Tribunal Criminal Tribunal for the Former Yugoslavia

Page 175

1 Wednesday, 9 July 2003

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 2.34 p.m.

5 JUDGE MUMBA: Good afternoon. Please call the case.

6 Yes, please call the case.

7 THE REGISTRAR: Case number IT-01-47-PT, the Prosecutor versus

8 Enver Hadzihasanovic and Amir Kubura.

9 JUDGE MUMBA: Thank you. This is a Status Conference under Rule

10 65 bis to look at the progress in the preparation of the case for trial.

11 May I have the parties, please, for the Prosecution.

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

13 counsel. For the Prosecution it would be Mr. David Re, trial attorney,

14 Mr. Ronald Harris, trial support, and I Ekkehard Withopf, senior trial

15 attorney.

16 JUDGE MUMBA: Thank you. And the Defence?

17 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honour. On

18 behalf of General Hadzihasanovic, Edina Residovic and Stephane Bourgon

19 from Montreal. Thank you.


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

22 Defence for Mr. Kubura. I am Fahrudin Ibrisimovic, attorney-at-law from

23 Sarajevo, and Mr. Rodney Dixon.

24 JUDGE MUMBA: Thank you. The first item is to inform the parties

25 that the formal recording for the Rule 65 ter meeting which the parties

Page 176

1 had with the senior legal officer was not formally recorded as is the

2 custom due to technical problems, so that the Tribunal does not have a

3 formal record of this meeting at all. It is always the case that when

4 these meetings are held, there is a formal record in the normal way, but

5 something went wrong yesterday and we don't have a formal record.

6 In this regard, the -- I would like to find out from the parties

7 what matters they would like to place on record formally that were agreed

8 to or decided upon or discussed yesterday, but not raising them as to be

9 continued discussions during this Status Conference. It's just that it is

10 important for the Trial Chamber to have any matters that were decided upon

11 during that meeting which are important to the parties to be placed

12 formally on record.

13 I'll have the liberty to start with the Defence in this case.

14 MS. RESIDOVIC: [Interpretation] Your Honour, an hour ago we were

15 informed that we would not have this transcript, and we tried to prepare

16 ourselves to inform you about the things that we wanted on record.

17 The first issue that we discussed and that was agreed - and that

18 should be on record - is the issue of disclosure of documents to help the

19 Defence to be fully prepared for the trial. It was looked at from two

20 points of view. One point of view was to what extent we already have

21 judiciary decisions in other cases and to what extent we can have access

22 to those. We now have the Appeals Chamber decision in the Blaskic case,

23 but the list according to Rule 70 was received one day before the Status

24 Conference, according to 65 ter. That's why we would like to inform the

25 Trial Chamber that yesterday we filed a motion to the Trial Chamber in

Page 177

1 which we asked for the clarification of certain issues with regards to

2 Rule 70. Likewise, we have not received the decision to access

3 confidential material in the Kordic case. This is pending. We expect to

4 have that very soon. But in view of the practice in the decision of the

5 Appeals Chamber in the Blaskic case, we agreed during the 70 [as

6 interpreted] ter conference that we would need after the decision -- we

7 will need another month in order to access the confidential material in

8 the Kordic case.

9 We are -- as for the access to the confidential material, we are

10 doing it again in the Ljubic case, in the Rajic case, and also in the

11 Martinovic/Naletilic case, and we are going to file our motions these

12 days.

13 As for the access to the documents compiled by the European

14 monitors, I believe that the situation is clear. We have encountered

15 certain problems after a decision handed down by the Trial Chamber, and

16 before this Status Conference we agreed the ways according to which this

17 decision should be implemented.

18 As for the issues of disclosure of documents on the part of the

19 Prosecution, we agreed that the Prosecution has continued disclosing

20 documents to the Defence. Yesterday, we submitted to the Prosecutor in

21 keeping with the agreement that we reached at the meeting a new list of

22 issues and questions for which we expect answers from the Prosecution.

23 These questions are relative to the translation of documents according to

24 the Rule 62(A), and also previous documents that we requested previously

25 and have not yet been submitted. We also filed a motion for some

Page 178

1 documents to carry also the time of their issuance.

2 The Prosecutor said that they might be able to submit the concept

3 of the pre-trial brief to expedite the trial. We asked in our motion for

4 this to be done in a -- within a reasonable deadline.

