Tribunal Criminal Tribunal for the Former Yugoslavia

Page 52

1 Tuesday, 29 October 2002

2 [Status Conference]

3 [The accused not present in court]

4 [Open session]

5 --- Upon commencing at 4.15 p.m.

6 JUDGE KWON: Good afternoon, everybody. Will you call the case,

7 Madam Registrar.

8 THE REGISTRAR: Good afternoon, Your Honour. This is case number

9 IT-01-48-PT, the Prosecutor versus Sefer Halilovic.

10 JUDGE KWON: Thank you. May I have the appearances, please.

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

12 counsel. For the Prosecution appear Mr. George David Hackney on my

13 right-hand side, legal officer on my left-hand side Mr. Hasan Younis from

14 trial support and myself Ekkehard Withopf, acting Senior Trial Attorney.

15 JUDGE KWON: Thank you, Mr. Withopf.

16 For the Defence? Excuse me. Could you turn the microphone on.

17 MR. CAGLAR: [No interpretation]

18 JUDGE KWON: We didn't hear the interpretation.

19 MR. CAGLAR: [Interpretation] I am Bakir Caglar, Defence counsel

20 for Mr. Sefer Halilovic.

21 JUDGE MAY: Thank you.

22 THE INTERPRETER: Microphone for Judge Kwon, please.

23 JUDGE KWON: If my pronunciation is wrong, please correct me.

24 Mr. Caglar.

25 MR. CAGLAR: [Interpretation] Yes, that's right, Your Honour.

Page 53

1 C-a-g-l-a-r, Caglar.

2 MS. KREHO: [Interpretation] Your Honour, representatives of the

3 Prosecution, and ladies and gentlemen from the Registry, I am Dijana

4 Kreho, attorney from Bosnia-Herzegovina and assistant Defence counsel in

5 this case. Ljiljana Kreho [As interpreted].

6 JUDGE KWON: The previous trial ended a little bit late, so we had

7 to start a little bit late accordingly due to the technical preparation.

8 So my apologies on behalf of the Tribunal. This is the third Status

9 Conference in this case held in accordance with Rule 65 bis, and the

10 purpose of which is to review the status of the case and ensure its

11 expeditious preparation for trial.

12 Rule 65 bis (A) of the Rules of Procedure and Evidence

13 provides that a Status Conference shall be held within 120 days after the

14 last Status Conference. However, I should say there has been a

15 substantial delay after the last Status Conference which was held on the

16 12th of April. While more than 120 days have passed since the last Status

17 Conference, I considered that it would be inappropriate to hold another

18 Status Conference until now on the basis that the accused has challenged

19 the appointment of his former counsel, that is Mr. Richard Soyer by the

20 Registrar. Until that issue was resolved and bearing in mind that

21 Mr. Halilovic was granted provisional release on 13th of December of last

22 year and was not in detention, I considered that the accused would not be

23 unduly prejudiced by the holding of a Status Conference beyond that date.

24 That matter was resolved on 25th September when Mr. Caglar was appointed

25 as Defence counsel, and I thought that Mr. Caglar should be given at least

Page 54

1 a month of time to update himself with what has been going on with the

2 trial. So that is the reason why we have -- we are having the third

3 Status Conference today.

4 Having said that, I would like to welcome Mr. Caglar and

5 Mrs. Kreho, who have appeared at this Tribunal for the first time. And

6 also, I would like to take this opportunity to express my thanks to

7 Mr. Soyer, who tried to do his best as counsel for the interest of justice

8 and also for the interest of the accused. I was impressed in particular

9 by his sincere attitude in filing a motion for extension of time to file

10 the Defence's pre-trial brief while at the same time requesting for

11 withdrawal from the case. In this regard, I feel obliged to point out the

12 following to the accused through his counsel: Let us say that the accused

13 is allowed to challenge the appointment of a counsel by the Registrar in

14 one way or another, as was in this case. But I think Mr. Halilovic had

15 gone too far when he wrote a letter to Mr. Soyer saying, I quote, "If you

16 do continue to act as if you were my counsel against my will and consent,

17 I intend to inform the Austrian bar association and the media about your

18 unethical behaviour."

