Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16

1 Wednesday, 27 November 2002

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.58 p.m.

6 JUDGE MERON: Please be seated. Madam Registrar, would you please

7 call the case.

8 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honour.

9 This is case number IT-97-25-A, the Prosecutor versus Milorad Krnojelac.

10 JUDGE MERON: Mr. Krnojelac, can you hear the proceedings? Can

11 you hear us, Mr. Krnojelac?

12 THE ACCUSED: [Interpretation] Yes, Your Honour, I can hear you.

13 JUDGE MERON: Thank you. Thank you. Do sit down.

14 May I have the appearances, then. Let's start from the

15 Prosecution.

16 MR. STAKER: May it please Your Honour. My name is Christopher

17 Staker, and I appear with my colleague Mr. Anthony Carmona. Our case

18 manager is Miss Nikola Bonfield.

19 JUDGE MERON: [Microphone not activated]

20 THE INTERPRETER: Microphone, Your Honour, please.

21 MR. BAKRAC: [Interpretation] Good day, Your Honour. I am Mihaijlo

22 Bakrac, from Belgrade -- attorney Mihaijlo Bakrac, from Belgrade, and I am

23 defending Mr. Krnojelac.

24 JUDGE MERON: Thank you, Mr. Bakrac. Let me first say a few words

25 about the purpose of this Status Conference which we have convened. As

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1 you know, pursuant to Rule 65 bis, a Status Conference shall be held

2 within 120 days of the initial appearance of the accused, and thereafter

3 within 120 days after the last Status Conference. The notices of appeal

4 in this case were filed respectively on the 12th of April, 2002, by the

5 Defence, and on the 15th of April by the Prosecution. The last Status

6 Conference was held on the 31st of July, 2002.

7 The purpose of a Status Conference is, as you know, to allow any

8 person in custody pending appeal the opportunity to raise issues

9 pertaining to the custody of that person, including his mental and

10 physical conditions. So we have actually two purposes, or a double

11 purpose: First, to allow Mr. Krnojelac to express concerns directly or

12 through his counsel, Mr. Bakrac, relating to the conditions of detention;

13 second, to bring the parties up to date with respect to the status of the

14 appeal.

15 Let me first say a word about Mr. Krnojelac's request for

16 provisional release which was filed personally by Mr. Krnojelac on the

17 14th of November, 2002. The Prosecution responded on the 15th of

18 November, 2002. There has been no reply from Mr. Krnojelac. All I can

19 say about this, that a decision of the Appeals Chamber is about to be

20 given.

21 I now turn to the question of detention. At the last Status

22 Conference, Mr. Krnojelac, if I remember correctly, you expressed the

23 desire not to be moved to another section of the Detention Unit unless it

24 was absolutely essential. As promised, I inquired whether anything could

25 be done to avoid your being moved. The Registry has informed me that this

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1 was not possible. I would ask Mr. Krnojelac if he has problems that he

2 would still like to raise with regard to detention.

3 Mr. Krnojelac, would you please stand up and tell us whether you

4 have any problems that you would like to raise.

5 THE ACCUSED: [Interpretation] Your Honour, thank you for giving me

6 this opportunity to address you. But similarly, I would like to ask you

7 to try and understand me, try and understand the fact that I will leave

8 this to my counsel, if you allow me to do so, so that he could address

9 you. There is nothing I have to object to as far as the detention

10 conditions are concerned, nor as far as the people who are there and who

11 work there.

12 With regard to my physical and psychological exhaustion, which is

13 temporary, and also my emotional state, it's difficult for me to explain

14 all of these matters to you, so with your permission, I would be grateful

15 if my counsel could expose this matter to you because he is more informed

16 about this than I am.

17 JUDGE MERON: Thank you, Mr. Krnojelac.

18 Mr. Bakrac.

19 MR. BAKRAC: [Interpretation] Thank you, Your Honour. First of all

20 with regard to Mr. Krnojelac's request, I would like to inform you about

21 certain details that concern his request for provisional release. Given

22 the situation that he found himself in while he was being held in

23 detention, Mr. Krnojelac turned to the manager of the -- the warden of the

24 detention with such a request. From the Prosecution's response, I learned

25 about this request, and I have tried to obtain certain evidence. With

Page 19

1 your permission, Your Honour, I have prepared something to hand over to

2 the Registrar, additions to Mr. Krnojelac's request, and it includes

3 medical documents that have been translated - this would be evidence -

4 and it also includes a solemn declaration with regard to being

5 provisionally released.