5 We would also like to put on record that at the meeting we also

6 discussed the decisions which are pending and that we expect. First and

7 foremost, this concerns our request to confirm the right to appeal against

8 the decision not to adopt our motion to put the case in abeyance. We were

9 informed by the high judiciary council that the Trial Chamber, when it

10 comes to the issues of jurisdiction and the amended indictment and other

11 issues that we raised, that all these documents have been submitted to the

12 Appeals Chamber, and I believe that our learned friends from the

13 Prosecution will confirm that, once we were notified about that, we said

14 that we agreed that if the Trial Chamber had reached such a decision, that

15 both sides should have been informed about that.

16 And the last issue that will be tackled by Mr. Bourgon and

17 Mr. Dixon is the issues that were raised by the Defence of General

18 Hadzihasanovic and General Kubura, and this is our request to apply the

19 Rule 62 bis -- 62(A), and in keeping with the Rule 73, we will ask the

20 Trial Chamber to reconsider their decision with regard to our written

21 motion, the urgent written motion for the -- to hear the Defence counsel

22 about the remuneration that they received for their work. We believe that

23 this is an issue very important for this stage of the procedure.

24 On the other hand, we believe that the decision of the Appeals

25 Chamber in the Blaskic case, dated 24 May, gives us legal grounds to raise

Page 179

1 this issue before you. If it may please the Court, I will ask my

2 colleague Bourgon to present legal justifications that we already

3 presented in a meeting with the senior trial counsel. We did not wish to

4 raise this issue at this Status Conference. We would like to inform you,

5 Your Honour, about the reasons that we presented during the meeting.

6 Since they were not put on record, we decided that we should raise the

7 matter here during this Status Conference to have these reasons on record.

8 JUDGE MUMBA: Thank you. I just want to be clear that what you

9 are suggesting to do is to raise the matter so that the reasons can be on

10 record and you are not raising an oral motion.

11 MS. RESIDOVIC: [Interpretation] Yes, that's right. Firstly, we

12 believe that this can be merged.

13 During that session, we said that in keeping with the Rules, we

14 will file an oral motion. However, we believe that presenting the oral

15 motion and the arguments for that oral should be on record together with

16 the requests and the arguments that we had already filed. In that way, we

17 should be spared having to go over the same grounds twice.

18 JUDGE MUMBA: I see.

19 Before we go to the oral motion, you are finished with what you

20 think the discussion was contained in the meeting yesterday, for purposes

21 of having them on record?

22 MS. RESIDOVIC: [Interpretation] Your Honour, I did not put forward

23 the reasons that we wanted to raise together with our oral motion. They

24 are now missing. We don't have them. But once you have heard them out,

25 this will complement the meetings of the session according to the Rule 65

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1 ter.

2 JUDGE MUMBA: Very well, then. You can proceed.

3 MS. RESIDOVIC: [Interpretation] Thank you. Mr. Bourgon is going

4 to put forth arguments concerning the oral motion for the Trial Chamber to

5 reconsider their decision. This oral motion has been filed today.

6 JUDGE MUMBA: Yes, Mr. Bourgon.

7 MR. BOURGON: Good afternoon, Your Honour. As was indicated by my

8 colleague, this is a motion for reconsideration of the Trial Chamber

9 decision dated 17 June 2003, a decision of the Trial Chamber which denied

10 our urgent motion for an oral hearing based on the allocation of resources

11 to the Defence and the consequences thereof for the rights of the accused

12 to a fair trial.

13 In the same decision, the Trial Chamber denied our request for

14 certification of the decision on the basis that the motion in itself was

15 inadmissible because the Defence was not challenging the allocation of

16 resources in its own case but, rather, was challenging the complete legal

17 aid system before the Tribunal.

18 This motion will be divided into two parts. I will take care of

19 the first part, which includes, first of all, the test applicable for

20 reconsideration of Trial Chamber decision, as well as the first leg of

21 this test, dealing with new facts. My colleague, Mr. Rodney Dixon,

22 representing the accused Kubura, will take care of the second part of this

23 motion, dealing with the erroneous character of the decision and the

24 resulting prejudice to the accused.

