Tribunal Criminal Tribunal for the Former Yugoslavia

Page 105

1 Friday, 13 February 2004

2 [Status Conference]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 2.27 p.m.

6 JUDGE SCHOMBURG: Please be seated. Very good afternoon to

7 everybody. May I ask Madam Registrar please to call the case.

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

9 IT-95-14/2-A, the Prosecutor versus Dario Kordic and Mario Cerkez.

10 JUDGE SCHOMBURG: And may I have the appearances for the parties.

11 Prosecution first.

12 MR. FARRELL: Good afternoon, Your Honour. For the Prosecution is

13 myself Norman Farrell, and with me is our case manager Ms. Galicia.

14 JUDGE SCHOMBURG: And for the Defence, yes.

15 MR. NAUMOVSKI: [Interpretation] Thank you, Your Honour. Good

16 afternoon. My name is Mitko Naumovski, attorney-at-law from Zagreb for

17 Mr. Dario Kordic; and if the telephone lines are all right, Mr. Stephen

18 Sayers and Mr. Turner Smith are with me also.

19 JUDGE SCHOMBURG: Thank you very much. And also -- I don't know

20 what to say, good afternoon, when they are with you on the telephone line.

21 I don't know what's the time is now.

22 MR. SAYERS: Good afternoon, Your Honour. This is Stephen Sayers

23 and Turner Smith, hearing you very well from the United States.

24 JUDGE SCHOMBURG: Good morning to the United States.

25 For Mr. Cerkez, please.

Page 106

1 MR. KOVACIC: [Interpretation] Good afternoon, Your Honour. My

2 name is Bozidar Kovacic appearing for Mr. Cerkez, thank you, on my own.

3 JUDGE SCHOMBURG: May I then ask at the same time both accused

4 first, can you follow the proceedings in a language you understand? Are

5 there any health problems or do you see any problems emanating from your

6 special situation, deprived of your liberty in the United Nations

7 Detention Unit?

8 Mr. Kordic, please.

9 THE APPELLANT KORDIC: [Interpretation] Good afternoon, Your

10 Honour, Mr. President of our Appeals Chamber. Thank you for your kindness

11 and for your question.

12 I can follow the proceedings, and I have no problems.

13 JUDGE SCHOMBURG: Thank you. You may be seated.

14 And Mr. Cerkez, please.

15 THE APPELLANT CERKEZ: [Interpretation] Good afternoon, Your

16 Honour. I understand everything, and I have no problems.

17 JUDGE SCHOMBURG: Thank you. And just for the record, there was a

18 meeting held yesterday under Rule 65 ter (I) read together with Rule 107.

19 Meetings -- minutes were taken by a representative of the Registry. Thus

20 there is no need to go into further details that what we have discussed

21 during that meeting in preparation of today's Status Conference.

22 This Status Conference is a follow-up of the one that took place

23 15th of October, 2003. Already at that time I was not that happy that I

24 couldn't inform you on the ongoing procedures, especially being aware of

25 your motions, setting a date for a hearing, and I think it speaks volumes

Page 107

1 that when reviewing the motions and decisions in this case, since the

2 notice of appeal in March 2001 filed by the three parties in response to

3 the judgement handed down the 26th of February, 2001, that time is really

4 ripe, that we have to hear this case as soon as possible, and I'm under

5 the impression that all parties and the Chamber, everybody wants to try

6 his or her very best to accelerate the proceedings, and one main goal of

7 the Status Conference is to do whatever we can to accelerate these

8 proceedings.

9 I already can tell you now that it is envisaged that the hearing

10 as such takes place in the week from the 17th to the 21st of May, 2004,

11 with the caveat that if possible, we start already the 13th and 14th of

12 May, 2004, in case we would need to hear additional witnesses or experts,

13 and this would facilitate the work of the parties to digest what we have

14 heard during these hearings and then hear the final submissions the next

15 week. So in any event, mid-May 2004.

16 Having said this, may I ask the parties, am I correct in believing

17 that the motions filed the 24th of January, 2003, and joined by Mr. Cerkez

18 28 January 2003 and Mr. Kordic's renewed motion filed on 19 September 2003

19 are now moot and should consequently be withdrawn?

20 MR. SAYERS: Your Honour, this is Stephen Sayers. If I may weigh

21 in on that. It certainly sounds like, with the schedule that the Court

22 has outlined, that these motions are moot. The only caveat that

23 Mr. Kordic has is, as I understand it, the Prosecution yesterday indicated

24 that a significant quantity of new Rule 68 materials were potentially

25 going to be disclosed to Mr. Kordic, and there was some suggestion that

Page 108

1 the last part of the delivery was going to be made to counsel shortly

2 before the May hearing date that you've just outlined. That would be a

3 cause of very considerable concern to us, and to the extent that the

4 delivery of any such significant amount of new material to us three years

5 into the appeal would an have impact upon the hearing date, we would

6 respectfully request the right to reserve refiling the motion if

7 necessary.

8 JUDGE SCHOMBURG: Absolutely. The question is only on the motions

9 filed in the past. Of course, whenever you deem it necessary, you can

10 renew the motion. I only wanted to discuss this, and already at this

11 point in time, however, I only wanted to mention it later during this

12 hearing. Maybe there is a kind of misunderstanding. Prosecution has

13 indicated - correct me if I'm wrong - that they are doing, based on new

14 material, research that can be finalised by the end of March, and it was

15 only a request from the side of the Court that an additional research

16 should be done and concluded by the 1st of May, that we are updated as

17 soon as possible, taking into account that no doubt the obligation for the

18 Prosecution to provide 68 material still stands until the final day and

19 the judgement is handed down.

