1 Monday, 15 December 2003

2 [Pre-Trial Conference]

3 [Open session]

4 --- Upon commencing at 3.04 p.m.

5 JUDGE MAY: I would ask the Registrar to call the case.

6 THE REGISTRAR: Good afternoon, Your Honours. This is Case Number

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

8 JUDGE MAY: The appearances, please.

9 MR. TOCHILOVSKY: Vladimir Tochilovsky, that's me; Marie Tuma to

10 my right; and Manoj Sachdeva to her right. And Hasan Younis, the case

11 manager.

12 MR. KIRSCH: Good afternoon, Your Honours, my name is Stefan

13 Kirsch, and together with me is Guenael Mettraux, also counsel for

14 Mr. Halilovic.

15 JUDGE MAY: Thank you very much. The position today as far as

16 this case is concerned is this -- that it seems almost certain that

17 another case is to be listed starting very shortly, which will go on

18 beyond the 19th of January, the date from which it had been declared,

19 this case would start trial. Effectively it means that this case will

20 not, therefore, commence on the 19th of January, unless there is a very

21 unlikely development within this week, which is, as I say, seems unlikely.

22 We therefore propose to deal with this particular matter as a

23 Status Conference. I'm not in a position, I'm afraid, to give a date for

24 this trial to start now. It is a matter beyond the competence, beyond the

25 control of the Trial Chamber. We will make sure that those who do have

1 responsibility for listing recognise the length of time which has passed

2 since this accused made his initial appearance. It is, of course, a case

3 in which the accused is on provisional release, and therefore it's not a

4 case in which there is that concern. But nonetheless, it is a case which

5 plainly should be tried, it is not in the public interest, that even if

6 an accused person is on provisional release that his case does not -- be

7 heard.

8 As I say, there is no -- at the moment no date which I can give

9 you, but it is a matter which we will be bringing to the attention of

10 those who have responsibility for listing the cases and to make sure that

11 the date is found for it and a Trial Chamber as soon as possible.

12 That said, we propose to go through the various outstanding

13 matters and deal with them. The disclosure and the like. We will give

14 such rulings as we can and deal with any matters that we can. And then

15 I'll hear from both sides whether there are any matters they wish to

16 raise. We have helpfully been provided by the Senior Legal Officer with a

17 list of potentially outstanding matters. There are a number of motions

18 which it may be convenient to deal with as we go through. There is a

19 Prosecution motion applying for an order for nondisclosure filed on the

20 11th of December. In fact, the materials, as I understand it, have already

21 been disclosed. But it may be that time is not yet up for the Defence to

22 respond, but it may be that they can give a voluntary undertaking. The

23 motion was only filed last week. They may not have had a chance to

24 consider it. But it may be that the sensible way to deal with it is an

25 undertaking by the Defence not to disclose the material, except to the

1 extent necessary for the preparation of the Defence.

2 Mr. Kirsch, are you in a position to give that undertaking at the

3 moment or would you rather bide your time and respond as soon as you can?

4 MR. KIRSCH: Your Honours, I have to apologise, I have not spoken

5 thoroughly about the matter with Mr. Mettraux. Maybe he's in a position

6 to give you some thoughts about the Defence. So maybe it's a better idea

7 to respond within the time limit given.

8 JUDGE MAY: If you would, with having in mind the possibility of

9 giving a voluntary undertaking, which would save time. I have no doubt

10 that that can be done. Mr. Mettraux, no doubt you could have a look at

11 that.

12 Very well. I understand that matters of disclosure have all been

13 completed, both Rule 66 and Rule 68. Perhaps the Prosecution could

14 confirm that for us.

15 MR. TOCHILOVSKY: Yes. With some additional disclosure, which is

16 prepared for giving to the Defence today, right now, all this disclosure

17 66(A) and 66(B) has been completed. As to the 66(B), the files are

18 accessible for the Defence at any time.

19 JUDGE MAY: Very well. Thank you very much.

20 The next matter we turn to is a matter related to expert reports,

21 which Judge Kwon is to address.

22 JUDGE KWON: Just to let you know for the record, the Defence will

23 be entitled to cross-examine the expert witness, since the Prosecution is

24 not opposed to that.

25 MR. TOCHILOVSKY: Thanks.

1 MR. KIRSCH: Thank you very much, Your Honour.

2 JUDGE MAY: The issue of reciprocal disclosure I turn to next.

3 This has been a case which, from a very early stage, has been made much

4 more difficult by the changes of the Defence. This has no bearing, I

5 should say, on the current Defence team who have stepped into the breach.

6 But I'm sorry to say that the previous Defence counsel have at the very

7 best let the case down. And it has been a matter of great regret that

8 things haven't gotten further advanced so that it could be heard. I would

9 add that the reason this case hasn't been heard before is very much due to

10 the failure, partly on behalf of Defence counsel, partly on problems which

11 have arisen in the Defence that this matter has not been dealt with

12 earlier.