25 JUDGE MUMBA: Very well.

Page 181

1 MR. BOURGON: Moving into the first part of this motion, the

2 applicable test to allow a Trial Chamber to reconsider its decision. I

3 referred the Trial Chamber to a decision rendered by the Appeals Chamber

4 in the Blaskic case, case number IT-95-14-A, for appeals. The decision is

5 entitled as follows: "Decision on Prosecution's preliminary response and

6 motion for clarification regarding the decision on joint motion of

7 Hadzihasanovic, Alagic, and Kubura of 24 January 2003."

8 In this decision from the Appeals Chamber, the test to determine

9 whether a Trial Chamber should and can reconsider its own decision is laid

10 out at paragraph 7. I will read from this decision: "The Appeals Chamber

11 also observes that in some of the submissions made in the motion for

12 clarification reconsideration of the decision is what is actually sought

13 by the Prosecution. In this regard, the Appeals Chamber recalls that a

14 Chamber may reconsider a decision and not only when there has been a

15 change of circumstances where the Chamber has been persuaded that its

16 previous decision was erroneous and has caused prejudice." End of quote

17 from paragraph 7 of the Blaskic decision of the Appeals Chamber.

18 Also referring in a footnote 13 to a decision Prosecutor versus

19 Zdravko Mucic et al., case number IT-96-21-A bis, judgement on sentence

20 appeal dated 8 of April, 2003, Appeals Chamber. It is our submission,

21 Your Honour, that this is the test to determine whether this Trial Chamber

22 can and should reconsider its decision. The test is twofold: Has there

23 been a change in circumstances - the part that I will be arguing - and was

24 the decision erroneous and has it caused a prejudice - the second part,

25 which will be argued by Mr. Dixon. With respect to the change and

Page 182

1 circumstances, it is our submission this afternoon, Your Honour, that

2 there has been two changes in circumstances. The first one is our request

3 to the President to get involved further to the Trial Chamber's decision.

4 As mentioned earlier, the Trial Chamber's decision was filed or was

5 rendered on the 17th of June. Further to this decision, we have

6 highlighted what our arguments would be during the 65 ter Conference on

7 the 30th of June and we have filed a -- we have sent a letter to the

8 President which explains the complete background to this Defence team, as

9 well as the Defence team of Mr. Kubura -- of the accused Kubura, to obtain

10 additional resources to prepare the case for the Defence during pre-trial.

11 The letter was sent to His Excellency Judge Meron, President of

12 the Tribunal, on Monday, the 7th of July. Further to this letter which

13 was sent to the President, we have been informed today that the President

14 considers it inappropriate to get involved because it is a matter for the

15 Registry to take care of and because the Trial Chamber is already seized

16 of the matter and has denied our request for certification. This is a

17 change of circumstance because it now deprives us of any other

18 alternatives but to returning before the Trial Chamber to get a result on

19 this issue.

20 The second part of the change of circumstances is the fact that,

21 further to the Trial Chamber's decision, the Defence of both the accused

22 Hadzihasanovic and the accused Kubura have entered into discussions with

23 the help of the Dutch Bar Association and its president, have entered into

24 discussions with a firm - an independent firm - to come and evaluate and

25 assess the work that would be reasonably required for -- in any Defence

Page 183

1 team to prepare the case for the Defence in this case. It is our

2 submission, Your Honour, that the biggest problem with respect to the

3 situation we face, with respect to allocation of resources, is that no one

4 has accepted to look and to sit down with us and to go through exactly the

5 work that we have done so far and to say whether this work was reasonable

6 and necessary and, if not, to tell us; and, if so, to evaluate how many

7 hours of work are required to prepare the case for the Defence based on

8 the information we have provided to the Registry. For this reason, we

9 are -- we are of the belief that the work or an evaluation performed by an

10 independent and external agency to the Tribunal will be able to highlight

11 the fact that the resources allocated so far to the Defence are

12 insufficient, and insufficient way beyond what we have received so far,

13 and that it also has created a prejudice, as will be highlighted later by

14 Mr. Rodney Dixon.

15 For us to proceed with an evaluation will be a costly exercise.

16 We have met with the Registry, and we have explained to the Registry what

17 we are about to do and why. In our view, we should not have to pay for

18 such a study, and there would be other ways to handle this matter.

19 However, now, because we have no other avenues to pursue to get a result

20 and to get an answer to our problem, we will be hiring this firm. We are

21 in contact at the present time with two different firms. Both are

22 international law firms. One is from London and the other one is from

23 Germany. One of the two, we hope, will accept our mandate, which is

24 double-pronged, and that is the answer to the first question is: The work

25 we have done so far, was it reasonable and necessary to prepare the case

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Page 185

1 for the Defence? And question number two: How much work? What is the

2 quantity of hours required by the Defence to prepare a case of this

3 magnitude?