6 Given the experience of this Tribunal, I was convinced that such

7 request, which concerns a certain fact and a very brief period, this

8 request concerns a period of 15 days, a 15-day release period, this is

9 unusual. So I have tried to obtain the documents that I thought would be

10 essential in order to support what Mr. Krnojelac has mentioned. There are

11 certain documents that I lack, but I think that I will soon have

12 guarantees from the government of Republika Srpska with regard to this

13 request. And with your permission, I will provide this copy. I will hand

14 this copy over after the end of the Status Conference.

15 I'm not going to take up much of your time, but I would like to

16 emphasise the fact that Mr. Krnojelac, before he was placed in detention,

17 in the UN Detention Unit, in addition to eight brothers and sisters, he

18 has remained with one sister and one brother. And after he was put in

19 detention, his sister died, and then he turned to the management of the

20 Detention Unit and said that he would like to be released for a very brief

21 period of time in order to attend the funeral. And now it is,

22 unfortunately, a time at which he has remained without his last brother.

23 He would now like for us to attempt to obtain a decision on being

24 provisionally released for a brief period of time for these purposes, and

25 he would solemnly promise that he would not get in contact with any of the

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1 accused from that territory, whether witnesses or victims. He said that

2 he would only stay at home and in the hospital near his brother. I have

3 tried to add further details to what he has requested and I hope that

4 understanding will be shown because the period for which we are asking for

5 provisional release, it's quite clearly indicated that the only purpose of

6 the accused, his only intention, is that after the first decision is

7 taken, and after four and a half years in the Detention Unit, it shows

8 that there really is -- there are no grounds for suspicion that being

9 provisionally released could be used for any other purposes other than

10 those for which he requested such provisional release.

11 I'm not going to tire you any more. What I have tried to tell you

12 now is included in the annex to this request, Mr. Krnojelac's request.

13 And as far as the other issue is concerned, the conditions in the

14 Detention Unit, I have been authorised by Mr. Krnojelac to tell you that

15 Mr. Krnojelac really has nothing to object to as far as the detention

16 conditions are concerned. He is being treated correctly, and the only

17 problem that he has is the psychological problem because of what I have

18 just mentioned, because of the matters I have just spoken about. Because

19 of the fact that it seems that he will be losing his last brother, and he

20 wishes to see him for one last time, if the Trial Chamber can comply with

21 this request.

22 In addition to the psychological problems, Mr. Krnojelac has

23 certain physical problems. He has physical, medical problems. His

24 shoulder, he feels pain in his shoulder. He turned to the doctor, he saw

25 the doctor, and they determined that the nerves between the fourth and

Page 21

1 fifth vertebrae have been clinched, but for all of these reasons, it seems

2 that Mr. Krnojelac also has pains in the stomach. So you, as the

3 pre-appeal Judge, we would be grateful if you could do -- if you could

4 arrange for another examination through the intermediary of the Registry.

5 Thank you.

6 JUDGE MERON: Thank you, Mr. Bakrac. On the matter of provisional

7 release, it is, of course, unfortunate that you have not submitted these

8 documents, these supporting materials together with your request or

9 subsequent to it. And you have had an opportunity to reply to the

10 response of the Prosecution. You did not. Of course, you can submit your

11 document, but I cannot say now whether it can still be taken into

12 account. As I announced a few minutes ago, the decision of the Appeals

13 Chamber was about to be given. I would not like to say anything more

14 about that because that decision is still with the Appeals Chamber, and I

15 cannot say anything which would suggest anything more or reveal the

16 contents of that decision. In any event, I am really indeed sorry, and

17 it's important to remember that the documents should be filed on time.

18 There has been ample time either to file documents or at least to request

19 for additional time to file such documents.

20 As regards the conditions of detention, I understand that

21 specifically Mr. Krnojelac has no complaints about his conditions. I

22 would ask through Madam Registrar if you would kindly convey to the

23 Registrar and to the head of the Detention Unit the comments we have heard

24 from Mr. Bakrac. And he is asking for an additional medical examination,

25 and this makes a lot of sense. And would you convey my support for that

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Page 23

1 request.

