Tribunal Criminal Tribunal for the Former Yugoslavia

Page 136

 1                           Monday, 31 March 2008

 2                           [Status Conference]

 3                           [Open session]

 4                           [The appellant entered court]

 5                           --- Upon commencing at 3.01 p.m.

 6             JUDGE MERON:  Please be seated.  Madam Registrar, please call the

 7     case.

 8             THE REGISTRAR:  Good afternoon Your Honour,  good afternoon

 9     everyone in the courtroom.  This is case IT-00-39-A, the Prosecutor

10     versus Momcilo Krajisnik.

11             JUDGE MERON:  Thank you.  I will now have the appearances of the

12     parties and amicus.  First for the Prosecution.

13             MS. McCALL:  Good afternoon, Your Honour.  I'm Shelagh McCall.

14     My co-counsel is Julia Thibord, and assisting is our case manager,

15     Lourdes Galicia.

16             JUDGE MERON:  Thank you, Ms. McCall.

17             Mr. Krajisnik.  Can you hear me in a language that you

18     understand?

19             THE APPELLANT: [Interpretation] Yes, I can hear you, Judge, sir.

20             JUDGE MERON:  Thank you, Mr. Krajisnik.  You may sit down.

21             Now, Mr. Dershowitz, we will be discussing your status a little

22     bit later, but I see you in court and would you kindly acknowledge for

23     the record that you're here.

24             MR. DERSHOWITZ:  Your Honour, my name is Alan Dershowitz, and I'm

25     here in a limited capacity for Mr. Krajisnik as pursuant to the court's

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 1     order.

 2             JUDGE MERON:  Thank you, Mr. Dershowitz.  You may sit down.

 3             Now as regarding the amicus, Mr. Nicholls, who will be --

 4             MR. NICHOLLS:  Yes, Colin Nicholls as amicus together with

 5     Michelle Butler [overlapping speakers].

 6             JUDGE MERON:  You will be participating by teleconferencing

 7     today.

 8             MR. NICHOLLS:  Via teleconference.

 9             JUDGE MERON:  Can you hear me well?

10             MR. NICHOLLS:  Yes, thank you.

11             JUDGE MERON:  Thank you, Mr. Nicholls.  I'm glad you are there

12     and we will return to you later on.

13             First, Mr. Krajisnik, I gather that the Registry received a

14     motion from you late on Friday to allow Mr. Karganovic to be present

15     today.  I go not believe that I need to hear from the Prosecution on this

16     motion.  Now we are all aware of the fact that Mr. Karganovic has no

17     official status in this case, but I will grant the motion on the

18     understanding that he has no authority to make any submissions oral or

19     otherwise during this proceeding.  On this understanding and with no

20     objection from the Prosecution, I suggest that Mr. Karganovic be invited

21     to join Mr. Krajisnik in court.

22             So now we have Mr. Karganovic here.  Good afternoon,

23     Mr. Karganovic.

24             MR. KARGANOVIC:  Good afternoon, thank you, Your Honour.

25             JUDGE MERON:  This as you know is a Status Conference called in

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 1     accordance with Rule 65 bis of the Rules of Procedure and Evidence.  Rule

 2     65 bis (B) requires the Status Conference to be convened within 120 days

 3     of the last Status Conference to allow any person in custody pending

 4     appeal the opportunity to raise issues in the relations thereto,

 5     including the mental and physical condition of that person.

 6             The last Status Conference in this case was heard on the 2nd of

 7     November, 2007.  Although Rule 65 bis (B) required that the Status

 8     Conference be held on the 1st of March, the Appeals Chamber granted

 9     Mr. Krajisnik's request to postpone the Status Conference until today in

10     order to allow Mr. Dershowitz to appear.

11             I would like to begin this Status Conference by inquiring into

12     Mr. Krajisnik's health.

13             Mr. Krajisnik, would you respond on this issue?  Tell me how you

14     have been doing physically and mentally.

15             THE APPELLANT: [Interpretation] Thank you, Judge, sir.  My health

16     is good.

17             JUDGE MERON:  Thank you.  I'm happy to hear that, and you --

18     before you sit down, Mr. Krajisnik, do you have any other concerns that

19     you would like to raise pertaining to your well-being in the detention

20     centre unit or nothing to say at this stage?