4 In all likelihood, we hope to be able to produce such a report by

5 mid-August at the latest, at which time this report will be forwarded to

6 the Trial Chamber as an addendum to the present oral motion, indicating a

7 change of circumstances and a reason for a Trial Chamber to intervene and

8 reconsider its decision, because this, the differences in the resources we

9 have been allocated and the resources that we need to prepare the case for

10 the Defence, there is a big difference between the two, which creates a

11 fair-trial issue for which a Trial Chamber needs to intervene.

12 I will now hand over to Mr. Dixon for the second part of this

13 motion. Thank you, Your Honour.

14 JUDGE MUMBA: Before you sit down, Mr. Bourgon, on this move you

15 are making to consult one -- the two firms that you have mentioned, who

16 will pay for their services?

17 MR. BOURGON: At the present time, Your Honour, we will most

18 likely have to borrow money to pay for this evaluation. I can inform the

19 Trial Chamber that this study will cost 15.000 Euros. It will be a

20 six-day exercise. The firm will -- we will have, of course, to enter into

21 discussions with the Registry, and we will have also to inform the Trial

22 Chamber of the identity of the firm in order to ensure confidentiality of

23 the documents that they will have access to. They will have access to all

24 documents that we have in our files, both the documents that have been

25 given to us by the Prosecution and any documents we may have obtained

Page 186

1 in investigating the case for the Defence. They will then have access to

2 our offices in Sarajevo, to our offices here in The Hague, and we will

3 have then -- the way this is structured so far: We will have private

4 interviews, the four counsel, with this firm to answer any questions they

5 may have as to why we may have filed a particular motion or why we may

6 have done -- taken certain action in this case. This is the -- basically

7 the outline or the mandate given to this firm. The result, as I've

8 mentioned, will be produced to the Trial Chamber.

9 JUDGE MUMBA: And so in view of the fact that you did say you had

10 filed this motion and you are now putting your reasons on record, the

11 Trial Chamber would have to wait for this assessment.

12 MR. BOURGON: As I've mentioned, Your Honour, we feel there are

13 two parts to this test. We feel that the second part of the test, the

14 fact that the decision in our view has an erroneous character in law, it

15 would be sufficient for a Trial Chamber to intervene at this stage without

16 waiting for this report. Should the Trial Chamber wish to wait for the

17 report and to go on both aspects of the test for reconsideration, then of

18 course we will be -- we will gladly file this report with the Trial

19 Chamber at the earliest opportunity.

20 JUDGE MUMBA: Very well. So I will hear the second part.

21 MR. BOURGON: Thank you very much, Judge.

22 MR. DIXON: [Microphone not activated] If I may --

23 THE INTERPRETER: Microphone, please.

24 THE REGISTRAR: Microphone, please.

25 MR. DIXON: Regarding the report and payment for the report, the

Page 187

1 Registry has been formally requested to provide funding for the obtaining

2 of such a report, as is relevant to this case and can be relevant to

3 future cases as well, and could well be an important independent study to

4 be used in the future. But the only indication is that the Tribunal would

5 not be prepared to fund such an exercise. Hence, as Mr. Bourgon outlined,

6 other initiatives have been taken to provide the funding.