19 Mr. Soyer was appointed and paid by this Tribunal and thus he is

20 duty-bound to act as a Defence counsel unless his appointment is

21 withdrawn. Therefore, if the accused is not happy with the counsel

22 appointed by the Tribunal, then he should address the issue to the Court

23 rather than making such an impolite and I would say somewhat rude comments

24 directly to the counsel. So it should be borne in mind that such an event

25 should not take place again in the future.

Page 55

1 Now I will turn to the issues to be dealt with today, and there

2 are a number of matters to be discussed during this conference relating to

3 the preparation of the case for trial. First I will deal with disclosure

4 issues first and then matters related to the Prosecution's pre-trial

5 brief, and finally matters relating to the Defence pre-trial brief.

6 So first of all, I wonder if all the materials which were

7 disclosed to Mr. Balijagic, former counsel, have now been transferred or

8 disclosed to Mr. Caglar. So what is the current position, and there is

9 any problem, Mr. Caglar?

10 MR. CAGLAR: [Interpretation] I have still not received --

11 THE INTERPRETER: Microphone, please.

12 MR. CAGLAR: [Interpretation] I have still not received them. It's

13 not working? Yes it is. It's working now. I'm sorry. It's been

14 switched off.

15 I have still not received them. It's working now.

16 JUDGE KWON: It's working.

17 MR. CAGLAR: [Interpretation] I have still not received the

18 necessary documents. But before saying that to you, I need to apologise

19 on behalf of Mr. Sefer Halilovic for this letter which he sent. I think

20 he will correct this error that he has made, and I have advised him to do

21 so.

22 JUDGE KWON: Thank you. Could you tell us the reason why you were

23 not able to receive those materials? I think you were appointed a month

24 ago, and I think you probably had an opportunity to pick the materials up

25 in advance.

Page 56

1 MR. CAGLAR: [Interpretation] No, Your Honour. I have not had the

2 opportunity to review those documents. I'm saying this in French because

3 there is a lack of communication between Bosnia and Istanbul, and these

4 difficulties were also noted by Mr. Soyer. These are difficulties that

5 need to be overcome, and I'm wondering what one can do, because I have not

6 been able to get in touch with people who could help me. Mr. Faruk

7 Balijagic, I have been trying to contact him but he has not replied. I

8 think he has the necessary documents, but I'm wondering why he doesn't

9 wish to communicate them to me.

10 I think that I'll have to be content with the documents that you

11 have here in the court, the documents that were kindly provided to me by

12 Mr. Soyer. He sent them to me. But I don't know whether they are

13 complete, and I will verify. I will check this out. At present, I'm

14 unable to say more than that because I am unable to get in touch with

15 Mr. Faruk Balijagic.

16 JUDGE KWON: Mrs. Kreho, do you not have in your possession those

17 materials which were disclosed to Mr. Balijagic?

18 MS. KREHO: [Interpretation] Mr. Balijagic gave me, in May, some

19 documents which he had received in the process of disclosure from the OTP.

20 However, all those documents are in the Bosnian language, and ten days

21 ago we started to have those documents translated. We need to translate

22 them first, explain them, and send them to Mr. Caglar in French so that he

23 can understand them.

24 I can say that from Sarajevo we did send all the expert reports to

25 Mr. Caglar for him to study them. We have sent them documents -- sent him

Page 57

1 documents linked to the pre-trial Defence brief, but we are encountering a

2 great deal of problems because of translation.

3 As soon as all the documents have been translated and we have

4 informed Mr. Caglar to that effect, everything will be disclosed to him.

5 JUDGE KWON: So we need the French translation. Can you give me

6 an observation on that matter, Mr. Withopf?

7 MR. WITHOPF: Your Honour, the statements we just received from

8 Mr. Caglar and Ms. Kreho reflects the difficult situation on the Defence

9 side, and it emphasises the need for both Your Honour and the senior legal

10 officer assigned to the Trial Chamber to take care and to even more take

11 care of their duties under Rule 65 ter.

12 We are facing a very difficult situation, and these difficulties

13 are somewhat outside the normal scope. As you mentioned, the last Status

14 Conference is more than half a year ago. A 65 ter meeting took place in

15 mid-May of this year. Since then, there was only one major development in

16 trial preparation, namely the timely filing of the Prosecution pre-trial

17 brief. In mid-June, in addition, the Prosecution was trying to continue

18 to comply with the various complications under the Rules, in particular

19 disclosure related obligations.