20 So can I take it that you can agree with this proceeding?

21 MR. SAYERS: If that question is addressed to us, Your Honour,

22 absolutely. You can take that as agreed to.

23 JUDGE SCHOMBURG: May I ask Mr. Naumovski.

24 MR. NAUMOVSKI: [Interpretation] Thank you, Your Honour. I was

25 just about to say that it is well known why the Defence of Mr. Kordic has

Page 109

1 been trying to find a way to round off our case and bring it to a

2 conclusion, which is why we submitted our motions earlier.

3 As for the timing of the final -- final hearing, we, in that case,

4 would withdraw the motions we have submitted.


6 MR. NAUMOVSKI: [Interpretation] Thank you.

7 JUDGE SCHOMBURG: Thank you. I can see no objections from the

8 side of the Prosecution. Therefore, I regard these motions as withdrawn.

9 And before addressing the issue of the time allocated to the

10 parties during these days in mid-May 2004, let me briefly address pending

11 matters and motions from both parties in order to better assess the need

12 of additional time.

13 First a preliminary remark: We should all be aware, and it was

14 therefore that I mentioned the huge number of motions and decisions since

15 March 2001. A lot has happened in this Tribunal and the jurisprudence has

16 developed. Therefore, we should do whatever we can to streamline the

17 case, and I think it's in the interest of all parties to focus on the main

18 issues before us instead of wasting time with already adjudicated points,

19 points where we have now a settled jurisprudence. But let's go

20 step-by-step.

21 I think it was a remarkable recommendation yesterday to have a

22 monthly status report provided by the parties in order to keep the Chamber

23 abreast with the development, that the Chamber is aware what is the status

24 of the disclosure, are there any intentions, concrete motions in

25 preparation, especially on additional Rule 115 evidence.

Page 110

1 Can we, and this is only for the records, can we take it that this

2 is so agreed by all the parties, that on each first day of the month the

3 Chamber will receive a status report by all the parties on these matters?

4 Prosecution, please.

5 MR. FARRELL: On behalf of the Prosecution, of course, Your

6 Honour.

7 JUDGE SCHOMBURG: Thank you. Mr. Naumovski, please.

8 MR. NAUMOVSKI: [Interpretation] The Defence of Mr. Kordic agrees

9 fully. Thank you.

10 JUDGE SCHOMBURG: Mr. Kovacic.

11 MR. KOVACIC: [Interpretation] The Defence of my client also fully

12 agrees with this. It can only assist.

13 JUDGE SCHOMBURG: Thank you for your cooperation. I think it's

14 really a good step forward.

15 We are seized with Mr. Cerkez's Rule 150 motion of 7 April 2003,

16 including supplemental application of 9 April 2003. This is under

17 consideration, and we will, as soon as possible, hand down a decision on

18 this.

19 Taking into account the huge amount applications in these two

20 motions, please understand that I can't already today give you an exact

21 date when you will receive this, but we are aware that following this --

22 following our decision, the Prosecution will ask for the necessary time to

23 do additional research emanating from this decision.

24 As regards the admissibility of new -- I wouldn't say material,

25 but I would say new submissions in relation to alleged violations of Rule

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Page 112

1 68, you have the decision of 11th of February, 2004 before you, and as I

2 did yesterday, I would kindly request the parties to adhere to the time

3 frame indicated there. That means 23 February 2004, 1200 hours, in order

4 also to give the -- to give counsel in the United States the possibility

5 to have these documents the very same day, and then Prosecution may

6 respond no later than 27 February, also at high noon.

7 We do this on purpose, this deadline of 12.00, that already before

8 the weekend counsel not on -- yes, relatively on the other side of our

9 globe have the chance to respond immediately.

10 MR. SAYERS: Your Honour, this is Stephen Sayers. We will adhere

11 to the schedule that Your Honour has set with respect to the February the

12 23rd submission. The only potential problem that we've encountered is

13 that we checked the state of disclosures to us, and it turns out that not

14 all of the closed-session testimony of General Blaskic has been supplied

15 to us. We have alerted the Prosecution to this and I understand from

16 Mr. Naumovski this morning that the Prosecution has assured the Kordic

17 Defence that we will be receiving the omitted pages promptly; and if we

18 do, that should obviate any problem meeting the February 23rd deadline.

19 JUDGE SCHOMBURG: Thank you. May I ask, Mr. Farrell, do you want

20 to comment on this?

21 MR. FARRELL: Yes. Yesterday -- we were informed yesterday

22 evening that there was apparently some pages missing. We have rectified

23 that and worked on it all morning, and it's only 21 pages, so I can't

24 imagine that it's going to necessarily, but I leave it to Mr. Naumovski

25 and Mr. Sayers to review it, of course.

Page 113

1 Just one comment. I mentioned yesterday and I'd just like to

2 reiterate for the record that the Prosecution will attempt to comply, of

3 course, with the time frame, but in light of the fact that there's only

4 four days for the Prosecution, and I note there's seven days for the reply

5 but only four days for the Prosecution response, and normal proceedings,

6 as I'm sure you're fully aware, that the responding party gets the same

7 amount of time as the applicant. In this case it's significantly

8 different, but we'll certainly attempt to comply. If there's any reason

9 why we can't, I'll seek leave of the Court on that day. Otherwise,

10 we'll be filing on the 23rd. Thank you.