7 Your Honour, on the second leg, taking it swiftly with regard to

8 the erroneous nature of the Trial Chamber's decision, it is our

9 submission, Your Honour, with respect that the decision was erroneous in

10 three respects. Firstly, the decision of the Trial Chamber did not

11 consider that the main issue put forward by the Defence, that being

12 whether or not the refusal to provide further funding to the Defence

13 impacts upon the ability to have a fair trial for the accused. That is

14 clearly a matter within the purview of the Trial Chamber. And the

15 decision does not address whether or not a fair trial can be undertaken,

16 given the limitations on Defence funding. It has been our submission that

17 it clearly does impact on the continuance of a fair trial because we are

18 hampered in our ability to prepare the Defence for trial and also that has

19 to be cost against the continuing work that the Prosecution is undertaking

20 in investigating the case and preparing it for trial. No blame is being

21 cost on my learned friends from the Prosecution in this regard. They have

22 to fulfil the obligations. But so does the Defence in order to prepare

23 for trial. And therein lies the prejudice to the accused. It's a matter

24 of ensuring that all necessary preparations are undertaken, revising the

25 extensive documentation in the case, interviewing witnesses, both

Page 188

1 Prosecution witnesses and Defence witnesses, considering the pre-trial

2 brief that the Prosecution will prepare, and whether admissions can be

3 made in order to shorten the proceedings, to prepare the Defence's own

4 pre-trial brief, and to do the nitty-gritty trial preparation before the

5 trial commences. Clearly the two or three months before the trial

6 commences have to be taken up with intensive work in preparing, in

7 particular, cross-examination of Prosecution witnesses that have been

8 identified, and also with the Prosecution attempting to narrow the issues,

9 and hence, to shorten the trial. Without funding to do that, it makes the

10 task of the Defence counsel extremely difficult and that directly impacts

11 upon whether or not the defendant can receive a fair trial both in

12 preparation but also if that -- it will help you in the trial when matters

13 simply might not have been covered which should have been covered.

14 The second area, with respect in our submission, is that the Trial

15 Chamber identified the correct test to be applied in the circumstances as

16 one of whether the Registrar has acted unreasonably or not, and found that

17 the Registrar hadn't done so. Our first submission in that regard is

18 that, as I indicated from the outset, the correct approach would have been

19 to look at it from whether or not it impacts upon a fair trial. But

20 secondly, even if it is considered from the point of view of whether the

21 Registrar acted reasonably, it's our submission that he could not have

22 done so in the circumstances. And we say that on the basis of the

23 calculations which we have done and put before the Trial Chamber regarding

24 the number of documents alone which we have had to consider in the case.

25 These are documents disclosed by the Prosecution, clearly documents that

Page 189

1 have to be considered - other related documents - and our own documents

2 from investigations where we have discovered archived material. And we

3 have calculated, based on the work that's been done, based also on the

4 Registry's guideline, which is that it takes two minutes to review a

5 document - this is an official policy of the Registry, which might be

6 conservative, but nevertheless we have used that as our guideline - that

7 it would take us at least 4.500 hours - that's counsel hours - to review

8 the documents. That is not reviewing them from the outset and reviewing

9 every document. It's looking at documents that have been narrowed down by

10 investigators and reviewing them specifically for the purposes of

11 preparing for trial. That doesn't include the hours that are required for

12 motions, pre-trial briefs, the intensive preparation that I've referred to

13 already.

14 The Registrar says that 3.000 hours is sufficient. We say 4.500

15 hours is a minimum simply to look at the documents. In our submission,

16 that is a -- a vast gulf that lies between the two, and it can only lead

17 to one conclusion: If our calculations are correct, which we say they

18 are, then the Registrar has acted unreasonably in assessing the number of

19 hours that are required.

20 The Trial Chamber's decision did not address whether or not our

21 calculations were accurate, whether or not they were reasonable, and as a

22 result whether further hours should be ordered. Hence, another ground,

23 the second ground, as to why the decision was erroneous, in our

24 submission. Instead, what the decision did was to focus on whether or not

25 the Defence were challenging the entire system or looking at only the

Page 190

1 circumstances in their case, coming to the conclusion that the entire

2 system was being changed, which is not a matter within the jurisdiction of

3 the Trial Chamber, and hence the motion was ruled inadmissible.

4 Our submission is that that - and this is the third reason why the

5 decision was erroneous - was wrong, on the basis that our submissions from

6 the outset have always been focussed on our particular case and the

7 circumstances involved in our case. We have never submitted that the

8 entire system should be changed. We've focussed on what was required to

9 meet our needs and our needs alone, without referring to -- to other

10 cases. And we've specifically set out the exceptions which arise in our

11 case as to why the 3.000-hour limit should be extended. The policy of the

12 Registrar recognises that that limit might need to be extended but only in

13 exceptional circumstances. Our argument is that those circumstances have

14 arisen, and yet the decision of the Trial Chamber does not consider them

15 or indicate whether they have not arisen.

16 Taking it very briefly, Your Honour, the main exceptional

17 circumstances are - and these have been outlined in a number of our

18 documents - firstly, the excessive length of time that it has taken for us

19 to obtain access to confidential documents. We are still waiting that in

20 the Blaskic and Kordic cases. Some 23 months have passed in this regard,

21 and that could never have been foreseen. That time should have set aside

22 to deal with matters that are still outstanding at this very late stage.

