Tribunal Criminal Tribunal for the Former Yugoslavia

Page 107

1 Thursday, 22 May 2003

2 [Status Conference]

3 [Open session]

4 [The accused not present]

5 --- Upon commencing at 3.02 p.m.

6 JUDGE KWON: Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honour. This is Case Number

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

9 JUDGE KWON: Thank you. Will both parties make their

10 appearances.

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

12 counsel. For the Prosecution appear Mrs. Marie Tuma, trial attorney,

13 Mr. Hasan Younis, trial support, and myself, Mr. Ekkehard Withopf, acting

14 trial attorney.

15 JUDGE KWON: Thank you, Mr. Withopf. You're not getting any

16 interpretation. If the usher can check the circumstances. Now you are

17 able to hear us? Could you make your appearances for the Defence.

18 MR. HODZIC: [Interpretation] Your Honour, I did not get the

19 interpretation. Would you please repeat your question.

20 JUDGE KWON: If you could introduce yourself.

21 MR. HODZIC: [Interpretation] Yes, yes, I can hear now. Thank you.

22 I am lead counsel for Mr. Sefer Halilovic in his Defence.

23 JUDGE KWON: And I notice Ms. Kreho is appearing also as an

24 assistant.

25 MS. KREHO: [Interpretation] Yes.

Page 108

1 JUDGE KWON: Thank you. Very well.

2 This is the fifth Status Conference held in accordance with Rule

3 65 bis of the Rules of Procedure and Evidence. And hopefully, the last

4 one before we have the Pre-Trial Conference which is to be held in

5 accordance with Rule 73 bis. Subsequent to the last Status Conference,

6 which was held on 10th of February, Mr. Ahmed Hodzic was assigned as the

7 Defence counsel replacing the previous Defence counsel for the accused

8 pursuant to decision filed by the Registrar on 20th February this year.

9 Both the pre-trial briefs of the Prosecution and the Defence have

10 been filed. In addition, the Prosecution has filed its military expert

11 report, and the translation of the postmortem examination reports and

12 updated exhibit list. And thus, this case seems to be coming close to be

13 ready for trial. Before we move on to more rudimentary matters of a

14 Status Conference, I would like to turn directly to the issue of taking of

15 a deposition pursuant to Rule 71. The Prosecution filed its motion to

16 take the deposition of a terminally ill witness for use at trial on the

17 4th of March this year. Specifically, the Prosecution requested that the

18 deposition be taken without the presence of the accused. Now, as far as

19 the Chamber is aware, the issue of deliberately excluding the presence of

20 the accused from the deposition process has not been raised in this

21 international tribunal. This has been the case as the accused had been

22 detained at the Detention Unit in other proceedings. Thus, the

23 Trial Chamber found it prudent to look more closely at the motion, and

24 accordingly, I issued a scheduling order allowing the Defence to file a

25 response, and inviting the Registry to file its observations.

Page 109

1 The Defence filed a response on 8th of May this year basically

2 agreeing with the Prosecution on all points except on the point of

3 excluding the presence of the accused. The Registry filed its

4 observations on the practical arrangement on 16th of May. Assessing from

5 the memorandum the Registry presents two options, one being to have

6 practically the entire Tribunal flown to Sarajevo; the other, to have only

7 two, i.e., a technician and a court officer flown to Sarajevo. But then

8 have the Defence counsel and accused flown to The Hague. However,

9 speaking off the top of my head, I'm of the opinion that an arrangement

10 somewhere in the middle can be made allowing the Defence counsel and the

11 accused to remain in Sarajevo if we are to allow the accused to be present

12 at all at the deposition.

13 In the meanwhile, as the rule is written out in Rule 71, the issue

14 of taking deposition is a matter for the Trial Chamber. Thus, I would

15 like to make it clear that I will confer with the Chamber on the issues

16 raised today before a decision is issued. Having said that, I would like

17 first to hear from the Prosecution regarding these matters, specifically

18 as to the reason why the accused should not be present at the deposition

19 and as to the practical arrangements.

20 MR. WITHOPF: Your Honour, prior to going into details on this

21 issue, the Prosecution is requesting closed session because we have to

22 discuss a number of issues that relate to the health condition of the ill

23 witness that may be crucial for the decision of the Trial Chamber.

24 JUDGE KWON: Very well. Private session, please.

25 Private session, please.

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1 [Private session]











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12 Page 111 redacted private session.














Page 112

1 (redacted)

2 (redacted)

3 [Open session]

4 THE REGISTRAR: We are in open session.

5 JUDGE KWON: To get to some practical information, how long do you

6 expect your examination to last?