11 JUDGE SCHOMBURG: We are fully aware that we gave two different

12 deadlines, but there is also a reason for this, and this mainly the

13 following, that we -- we don't and we can't expect any response from the

14 side of the Prosecution on the merits of these new submissions. This is

15 for the final submissions. It's only on the -- more or less on technical

16 questions. However, when it goes to the merits of additional submissions

17 on alleged violations of Rule 68, this has to be discussed, no doubt,

18 during the hearing in the presence of all members of the Chamber.

19 MR. FARRELL: I'll certainly review the material, but I suspect

20 that counsel for Mr. Kordic are going to address the very specific aspects

21 of the Rule 68 and how it affects the verdict, and the Prosecution would

22 like the opportunity to put in writing our response and not leave it, but

23 we'll wait until we receive the filing, Your Honour.

24 JUDGE SCHOMBURG: As I said, we only invite you to -- and request

25 you to adhere if possible. If not possible, please let us know if there

Page 114

1 is any obstacle. Okay.

2 As regards disclosure of 68 material, I take it that since the

3 15th of October, that was the date of our last Status Conference, there

4 had been disclosure of additional 68 material, September, November, and

5 December 2003 already. And as I already stated previously, based on new

6 material, the Prosecution itself indicated that they wouldn't know today

7 whether it's only a duplication of material they have already had

8 beforehand or this is fresh material, but nevertheless, they would be able

9 to conclude the disclosure of Rule 68 material based on the material

10 before them and before the Prosecution now no later than 1 March 2004, and

11 additional research would be made and concluded by the 1st of May, and

12 then, as I said, we have to follow the Rules and no doubt they state that

13 there is an ongoing obligation for the Prosecution until the handing down

14 of the judgement to disclose 68 material.

15 I think we have agreed on this, and this shouldn't cause any

16 problems.

17 May I now turn to the question of the appeal briefs. I repeat my

18 invitation of yesterday to rethink in whole or in part the appeal briefs,

19 especially in the light of the newly, and I think now settled,

20 jurisprudence and also in the light of new facts emanating from other

21 cases and also taking into account the approach taken by this Bench in

22 another case and by other Bench -- Appeals Chambers' Benches and also

23 Trial Chamber in relation to certain procedural problems.

24 I don't want to go on purpose into details, because I want to

25 leave it first to the parties to discuss these issues, but to give you two

Page 115

1 examples and maybe the first example is already ripe for a decision today,

2 one of the reasons, points of appeal raised by the Prosecution, stating at

3 the same time that this wouldn't affect the outcome of the case and the

4 sentence, that a proof of discriminatory policy is not required under

5 Article 5(H) of the Statute. I think this issue has become moot due to

6 recent, and I would say now already settled, jurisprudence.

7 Mr. Farrell.

8 MR. FARRELL: Just as a preliminary position, I think Your Honour

9 is correct in that regard. I'll just reserve the right to review some of

10 the jurisprudence, but I think I can indicate now that the Prosecution

11 will most likely be withdrawing that ground of appeal. Thank you.

12 JUDGE SCHOMBURG: Thank you. And with a view to all our attempts

13 to accelerate the proceedings, may I ask you to act as soon as possible,

14 that no draft needs to be prepared and then it's just written for the

15 paper basket. So please, as soon as possible.

16 And it's also a very serious question for the Defence, of course.

17 There are alleged violations of Rule 68 and the standard of review under

18 Rule 98 bis.

19 I think the first question is, and one has to be very precise on

20 this, is there any prejudice? And as I already indicated yesterday,

21 unfortunately already nine Judges have worked until now on this case, and

22 as a matter of fairness, Judges, of course, are obliged to act immediately

23 when they come to the conclusion that for procedural reasons there is an

24 obstacle to proceed or a reason to send a case back to the Trial Chamber.

25 I think you can draw the necessary inferences from the mere fact that

Page 116

1 nothing in this direction has happened until now, and you may have seen

2 that in another case, even during appeal, that material that allegedly

3 should have been tendered during the trial stage was accepted. Why was it

4 accepted? Of course with a view to the fact that this may be late

5 disclosure fuels any defective in the proceedings during trial. So

6 therefore, also taking into account that what was said, for example, in

7 the Stakic case in relation to the question when does a late disclosure

8 render a trial unfair, if there is extreme high threshold, and I think

9 that especially my learned friends in the United States know better about

10 the high threshold for this, especially under the jurisprudence in the

11 United States.

12 Therefore, once again, the invitation to both parties to revisit

13 their reasons for appeal in order to streamline, and as I said yesterday,

14 when focusing on the core issues of the case, then it's, from my point of

15 view, an advantage for both parties, because then the Trial Chamber is

16 seized with the core issues only, and they can go into a more in-depth

17 discussion of the problems before us.

18 And in line with this is the following approach, and I appreciate

19 that this was accepted by the parties, that the parties will not see it as

20 a prejudice. They even will see it, regard it as an advantage if the

21 Appeals Chamber in future will ask all parties in advance to focus in

22 their final submissions on -- in -- on particular special points the

23 Appeals Chamber has identified until now. I emphasise in particular on

24 special points because no doubt each party enjoys the right also to

25 address those special points they believe are of special importance for

Page 117

1 them.