20 On the Defence side, as you know, Your Honour, nothing, literally

21 nothing happened other than what can be described as a total mess caused

22 by the accused and his previous Defence counsel, Mr. Balijagic. To make

23 it very clear, we are not talking about the new Defence counsel, our

24 learned colleague Mr. Caglar.

25 The Prosecution, however, wishes to take this opportunity to

Page 58

1 illustrate the very particular difficulties the Prosecution is facing in

2 this case because of the somewhat unusual situation on the Defence side.

3 Mid-May, previous Defence counsel, Mr. Balijagic, withdrew. End of May

4 the accused requested Mr. Balijagic be replaced by Ms. Kreho. In June the

5 Registrar decided to not assign Ms. Kreho because of a potential conflict

6 of interest, but to assign Mr. Soyer as the new Defence counsel. Later

7 on, as you already mentioned, the accused did not communicate with

8 Mr. Soyer at all. He refused to communicate with him, and finally, at the

9 end of September Mr. Caglar has been assigned.

10 The Prosecution over months tried to get materials including Rule

11 68 materials being disclosed without any success. Defence counsel,

12 Mr. Balijagic, did not keep agreements to pick such materials up or

13 Mr. Soyer was not prepared to receive them due to the lack of cooperation

14 on the accused's side.

15 Due to the mess on the Defence side, negotiations on potential

16 agreements could not be followed up. Search criteria for both Rule 68 and

17 Rule 66(B) materials were not provided as promised.

18 JUDGE KWON: Sorry to interrupt, Mr. Withopf. We'll get to the

19 issues and specifics, but my question was whether you have a French

20 translation available or you disclosed the French translation to

21 Mr. Balijagic.

22 MR. WITHOPF: No. We only disclosed materials in B/C/S language

23 and English language. There is no translation in French language

24 available.

25 JUDGE KWON: You didn't even start the translation into French?

Page 59

1 MR. WITHOPF: No. Since we only got yesterday to know about the

2 new assigned Defence counsel speaks French only. We had a meeting with

3 Mr. Caglar yesterday night, and only at this point in time we detected

4 that he's only able to speak French but --

5 JUDGE KWON: I must say, the same is true of the Chamber. Okay.

6 Thank you.

7 So one of the main purposes to appoint Mrs. Kreho as a kind of

8 assistant counsel or a co-counsel is to assist the new counsel to be

9 appointed, and in that capacity, and you were able to review the materials

10 disclosed to Mr. Balijagic. Am I right in saying so?

11 MR. CAGLAR: [Interpretation] A part of it, Your Honour. I have to

12 apologise. I don't know the customs in your court, the custom in your

13 court. I belong to the Strasbourg court and I have acted there in the

14 human rights court, and I apologise for not getting up. I don't have that

15 habit in Strasbourg.

16 JUDGE KWON: No problem. But let me ask the direct question. In

17 my Scheduling Order, I ordered the Defence counsel to file its pre-trial

18 brief on or before the 23rd of December of this year. Do you think you

19 can meet the deadline?

20 MR. CAGLAR: [Interpretation] Yes. That's more than reasonable

21 because you have lost already a lot of time. So far a lot of time has

22 been wasted, so I will do everything I can to prepare the brief. I will

23 do my very best. Because the experience so far hasn't been too agreeable,

24 if I might call it that, with the attorneys of Mr. Halilovic, and my

25 intention is to make up for lost time.

Page 60

1 Excuse me. But of course I'm counting on the assistance of Madam

2 Kreho to provide me with the necessary documents, and I hope that will be

3 sufficient for me to be able to present my defence to the Court.

4 MS. KREHO: [Interpretation] I can provide the professor with all

5 the documents but they are in Bosnian. I'm not sure that Mr. Caglar will

6 be able to understand the content of each and every document. As for the

7 translation of those documents into French, we need a great deal of time.

8 I will do everything in my power to fulfil my obligations.

9 JUDGE KWON: Yes, Mr. Caglar.

10 MR. CAGLAR: [Interpretation] Your Honour, I have an assistant at

11 the university who speaks Bosnian very well, and I will take upon myself

12 the translation. If I have the necessary documents in time, of course.

13 JUDGE KWON: Very well. That's good news at least. Then let's

14 deal with some specific matters one by one.

15 66(A)(i) disclosure has been completed by disclosing 105 witness

16 statements, accompanied in the indictment on confirmation; is that right?