23 In addition, new cases have arisen that could not have been foreseen at

24 the time. For example, the case considering the accused Rajic, which is

25 directly related to our case, concerning the Vares area. And there we've

Page 191

1 had to now set in motion an application to obtain access to the material

2 in that case. Clearly more time is going to be required to look at all of

3 that material.

4 In addition, thirdly, there have been amendments to the

5 indictment. Your Honour will be well aware of these. And there's no need

6 to rehearse the entire history once again. But in particular, concerning

7 the international armed-conflict issue, jurisdictional questions have

8 arisen which have absorbed substantial amounts of time, which could not

9 have been foreseen, given the changes the Prosecution made and yet again

10 made late in the day.

11 There's also been an application for other amendments to the

12 indictment, in respect of my client, Mr. Kubura, if those amendments were

13 granted, it would in effect mean that he's charged with - in my

14 submission - for four additional murders. Those are substantial

15 allegations, as Your Honour will appreciate, which have to be

16 investigated, requiring further time.

17 Those are some of the main exceptional circumstances that -- that

18 have arisen, requiring us to request further hours. We say that that can

19 be done within the existing policy of the Registrar, which allows 3.000

20 hours, but in exceptional cases further hours to be granted. It's not a

21 challenge to the whole system, hence the decision of the Trial Chamber

22 with respect was erroneous in this regard.

23 And, Your Honour, lastly, an additional point which we -- we do

24 wish to place before you, Your Honour, is whether or not it was correct in

25 the first place for this matter to be referred to the Trial Chamber. We

Page 192

1 accept that the directive does allow the Registry to consult the Trial

2 Chamber on the matter, that is Article 22(A) of the directive. But it's

3 our submission that that article applies to situations when, at the outset

4 of a case the Trial Chamber has been involved in determining with all the

5 parties the length of the pre-trial period and what lump-sum payment would

6 be appropriate. That didn't occur in this case, and hence it was not

7 appropriate for the matter to come to the Trial Chamber when it had not

8 been involved in the first place. It should have been sent, according to

9 the scheme that allowed - and this was the previous scheme under the

10 directive - the matter to be sent to the President. So that is a matter

11 which we also wish to place on record as a -- a legal problem with the way

12 in which this matter has been conducted.

13 The next effect, Your Honour, is that the accused are prejudiced.

14 The Prosecution can continue to function without the same, continues to

15 investigate the matters, continues to make disclosure to us in various

16 areas, and we are at a stage where we are yet to see the Prosecution

17 pre-trial brief. We are yet to have a finalised indictment. There is

18 much work on the road ahead before we get to trial. And without further

19 resources - even if it be a limited amount, to cover our basic office

20 expenses and costs - it would be extremely difficult to provide the

21 defendants with the necessary assistance in preparing their defence. The

22 equality-of-arms principle, in our submission, is seriously in jeopardy

23 unless this matter is reviewed.

24 It's for all those reasons, Your Honour, that we request the

25 decision of the Trial Chamber be reconsidered. On this leg alone, it

Page 193

1 would not be necessary to wait for any further report. There are new

2 facts in the report, when that come, but on this leg alone we submit that

3 our application can be considered forthwith by the Trial Chamber.

4 Your, those are the submissions on Defence on this matter. And if

5 there's anything further, it has to be raised by my colleagues. I think

6 Mr. Bourgon does wish to raise one further matter, Your Honour. I'm

7 grateful.

8 JUDGE MUMBA: Thank you. Yes, Mr. Bourgon.

9 MR. BOURGON: Thank you very much, Your Honour. I -- quickly to

10 conclude on our oral motion presented before you this afternoon. We'd

11 like to bring the attention of the Trial Chamber to the fact that the

12 decision was rendered yesterday by Trial Chamber III in the case of the

13 Prosecutor versus Ojdanic. Without going into the details of this

14 decision, there are basically two issues which are highlighted by Trial

15 Chamber III in its decision. The first one appears to be mismanagement of

16 resources, and the second issue appears to be that counsel had accepted

17 the fact that there was a cap on the number of hours they would receive to

18 prepare this case at pre-trial. With both of these issues in mind, it is

19 our submission this afternoon that both of these do not apply to our team.

