Unit and there is no need to discuss it

8 further.

9 JUDGE McDONALD: Then number four in the preliminary motion

10 of 6th August is a request that:

11 "The accused receive a translation of

12 Prosecutor's evidence - documents in Serbo-Croatian

13 language because the accused speaks only Serbo-Croatian

14 language."

15 Once again, evidence will be given in the language

16 of the accused; documents which are just discovery

17 documents will be given in English or French -- in one

18 of the working languages which are English and French,

19 unless the original document was in Serbo-Croat and then

20 that will be given in Serbo-Croat. We do not want to

21 see any more requests like that. I think that has been

22 resolved. Finally --

23 MR. FILA: Your Honour, I think that we do not have any

24 problems.

25 JUDGE McDONALD: Okay. Then in the very first preliminary

Page 53

1 motion, the challenge to the arrest that was filed on

2 July 7th, on the third page, I believe that you request

3 in the first paragraph a severance. Do you have that

4 handy?

5 MR. FILA: Your Honour, again we have a problem here because

6 of the system I come from. It is a question of

7 interpretation as to when a severance is to take place.

8 In Yugoslavia, if several persons are indicted for a

9 criminal offence like here, you have three officers of

10 the former JNA and Dokmanovic, it all belongs to one and

11 the same indictment. It is the same indictment.

12 In my country, a formal solution, a formal

13 decision should be reached to sever the indictment for

14 the persons who are in detention as opposed to those who

15 are still at large. That is why I requested that, and

16 Mr. Niemann explained to me that this is not the case

17 here, and that the trial for Mr. Dokmanovic will be

18 scheduled regardless of what happens with the three

19 others. Therefore, I do not think we should discuss

20 that if we are going to schedule the trial for

21 Mr. Dokmanovic. It is fine with me.

22 I only fear that you might say, "Let him remain in

23 detention until we arrest the remaining three from the

24 same indictment". That is the reason why I raise that

25 question in the first place. This is what happens in

Page 54

1 Yugoslavia.

2 JUDGE McDONALD: So in the motion that you filed on

3 July 7th --

4 MR. FILA: That is no longer a problem.

5 JUDGE McDONALD: Yes, Mr. Niemann?

6 MR. NIEMANN: Your Honour, just to clarify the matter, our

7 position is that, of course, we are not going to insist

8 on a joint trial. Our position is as Mr. Fila has

9 indicated, we are content to have a trial separate from

10 the other accused on the indictment. I do not think

11 I went so far as to say there may not necessarily have

12 to be a formal order of the court severing the other

13 accused from this indictment before the matter goes to

14 trial, but in the event that becomes necessary, we have

15 no objection to that happening, because we are certainly

16 not suggesting that Mr. Dokmanovic has to remain in

17 custody waiting for the other accused to be arrested.

18 JUDGE McDONALD: If I understand, Mr. Fila, your position,

19 Mr. Niemann's response, it is premature at this time.

20 The point is that even though there are other people

21 named in the indictment, and they have not been brought

22 to the Tribunal, their absence will not in any way delay

23 Mr. Dokmanovic's trial. We are proceeding ahead with the

24 preliminary matters and will proceed to trial without

25 them.

Page 55

1 Mr. Niemann is saying that perhaps a formal order

2 need be entered at some point severing them. In the

3 Tadic matter I think we entered the order right before

4 trial. Is that your position, that it should be entered

5 then, or should it be entered now?

6 MR. NIEMANN: Our position is, your Honour, that just prior

7 to trial is the appropriate time for the order, but

8 there will be no opposition to it.

9 JUDGE McDONALD: We will need to enter an order with respect

10 to this request saying at this time it is premature, but

11 that Mr. Dokmanovic's trial will not be delayed because

12 of the absence of the other accused, and an order will

13 be entered to that effect. If a severance is to be

14 entered, that will be done before the trial commences,

15 but I understand your concern.

16 Then you have another paragraph --

17 MR. FILA: Thank you very much, I am satisfied with the

18 decision.

19 JUDGE McDONALD: There seems to be a challenge to the form

20 of the indictment. Have you filed a formal motion

21 challenging the form of the indictment, Mr. Fila, or is

22 that raised by the preliminary motion of July 7th?

23 MR. FILA: Your Honour, same as in the case of General Drugic

24 and in other situations, we believe that it is necessary

25 to have more individualisation of indictment. That is

Page 56

1 why we had informed President Cassese, Igor Pantelic, my

2 colleague Vujin and myself, that the indictments are too

3 general as they are issued. It is very hard for us to

4 understand exactly what it is that we should defend our

5 clients for.

6 As I say again, I am in the civil law system and

7 our clients are different. If I say for example that

8 Toma Fila killed such and such a person, you have to say

9 exactly when and where. It is not necessary to present

10 the motive. The motive is present visibly in the

11 Anglo-Saxon law, not in our system, but we have to

12 indicate the date and the location, and numbers are very

13 important. For example, as I said, the indictment

14 states first 400 persons leaving the hospital, then 300,

15 then 260 dying, so you cannot see from the indictment

16 physically who was present, where, on which date with

17 Mr. Dokmanovic.

18 I do not find it identical when Judge Fuad Riad's

19 indictment is accepted and an arrest warrant is issued.