17 MR. WITHOPF: Your Honour, that's correct. The 66(A)(i)

18 disclosure is complete.

19 JUDGE KWON: Could you tell us the current status of this

20 situation regarding 66(A)(ii) disclosure, that is statements of all

21 witnesses to be called.

22 MR. WITHOPF: Regarding the 66(A)(ii) disclosure, the situation is

23 as follows, Your Honour: We initiated searches with regard to the 95

24 witnesses listed in the Prosecutor's pre-trial brief. These searches have

25 been initiated a month ago. This is an ongoing task. However, it doesn't

Page 61

1 have priority, and it doesn't have priority because a trial date is not

2 yet set. To be more concrete, too date we got only the results with

3 regard to four witnesses and eight witnesses are currently on the way, the

4 search with regard to eight witnesses currently under way. However, once

5 the trial date is known, searches can be completed within a reasonable

6 time frame.

7 JUDGE KWON: But there is no big deal or problem since all the

8 witness statements are accompanied by the -- with the indictment. So it

9 is -- all of them are disclosed already.

10 MR. WITHOPF: The witness -- those witness statements are

11 disclosed. I'm talking about previous witness statements as referred to

12 in Rule 66(A)(ii).

13 JUDGE KWON: Which is customarily called as prior witnesses.

14 MR. WITHOPF: Right.

15 JUDGE KWON: Thank you. I am afraid we are using some jargon like

16 66(A)(i) which will certainly sound strange to Mr. Caglar, but you will

17 get accustomed to it soon.

18 I would like to deal with this so-called reciprocal disclosure and

19 disclosure of exculpatory material. I will read out some Rules for the

20 convenience of Mr. Caglar. Rule 66(B) provides that: "The Prosecutor

21 shall, on request, permit the Defence to inspect any books, documents,

22 photographs and tangible objects in the Prosecutor's custody or control,

23 which are material to the preparation of the defence or are intended for

24 use by the Prosecutor as evidence at trial or were obtained from or

25 belonged to the accused."

Page 62

1 In the meantime, Rule 68 states: "The Prosecutor shall, as soon

2 as practicable, disclose to the defence the existence of material known to

3 the Prosecutor which in any way tends to suggest the innocence or mitigate

4 the guilt of the accused or may affect the credibility of the Prosecution

5 evidence."

6 In relation to this, former Defence counsel, Mr. Balijagic, had

7 triggered reciprocal disclosure asking for all the documents relating to a

8 particular group of documents or Seve files, and the Prosecution responded

9 to this in its filing dated 24th of September that it has potential

10 exculpatory material for disclose available and that the Seve files are

11 ready for inspection pursuant to reciprocal discovery procedure codified

12 in Rule 66(B). I would like to hear from the parties what the current

13 position is and whether there have been any discussions between the

14 parties. Who would speak first?

15 MR. WITHOPF: May the Prosecution please speak first?

16 JUDGE KWON: Yes, Mr. Withopf.

17 MR. WITHOPF: As you quite correctly stated, previous Defence

18 counsel has triggered reciprocal disclosure and the Prosecution is of the

19 opinion that once triggered it cannot be revoked involving the result and

20 involving Rule 66(C). Actually, a duty of the Defence to disclose and

21 give the Prosecution the opportunity to inspect books, documents, and all

22 the other items as mentioned in this Rule.

23 The Prosecution offered inspection of two sets of materials

24 comprised of some 3.800 pages of documents. It refers to the alleged

25 status awareness of the accused and the files Your Honour was just

Page 63

1 mentioning, the so-called Seve files. These fall within the scope of Rule

2 66(B). We offered in May and June to Mr. Balijagic to inspect these

3 documents, and again in August we offered to the then-Defence counsel Mr.

4 Soyer to inspect these documents. None of the then-Defence counsel or

5 members of their team actually showed up to inspect such materials.

6 In addition, the Prosecution asked previous Defence counsel

7 Mr. Balijagic to submit search criteria to identify materials that may

8 fall under Rule 66(B). Again such criteria were promised. However, by

9 previous Defence counsel, it has never been followed up.

10 Yesterday we had a meeting with Mr. Caglar and Ms. Kreho. I

11 specifically asked Mr. Caglar what his position would be with regard to

12 reciprocal disclosure. He didn't feel to be in a position yesterday night

13 to answer this question, and the Prosecution would like to know, as you,

14 Your Honour, what the current Defence position is.

15 JUDGE KWON: Mr. Caglar, do you have any observation to that

16 matter?