21             THE INTERPRETER:  Microphone, please.

22             THE APPELLANT: [Interpretation] Now, as concerns that type of

23     question and problem, I have nothing to add.  Thank you.

24             JUDGE MERON:  Thank you.  You may sit down.  We will be

25     discussing other issues soon.

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 1             Now, firstly I would like to recap for the parties where we are

 2     in terms of the briefing schedule.  The English version of

 3     Mr. Krajisnik's appeal brief was filed on the 1st of February, and the

 4     Prosecution submitted the response on the 12th of March, 2008.  Once

 5     Mr. Krajisnik has received a B/C/S translation of the response, hopefully

 6     within the next two weeks or so, he will then have 15 days under Rule 113

 7     to submit a reply which may not exceed 9.000 words in length.

 8             Now, I would like to turn to the question of the supplementary

 9     brief by Mr. Dershowitz.

10             In the decision of 28 February 2008, the Appeals Chamber granted

11     leave for you, Mr. Dershowitz, acting as Mr. Krajisnik's counsel for a

12     limited purpose to file a supplementary brief on behalf of Mr. Krajisnik

13     relating only to the issue of the joint criminal enterprise.  In its

14     decision of 11 March 2008, the Appeals Chamber clarified that

15     Mr. Dershowitz's submission should make clear the extent to which it

16     complements or supersedes arguments that Mr. Krajisnik has already made

17     in his appeal brief.  Finally, on the 27th of March, 2008, the Appeals

18     Chamber denied Mr. Krajisnik's motion to extend the briefing schedule.

19             Let me note now that Mr. Krajisnik filed a power of attorney on

20     Friday authorising Mr. Dershowitz to serve as his lawyer.  The problem,

21     however, is that that authorisation is very limited in scope, covering

22     only today's Status Conference.

23             Mr. Krajisnik, you must refile a power of attorney to indicate, I

24     believe, that you are authorising Mr. Dershowitz to serve as your lawyer

25     with respect to JCE issue and thus to make him -- to enable him to file

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 1     the supplementary brief.

 2             Second, we must remember that Mr. Dershowitz himself has to file,

 3     if he has not done so yet, the appropriate paperwork with the Registry in

 4     order to serve as counsel before the Tribunal, and I would like to know,

 5     Mr. Dershowitz, whether you have already filed such paperwork in

 6     accordance with the decision of 28 February 2008.

 7             MR. DERSHOWITZ:  Your Honour, Mr. Krajisnik today filed the

 8     supplementary right of counsel, which I think the Registry now has,

 9     expanding my role pursuant to the Court's order, and we sent to the Court

10     on Thursday by Federal Express all of the appropriate papers.  It only

11     arrived today at 1.47 p.m., but at about noontime I then refiled it in

12     person and I'm now confident that the Court and the bar association have

13     all the relevant papers, though I think the process of completing the

14     certification has not been done as of 3.00 p.m. today but all the

15     paperwork has been completed.

16             JUDGE MERON:  I'm happy to hear that, Mr. Dershowitz, because of

17     certain uncertainty whether the paperwork has already been completed to

18     the extent that there will be any motions for Mr. Krajisnik today.

19             MR. DERSHOWITZ:  There will be, Your Honour.

20             JUDGE MERON:  I think that Mr. Krajisnik may have to submit them

21     and I could suspend the meeting for a short time to enable you to assist

22     him in preparing an oral motion if there is something.

23             MR. DERSHOWITZ:  Your Honour, I don't think that would be

24     necessary because we're not making a formal motion.  What I would like to

25     do is address the Court briefly.

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 1             We have the consent of the Prosecution to seek from this Court a

 2     very, very brief delay in filing our limited brief.  It is simply being

 3     --

 4             JUDGE MERON:  How brief, Mr. Dershowitz?

 5             MR. DERSHOWITZ:  Well, the Court consents to a delay, and I

 6     quote:  "Into early next week."  So we would suggest April 8th, Tuesday

 7     or April 9th and that will not delay the appeal by a single day.

 8             JUDGE MERON:  I don't have that diary in front of me.  Could you

 9     tell me what the date would be, say, Monday a week from now?

10             MR. DERSHOWITZ:  Monday a week from now would be April 7th

11     according to my calendar.