7 MR. WITHOPF: Your Honour, that's a very difficult question to

8 answer. The interview in December, as you know, took three days caused by

9 the numerous breaks that had been necessary. We anticipate a very similar

10 situation this time as well, so we anticipate the examination-in-chief

11 lasting for at least two to two and a half days.

12 JUDGE KWON: Yes. I shall confer with the Trial Chamber once

13 again about this matter, and the Chamber will give its ruling after having

14 the Senior Legal Officer prepare some practical arrangement in cooperation

15 with the Registry and the Prosecution.

16 Speaking for myself, the sooner the deposition would take place,

17 the better it would be. The target date I have in mind, sometime in late

18 June.

19 Let's get moving to the pre-trial preparations. As for the

20 Defence pre-trial brief, I appreciate the Defence counsel's effort to keep

21 the same paragraph numbers as the Prosecution's pre-trial brief, thus

22 making it easier for the reader to understand the difference of each

23 party's position. However, I have to express my concerns regarding some

24 Defence's filing. The Defence missed the deadline for filing response to

25 the Prosecution's motion for taking of the deposition and was only able to

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13 English transcripts.













Page 114

1 file the response when I issued an order granting an extension of time.

2 In addition, as the Prosecution pointed out in its filing of 22nd of

3 April, the Defence has not followed the practice direction on the length

4 of briefs and motions in filing its pre-trial brief. I will only stress

5 this once, but it is an obligation of both parties, including the Defence,

6 to be fully aware of all our rules in the Tribunal. So for the future, I

7 expect the rules, including the practice direction, to be read carefully

8 and to follow the directions accordingly.

9 Mr. Hodzic, do you have anything to say about this?

10 MR. HODZIC: [Interpretation] Your Honour, I support what you have

11 said. I wish, however, to draw your attention to the fact that just

12 before filing this submission, I was appointed Defence counsel so that

13 there was a certain lack of experience on my part. In future, our

14 submissions will be in accordance with the rules and the prescribed

15 procedure. This is as regards this topic.

16 JUDGE KWON: Thank you. I understand.

17 Now, I'd like to turn to the issue of disclosure. If Mr. Withopf

18 could update myself, me and the Chamber generally as to the disclosure

19 matter.

20 MR. WITHOPF: Your Honours, since the last Status Conference,

21 there have been a number of additional disclosures both under Rule

22 66(A)(2) and under Rule 68, on 3rd April and on 17th April, a number of

23 witness statements and a number of documents have been disclosed to the

24 Defence. What's even more important in respect to reciprocal disclosure,

25 huge amounts of materials have been made available to the Defence for

Page 115

1 inspection at several locations, and another such reciprocal disclosure

2 will take place tomorrow.

3 In that respect, the Prosecution wishes to remind the Defence that

4 reciprocal disclosure is actually a reciprocal disclosure as it says. The

5 Defence to date has not complied with its obligations under Rule 67(C) to

6 provide inspection of material to the Prosecution, although the

7 Prosecution at several occasions locations has done all efforts to provide

8 the Defence with access to the Prosecution's materials.

9 JUDGE KWON: So is it your intention to take a look into

10 the -- what is possessed by the Defence team?

11 MR. WITHOPF: Right. I may draw your attention to the following

12 fact: The Defence has attached to its pre-trial brief a list of exhibits,

13 a list of witness statements. Under usual circumstances according to the

14 rules, the Defence is not obliged to make such exhibits available to the

15 Prosecution at this point in time. However, if Defence considers such

16 materials to be in support of the Defence case, such material is material

17 to the Defence case and falls as such under the obligation under Rule

18 67(C).

19 JUDGE KWON: Mr. Hodzic, are you in the position to answer this

20 matter?

21 MR. HODZIC: [Interpretation] I feel that cooperation between the

22 Prosecution and Defence has so far consisted in our being disclosed

23 materials in favour of my client. Something was promised at the last

24 Status Conference that we have not received yet, and this is the expert

25 report of the military expert for the Prosecution. Another problem we

Page 116

1 have is that we have a number of statements that have been disclosed to

2 us, but not in a language that the accused understands. They are in the

3 English language and have not been translated into Bosnian. All the

4 material that we have is material that we have not evaluated as being

5 material that we are obliged to disclose. And we have not received such

6 requests. We are grateful to the Prosecution for allowing us to inspect a

7 great amount of material which contains evidence that we would like to

8 use, but we would like to draw attention to some issues that arise out of

9 that at a later stage.