13 But is there any question of matters of reciprocal disclosure,

14 Mr. Kirsch or Mr. Mettraux? Perhaps you could deal with that.

15 MR. KIRSCH: Your Honour, as you are certainly aware, I was

16 assigned to this case on the 3rd of November, and I didn't have a chance

17 to review all the material that was collected by the Defence team and the

18 investigators before. So it was my position that before the Defence has

19 not made up his mind as to which materials we intend to use either during

20 the Prosecution case or the Defence case, it would have been my ethical

21 obligation to have a look at it first. And we agreed with the

22 Prosecution, we are going to Sarajevo tomorrow. I hope that at the end of

23 the week I will have a rough idea of what is in this material, what is in

24 those documents. And as soon as we make the decision that we are going

25 to -- we are intending to use the material at trial, certainly the

1 Prosecution will have a chance or will get the chance to look at those

2 materials. If they need copies, we will provide them with copies. So I

3 think we reached that agreement and I hope there shouldn't be any problem.

4 The problem arose because of the fact that -- I was not aware when

5 we had the first meeting, the first 65 ter conference that former counsel

6 has cross-referenced a lot of material in the Defence pre-trial brief. My

7 understanding is this is not going to show that the Defence at this point

8 of time was intending to use that material; however, if the Trial Chamber

9 could give us some guidance on that, we would be ready to file a motion to

10 clarify on that matter. But certainly, as I understood Mr. Tochilovsky,

11 the Prosecution and the Defence could live with a practical agreement for

12 the next weeks. And I think within the next week we will resolve it.

13 Thank you.

14 JUDGE MAY: Yes. While you're on your feet, Mr. Kirsch, perhaps

15 you could deal with another matter which concerns the agreed facts. And I

16 understand that the position is that the copy of the agreed facts which was

17 in fact signed by the accused himself is a subject of a motion. Is that

18 right?

19 MR. KIRSCH: We filed a motion. I'm not exactly sure at which

20 date -- Mr. Mettraux is looking at the date. And with the Court's

21 indulgence maybe I can ask Mr. Mettraux to clarify on that, that he was

22 the one who drafted --

23 JUDGE MAY: Speaking for myself, I'm not sure that I would regard

24 as very satisfactory any notion that there could be a going back on what

25 had been agreed.

1 Mr. Mettraux, perhaps you could assist us on that.

2 MR. METTRAUX: Yes, good afternoon, Your Honours. We have indeed

3 filed a Defence motion regarding the agreed facts on the 11th of December.

4 And as you pointed out, this agreement was indeed signed by Mr. Halilovic

5 and by Mr. Balijagic who was counsel at the time. This is correct.

6 JUDGE MAY: What are you proposing to do, Mr. Mettraux?

7 MR. METTRAUX: Well, I think we had a rather pragmatic approach to

8 this issue. The Defence is concerned by a number of facts to which

9 counsel at the time and the accused might have seemed to agree. And we

10 believe that if this agreement was set aside, we could very quickly be

11 given an opportunity either to explain the extent of the agreement or

12 respond to perhaps a new list of stipulations by the Prosecution. This

13 was our approach. As we understand from our client that he did not

14 receive adequate explanation as to the scope and the meaning of many of

15 the facts to which he agreed, or at least appeared to agree.

16 JUDGE KWON: Yes. That motion is before the Chamber.

17 MR. METTRAUX: Yes.

18 JUDGE KWON: Since this matter is brought in open court. And the

19 time to respond hasn't expired yet, but if we could hear the Prosecution's

20 position right now.

21 MR. TOCHILOVSKY: Your Honours, we have agreed facts. And as it

22 was mentioned by the Presiding Judge, it was signed not only, it appears,

23 by Defence counsel, but also by the accused, and we considered this

24 document as agreed facts. We also understand that during the trial that

25 the Defence filed reasons to challenge any of the agreed facts. They are

1 not prohibited by that. So I see no reason, again, to go back and

2 consider the whole procedure on agreed facts. Again, I would just like to

3 emphasise to the Defence, if they have during the trial any challenges to

4 any specific agreed facts, it's always open for that. This is our

5 understanding. Thank you.

6 JUDGE KWON: But you will put your saying into writing later?

7 MR. TOCHILOVSKY: Yes, will do.

8 JUDGE KWON: Thank you.

9 JUDGE MAY: The outstanding motion -- an outstanding motion which

10 in a sense the fact that the trial is no longer taking place as soon as

11 anticipated may be more capable of resolution. And I have in mind the 92

12 bis motion for some 41 witnesses. The Prosecution, do you -- the Defence,

13 I should say, are due to respond to that next week, 22nd of December. Are

14 you in a position to do that, Mr. Kirsch, or would you ask for many time?