20 First, we never were asked to -- we were never asked to accept or

21 to consent to any specific cap on the resources allocated to us. As a

22 matter of fact, for the record, it is important to note that from the

23 outset this case was initially ranked at level 1, in accordance with the

24 policy of the Registry. Thereafter, the case was then ranked to level 2

25 and then further upgraded to level 3. All along we have always

Page 194

1 said to the Registrar that whether or not we would reach level 3, this

2 would be insufficient, based on our estimation of the work required to

3 prepare this case.

4 I simply conclude this motion by the relief requested from the

5 Trial Chamber in reconsidering its decision, which will be one of two

6 things: We would hope that the Trial Chamber by reconsidering its

7 decision would order the Registry to allocate further resources for us to

8 be able to prepare the case for the Defence and to make this a fair trial.

9 The second possibility of the relief that we would request from the Trial

10 Chamber is at a minimum to obtain the Registry to fund this independent

11 study or to appoint someone who will be able to look at the work we have

12 done and to evaluate the work we have done and to openly tell us, if that

13 is the case, where we went wrong, and where we did too much work. And if

14 not, then to allocate further resources to us. Respectfully submitted,

15 Your Honour. Thank you very much.

16 JUDGE MUMBA: Thank you, Mr. Bourgon.

17 We'll go back -- oh, maybe I should ask the Prosecution if they

18 have any matters they would like to raise on the oral motion as stated by

19 the Defence.

20 MR. WITHOPF: Your Honour, very briefly. There are only very few

21 issues the Prosecution wants to raise. First of all, the Prosecution

22 acknowledges the immense magnitude of this case being a pure 7(3) case and

23 having 25 crime-based incidents involved. The Prosecution also

24 acknowledges the right of the accused for a fair trial and also

25 acknowledges the equality of arms principle.

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1 The Prosecution will, however, not take a position in respect to

2 the motion for two reasons: Number one, in the past, these proceedings

3 have been ex parte proceedings. The Prosecution is not in possession of

4 the materials that the Registrar and the Trial Chamber has been provided

5 with in the past; and number two, and that's the main reason, that's a

6 policy reason, as a matter of principle the Prosecution will not get

7 involved in such issues in the context of remuneration of the Defence

8 counsel.

9 JUDGE MUMBA: Thank you. We shall move on to other matters in

10 this Status Conference. First of all, I should ask the Prosecution

11 whether they do agree on the matters that were agreed and discussed in the

12 meeting for purposes of them being formally on record, before we move to

13 pending motions and disclosures and other things. Maybe there are other

14 matters which the Prosecution can remember which they would like to put

15 formally on record as having been discussed during the Rule 65 ter meeting

16 with the senior legal officer.

17 MR. WITHOPF: The issues that have been discussed during that

18 meeting have been correctly summarised by my learned colleague

19 Mrs. Residovic. There are only three issues, three matters the

20 Prosecution wishes to add:

21 First of all, the Defence again appreciated that the Prosecution

22 is in compliance with its disclosure obligations. The disclosure is

23 ongoing on a very regular basis.

24 The second issue is the ECMM issue. There was a discussion on

25 this issue. My learned colleague, Mrs. Residovic said there was an

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1 agreement, however a partial agreement. However, I do understand that

2 this issue will be a matter for further discussion in the course of this

3 Status Conference.

4 And finally, the issue of the pre-trial brief. It is correct that

5 the Prosecution announced that provided the Appeals Chamber decision will

6 not be rendered in the very near future and a scheduling order for the

7 filings of the pre-trial briefs will not be rendered in the very near

8 future, the Prosecution will provide the Defence with a draft of the

9 pre-trial brief within a reasonable time frame.

10 JUDGE MUMBA: And the draft of the pre-trial brief will be -- will

11 depend on the -- will be based on the current indictment, as it stands, on

12 which we are waiting for the Appeals Chamber decision?

13 MR. WITHOPF: The draft of the -- of the pre-trial brief of the

14 Prosecution will be based on the indictment which has been proposed to the

15 Trial Chamber.

16 JUDGE MUMBA: We'll move on in our Status Conference to the

17 matters that are still pending. The Trial Chamber is dealing with the

18 joint Defence request for certification regarding the decision on motion

19 for leave to amend the amended indictment dated 18th June 2003, which was

20 filed on 26th June 2003. As for the other motions which are pending

21 before the Trial Chamber, the Trial Chamber will be in a position to deal

22 with them as soon as the Appeals Chamber decision has been rendered, which

23 hopefully will be before the summer recess.