10 JUDGE KWON: In order to update you, I'd like to tell you

11 something. One of the former counsel, Mr. Balijagic, formally triggered

12 the reciprocal disclosure obligation of Rule 67 by, if I'm correct, by

13 notice filed on 1st of May in 2002. And this was adopted by Mr. Caglar at

14 the Status Conference in October 2002, last year. And the Prosecution had

15 also asked the Defence to provide criteria for searching the material so

16 as to focus the searches more accurately. And arrangements were made for

17 Mr. Caglar to inspect the so-called Seve files and the state surveillance

18 files at the Prosecutor's Office in December 2002. If circumstances are

19 such, then the Defence has a responsibility according to the rule of

20 so-called reciprocal disclosure to provide the opportunity to the

21 Prosecution to take a look into Defence documents.

22 So putting aside the -- apart the disclosure of translation of

23 witness statements, what would you say to this matter of reciprocal

24 disclosure? I remember that Mr. Balijagic and Caglar, a number of cases,

25 has said that there are some material documents which will prove that

Page 117

1 Mr. Halilovic would be innocent. So are you ready to show those documents

2 to the Prosecution?

3 MR. HODZIC: [Interpretation] Your Honour, yes, I'm ready to do

4 this and to disclose those documents.

5 JUDGE KWON: So I'd like to the Prosecution to have contact with

6 the Defence team to set a date and prepare for these practical

7 arrangements. Shall I set a deadline for that, or it would be all right

8 to leave the parties?

9 MR. WITHOPF: Your Honour, the Prosecution appreciates that the

10 cooperation between the parties has significantly improved over the last

11 few months, especially since Mr. Hodzic has been assigned, so the

12 Prosecution thinks that it should be possible that the parties make the

13 arrangements themselves.

14 JUDGE KWON: Thank you.

15 Let me briefly mention about the agreed facts. I noticed on the

16 pre-trial brief from the Defence, even though it did not specifically

17 mention what the agreed facts or the facts not in dispute are, but Defence

18 deliberately omit some number of paragraphs which seems to be not in

19 dispute. So I wonder whether the parties can develop a little bit further

20 to produce in an orderly form of agreed or "not in dispute" facts. Do you

21 think it's possible?

22 MR. WITHOPF: Your Honour, the Prosecution thinks it's possible.

23 There are several manners to do this. As you may recall, previous Defence

24 counsel Mr. Balijagic has actually provided the Prosecution with a list of

25 facts he would agree. It is not clear to the Prosecution to date as to

Page 118

1 whether the current Defence will actually agree to these facts as well.

2 The Prosecution suggests that Defence and Prosecution will meet on this

3 issue and go through the number of facts that could be agreed.

4 JUDGE KWON: I would very much encourage it. If there's anything

5 you can add, Mr. Hodzic.

6 MR. HODZIC: [Interpretation] With regard to everything done by

7 Mr. Balijagic, all the action taken by Mr. Balijagic, we are no longer

8 prepared to accept these acts as legally valid, and I'll tell you why. We

9 submitted to the Trial Chamber, you haven't received it yet, a request

10 which concerned two issues. First of all, the application of Rule 65(K),

11 and secondly concerning the conflict of interest between Mr. Balijagic.

12 If possible, could we go into private session because this concerns some

13 very serious issues, and we have to adopt a position with regard to these

14 issues.

15 JUDGE KWON: Private session.

16 [Private session]

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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12 Pages 119 to 122 redacted private session.














Page 123

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 [Open session]

7 THE REGISTRAR: We're in open session.

8 JUDGE KWON: I was just informed that the motion by the Defence

9 was missing some formalities and was returned and was filed very recently,

10 just today. Am I right?

11 THE REGISTRAR: Your Honour, the motion was not filed because it

12 was missing pages. And if the counsel can please submit a new version to

13 me, and I'll file it today.

14 JUDGE KWON: Thank you very much.

15 Let me turn to the witness list briefly. The Prosecution has

16 listed originally 94 witnesses, 52 live and 43 Rule 92 bis. And

17 thereafter, the Prosecution filed two motions, one in 5th of February this

18 year, and the last one being on 23rd of April this year. Together adding

19 a total of five witnesses to the list, three live and two Rule 92 bis.

20 And the statements of the four additional witnesses were disclosed to the

21 Defence in October last year and should be in the possession of the

22 current Defence counsel, and the statement of the last additional witness

23 was disclosed to the Defence in April of this year.

24 The Defence has not filed a response to either application. So

25 may I take it that the Defence has no position to that motion?

Page 124

1 THE INTERPRETER: Could counsel please repeat that sentence.

2 JUDGE KWON: If you could repeat your answer, please. The

3 interpreter didn't hear you.

4 MR. HODZIC: [Interpretation] We accept the Prosecution's

5 application, the suggestion with regard to the disclosure -- with regard

6 to the suggested witnesses. We have no objection to that.

7 JUDGE KWON: Since there's no objection, the motions are granted.

8 In one stage of this Status Conference, I remember that

9 Prosecution has mentioned that it may file an addendum or change the

10 pre-trial brief after you have got the new military expert opinion.