2 Just for -- that we have the record clear, do the parties adhere

3 to that, what they said yesterday on this, that they will not regard this

4 as a kind of bias on the side of Judges but see it as an advantage that

5 the Appeals Chamber draws in particular the attention of the parties to

6 some points?

7 Prosecution.

8 MR. FARRELL: Yes. The identification of issues that the

9 Prosecution could assist the Appeals Chamber with would be both beneficial

10 to the appeal and also assist the Prosecution to make more focused

11 submission, so I completely agree, Your Honour. Thank you.

12 JUDGE SCHOMBURG: May I ask the Defence.

13 MR. SAYERS: Your Honour, Stephen Sayers for Mr. Kordic. We

14 completely agree that focused submissions in a case of this magnitude with

15 a record which is so huge would be of assistance both to the Appeals

16 Chamber and to the parties. From our perspective, we have no interest

17 pursuing arguments which are of marginal utility. Clearly in a case of

18 this size, all parties should be interested in focusing on only the main

19 issues, those issues that could have the potential to be outcome

20 determinative at the appellate stage.

21 And of course Your Honour is quite correct, there has been a

22 significant development in the jurisprudence of the Tribunal during the

23 time following the filing of the last appellate briefs in this case, and

24 Mr. Kordic will go over the brief that he's submitted very carefully and

25 make his decisions as to those arguments that can legitimately be advanced

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Page 119

1 and those that should be abandoned, and we will obviously inform the

2 Appeals Chamber of our decision along those lines as soon as we can.

3 Thank you.

4 JUDGE SCHOMBURG: I thank you very much for this really valuable

5 contribution, because I think it's -- as you said correctly, it doesn't

6 assist the parties when they don't know where they are and more or less

7 fishing in the fog and not knowing what is of interest, particular

8 interest for the Trial Chamber, and therefore, we try to do our very best

9 in preparation of the submission and no doubt this will streamline the

10 hearings in May 2004.

11 But also for the record, may I hear the opinion of Mr. Naumovski

12 on this, please.

13 MR. NAUMOVSKI: [Interpretation] We absolutely agree with

14 everything that my colleague has just said, Your Honour. It is a bit

15 difficult for us to cooperate with the distance separating us, but at any

16 rate, Mr. Kordic's Defence, as I said yesterday, fully accepts this modus

17 operandi that you have proposed. We will give our full cooperation, and

18 we shall try to go through all our appellate briefs to see if there are

19 any matters that can be resolved and need not be discussed any further.

20 We shall in due course inform Your Honour of that. Thank you.

21 JUDGE SCHOMBURG: Thank you. And I apologise, Mr. Kovacic, that

22 you are always second in line, but maybe you regard it as an advantage.

23 To be serious, what about this, the suggestion that the Appeals

24 Chamber, in writing, puts to the parties what is the particular interest

25 where the Appeals Chamber wants to hear submissions from the parties?

Page 120

1 MR. KOVACIC: [Interpretation] Your Honour, as a pragmatist by

2 nature, I believe this is indeed in our best interest to expedite matters

3 in this trial and reach a verdict as soon as possible. I fully agree with

4 this approach. I can also say that I agree with any other method proposed

5 by this very creative court, any method that will assist us in expediting

6 the proceedings.

7 You have effectively referred to two different issues; firstly

8 that we are to expect guidelines from the Chamber asking specific

9 questions and directing us to specific areas of the appeal that the

10 Chamber deems interesting and that we need to focus upon. At the same

11 time, I believe it refers to the second issue that we have discussed. In

12 the light of the evolving jurisprudence of this Tribunal, the Defence

13 should look at issues in various appeals and decide which issues to keep

14 and which issues may have been superseded in the jurisprudence of this

15 Tribunal. In the meantime, I have nothing but absolute and unreserved

16 support for this approach.

17 There is, however, one detail that I would like to address which

18 partly was addressed yesterday and to a certain degree today. I'm

19 speaking on the basis of experience. It is my concern that sometimes we

20 are not sufficiently able to survey all details, and some details may

21 acquire different levels of significance under particular circumstances.

22 We try to pare things down to what is really essential and try to avoid

23 mistakes of that nature. If we are to make any correction to our appeal

24 ourselves, but I also have in mind the Chamber's assistance in whittling

25 away at this case in order to get at the points that really are essential

Page 121

1 for the sentence, it is necessary not to overlook anything that might turn

2 out to be essential. My address is merely to say that these things need

3 to be borne in mind. This does not necessarily happen at all times, but

4 experience has taught me, especially at the level of appellate

5 proceedings, some details deemed at first to be insignificant may prove to

6 be essential eventually.

7 As an attorney-at-law, when reviewing the appellate stage of these

8 proceedings, I may be overly concerned about the pure mechanics of these

9 proceedings, and I believe it needs to be stated clearly what the

10 distinction is between the different issues, but we should nevertheless

11 not neglect the correlation between these respective issues and the links

12 between the issues.

13 That's all I wish to say and I hope that my contribution will

14 merely serve to expedite proceedings and not to make them more

15 complicated. Thank you.

16 JUDGE SCHOMBURG: Thank you very much for your valuable

17 contributions, and I can only re-emphasise that when asking the parties to

18 focus in their final submissions on particular specific points only, it --

19 of course nothing precludes any of the parties to address any of the

20 points they have identified, and we all are human beings, and also Judges

21 may overlook the one or other specific points and, therefore, there's no

22 preclusion at all, and you are of course entitled to address those points

23 you feel necessary.

