Tribunal Criminal Tribunal for the Former Yugoslavia

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1 Friday, 15 November 2002

2 [Open session]

3 [Status Conference]

4 [The accused not present]

5 --- Upon commencing at 5.00 p.m.

6 JUDGE MUMBA: Please call the case.

7 THE REGISTRAR: [Interpretation] Good morning. Case IT-01-47-PT,

8 the Prosecutor versus Enver Hadzihasanovic, Mehmed Alagic, and

9 Amir Kubara.

10 JUDGE MUMBA: Thank you. May I have the parties, please. For the

11 Prosecution.

12 MR. WITHOPF: Good afternoon, Your Honour. Good afternoon,

13 counsel. For the Prosecution appear Mr. David Re, trial attorney, Ms.

14 Kimberly Fleming, trial support, and I Ekkehard Withoph, senior trial

15 attorney.

16 JUDGE MUMBA: Thank you. Appearances for the Defence, please.

17 MS. RESIDOVIC: [Interpretation] Good day, Your Honour. My name is

18 Edina Residovic, together with my co-counsel Stephane Bourgon and we

19 represent General Hadzihasanovic. Thank you.

20 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honour and also

21 to the Prosecution. My name is Vasvija Vidovic and together with John

22 Jones, I represent General Mehmed Alagic.

23 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honour. I

24 am Fahrudin Ibrisimovic, and together with Mr. Dixon, we represent

25 Mr. Kubara.

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1 JUDGE MUMBA: Thank you. This is a Status Conference, following

2 the meeting, which the parties held with the senior legal officer on the

3 13 November, the Trial Chamber has been appraised of the matters that were

4 discussed and also the copy of the transcript is on record. We have a

5 motion which is still outstanding following the decision on the joint

6 challenge to jurisdiction. I notice that there are still a few days to go

7 before the parties can appeal. I just wanted to know whether the matter

8 is still under consideration or a decision has already been reached.

9 MS. RESIDOVIC: [Interpretation] Your Honour, I can inform you that

10 the Defence will lodge an appeal within 15 days.

11 JUDGE MUMBA: Thank you. The pending motion on the form of the

12 indictment will await the final decision on the alia motion on the

13 jurisdiction issue. If an appeal will be lodged, then we will wait for

14 the final decision of the Appeals Chamber.

15 The next item, matters related to disclosure between the parties.

16 And the meeting which was held yesterday went into details, and I wonder

17 whether there is anything else that can be said today besides what was

18 agreed upon or what was discussed by the parties during the meeting. I

19 take it the status is as was discussed during the meeting?

20 MR. WITHOPF: Your Honour.

21 JUDGE MUMBA: Yes, the Prosecution.

22 MR. WITHOPF: On behalf of the Prosecution, we wish to inform you

23 that we reached an agreement with the Defence just a few minutes ago with

24 regard to exchange of translated documents. We will have a meeting

25 probably in mid-December, and both parties will exchange the documents

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1 they have translated.

2 JUDGE MUMBA: Yes. That's encouraging that there has been some

3 progress since the last meeting.

4 Matters on provisional release. The Trial Chamber is of course in

5 receipt of the reports from the relevant authorities as to the observance

6 of the conditions of the release. There is a matter which the Trial

7 Chamber would like to have some clarification on concerning Mr. Alagic. I

8 note that during the meeting, the Defence undertook to provide written

9 observations on the issue of the prison sentence on behalf of the

10 accused. And it is state that the observations would be in the course

11 of next week. May I know by which day? Because the Trial Chamber is very

12 desirous on the information of what is happening about the sentence

13 especially of the accused. Would the written observations be in by

14 Wednesday hopefully?

15 MS. VIDOVIC: [Interpretation] Your Honour, that is possible. We

16 will submit the request in writing by Wednesday, the observations.

17 JUDGE MUMBA: The Trial Chamber would like to have a clear

18 explanation as to why the sentence is being -- has been suspended, when it

19 is expected that he will start serving the sentence. Is it because of the

20 health or is it because of other reasons or is it because of an appeal?