24 On matters of disclosure, I think, from the report that has been

25 submitted, matters seem to be moving between the parties. And from the

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1 report, I don't see any problems regarding that, unless somebody or some

2 party wishes to discuss that. Disclosure seems to be moving very well. I

3 don't see anybody raising an issue.

4 The Trial Chamber has been receiving regularly the reports on the

5 compliance of the accused persons with the conditions on provisional

6 release and that is satisfactorily up to date. There are no unusual

7 circumstances that can raise any matters regarding the continuation of the

8 provisional release. So the provisional release will continue on the same

9 conditions as before.

10 Regarding the archives with the EUMM matter which the parties have

11 been discussing, the Trial Chamber have been informed that the Prosecution

12 is proceeding with asking for consent under Rule 73 so that if the consent

13 is granted, then disclosure can forthwith proceed to the Defence. That is

14 the position. Can I have confirmation from the Prosecution.

15 MR. WITHOPF: The Prosecution is in contact with EUMM in Sarajevo.

16 I actually contacted them today. Unfortunately, none of the persons who

17 would be able to make decisions were available. I was told the relevant

18 people will be available tomorrow. I will first contact them verbally to

19 get a first insight in their position. Once this is done, a formal

20 request will be sent to EUMM in Sarajevo to lift the restrictions.

21 JUDGE MUMBA: Thank you. I'm sure the Defence will be following

22 the progress on that with the Prosecution, and we will wait to see what

23 result the Prosecution will get. And perhaps only after that, maybe other

24 matters - depending on whether or not the consent is given - maybe at that

25 stage some other matters may be raised by the Defence if they so wish.

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1 Is there any comment on that from the parties? Yes.

2 MS. RESIDOVIC: [Interpretation] Your Honour, we are grateful to

3 the Prosecution for investing an extra effort in implementing the decision

4 of this Trial Chamber. We would, however, like to confirm that any

5 further problems that might possibly arise can only be resolved if we can

6 rely on the decision of the Trial Chamber. We believe that this decision

7 is the basis upon which the Prosecution and the Defence will attempt to

8 resolve all pending issues with respect to access to the archives. Thank

9 you.

10 JUDGE MUMBA: Thank you very much.

11 The only other matter that is on the schedule is to discuss the

12 probable date for commencement of trial in this case, in view of all the

13 matters that are pending and the fact that there are other cases which are

14 about to be ready for trial soon after the recess and the availability of

15 a Trial Chamber to take this case on trial is being considered. But

16 looking at the progress in the other cases, which are more or less ready

17 for trial, I'm able to say that this case would -- there would be a Trial

18 Chamber ready to take up this case on trial during the month of November,

19 so the Trial Chamber expects that once the major hurdle that we have - and

20 that is the Appeals Chamber decision - is rendered, then everything else

21 will move smoothly, because we have been looking at the motions that are

22 pending all this time while waiting for the decision of the Appeals

23 Chamber. And thereafter, the parties will move. I think the stages that

24 are remaining will be fulfilled within the month of -- the rest of

25 September and October so as to make it possible for the trial to start,

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1 because this is one of the cases that have been pending in pre-trial for

2 some time now, and the Trial Chamber would like to see the trial start.

3 From the report on the meeting that was held with the parties with

4 the senior legal officer, there is quite a -- the Prosecution have reached

5 quite an advanced stage, in terms of their lists which are required to be

6 served on the Defence under Rule 65 ter. Is that the position?

7 MR. WITHOPF: Your Honour --

8 JUDGE MUMBA: The list for the statements of witnesses and the

9 actual witnesses and things like that.

10 MR. WITHOPF: Your Honour, that's correct. The Prosecution

11 identified the majority of its witnesses, obviously, and also identified

12 the majority of its documents that will follow part of the exhibit list.

13 However, as already indicated in the course of the last 65 ter Conference,

14 in particular in respect to the documents, additional documents will

15 certainly be added.

16 JUDGE MUMBA: Yes. Thank you very much.

17 Is there any other matter that the parties would like raise?

18 None.

19 The Prosecution? None.

20 Thank you very much. The Trial Chamber will consider the oral

21 motion on the fees raised by -- as raised by the Defence as soon as

22 possible so that the matter can be decided, and perhaps we can move on in

23 this case.

24 There being no other matters to be dealt with during this Status,

25 the Status Conference is closed and the Court will rise.

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1 --- Whereupon the Status Conference adjourned at

2 3.28 p.m.