24 Okay. Then I take it it is agreed that this approach will be

25 taken in future. And it might assist also in return if any of the parties

Page 122

1 comes across a special issue, of course addressed already in the appeal

2 briefs, where a party believes the Trial Chamber, as such, should focus

3 on, then please let us know that we already beforehand are aware that

4 there might be an additional problem we have not yet identified.

5 So far to the appeal briefs. I don't want to go into further

6 details, only yesterday gave some hints to the parties, and no doubt it's

7 for both parties to evaluate the risks of the mutual appeals. You're

8 professional enough to know about this.

9 Then let's turn now to issues related to additional evidence. I

10 take it that the appellants, Mr. Kordic and Mr. Cerkez, have access to the

11 material from the Hadzihasanovic and Kubura case, as indicated in the last

12 Status Conference, and I take it that emanating from this motion there

13 will be no additional request for material under Rule 115.

14 In its decision on application by Kordic for access to ex parte

15 filings, Cerkez on -- I quoted this, of 17 December 2003, the Appeals

16 Chamber did not consider itself competent to decide this issue and invited

17 Mr. Kordic to file a motion before the Blaskic Appeals Chamber.

18 Just for the record, may I have the most updated approach by

19 counsel for Mr. Kordic on this issue?

20 Mr. Naumovski, please.

21 MR. NAUMOVSKI: [Interpretation] Thank you, Your Honour. We have

22 reviewed this, and as I told you yesterday, if we have an understanding,

23 and I believe we did, we decided not to file this motion before a

24 different Chamber. In addition to that, there have been no changes in

25 relation to what I told you yesterday. Thank you very much.

Page 123

1 JUDGE SCHOMBURG: Thank you. May I then ask the parties, is there

2 any intention right now to file motions for admission of additional

3 evidence? In particular, do the parties - and this is for the planning of

4 utmost importance - is there any intention to apply for admission

5 additional evidence contained in Blaskic's fourth 115 motion?

6 Defence.

7 MR. SAYERS: Your Honour, this is Stephen Sayers. I know that the

8 materials covered by the fourth motion for the admission of additional

9 evidence filed by General Blaskic were supposed to be made available too,

10 on Monday, this last Monday. Speaking for myself, I have not yet seen

11 those documents, but if they are consistent with the sorts of documents

12 that we've been given in the past, I would anticipate that there would be

13 no additional evidence motion related to those materials filed by

14 Mr. Kordic.

15 JUDGE SCHOMBURG: Thank you. Mr. Naumovski, any additional


17 MR. NAUMOVSKI: [Interpretation] Perhaps just one remark. We

18 received these documents yesterday. We found them in our locker, and we

19 have not managed to go through them yet, but I assume if the case is as we

20 believe it to be, as the case has been up to now, it will be exactly as my

21 colleague has said, and we shall not be filing any further motions.

22 JUDGE SCHOMBURG: Mr. Kovacic, please.

23 MR. KOVACIC: [Interpretation] Your Honour, if I may. Your Honour,

24 it is also my assumption that we shall be filing no further motions for

25 evidence in relation to Blaskic's fourth motion for evidence, but I must

Page 124

1 say that I have not reviewed everything so far. Yesterday when we arrived

2 in The Hague, these documents were waiting for us in our locker, the

3 document dated the 28th of January, 2004, containing the Chamber's

4 decision. Your order was, if I may remind you, for the parties in the

5 Blaskic case, the OTP, and the Defence, to submit the relevant versions of

6 their earlier motions within ten days, as well as all the relevant

7 evidence in connection with those motions.

8 This date, if I'm not mistaken, expired on the 9th of February,

9 this deadline. And then you ordered the Registry to hand these documents

10 over to us. The registry submitted all these documents to us, and that's

11 what was waiting for us in the locker when we got here.

12 I've managed to go through part of the documents, but the only

13 thing we found there was those that had before been used by the OTP.

14 That's their own submissions and their own materials, not, however, the

15 exhibits themselves that Blaskic proposed to admit under Rule 115, which

16 was the main objective of reviewing those documents.

17 So what I wish to say is that we have received the best part of

18 the documents that the Chamber's decision refers to. That was the Blaskic

19 case Chamber decision dated 28th of January. We received some of those

20 documents, but not the balance.

21 What I wish to say is the following, relying on my instincts

22 telling me what could be in those documents. If I look at the rebuttal, I

23 see what's written there too in the OTP motion. I believe there is very

24 little chance that this Defence could use any such new evidence, and

25 therefore, I believe that we shall not be filing any further motions in

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Page 126

1 this regard, not as related to this particular source. I reserve the

2 right, however, to make my final decision after I have reviewed all of the

3 Blaskic documents.

4 I hope that I have made myself sufficiently clear. Thank you.

5 JUDGE SCHOMBURG: Thank you. And just to have the transcript

6 clear, maybe I misunderstood you. I take it that you have got all access

7 -- at least access to all the documents that should be filed under the

8 ruling of the Blaskic Chamber. Is this correct, or do you miss some

9 documents?