12             JUDGE MERON:  And this is what you're asking for.

13             MR. DERSHOWITZ:  We ask for the 8th or the 9th and that's because

14     the 8th or the 9th would result in not a single day of delay in all the

15     papers being filed for this reason:  As Your Honour noted, Mr. Krajisnik

16     has two weeks from the time he gets the translation.  As Your Honour

17     noted, the translation will come hopefully in the next two weeks or so,

18     and so we would then submit our brief and the government -- I'm sorry,

19     the Prosecution's response 15 days later would come before

20     Mr. Krajisnik's brief is due, which would result in not a single day of

21     delay in the appellate proceeding, and that's why the Prosecution has

22     consented and why we respectfully request that in our professional

23     opinion it will take us that much time, particularly in light of the

24     Court's order that we must reconcile everything we say with

25     Mr. Krajisnik's brief and everything we say with the amicus brief as

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 1     well.  That has proved to be quite daunting, Your Honour, and there are

 2     also some new developments that Mr. Krajisnik might want to alert the

 3     Court to that we would like to incorporate into our response or into our

 4     brief under the joint criminal enterprise.  But I think -- I know we can

 5     complete it.  If the Court grants us until the 8th or the 9th, I know

 6     that we will not seek another delay.  You have a representation from me

 7     on that.

 8             JUDGE MERON:  I take it that this -- I'm only raising this

 9     because of a certain uncertainty about the completion of the paperwork.

10     I take it that I can regard this motion, Mr. Krajisnik, as having been

11     made by you and on your behalf, this motion for the extension of time

12     which was requested by Mr. Dershowitz.

13             THE APPELLANT: [Interpretation] Yes, that's right.  I confirm

14     that, and it's as you've just put it, Judge.

15             JUDGE MERON:  Do sit down, Mr. Krajisnik.

16             So I have in front of me a new motion for an extension by about a

17     week for the filing time.  I must say that I'm not enthused about it.  I

18     thought that the time we granted was -- was more than enough for a person

19     of Mr. Dershowitz's known talents and experience in drafting briefly

20     complex papers on issues of criminal law and criminal procedure.  You

21     will recall that we allowed -- in allowing this supplementary brief, we

22     did so on the condition that there would be a very strict briefing

23     schedule and that we would avoid any details -- any delays.

24             At present the normal briefing schedule should be completed

25     around the middle of May.  It is for this reason that the decision of

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 1     28th February imposed such a strict schedule, and it is also for this

 2     reason why the Appeals Chamber has largely denied both the Prosecution's

 3     and the Mr. Krajisnik's requests for extension.

 4             As Mr. Dershowitz points out today, however, I do recognise that

 5     the issues on which he will be drafting a supplementary brief are quite

 6     complex.  Of course the issues that have been raised in the submissions

 7     by Mr. Dershowitz and Mr. Krajisnik regarding the difficulties with

 8     transfer of money and questions of private financing generally are beyond

 9     the purview of the Court, and of course I am well aware of the fact, and

10     the Court is aware of the fact, that both Mr. Krajisnik and

11     Mr. Dershowitz learned on 29 February that the bank transfer had been

12     blocked, yet did not file a motion for an extension until the 20th of

13     March.  On the 27th of March we denied this motion.  But nevertheless, in

14     the interests of justice, I would be prepared to grant in large part the

15     motion made by Mr. Dershowitz, and I understand that the Prosecution does

16     not have objections to this motion that he filed.

17             MS. McCALL:  That's correct, Your Honour, on the basis that

18     Mr. Dershowitz has set out.

19             JUDGE MERON:  Thank you, Ms. McCall.

20             I will grant you to the end of next Monday, Mr. Dershowitz.

21             MR. DERSHOWITZ:  Thank you, Your Honour, appreciate that very

22     much.  Thank you.

23             JUDGE MERON:  I think it should resolve your problem.

24             MR. DERSHOWITZ:  I think it will.  Thank you, Your Honour.

25             JUDGE MERON:  Thank you.  You may sit down now.

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 1             This might be an appropriate moment before we turn to the