17 MR. CAGLAR: [Interpretation] Yes, indeed, Your Honour. First of

18 all, I am familiar with the Rules of the Tribunal and the Article that you

19 have just cited from.

20 Yesterday evening, I reviewed the materials from previous

21 conferences, and I think I can provide all the necessary documents to the

22 Prosecutor. In my opinion, there will be no problem.

23 There is, however, a small problem, and that is what I just told

24 Mr. -- the Prosecutor at our previous meeting. I didn't appreciate too

25 much the language that was used at that conference. I think we need to be

Page 64

1 far more open, more frank between ourselves, and I think that we should

2 respect the Rules. Maybe it is too strong a word, but I think a kind of

3 friendship should be established instead of a latent or potential conflict

4 which I have been able to take note of at previous conferences, that

5 existed at previous conferences.

6 JUDGE KWON: I appreciate the Defence's attitude in their

7 readiness to provide the documents in their custody to the Prosecution,

8 but the real issue is that the Prosecution is ready to show -- allow the

9 Defence to inspect the documents in their custody, and in doing so, they

10 need your cooperation. Some -- you have to offer them a search word or

11 anything like that.

12 So do you have any plan to contact the Prosecution to inspect the

13 documents which is called the Seve sub-files, if I'm right.So do you think

14 it would be more proper at this moment to set a time limit or you can do

15 it, for instance, voluntarily? Or you are not triggering the reciprocal

16 disclosure any more?

17 MR. CAGLAR: [Interpretation] Yes, Your Honour. I would like to

18 engage in this reciprocal disclosure. I have seen this file this

19 afternoon. It was shown to me in the Office of the Prosecutor, and I

20 wonder if I can take them with me to have them at home. It would be

21 easier for me. And I appreciate what has been done so far, Your Honour.

22 JUDGE KWON: If the Prosecution could help with this matter. I

23 don't think it's a matter of 1.000 pages or something like that.

24 MR. WITHOPF: Your Honour, there are two issues to address. First

25 of all, Rule 66(B) only provides the inspection of such materials. And

Page 65

1 the second issue involved is the one you just mentioned. The Seve files

2 only are comprised of some 3.800 pages of documents. For pure practical

3 reasons, it's not possible to provide Defence with copies of such

4 materials. And again, it's the only obligation of the Prosecution to

5 provide for inspection of such materials.

6 We will provide a room. We are happy to do so. We will provide

7 the materials. If Defence counsel wish to make copies of the one or the

8 other documents, we are certainly open to it, but the Prosecution is not

9 in a position and is not obliged to provide copies of some thousands of

10 pages.

11 JUDGE KWON: It seems to me that --

12 THE INTERPRETER: Microphone, Your Honour, please.

13 JUDGE KWON: My apology. The Defence -- oh yes, Mr. Caglar.

14 MR. CAGLAR: [Interpretation] Your Honour, I apologise, but in my

15 opinion, there is a principle, a primordial principle, and that is the

16 equality of arms. I respect the Rules of this Tribunal, but what is of

17 primordial importance is the equality of arms between the Defence and the

18 Prosecution. If they do not intend to communicate to me these files

19 because of the enormity of those files, I wonder why then the Defence

20 shouldn't do the same thing the future.

21 JUDGE KWON: The Rules of Procedure and Evidence does not provide

22 the disclosure of copies of the documents in case of Rule 66(B), that

23 is reciprocal disclosure. It only says that: "The Prosecution shall --"

24 I'm sorry, "-- permit the Defence to inspect such documents."

25 So it is if the Defence counsel wishes to have a reciprocal

Page 66

1 disclosure, it is their duty to go to the -- to contact the Prosecutor and

2 inspect the documents in their custody themselves.

3 So I would like to advise you to stay a little bit longer after

4 this adjournment to have a discussion with the Prosecution and find a

5 suitable way to doing that kind of disclosure.

6 Having said that, let's move on to another issue. Let me deal

7 with the Prosecution's pre-trial brief first.

8 First of all, I would like to, as you, Mr. Withopf, mentioned, I

9 would like to thank the Prosecution team for their submitting their

10 pre-trial brief in due time, and it was well organised. I would like to

11 congratulate that.