10 MR. KOVACIC: [Interpretation] That is not correct. There are

11 documents missing. The Registry has only given us the documents from the

12 OTP but not the documents that come from Blaskic himself.

13 JUDGE SCHOMBURG: May I ask the Prosecution on this question:

14 What is your last information?

15 MR. FARRELL: It's my understanding that the Prosecution and the

16 Defence in the Blaskic case were to have filed redacted copies of the

17 fourth 115 motion. The Prosecution filed their redacted version of the

18 fourth to be disclosed by the Registrar, I recall it was February 6th, I

19 think, and I understand that counsel for Mr. Blaskic filed his redacted

20 versions, I understand, on February the 9th and thereafter there were to

21 be copies made. It may be that there was a delay of a couple of days in

22 the receipt of the Blaskic redacted copies, so they may have received the

23 first set from the OTP and they received the second set. Besides the

24 information I've just indicated, I don't have any further information,

25 Your Honour.

Page 127

1 JUDGE SCHOMBURG: Thank you for alerting me on this issue. And in

2 case you have not received the missing documents by Monday, 12.00, please

3 alert me that we can take the necessary steps that you get these documents

4 missing.

5 MR. KOVACIC: [Interpretation] Thank you very much for your

6 assistance, Your Honour.

7 JUDGE SCHOMBURG: Mr. Naumovski, you agree with this procedure as

8 well?

9 MR. NAUMOVSKI: [Interpretation] Yes, I do, fully.

10 JUDGE SCHOMBURG: Thank you. Then let's turn to one of the most

11 important issues, and on this -- on the outcome of the discussion now

12 following depends how long we'll need for the hearing. That's the

13 question. Do we need to have at all an additional witness hearing and

14 then how many witnesses can we expect? Of course this is only a

15 provisional statement you can give us to date, but nevertheless, I want to

16 ask you already today and for reasons easy to be understood, I want to ask

17 first the Defence of Mr. Cerkez. What about witness or expert witness?

18 MR. KOVACIC: [Interpretation] If I may first answer the question

19 about the expert witness. How this issue will be resolved hinges on one

20 particular exhibit among the 160 new exhibits that I have proposed. It is

21 a map. Should the Chamber decide that this map is sufficient, should the

22 Chamber be satisfied that this map should be admitted as new evidence,

23 then this would require an expert interpretation of a soldier versed in

24 interpreting maps. In addition to new evidence, this written report by an

25 expert witness has also been enclosed.

Page 128

1 There is a mechanism at work there, of course, and I have worked

2 closely with the OTP to see whether the same mechanism can be applied to

3 this case. I can't quote the Rule right now, but there is a Rule which

4 applies during the trial itself, at least; when an expert report is

5 submitted, the other party can accept it as it is, or they can

6 cross-examine the expert witness. In order to try to deal with this issue

7 along the same lines, given that we already have the expert witness, the

8 OTP may agree to apply this Rule at this stage. If they agree, there is

9 no difficulty at all, and we don't need to have the witness viva voce in

10 court.

11 As for --

12 JUDGE SCHOMBURG: Let's just stick to this very question. I think

13 it would be worthwhile an attempt that the Prosecution and you,

14 Mr. Kovacic, discuss this issue together, and maybe then based on a joint

15 motion it will facilitate the decision to be handed down by the decision

16 -- by the Appeals Chamber on this question.

17 May I ask both parties to give it a try to -- yeah, to -- that we

18 have the map and at the same time some explanation of the map. If the

19 Prosecution can live with this, then of course we can avoid hearing an

20 expert on this. If it is the result or the assessment of that what

21 emanates from this map can be shared by the Prosecution, I think that's

22 the easiest way to resolve this problem.

23 MR. FARRELL: Assuming, of course, that it's admitted under the

24 115 motion. Once admitted, the Prosecution will gladly meet with

25 Mr. Kovacic to discuss it.

Page 129

1 JUDGE SCHOMBURG: I want to try to put it just the other way

2 around: That please first Prosecution and Defence of Mr. Cerkez discuss

3 whether or not they accept, I take it, that we have already the final or

4 the final version is already available of a military expert giving us the

5 necessary explanation of this map, and based on this, both parties can

6 discuss whether you would need to cross-examine based on this -- this

7 witness and then, in a kind of package solution, the Chamber could decide

8 on both the map and the expert witness.

9 MR. FARRELL: I appreciate the procedure. I'll most certainly

10 speak with Mr. Kovacic about the possible procedure. I think I should

11 make it clear the Prosecution position is that this map is irrelevant, and

12 the Prosecution is not going to engage in a discussion for the admission

13 of testimony and expert material which has nothing to do with the crimes

14 for which, in the Prosecution's submission, Mr. Cerkez has been convicted.

15 So I would respectfully submit that though we'll engage in any discussion,

16 it will be certainly determinative if and when it's admitted. Thank you.

17 JUDGE SCHOMBURG: I thank you, and I hope -- yeah, please, if you

18 want to respond.

19 MR. KOVACIC: [Interpretation] I would like to add something to my

20 proposal with another solution that has to do with the proceedings but

21 that would be technically feasible. I believe that this map meets the

22 requests raised by my colleague, otherwise I would not be tendering it.

23 On the other hand, there is an expert report by an expert to accompany the

24 map, and naturally the Chamber can use this expert report when reading the

25 map regardless of whether the witness will be heard live in court or not.

Page 130

1 I believe it is possible to have this expert report reviewed as part of

2 the exhibit of the map, because the map can't really be used as an exhibit

3 without this accompanying report, I must admit, for the simple reason that

4 we people who are not well-versed in military matters are not able to read

5 this map. If you have a map with an expert opinion attached, this map can

6 be viewed as a legitimate exhibit.