21 And also, information on his health.

22 MS. VIDOVIC: [Interpretation] Your Honour, I can inform you now

23 briefly that the sentence was suspended because of the legal motions

24 submitted to the Supreme Court of Bosnia and Herzegovina in which we asked

25 for protection -- in respect of legality. The motion has nothing to do

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1 with his health, but at the same time I would like to inform you in detail

2 about his health situation which has considerably deteriorated. So I do

3 not wish to take up your time now. I will explain all of these matters in

4 the written submission which will be submitted by Wednesday. You will

5 have at your disposal the complete medical findings which indicate his

6 present state of health.

7 JUDGE MUMBA: Thank you very much. The Trial Chamber will wait

8 for that information.

9 With regard to Mr. Hadzihasanovic and Mr. Kubara, there is nothing

10 else happening apart from the observance of the conditions of provisional

11 release. The Trial Chamber was informed also on the possibility of the

12 parties to consider agreed facts in the case, and the impediments were

13 explained, because of the motions which are not yet finalised. So the

14 Trial Chamber will leave that to the parties until the final decisions are

15 made on both motions.

16 Looking at the case and the pace at which the preparations are

17 being taken, the Trial Chamber is desirous of -- find the parties on the

18 possible date for trial in this case. And as the parties know, there are

19 several Trial Chambers now. As soon as each case is ready, it's assigned

20 to a Trial Chamber which is ready to take on a trial. So the question of

21 having a lapse between the Pre-Trial Conference and the beginning of the

22 trial itself shouldn't bother either party.

23 There was a plan put forward by the senior legal officer during

24 the meeting which is a programme for possible completion of the pre-trial

25 phase, and the Trial Chamber has been informed that assuming that the

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13 English transcripts.













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1 final decisions are taken on the pending motions, it is expected that

2 the Prosecution should be able to file the pre-trial brief by 1st April

3 next year, 2003, and that following that the pre-trial brief by the

4 Defence would follow approximately a month later, 1st May. And that

5 possibly the Pre-Trial Conference would be held by 1st June, 2003. The

6 Trial Chamber has been informed that both parties are more or less agreed

7 to this programme so that the pre-trial stage can be finalised as soon as

8 possible, considering the matters that have to be decided, the motions

9 that have to be decided finally by the Trial Chamber as well as the

10 Appeals Chamber in the case of an appeal.

11 Are there any other matters that the parties would like to raise?

12 The Prosecution.

13 MR. WITHOPF: Your Honour, there are no further matters to discuss

14 from the side of the Prosecution. However, with regard to the scheduling

15 of a pre-trial brief and the scheduling of a Pre-Trial Conference, the

16 Prosecution wishes to make a few observations.


18 MR. WITHOPF: If The Prosecution is in a position to file its

19 pre-trial brief on 1st of April, 2003, or at any other date within the

20 next few moments if so ordered. The Prosecution is also in agreement with

21 the evaluation of Mr. Von Hebel made during the 65 ter conference on

22 Wednesday that we are in a somewhat catch-22 situation, meaning that if we

23 don't have an official scheduling, if we don't have an official trial

24 date, the case cannot be prioritised, and if the case cannot be

25 prioritised, important issues such as system-wide searches that are

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1 ongoing and they are very valid ones with regard to disclosure, just in

2 brackets, but that such system-wide searches cannot be done in the pace

3 both parties, and I repeat both parties, wish them to be done. There are,

4 however, Your Honour, a number of issues that should be carefully

5 considered prior to making any decision with regard to the scheduling

6 order.

7 First of all, we were informed today by the Defence that they will

8 appeal the decision on the challenges to jurisdiction. Both parties will

9 have to take into account the length of the decision and its thoroughness.

10 Both parties will also have to take into account the fact that the Appeals

11 Chamber sometimes, I really stress sometimes, only is somewhat slow in

12 making its decisions. I refer to the situation on the motion regarding

13 the access to the confidential materials in Blaskic which is pending

14 before the Appeals Chamber as stressed by the Defence since a year.