12 According to the Prosecution's pre-trial brief, it is my

13 understanding that the Prosecution is planning to present 52 live

14 witnesses and 43 92 bis witnesses and around 130 exhibits; is that right?

15 MR. WITHOPF: Your Honour, that's basically right. With regard to

16 witnesses, we have 52 live witnesses and 43 Rule 92 bis witnesses. A

17 number of further witnesses has been interviewed after the filing of the

18 Prosecution pre-trial brief. I'm talking about four live witnesses and

19 two Rule 92 bis witnesses. These witnesses will be added to our list.

20 JUDGE KWON: Four live --

21 MR. WITHOPF: Four live witnesses and two Rule 92 bis witnesses.

22 JUDGE KWON: So that is 101 in total.

23 MR. WITHOPF: One hundred one in total. However, you as the

24 Defence, must be aware that we will interview further witnesses. I'm

25 talking about a number in the range of between five and ten further

Page 67

1 witnesses.

2 JUDGE KWON: So that will be in total around between 106 and 111.

3 MR. WITHOPF: Correct.

4 JUDGE KWON: Okay. The Trial Chamber would encourage the

5 Prosecution to stick with those numbers, and even further, to reduce -- to

6 be able to reduce those numbers, circumstances permitting.

7 I would like to -- I will advise this Trial Chamber not to allow

8 additional documents -- or additional witnesses unless good causes, good

9 reasons, are shown.

10 About the exhibits. You indicate there are about 1.000 exhibits

11 during the course of the earlier Status Conferences, and is it that it's

12 reduced to 131?

13 MR. WITHOPF: It's somewhere in the middle, Your Honour. As you

14 know, our exhibit list, the current exhibit list, contains 131 exhibits.

15 A number of further exhibits will be added. We are anticipating that we

16 will not reach the number of 1.000 at all. We were able to diminish the

17 number of potential exhibits. It's still hard to predict. However, we

18 can anticipate that at the very end we are talking about 200 to 300, maybe

19 350 exhibits, but again it's very hard to predict at this point in time.

20 JUDGE KWON: Have those potential exhibits been disclosed to the

21 Defence?

22 MR. WITHOPF: As I already mentioned, since mid-May there was no

23 opportunity at all to disclose materials to the Defence since the

24 then-Defence counsel Mr. Soyer, due to the lack of cooperation with his

25 client, wasn't prepared to receive materials. We have put together a

Page 68

1 number of binders we wish to disclose to the current Defence counsel. We

2 offered these binders yesterday. However, for obvious reasons, he's not

3 able to carry them, so we will send these binders by mail.

4 These binders contain the 131 documents as listed in the exhibit

5 list. These documents are available since the date of the filing of the

6 Prosecutor's pre-trial brief. They haven't been picked up by Defence

7 counsel. So far we will also disclose some further exhibits, and in

8 future additional exhibits will follow.

9 JUDGE KWON: So it was agreed.

10 MR. WITHOPF: It was agreed, yes.

11 JUDGE KWON: Very well. And I wonder what happened to the

12 so-called Sarajevo collection or materials provided by the Bosnian

13 authorities from official archives. The Prosecution indicated that it

14 would be able to complete this review by the date set for submission of

15 pre-trial brief.

16 MR. WITHOPF: The Sarajevo collection, as you may know, is a

17 collection comprised of some 50.000 pages of documents. There are a

18 number of documents from the Sarajevo collection that form part of the

19 current exhibit list. However, the Sarajevo collection as such is not the

20 problem. The problem is that we are still getting materials from the BiH

21 side. It's basically not a problem. It's a fact that we get such

22 materials. These materials have to be sifted through, and they have to be

23 analysed, and finally a decision has to be made as to whether the

24 Prosecution wants to use them as exhibits.

25 This is an ongoing process, and I can't tell you at this point in

Page 69

1 time an end date once we will be able to finish such a procedure.

2 JUDGE KWON: Thank you. But 92 bis statements, what is the status

3 in relation to that evidence in terms of certification and disclosure?

4 MR. WITHOPF: We are very well advanced in this regard, Your

5 Honour. Almost all statements the Prosecution intends to use as Rule 92

6 bis witness statements are certified. Meanwhile, they have been certified

7 since April 2002. Translation of such amendments to statements is

8 currently in progress.