7 When the Chamber decides on these issues, when the Chamber reviews

8 the question of the map, this expert report should be seen as part of the

9 exhibit, as an integral part of the exhibit. And if the map is admitted,

10 the expert report, too, should be admitted along with the map.

11 On the other hand, the OTP may wish to hear the expert live if

12 they have arguments to request that. I don't think that will be the case,

13 because all the expert report is really about is identifying the marks

14 used for the production of this map, and there's not much more to it than

15 that.

16 Thank you very much, Your Honour. I expect that you will pose

17 further questions in connection with the other witnesses, so I will not

18 bring these issues up myself.

19 JUDGE SCHOMBURG: Thank you. In conclusion in relation to this

20 military map, I invite both parties to come together and first to discuss

21 the relevance of this map for the convictions of Mr. Cerkez. In case you

22 come jointly to the conclusion that it's not relevant, then I would expect

23 a joint response to this stating that it might not be or is not relevant.

24 However, if you come to the conclusion jointly that the map as such is

25 relevant, then I would expect from both parties a submission whether or

Page 131

1 not in addition to the map as such, read in conjunction with the expert

2 report, the Prosecution wants to cross-examine the witness.

3 I think we can live with this two-step approach. I can't see

4 objections, so please --

5 MR. FARRELL: I'm sorry, Your Honour. Excuse me. I apologise for

6 interrupting. There is a third scenario, which is that we don't agree.

7 The first is that we both agree it is irrelevant and the second is we both

8 agree it is relevant.

9 I think our filings, as I'm sure you're fully conversant with

10 them, make it fairly clear that counsel for Mr. Cerkez has indicated that

11 he sees the map as relevant to the issue as to where the ABiH forces were.

12 As I'm sure you're aware, the Prosecution's position is that unless that

13 somehow exonerates Mr. Cerkez in some type of defence in that he was

14 engaged in lawful military activity, the map as to where the ABiH forces

15 are is irrelevant, and that's the subject of the dispute in the 115

16 motion. I'm certainly willing to go back and look at it again at Your

17 Honour's request; but if the third option arises, which is that we can't

18 agree whether it's relevant or irrelevant jointly, we'll also inform you

19 of that. Thank you.

20 JUDGE SCHOMBURG: Thank you for this, the Chamber knows where we

21 are and what we have to do.

22 Let's turn now to the witnesses as such. The Defence of

23 Mr. Kordic. Is there any intention to hear additional witnesses?

24 MR. SAYERS: Stephen Sayers, Your Honour.

25 JUDGE SCHOMBURG: Yes, I listen to the United States first, as

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Page 133

1 usual.

2 MR. SAYERS: The answer is no, Your Honour.

3 JUDGE SCHOMBURG: So I take it that also the answer of Mr.

4 Naumovski is no.

5 MR. NAUMOVSKI: [Interpretation] Yes, Your Honour. I can only

6 confirm what I said yesterday. We have looked at everything that we've

7 had in our possession up to this very day, and we don't think we will be

8 requiring any further witnesses. There is still a theoretical possibility

9 that we change our mind after we've reviewed new documents, but this is

10 not very likely. This doesn't seem very likely at the moment. Thank you.

11 JUDGE SCHOMBURG: I have to thank you, both counsel in the United

12 States and Mr. Naumovski.

13 Now Mr. Kovacic, please.

14 MR. KOVACIC: [Interpretation] Your Honour, I also don't think so,

15 but we have to look at the Blaskic evidentiary hearing and the related

16 documents. I have now received the confidential witnesses. These have

17 kindly been disclosed to us by the OTP. And then perhaps based on that,

18 but I believe personally that the likelihood of anything like that

19 happening is indeed very small.

20 At any rate, should the need arise for that, I will immediately

21 inform the Chamber of the possibility. That means even before filing a

22 possible motion.

23 JUDGE SCHOMBURG: I appreciate very much this approach, and it is

24 therefore that I do not intend at least to try to set any deadlines

25 because it could destroy the spirit of mutual cooperation as we can feel

Page 134

1 it now in this courtroom, and therefore, I take it then whenever a change

2 may happen, the parties will inform the Chamber immediately, that we can

3 act with a flexible response. But I should not forget to ask the

4 Prosecution, what about other witnesses for the Prosecution?

5 MR. FARRELL: Your Honour, as indicated yesterday, the Prosecution

6 is considering the possibility. At this point in time I'm not at liberty

7 to indicate whether the Prosecution will call or -- I'm sorry, will seek

8 the Court's permission to call evidence. There's two aspects to that.

9 The first is whether the Prosecution intends to bring any other witnesses

10 that are presently not before the Kordic Chamber. And secondly, whether,

11 as a result of the additional evidence admitted, the Prosecution would

12 consider it necessary to call any witnesses in rebuttal.

13 In relation to the second issue, the rebuttal, I can't say now

14 because I don't know which and if any material will be admitted, but

15 depending on what evidence will be admitted, of course we will inform the

16 Chamber after that decision.

17 Thank you, Your Honour.

18 JUDGE SCHOMBURG: Thank you. And I take it from our discussion

19 yesterday, that in all likelihood there wouldn't be more than three - of

20 course things can change - more than three witnesses.

21 MR. FARRELL: At the moment it would be a limited number, yes,

22 Your Honour.

23 JUDGE SCHOMBURG: Then it's also for technical reasons for the

24 Defence to decide what you present or you still want to present as

25 additional evidence because presenting new evidence opens doors for

Page 135

1 rebuttal evidence, and so forth. It's in your own hands what we will hear

2 or what we will not hear. You should be aware of this.