 2     Prosecution and to the amicus to ask Mr. Dershowitz whether he would like

 3     to raise or to make a statement on additional issues pertaining to that

 4     part of the appeal with regard to which he has been authorised to act for

 5     Mr. Krajisnik.

 6             MR. DERSHOWITZ:  Your Honour, thank you very much.  The

 7     Prosecution and I also agreed that as far as their brief is concerned, if

 8     their brief raises any new issues or issues that really require in the

 9     interests of justice a response, that we write a letter to the Court at

10     that time and seek permission to file a letter or a supplementary brief

11     within five days, not the usual 15.  We have no expectation that we will

12     have to do that, but we don't know for certain what the Prosecution's

13     arguments will be, and if there are any arguments that we had not

14     anticipated or arguments that require factual errors.  So we would not

15     ask the Court for anything but simply advice the Court that pursuant to

16     the agreement with the Prosecution that if that becomes necessary, we

17     will -- we will first negotiate with the Prosecution and then file a

18     letter asking the Court for a number of days, just a brief number of

19     days.  And at that point we'll know better, too, whether or not it will

20     delay the process any, and we would act in the spirit of this Court to

21     make sure that the briefing schedule is not in any way delayed by our

22     actions.

23             JUDGE MERON:  Thank you, Mr. Dershowitz.  There is no need at

24     this moment in time to anticipate difficulties.  Should they arise we

25     will look at that.  Let me only make clear that the fact that the Defense

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 1     and the Prosecution may have agreed among themselves on extensions, it

 2     would be not something which will be persuasive or certain, not

 3     conclusive for the Court which has its own interest in moving this appeal

 4     to a speedy resolution in the interests of justice and in the interests

 5     of your client.

 6             MR. DERSHOWITZ:  Yes.  We --

 7             JUDGE MERON:  So I'm not committing myself or the Court to how we

 8     would react should such a hypothetical request be made to us.  Of course

 9     we will read it very carefully and consider it.

10             MR. DERSHOWITZ:  We appreciate that, Your Honour.

11             JUDGE MERON:  Any other issues you would like to raise?

12             MR. DERSHOWITZ:  At the moment there are no other issues.  We are

13     proceeding to write our brief.  We will comply with the word limits and

14     the time limits, and we appreciate both the Court and the Prosecution's

15     reasonableness in pursuing the interests of justice.  We all have the

16     same goal, that is the quickest resolution of this matter in the

17     interests of professionally being able to advise the Court to the best of

18     our ability the complexity of the issue.  So I just want to thank the

19     Court and the Prosecution.

20             JUDGE MERON:  Well, thank you for your comment, and I must add

21     that I'm very happy to see you here.

22             MR. DERSHOWITZ:  Thank you.  I'm very happy to be here.  Thank

23     you.

24             JUDGE MERON:  Turning to the Prosecution are there any other

25     issues -- I take it that the Defence has no further issues to raise.

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 1             MR. DERSHOWITZ:  May I confer with my client for one brief

 2     moment.

 3             Your Honour, Mr. Krajisnik has asked me to alert the Court and

 4     the Prosecution to the fact that he is preparing a Rule 115 motion that

 5     involves newly discovered evidence, videotapes and other matters that

 6     could not and were not available to the Court at the time of its

 7     judgement.  My understanding is that these motions have a time schedule

 8     and they will be complied with.

 9             My only interest in that is to the extent that any of these

10     matters relate to the joint criminal enterprise, I know at least one of

11     them that does, I would be involved in that as well in advising

12     Mr. Krajisnik and in submitting perhaps supplementary legal materials to

13     the Court.

14             JUDGE MERON:  Thank you.  We were -- we did anticipate some

15     development of this kind and we in fact urged Mr. Krajisnik to act

16     quickly on that, on those 115 motions, and we will look at them when they

17     come.

18             MR. DERSHOWITZ:  Thank you very much.

19             JUDGE MERON:  Maybe before turning to the Prosecution I would for

20     a moment turn to the amicus if you agree.

21             Mr. Nicholls, are you with me?

22             MR. NICHOLLS:  Yes, Your Honour.  Yes, Your Honour.

23             JUDGE MERON:  Now, we all know that the amicus has filed a motion

24     seeking an opportunity to submit arguments regarding certain aspects of

25     the Prosecution's response to Mr. Krajisnik's appeal brief

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 1     specifically --

 2             MR. NICHOLLS:  Your Honour, yes, that's correct.

 3             JUDGE MERON:  Specifically the amicus wishes to argue that the

 4     Appeals Chamber has discretion to deal with procedural irregularities,

 5     which he called procedural default, I believe, in a number of ways, from

 6     imposing sanctions to allowing irregularities to be cured.  The

 7     Prosecution's response to this motion will be due on Friday, 4 April.  We

 8     shall, of course, rule on your motion, Mr. Nicholls, as soon as possible

 9     after receiving the Prosecution's response.