11 What's the status now?

12 MR. WITHOPF: Your Honour, your recollection is correct. The

13 Prosecution, however, based on the military expert report doesn't see the

14 need to file an addendum to the pre-trial brief. However, as I mentioned,

15 we will get an additional expert report within the next few weeks. If the

16 need would arise, the Prosecution would file an addendum to its pre-trial

17 brief. If I may use the opportunity in respect to Rule 92 bis witnesses,

18 the Prosecution will add probably four to five additional witnesses to its

19 witness list, and the respective Rule 92 bis declarations will be obtained

20 probably in mid-June this year.

21 JUDGE KWON: Since you raised the Rule 92 bis witnesses, I wonder

22 if the Defence has formed a kind of intention whether to agree or object

23 to the admission of the 92 bis, whether with or without cross-examination?

24 MR. HODZIC: [Interpretation] The situation is not quite clear to

25 me with regard to the additional expert report and with regard to whether

Page 125

1 the suggested witnesses are going to be heard in relation to this report,

2 or whether it's a matter of entirely new facts.

3 JUDGE KWON: I'm dealing with now the -- the so-called 92 bis

4 witness statements, in which case the witnesses are not usually supposed

5 to come to the Court. Instead, their testimony will be given in written

6 form under Rule 92 bis. So in that case, the actual determination will be

7 better to be deferred to the actual Trial Chamber who will hear the case,

8 but it's better for the Defence to be ready for their answer whether to

9 agree or not. Yes.

10 MR. HODZIC: [Interpretation] I don't agree because I would like

11 these witnesses to be examined live so that we could exercise our right to

12 cross-examine the witnesses.

13 JUDGE KWON: I will confer this matter with the Trial Chamber,

14 whether to give a ruling now or defer -- actually, the Prosecution hasn't

15 filed its motion officially. So I will confer this matter with the

16 Chamber.

17 And then --

18 MR. WITHOPF: Your Honour.

19 JUDGE KWON: Yes, Mr. Withopf.

20 MR. WITHOPF: Sorry for interrupting. Your Honour, as a

21 suggestion from the side of the Prosecution, we suggest to raise this

22 issue of the admissibility of Rule 92 bis statements with Defence counsel

23 at some near future. And the Prosecution is still optimistic, that at

24 least with regard to a number of 92 bis statements there could be an

25 agreement between the Defence and the Prosecution.

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Page 127

1 JUDGE KWON: Thank you very much.

2 I think I exhausted all the issues, but if there's any issues for

3 the parties to raise, I'd like to hear it. From the Prosecution first.

4 MR. WITHOPF: Your Honour, I think you exhausted all pending

5 issues from the Prosecution side. There's nothing else to discuss.

6 JUDGE KWON: Thank you. Mr. Hodzic, is there anything you'd like

7 to raise?

8 MR. HODZIC: [Interpretation] I would just like to point out, to

9 raise the issue yet again, the issue that concerns Mr. Balijagic because

10 this could affect many other matters that have been dealt with, and I

11 think a decision should be taken with regard to this matter. Apart from

12 that, I have no other suggestions to make.

13 JUDGE KWON: I will read the motion later. I hope that everything

14 is written in the motion. And I'll pass it on to the Trial Chamber. If

15 you have anything to add to what is written in the motion, you can do so

16 right now.

17 MR. HODZIC: [Interpretation] For the moment, I have nothing to add

18 since we have included all information we had in the submission. But I

19 would like to point out immediately that we are still in the process of

20 examining these documents. I don't know whether there will be any other

21 documents that will support our claim, so at the moment, this is something

22 we cannot express a position on.

23 JUDGE KWON: May I see the Legal Officer.

24 [Trial Chamber and Senior Legal Officer confer]

25 JUDGE KWON: One thing I'd like to raise is just before I entered

Page 128

1 this courtroom today, I was passed by the Senior Legal Officer a letter

2 from the accused directed to the Presiding Judge of this Trial Chamber.

3 When counsel is appointed, it is usual for a counsel to communicate with

4 the Chamber, and I don't think it's an appropriate attitude for an accused

5 to communicate directly with the Judges. So I'd like to ask the Defence

6 counsel to let the accused bear in mind such attitude is not appropriate.

7 And to wrap up today's Status Conference, the deposition will take

8 place sometime in late June. And I'll recommend the Trial Chamber to have

9 the Pre-Trial Conference to make the case be ready for trial in early

10 July. And that -- unless there's anything the parties would like to

11 raise, then the Status Conference is adjourned.

12 --- Whereupon the Status Conference adjourned

13 at 3.52p.m.