3 We are in an extremely difficult situation because we are

4 confronted with three appeals, and there is no doubt an interrelationship

5 between all these appeals, and of course the technical procedure is of

6 importance. But I need not tell you this. You know better than me.

7 MR. SAYERS: Your Honour, may I briefly respond to --


9 MR. SAYERS: -- the points that Mr. Farrell raised, the two

10 points.

11 JUDGE SCHOMBURG: Yes, please do so.

12 MR. SAYERS: Mr. Farrell indicated that there was a possibility of

13 calling witnesses in rebuttal. Obviously he is entitled to do that.

14 There was some suggestion, however, that he might be making a motion to

15 call additional witnesses for some other purpose or in some other context.

16 Presumably that would be within the context of Rule 115, and if that is

17 the case, then our position would most affirmatively be that the

18 Prosecution does not have the right to do that. The Defence was ordered

19 to file their Rule 115 motions, if they saw fit to do so, in April of

20 2003, and under elementary principles of the equality of arms, it would

21 not be right or appropriate for the Prosecution to be seeking to be making

22 Rule 115 motions at this very late stage of the game.

23 JUDGE SCHOMBURG: Please understand that I don't appreciate to use

24 the word "game" in the context of criminal proceedings, but maybe this may

25 emanate from difference in culture and we have to live together coming

Page 136

1 from different cultures.

2 Of course the -- when deciding on additional evidence, especially

3 on additional witnesses, the Chamber has to take into account first when

4 it would be a fresh witness whether to allow any new 115 submission, and

5 then of course there are limits given by the appeal briefs, and I have no

6 doubt the Prosecution is aware of this.

7 And second, rebuttal, it's for you whether you open the doors for

8 rebuttal evidence or not, but you will take this into account, I have no

9 doubt.

10 MR. SAYERS: Your Honour, please forgive my unfortunate metaphor.

11 A more appropriate way to say it would be at this late stage of the case.

12 JUDGE SCHOMBURG: Thank you for your clarification.

13 And having heard this, this encouraging approach of all of the

14 parties, I think it wouldn't be appropriate to allocate already today

15 hours for the final submissions of the parties. We have discussed certain

16 frameworks yesterday. However, it might be that in light of the

17 discussion of yesterday and today, the hearing can be substantially

18 shortened and it would be premature already today to allocate hours for

19 the final submissions. So let's wait what finally will be admitted by the

20 entire Chamber as additional evidence.

21 May I ask the parties, are there any other issues to be addressed

22 today in the framework of this Status Conference?

23 MR. FARRELL: No, Your Honour. Thank you very much.

24 MR. NAUMOVSKI: [Interpretation] No, nothing new, Your Honour, but

25 if I just may be given an opportunity, I would like to go back to what you

Page 137

1 said a moment ago about rebuttal evidence. It appears that we are two

2 parties in these proceedings, but actually after the Cerkez Defence have

3 filed their 115 motion, we are three parties. So we just wish to draw the

4 Chamber's attention to our position in view of some documents that have

5 been proposed for admission, and hereby I mean also that some of our

6 rights should be borne in mind that we might decide to exercise should the

7 need arise. Thank you very much, Your Honour.

8 JUDGE SCHOMBURG: Absolutely. We are discussing individual

9 criminal responsibility and, therefore, each person has to be treated

10 individually and no doubt we have to make a clear distinction whatever

11 comes from your -- from both sides, from both appellants to my right-hand

12 side.

13 May I ask finally, Mr. Kovacic, is there anything else you want to

14 address today?

15 Please, I already now wanted to alert the parties that immediately

16 after this Status Conference an ex parte and confidential hearing will

17 take place in the presence of the Defence and Mr. Cerkez only. It is

18 based on a justified ex parte motion, and an ex parte decision that has

19 absolutely nothing to do with any of the other parties. We have to

20 discuss whether in the -- in the Bench, in the framework of the Bench,

21 whether or not we have to hear the Prosecution on this, but it's

22 absolutely a private and very personal interest of Mr. Cerkez we will

23 address when we have concluded this Status Conference, and therefore,

24 after a break, we will later continue with this issue, and therefore,

25 before giving you the floor, I wanted to address this that you don't feel

Page 138

1 the need to address this already now.

2 MR. KOVACIC: [Interpretation] Thank you very much, Your Honour.

3 As far as this Status Conference is concerned, I have nothing further to

4 add. Thank you.

5 JUDGE SCHOMBURG: I thank all the participants of these hearings

6 for their constructive approach, and also my thanks go to my learned

7 friends in the United States, and I want to conclude once again by saying

8 what I said already yesterday: I personally invite the parties come

9 together and to mutually exchange their views on the inherent risks when

10 proceeding with the respective appeals, and I don't want to go one step

11 further than this, but saying that it stays true what I said yesterday,

12 if there is any point that can be settled in the presence of the Judge,

13 please feel free to contact the Chamber and we will assist you. And I

14 take it that based on our discussion, we will -- you will inform us as

15 soon as possible.

16 And in addition to this, each first day of each month - this is

17 now March, April, and May - we will get a kind of status report, and if

18 need may be, we convene another Status Conference before the appeals

19 hearing.

20 I hereby declare this Status Conference adjourned, and we will

21 proceed, as I told you beforehand, in ten minutes.

22 --- Whereupon the Status Conference adjourned

23 at 3.47 p.m.