9 JUDGE KWON: So they are included in the disclosure package which

10 you mentioned just now?

11 MR. WITHOPF: Correct.

12 JUDGE KWON: Very well.

13 MR. WITHOPF: But not the translations. The translations of

14 amendments are in progress.

15 JUDGE KWON: And I remember that, Mr. Withopf, you indicated

16 during the earlier Status Conference and Rule 65 ter Conference that

17 massive JNA manuals are yet to be translated and thus the military expert

18 report would not be available until August or early September. And it was

19 also suggested that the Prosecution might need to submit an addendum to

20 its pre-trial brief according to the outcome of the military expert

21 report. What is the current situation?

22 MR. WITHOPF: Just to give you a brief update. The relevant

23 portion or the portions that the Prosecution considers to be relevant

24 meanwhile have been translated. The military expert has been provided

25 with such translations. We had a number of meetings with the Prosecution

Page 70

1 military expert. The assistance of the military expert is meanwhile well

2 advanced. Some preliminary working documents have been provided by the

3 expert. However, to date we didn't have -- we didn't get the final

4 report. The final report can be expected within the first month of next

5 year.

6 However, I must say depending on the outcome of the final expert

7 report, the Prosecution may have to amend or to file an addendum to its

8 pre-trial brief.

9 JUDGE KWON: Or may not.

10 MR. WITHOPF: Or may not, depending on the outcome.

11 JUDGE KWON: And it was also indicated that two doctors carrying

12 out the postmortem examination would be served as expert reports upon the

13 Defence. Could you give any observation on that?

14 MR. WITHOPF: Yes. We have two pathologists who did the

15 post-mortem reports. Obviously these two doctors can be considered as

16 experts at well. Their reports are currently available in summary

17 translation only. The full translation of such experts' reports will be

18 requested in the very near future.

19 JUDGE KWON: When do you think the full translation will be ready?

20 MR. WITHOPF: These documents are very comprehensive documents.

21 It depends on the situation within CLSS. It's hard to anticipate. It may

22 last six weeks, eight weeks, 12 weeks. It's hard to predict.

23 A summary translation, however, already exists, and the summary

24 translation can be disclosed if the Defence wishes them to be disclosed.

25 JUDGE KWON: I will consider whether to put a time limit after

Page 71

1 having heard the Defence's comment on that later.

2 So in light of all that was discussed up to now today, how long

3 does the Prosecution estimate its case to last?

4 MR. WITHOPF: That's a question, Your Honour, we have been asked

5 several times in the course of the previous meetings. Again, I basically

6 have to say it depends very much on further agreements with the Defence,

7 obviously. Mr. Caglar, yesterday, mentioned that he doesn't feel himself

8 bound to the previous stipulations. That may have a negative effect, a

9 negative impact on the length of the trial. However, the Prosecution

10 estimates the Prosecution case being finished within four to six months,

11 considering the number of live witnesses we intend to call.

12 JUDGE KWON: Thank you. Okay. I now turn to the Defence.

13 I'm very pleased to hear, Mr. Caglar, to hear from you that you

14 will be able to produce the Defence pre-trial brief at the end of -- by

15 the end of this year. So I would encourage the Defence to meet that

16 deadline in any way.

17 As Mr. Withopf, the Prosecutor, raised the issue, Mrs. Kreho and

18 Mr. Halilovic jointly tendered a document named Summary of the Defence

19 pre-trial brief on 22nd July of this year. So would the forthcoming

20 pre-trial brief go along with the same line that was suggested in the

21 summary brief?

22 MR. CAGLAR: [Interpretation] Your Honour, the summary you are

23 referring to was prepared by me. Actually, the broad lines of the Defence

24 are very simple. I think that we need to develop the main lines of that

25 defence which will be summarised for you, and I intend to follow along the

Page 72

1 same lines in my defence. That's all. Thank you.

2 JUDGE KWON: Thank you. One thing to be pointed out in relation

3 to this --

4 THE INTERPRETER: Microphone, Your Honour. Microphone, please.

5 JUDGE KWON: My apology again. One thing to be pointed out in

6 relation to this is the following: The final paragraph of that document

7 summary brief states, I quote: "The Defence submits that a reasonable

8 trier cannot conclude that the accused is criminally responsible as a

9 superior and requests that the accused be acquitted in a reasonable time

10 limit."