2 MR. BAKRAC: [Interpretation] Your Honour.

3 JUDGE MERON: Yes, please.

4 MR. BAKRAC: [Interpretation] With your permission, Your Honour,

5 there is just one other matter I would like to address. I'm aware of what

6 you have just said, and in my opinion, the additional documents that we

7 are sending don't constitute a response to the Prosecution's response with

8 regard to provisional release but it's an addition to Mr. Krnojelac's

9 first request that I was not informed about. So this is an addition; it's

10 not a response to the Prosecution's response, it's an addition to his

11 request and it includes additional documents.

12 JUDGE MERON: Thank you, Mr. Bakrac. I did understand you

13 correctly that this is an annex to that request which Mr. Krnojelac

14 himself made.

15 Now, I believe that this brings us to the end of our discussion of

16 the conditions of detention and I would like now to turn to the status of

17 the appeal. Now, the filings, as you know, in this case are complete.

18 The only issue which is pending concerns the Rule 68 search and disclosure

19 process by the Prosecution. A hearing on the merits cannot be held until

20 the Prosecution has substantially completed this search and disclosure

21 work under Rule 68. The disclosure of exculpatory material may lead the

22 Defence to file a motion for additional evidence, and the Appeals Chamber

23 might have eventually to rule on such a motion before holding a hearing on

24 the merits of the case. In the last Status Conference, you will remember,

25 I stated, and I quote: "That in order to assure a fair and expeditious

Page 24

1 conduct of the proceedings, the Bench expects that the Prosecution is

2 doing the necessary under Rule 68 in the matter of disclosure of

3 exculpatory material." But from what I gather from the Prosecution's

4 status report on disclosure of 20 October, 2002, the disclosure process in

5 the case of Mr. Krnojelac is being substantially delayed. I understand

6 that there is a sort of queue with the Kvocka case and other cases for

7 using the resources of the so-called Information Support Unit, the ISU.

8 I understand, of course, that the Kvocka case has some priority

9 because the Trial Chamber's judgement in Kvocka has been rendered earlier

10 than in the present case. Nevertheless, let me emphasise that Rule 68

11 creates for the Prosecution a continuing obligation, an obligation which

12 operates throughout the proceedings. I cannot stress enough how important

13 it is for the fairness of the proceedings, and to the accused, that the

14 Prosecution complies with the Rule 68 in a timely manner. It is a matter

15 that troubles me. And it troubles my colleagues on the Appeals Chamber.

16 Rule 68 search and disclosure process must be conducted at the same time

17 as cases come up on appeal. Let me, if I may, ask Mr. Staker a number of

18 questions.

19 First, when has the Prosecution started to look for Rule 68

20 materials in the present case? Second, what is the nature of the material

21 that the Prosecution has to review in this case? Three, what measures is

22 the Prosecution adopting in order to expedite the disclosure process in

23 this case? At present, given that the Kvocka case has priority, when do

24 you estimate that the disclosure process in our case, in the case of Mr.

25 Krnojelac, will be completed?

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1 Could we have some clarification from you, Mr. Staker, on these

2 several questions.

3 MR. STAKER: Your Honour, your first question was when the

4 Prosecution started looking for Rule 68 materials in the present case. I

5 think our status report on disclosure has given an explanation of the

6 procedure that is implemented. What happens is documents in the evidence

7 collection of the Office of the Prosecutor are scanned electronically, are

8 then run through an optical character recognition programme which enables

9 them to be electronically searched.

10 The procedure involved in undertaking Rule 68 searches, therefore,

11 involves determining what the search terms and criteria will be for the

12 Rule 68 search. Secondly, it involves running that search which will then

13 throw up a number of documents that meet those search criteria. Then

14 thirdly, as we indicated in our status report on disclosure, it requires

15 the Information Support Unit to examine all of those documents to see

16 whether, in fact, they do meet the search criteria because the documents

17 thrown up in the search may be broader than the documents actually

18 searched for. And then it's necessary for the Prosecution counsel in the

19 case to examine the documents to determine whether, as a matter of law,

20 they are exculpatory within the meaning of Rule 68.

21 The search terms in this particular case -- if you'll forgive me a

22 minute, Your Honour.