20 It is okay, but once the indicted is arrested and the

21 trial is to begin we have to be more precise. I, with

22 my assistant, have to obtain evidence, whether it is the

23 19th, the 20th, the 28th, whenever, but I have to know

24 exactly what I am talking about, but here this is three

25 names. Thank you.

Page 57

1 JUDGE McDONALD: First of all, I mis-spoke. Really in this

2 motion of July 7th it is the second paragraph on page 3

3 that seems to ask for severance, and that is the

4 paragraph that we will enter an order regarding, and

5 that is that there will be no delay in Mr. Dokmanovic's

6 trial because of the absence of the other accused, and

7 if there is a severance it will be granted before trial

8 has commenced.

9 It is the first paragraph that seems to challenge

10 the form of the indictment, but it is only one

11 paragraph, Mr. Fila. If you wish to bring that motion to

12 the court, I would suggest that you file a more detailed

13 motion, that you state exactly what is wrong with the

14 indictment; in other words you would call it, if you

15 wish, "Preliminary Motion", but under it please say,

16 "Challenge to the Form of the Indictment", and then

17 when you do that, you state in that motion what is

18 wrong, you say some of the things that you have just

19 said today, so that we can better understand you.

20 Several of those motions were filed in the Celebici

21 case. They are on file.

22 Judge Odio Benito comes from a civil system, so we

23 are not all from Anglo-Saxon systems. If you state in

24 greater detail what it is that you consider to be wrong

25 with the indictment, particularly if you are referring

Page 58

1 to civil law experience, although we all have civil law

2 experience, Judge Odio Benito has a lot of it.

3 MS. LOPICIC: Your Honour, I can say that after 7th July we

4 have submitted a motion which elaborates in detail all

5 our complaints regarding the form of the indictment,

6 regarding the number of victims, the number of persons

7 stated as victims in the indictment, and also regarding

8 20th November, which is mentioned in the indictment in

9 the third part of the indictment. It just says "in the

10 month of November", so Defence wanted to know exactly

11 which date, all of November, 20th November or around the

12 20th November? In our system, it is several days before

13 and several days after, it is one before and one after,

14 so that that is another motion we submitted.

15 JUDGE McDONALD: Has the Prosecution responded to that

16 motion, Mr. Niemann?

17 MR. WILLIAMSON: Yes, your Honour, in a response of the

18 14th.

19 JUDGE McDONALD: I apologise, Mr.s Lopicic. We will locate

20 that motion and rule on that. Is a hearing requested

21 for that motion, do you recall?

22 MS. LOPICIC: No, your Honour. Perhaps you may rule on

23 that without a hearing.

24 MR. FILA: Your Honour, we have not requested a hearing for

25 that at all. We believe that if the Trial Chamber finds

Page 59

1 this precise enough, as my colleague Niemann finds it

2 precise enough, it is all right, but it is easier for me

3 because we do not have the apparatus as that available

4 to the Tribunal. The narrower it is the easier it is

5 for me. If you say "in a day, in a year", he is 45

6 years old, I should go through the 45 years, but if that

7 is more precise, it was on 20th November that he was at

8 such and such a place, I would be defending it with an

9 alibi, as I intend to do when the time comes for that.

10 That is why I am interested in this. That is all. We

11 are not requesting a hearing.

12 JUDGE McDONALD: The Senior Legal Officer has said that that

13 motion is there but it is in a preliminary motion

14 challenging the legality of the arrest, but we will pull

15 it out. Once again, I think we understand each other

16 now, call it what it is, separately, separate motions.

17 We now have a Status Conference set for September

18 29th. That is a day when the Celebici case will not be

19 heard. Do we need to keep that date open just in case

20 we need to meet again? Mr. Niemann, Mr. Williamson?

21 I suppose we will leave it for the moment.

22 MR. NIEMANN: So far as the Prosecution is concerned, the

23 only date that would be necessary is a date to set the

24 matter down for trial. I do not know whether we will be

25 in a position to do that. The Prosecution will be in a

Page 60

1 position but I do not know --

2 JUDGE McDONALD: How can we set it down for trial? The

3 Defence have not even received the documents

4 accompanying the indictment, and will not receive them

5 until the end of September, you are right, from the

6 Registry.

7 MR. NIEMANN: There is not much point. Your Honours, just on

8 the question of the form of the indictment, Mr. Fila says

9 he does not need any argument but I was going to address

10 your Honour, subject to your Honour's leave, on that

11 issue on Monday, because it was all wrapped up as part

12 of the one motion. Mr. Williamson is going to address on

13 the other matter and I was going to address on that, but

14 if your Honours feel that no further submissions are

15 necessary, I will not proceed with that. It is a matter

16 for your Honours. I was going to give your Honours an

17 address on that.