11 And then Prosecution responded that "Should this request be

12 considered to be a motion for judgement of acquittal under Rule 98 of the

13 Rules, then the motion should be denied for being premature."

14 However, as the document in which the Defence's request was made

15 was entitled "Summary," and because Rule 98 clearly only permits a motion

16 for judgement of acquittal to be made at the close of the Prosecution's

17 case, this Chamber took the view that this was not a serious application

18 to be considered.

19 Mr. Caglar, do you have any observation about that?

20 MR. CAGLAR: [Interpretation] You are quite right, Your Honour.

21 This is something for later. This was just the proposal, and we will see

22 as things progress. It is not a proposal to be addressed immediately. It

23 is no more than a proposal to take note of, that's all.

24 JUDGE KWON: Thank you. And according to the summary brief of the

25 Defence pre-trial brief, the main point of the Defence case seemed to me

Page 73

1 that the accused was not in the command position and did not have

2 effective or material control over the forces on the ground. Am I right

3 in so understanding?

4 MR. CAGLAR: [Interpretation] Yes, you are right, Your Honour.

5 JUDGE KWON: Then may I take it then the Defence will not

6 vigorously and seriously challenge the fact that such crimes as alleged in

7 the indictment had been actually committed?

8 MR. CAGLAR: [Interpretation] Your Honour, as I have just said,

9 this is merely a little summary. I am not fully in command of the whole

10 brief or the arguments which have been developed by the Prosecutor. I'm

11 familiar with them only partially, and at this stage of the debate, I

12 cannot give you a precise answer, nor can I convey my ideas which I

13 haven't had time to develop. I need time. There are certainly other

14 arguments that will be submitted, and I reserve the right to develop my

15 ideas in due course.

16 JUDGE KWON: Of course the Defence position is fully

17 understandable. And one last thing again is that -- it's related to

18 agreed facts.

19 During Mr. Balijagic's period as Defence counsel, the Defence was

20 able to agree to a set of stipulated facts. What would be your

21 observations, and there is any possibility of agreeing any further

22 stipulated facts?

23 MR. CAGLAR: [Interpretation] Your Honour, allow me to do that a

24 little later on, please, because I haven't fully been able to study the

25 document that I have been served with. The time hasn't allowed for that.

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1 Maybe within two or three weeks I will be able to give you a more precise

2 answer. And I don't think that my opinion will change in time.

3 JUDGE KWON: Very well. I would only recommend that -- to try to

4 recommend you to put -- as much as possible to put them in writing in the

5 pre-trial brief, as much as possible and as specifically as possible.

6 I think I dealt with some -- most of the outstanding matters, but

7 are there any issues to raise at this moment? Any party. Yes.

8 MR. WITHOPF: Your Honour, there is nothing to add from the

9 Prosecution's side. However, the Prosecution would very strongly urge or

10 would like to very strongly urge the Senior Legal Officer assigned to this

11 case to convene a Rule 65 ter Conference in some near future.

12 JUDGE KWON: Yes. That's exactly what I had in mind.

13 For the Defence are there any issues to raise at this moment?

14 MR. CAGLAR: [Interpretation] Not for the moment, Your Honour. Not

15 just yet, Your Honour. I have no other questions to put to you.

16 JUDGE KWON: So I would like to recommend the parties to contact

17 our Senior Legal Officer, and I think the time would be, in my opinion,

18 mid or -- from mid to late November will be suitable for the parties. And

19 before that -- or the Defence also, I would recommend the Defence to

20 contact the Prosecutor to discuss the matter relating to the disclosure

21 issues, and other things may be discussed at the 65 ter Conference in one

22 month's time from now.

23 I think I'm very -- I will expect to have a -- to receive the

24 pre-trial brief from the Defence at the end of this year, and then I will

25 consider either to have a Pre-Trial Conference then or the -- another

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1 Status Conference. So in case we decided to have a Pre-Trial Conference,

2 I will have the Senior Legal Officer to hold another 65 ter Conference

3 before that Pre-Trial Conference which may take place in mid-January next

4 year. And if I decided to have another Status Conference to coordinate

5 some more issues, that will also take place at the same time, around -- at

6 the end of January next year.

7 Unless there are any other matters to raise at this moment? So

8 this Status Conference is adjourned.

9 --- Whereupon the Status Conference adjourned

10 at 5.18 p.m.