10             Is there anything that you would like to add at this juncture,

11     Mr. Nicholls?

12             MR. NICHOLLS:  Your Honour, no, there's nothing I would wish to

13     add at this stage.

14             JUDGE MERON:  Thank you, Mr. Nicholls.  You will still stay with

15     us there, of course.

16             MR. NICHOLLS:  Yes, of course.

17             JUDGE MERON:  Does the Prosecution have something to say with

18     regard to just the point I raised with Mr. Nicholls?

19             MS. McCALL:  Simply to confirm, Your Honour, that we will be

20     filing a response in writing.

21             JUDGE MERON:  And you will be doing this by Friday.

22             MS. McCALL:  Yes, Your Honour.

23             JUDGE MERON:  Thank you.  Mr. Krajisnik, do you have anything to

24     add on this point?  I suppose no because we have been to you a number of

25     points -- times.

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 1             Mr. Nicholls has no further issues, I gather, that you would like

 2     to raise.  The Prosecution has anything?

 3             MS. McCALL:  Your Honour, I would just like to clarify one matter

 4     in relation to what Mr. Dershowitz says.  As Your Honour is aware, there

 5     is no right of reply following the 28 February decision.

 6             JUDGE MERON:  Yes.

 7             MS. McCALL:  And just to clarify the extent of the Prosecution's

 8     agreement it is that should he feel the need for some further filing that

 9     he would require to seek leave in order to do that, but the Prosecution

10     hasn't committed itself about its attitude towards any such request

11     should it come.

12             MR. DERSHOWITZ:  Your Honour, that's my understanding as well

13     exactly.

14             JUDGE MERON:  Thank you.  In any event it's very clear that this

15     will be submitted as a motion and we will decide upon it.  We should not

16     take anything for granted regarding the positions that the Court will

17     take.

18             MR. DERSHOWITZ:  Exactly.

19             JUDGE MERON:  I think that we would have exhausted -- no.

20     Ms. McCall.

21             MS. McCALL:  Your Honour, I'm sorry.  I'm very helpfully reminded

22     by my co-counsel there is a sentence in the Prosecution's response brief

23     in the introductory part that suggests that any paragraphs that the

24     Prosecution thought should be summarily dismissed and were not dealt with

25     in the body of the text --

Page 149

 1             JUDGE MERON:  This is in the context of the motion of

 2     Mr. Nicholls.

 3             MS. McCALL:  Sorry, Your Honour.  This is in the context of our

 4     response to Mr. Krajisnik's appeal brief that's been filed.

 5             JUDGE MERON:  I see.  Go ahead.

 6             MS. McCALL:  There's a sentence that suggests that any paragraphs

 7     the Prosecution didn't deal with in the body of the text would appear at

 8     the end with a motion to summarily dismiss them.  Can I say, Your Honour,

 9     that's -- that group of paragraphs didn't appear at the end, and I just

10     want to clarify for Mr. Krajisnik and Mr. Dershowitz that the Prosecution

11     relies on the text of its response and there is a table annexed at the

12     end that sets out all of Mr. Krajisnik's paragraph numbers and sets out

13     where the Prosecution has responded.  If any of Mr. Krajisnik's paragraph

14     numbers have a blank space beside them, that means the Prosecution sees

15     no need to respond and nothing more should be read into it than that.

16     See just to clarify there may be some confusion between those two parts

17     of the brief.

18             JUDGE MERON:  So what exactly are you reserving your position

19     then.

20             MS. McCALL:  I'm sorry, Your Honour.  That was a previous matter.

21     We would reserve our position on --

22             JUDGE MERON:  On the previous statement, not on this --

23             MS. McCALL:  On the previous issue about a further reply.  Thank

24     you.

25             JUDGE MERON:  Well, I believe that we have finished our agenda,

Page 150

 1     and I thank you.  I thank the staff.  I thank the interpreters.  I thank

 2     the parties, Mr. Dershowitz, Mr. Karganovic, Mr. Krajisnik for their

 3     participation.

 4             The Court will rise.

 5                           --- Whereupon the Status Conference adjourned

 6                           at 3.27 p.m.