18 JUDGE McDONALD: Let us talk about the hearing on Monday

19 just for a moment. There are five witnesses,

20 I understand, who are going to be called, is it three by

21 the Prosecution and two by the Defence? We only have

22 Monday, because we only have, once again, one courtroom

23 unfortunately, and potentially I guess five cases

24 proceeding at once, not even including appeals. So, how

25 long do you anticipate that you will need to present

Page 61

1 your direct testimony of your three witnesses?

2 MR. NIEMANN: Your Honours, the position is that there are

3 two witnesses, one is a corroborator which we may not

4 choose to call, and with legal argument and the

5 witnesses, their evidence will be short, I do not think

6 that we should -- the Prosecution will not be longer

7 than half a day and that includes submissions on the

8 form of the indictment.

9 JUDGE McDONALD: That is time for direct. Are you not

10 anticipating cross?

11 MR. NIEMANN: That is all I can predict, your Honours.

12 JUDGE McDONALD: I would not ask you, I just want to make

13 sure. Half a day, you believe and that would include

14 the form of the indictment. We would start at 10.00 and

15 normally we would adjourn at 5.30. Mr. Fila, how long do

16 you anticipate you would need to offer what you wish in

17 support of your motion challenging the legality of the

18 indictment? You have two witnesses, I believe.

19 MR. FILA: Your Honour, I believe that we will not take

20 long. If I understood Mr. Niemann correctly, and

21 Mr. Williamson, what is disputed is only one question

22 between our sides, so to speak; what forms of guarantees

23 were given. For me to examine my clients,

24 Mr. Dokmanovic, his wife and Mr. Knezevic, I need no more

25 than a half hour for each, and my explanation of the

Page 62

1 lack of legality of the arrest, that can be read through

2 very easily. I submitted two documents on this subject

3 this morning, both in English. This is related to the

4 case of Eichmann regarding legality, regarding

5 kidnapping, a passenger in Entebe by Israel, but all

6 that you already have in writing, so I see no reason for

7 requesting more than two hours because all related to

8 one single circumstance, what guarantees, if any, had

9 been given and illegalities.

10 Legally, your claim is that the arrest was legal;

11 my claim is that sovereignty of Yugoslavia was violated

12 because he was stopped and arrested in Yugoslavia, so

13 this is de facto not de jure; it would be silly to claim

14 otherwise. I also do not insist, because I would

15 prefer, regarding the indictment, if possible, to reach

16 an agreement if you say that you would give a precise

17 elaboration within such and such a time, because all

18 I am asking is your understanding. It is very difficult

19 for me because I am alone, to wander around throughout

20 the month of November not knowing what I am looking

21 for. If we can reach an understanding in this, this

22 would be the best solution. That is why I am not

23 requesting a hearing. That is clear, simply to help

24 justice, nothing else.

25 MR. NIEMANN: Your Honours, if Mr. Fila would like to

Page 63

1 informally write to us and provide us with a request for

2 particulars of the matters he is concerned about, rather

3 than your Honours have to hear the matter and rule on

4 the matter, we are prepared to do what we can to

5 assist. In that regard it may resolve the matter and

6 perhaps this part of the argument could be adjourned

7 pending any potential resolution between the parties.

8 It may be these matters can be resolved. We will do

9 what we can to assist him in these matters, as long as

10 it is not taken as a challenge to the indictment. If he

11 wants further particulars and he writes to us, we will

12 see what we can do for him.

13 JUDGE McDONALD: That is something else again. It is a

14 separate issue really as to whether the indictment is

15 legally sufficient. It may be legally sufficient and

16 you then proceed with this motion for particulars, which

17 may be a procedure that is unknown in the civil law

18 system, but it has been used here. If you look at the

19 file, the Delalic file and I am sure you have --

20 MR. FILA: No, not that.

21 JUDGE McDONALD: You will see motions on the form of the

22 indictment, you will see the particulars, you will get a

23 feel for how we have handled some of the motions. I do

24 not know that we will have time on Monday to hear

25 argument on the motion on the form of the indictment.

Page 64

1 It looks to me like we will have a very full day and

2 that is the only day we will have, but we will see, that

3 will be put at the end.

4 First we will hear arguments on the legality of

5 the arrest. If there is time we will then resolve the

6 form of the indictment. For one thing, you have not

7 received all of the material that accompanied the

8 indictment, and the approach that was taken by the Tadic

9 Chamber was: first look at the material that accompanies

10 the indictment, then make a determination as to whether

11 that in conjunction with the indictment gives you the

12 information that you are seeking. You have not even

13 received that, and you will not receive it until the end

14 of September, so it may also be a little premature.

15 Let us spend the time on the issue on the legality

16 of the arrest. If we have extra time, we will then

17 proceed on the motion on the form of the indictment. We

18 will then leave September 29th as a potential hearing

19 date to resolve any matters that we cannot resolve other

20 than the motion challenging the legality of the arrest.

21 Are there any other matters that need to be

22 resolved today?

23 MR. NIEMANN: No, your Honour.

24 JUDGE McDONALD: From the Defence?

25 MR. FILA: No, your Honour.

Page 65

1 JUDGE McDONALD: Then we will adjourn until Monday at 10.00

2 am.

3 (5.00 pm)

4 (Court adjourned until 10.00 am

5 on Monday, 8th September 1997)