15 We realistically cannot believe that there will be an Appeals

16 Chamber decision on the jurisdictional issues prior to late spring next

17 year. And prior to having this issue being solved finally being solved,

18 it does not look very advisable for the Prosecution to schedule a date for

19 the submission of a pre-trial brief or to set a trial date.

20 In addition, as you mentioned, Your Honour, the Defence motion on

21 the form of the amended indictment is still pending. There's no doubt and

22 the Prosecution agrees with the views as expressed by Your Honour in the

23 course of the last Status Conference that for pure logical reasons,

24 reasons of legal logic, the Trial Chamber can only render its decision in

25 this respect after the challenges to jurisdiction issue can be finally

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1 solved. Again, that can take some months.

2 In addition to these issues, I want to raise a number of practical

3 implications. And what I want to discuss touches on the principle that

4 any scheduling orders need to be realistic, and they do not need to be

5 artificial, that also touches on the issue that an artificial gap of a

6 year or even longer between trial readiness and the actual start of the

7 trial creates a number of serious practical problems. I pick just one for

8 illustration. That's the issue of recontacting witness. Many of the

9 Prosecution witnesses have been interviewed in 1999 or in early 2000. I'm

10 in particular referring to crime-based witnesses. These witnesses

11 obviously have to be recontacted. Our investigators will recontact them.

12 They will ask when will the trial start. We will have to tell them it

13 maybe in three months; it may also be in a year or within one and a half

14 years' time. They will ask why this is so, and we will be -- or will not

15 be in a position to give them explanations that are satisfying for them.

16 The witnesses will get confused. They will not really understand the

17 reasons why, and they may lose confidence in the ICTY proceedings. If

18 there is a significant delay, the witnesses have to be recontacted again.

19 If there's a delay between Pre-Trial Conference and the actual

20 commencement of the trial. Therefore, and I repeat it, the Prosecution is

21 in a position to file its pre-trial brief on 1st of April or even earlier,

22 if so ordered. However, there are some issues, Your Honour, and the Trial

23 Chamber should take into account.

24 JUDGE MUMBA: Thank you, Mr. Withopf. You are so pessimistic. I

25 must say, but what I want to say this is not the only case facing the type

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1 of problems that you have narrated. And the Trial Chamber is aware that

2 reviewing the situation is an ongoing process by the Trial Chamber itself

3 and between the parties. So that when the dates are given as to when the

4 pre-trial phase should be completed, it is subject to several matters

5 falling in place timely. Of course, we are aware that sometimes the

6 appeals do delay the pre-trial phase but it is important to be optimistic,

7 and also to realise, as you yourself said, that if there is no schedule,

8 then priority is never given to the case by anybody, which is not good

9 because the accused persons are also waiting for their trial. They can't

10 go on waiting indefinitely, and also the Tribunal has got several other

11 trials pending. So this schedule given by the Trial Chamber, I'll repeat

12 it, at this Status Conference, should be kept in mind. However, if any

13 delays are caused by any final decisions on the motions which affect the

14 presentation of these stages by either parties, then the Trial Chamber

15 will be able to review that and perhaps reorganise the schedule. But at

16 least the schedule should be -- we should all work towards this schedule

17 as much as until there is good reason to postpone the dates or to review

18 them.

19 Any matters from the Defence? I see none. Therefore, I take it

20 that discovery, exchanges between the parties, should be vigorously

21 followed. I'm quite optimistic that the Appeals Chamber is aware that

22 appeals pending pre-trial phases have to be dealt with as quickly as

23 possible. And I'm hopeful that if any appeal will lie before the Appeals

24 Chamber, we should be able to get a decision without undue delay.

25 Therefore, the dates set will remain binding until they are varied by the

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1 Trial Chamber.

2 There being no other matters to be discussed, the Status

3 Conference is closed.

4 --- Whereupon the Status Conference adjourned

5 at 5.17 p.m.