15 MR. KIRSCH: Your Honours, I would ask for more time, given the

16 fact that we are travelling to Sarajevo, as I stated before, at the end of

17 the week. And my understanding is that this 92 bis motion is crucial at

18 the beginning of the trial. It would be much more easier for us to agree

19 not to cross-examine a witness after we heard some of the evidence, but I

20 understand that we should deal with that matter before the start of the

21 trial. And so, to give you as much help as we can, I would really like

22 to have a longer deadline to respond. I fear that we have to -- if we

23 have to respond by next Monday, we are not in a position to look at

24 thoroughly as we should into the material. And rather, our position would

25 be then more strict to save our position saying we would need to

1 cross-examine. And then maybe we would come back to you and say, well, we

2 reconsidered our position. But to be as helpful as possible, I think this

3 is crucial that we have enough time to go through every witness statement.

4 And I don't really know what the time frame for this case will be, so I

5 don't know if I would ask for too much, but if we could do it by the mid

6 of January. I think this would be my proposal.

7 JUDGE MAY: I think time is not the pressure it was. It's much

8 more important that you deal with the matter adequately. It is now the

9 practice, whatever one may think of it, it is the practice that we try and

10 do this before the trial rather than waiting for the trial to start. If I

11 may say speaking for myself -- because I'm of a sense in what you say,

12 which is to see what the witnesses say and enable us to start with and

13 then decide which witnesses you need or not. But in any event this is

14 done pre-trial. Now this is of course more difficult for everybody and

15 the danger is that Defence again ask for many more witnesses than they

16 may, in fact, need. So perhaps you might like to think how long you need.

17 Perhaps you have talked with Mr. Mettraux about it to deal with 40

18 witnesses and, of course, you've got to take instructions from your client

19 as to what he can say about these matters. If you would like to have a

20 word with Mr. Mettraux now and think how long you would need to get a full

21 answer, full and considered answer in, you may.

22 MR. KIRSCH: Thank you, Your Honour.

23 [Defence counsel confer]

24 MR. KIRSCH: Thank you. We just discussed it a little bit. Given

25 the fact that we have this Christmas week and then the new year, and it is

1 our understanding that we would be prepared in the second week of January.

2 I mean, the more time we get, the better it is. If you want to hear a

3 day, let's say the 19th of January --

4 JUDGE MAY: What we will do to make sure there's no

5 misunderstanding, we'll give you to the end of January, which will give

6 you a complete month to work on it.

7 MR. KIRSCH: Thank you very much.

8 JUDGE MAY: And to give as full a response as possible. Of

9 course, we would encourage you if you feel able to admit the witnesses, if

10 you feel you properly can, of course that is done as much as possible.

11 But there's no pressure, of course, to do it. You must do whatever's

12 right.

13 MR. KIRSCH: Thank you.

14 JUDGE MAY: Thank you very much. Well, we will receive the

15 response. If necessary, we will have a hearing, but otherwise we will

16 give a ruling on it.

17 JUDGE KWON: Is there anything the parties want to raise at this

18 moment?

19 MR. TOCHILOVSKY: Just one small point. It is the list of issues

20 for previous conference we had on 65 ter with the Senior Legal Officer,

21 and it's about the length of trial. How cross-examination of our 92 bis

22 witnesses will affect the length estimation of that. And our estimation

23 is if we are considered to have twenty-one 92 bis witnesses to be

24 cross-examined, it will take - again it's our estimation - approximately

25 one week or five working days, plus to those four or four and a half

1 months of trial. Thank you. We have no other issues from the

2 Prosecution.

3 JUDGE MAY: Yes.

4 The Defence, are there any matters you want to raise?

5 MR. METTRAUX: Nothing in particular, Your Honour. Just to give

6 you notice that we filed a motion this afternoon in relation to the

7 conditions of accommodation of Mr. Halilovic.

8 JUDGE MAY: Very well. We'll consider that when we get it in.

9 Well, the position then as I said at the outset is that unless

10 there's some very unforeseen circumstances, this case will not come on the

11 19th of January. It will find a date as early as possible. Meanwhile, we

12 will have to fix a date for the next conference, which will be in

13 the week -- if we could find a convenient date in the week before Easter.

14 If my recollection is right, Easter is -- Good Friday is the 8th of April.

15 We need to find a date in the week before that. So a word with the Senior

16 Legal Officer, please.

17 [Trial Chamber and Senior Legal Officer confer]

18 JUDGE KWON: The actual date will be known to the parties in due

19 course. And one thing I'd like to clarify is that in the decision of 14th

20 of November this year, the Trial Chamber ordered the Prosecution to

21 identify those witnesses who have entered into favourable arrangements, if

22 any. I don't remember I have received any. But was the communication

23 done between the parties?

24 MR. TOCHILOVSKY: Yes, Your Honour. We disclosed not only names

25 of those two witnesses but also provided the Defence with the documents

1 related to those arrangements.

2 JUDGE KWON: Thank you.

3 MR. TOCHILOVSKY: Yes.

4 JUDGE MAY: Very well. That's all we can deal with today. We'll

5 adjourn until the next hearing, of which we will notify you.

6 --- Whereupon the Pre-Trial Conference adjourned

7 at 3.29 p.m.

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