23 I can indicate the search terms were being formulated sometime in

24 July of this year. They were subsequently settled. And as our status

25 report on disclosure indicates, a search did indicate the number of

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1 documents that met those search criteria. It's then a matter of the case

2 being in the queue with the Information Support Unit to carry out the next

3 step. And that is a question of resources, Your Honour.

4 In relation to your second question, Your Honour, the nature of

5 the material, until the documents identified in the search are examined,

6 it's not possible to know precisely what that is in advance. But in

7 principle, the documents could be in the nature of any type of document in

8 the evidence collection. They could be government documents; they could

9 be witness statements; they could be any manner of documents.

10 As to what's happening to expedite disclosure in this case, which

11 was Your Honour's third question, because this case is in a queue with

12 other cases, the precise schedule on this case will depend on what happens

13 in other cases. I can indicate that since our status report on disclosure

14 was filed, a Status Conference was held in the Kvocka case on the 28th of

15 October of this year. The issue was raised at that Status Conference

16 whether steps might be taken in order to expedite proceedings in that

17 case. As a consequence of that, on the 5th of November this year, a

18 second status report was filed by the Prosecution in the Kvocka case,

19 setting out a proposed course of action which might shorten the process in

20 that. However, no final decision has yet been taken in the Kvocka case as

21 to what the procedure to be followed will finally be. What I can say is

22 that as soon as the Prosecution knows more, it would be possible to file

23 another status report in this case setting out the current schedule here.

24 As to your last question, Your Honour, when disclosure in this

25 case will be completed, as I indicated, that will depend on decisions

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1 taken in the Kvocka case on the assumption that the Kvocka case will be

2 dealt with before this case. And that is, as we indicated, the basis on

3 which we are proceeding, subject to any contrary indication that we might

4 otherwise receive from the Chamber.

5 JUDGE MERON: Thank you, Mr. Staker. I will have some comments to

6 make on that situation, which I find troubling, I must say, in a moment.

7 But I would like first to hear any comments of Mr. Bakrac on that.

8 First on the question of disclosure, Mr. Bakrac.

9 MR. BAKRAC: [Interpretation] Thank you, Your Honour. With all due

10 respect to my learned friend and colleague from the Prosecution, we have

11 not received a specific reply to any of the questions. According to the

12 answer provided by my learned friend and colleague Mr. Staker, this could

13 take two or three months, perhaps even two years. For the time being, we

14 have not received even approximate answers - I'm not talking about

15 precise, accurate answers - to any of the questions. We respect the

16 priority given to the Kvocka case, but there is one issue I would still

17 like to raise in connection with your first question. We have received no

18 reply.

19 Has there been an investigation? And in view of the resources of

20 the Prosecution, I think they should be able to use part of their staff to

21 investigate the Kvocka case and the Krnojelac case at the same time. So

22 the only thing the Defence can offer for its part is some assistance,

23 although this may not be usual, but we can take it upon ourselves to have

24 a look at part of the documents if that would make the task easier for the

25 Prosecution.

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1 So we would at least like to have an approximation, an estimate,

2 of what exactly to expect as to when the procedure regarding Rule 68 could

3 be completed.

4 JUDGE MERON: Thank you, Mr. Bakrac. And thank you, Mr. Staker,

5 for the explanations which you have provided us.

6 Let me repeat that the Appeals Chamber is not in a position to fix

7 a date for the hearing on the merits of this case until it is assured that

8 the Prosecution has completed at least the bulk of the search and

9 disclosure process under Rule 68. It is obvious that it's necessary that

10 the Office of the Prosecutor must allocate additional resources to

11 expedite the search and disclosure process under Rule 68. I appreciate

12 the offer of Mr. Bakrac to provide technical assistance to the Office of

13 the Prosecutor, but I would not expect that the Prosecutor will accept

14 that proposal.

15 But one thing must be clear: We cannot be in a situation in which

16 the Office of the Prosecutor, with all its resources, can work on the

17 disclosure process under Rule 68 only on one case at a time. There is a

18 real danger that despite all the efforts that Judges are making to speed

19 up the hearing of the appeals, we will be -- find this to be an impossible

20 obstacle. I understand that the section in the OTP that deals with that

21 has very limited resources, but perhaps the Prosecutor could allocate

22 other resources to that section from other parts of that office, perhaps

23 from investigations or whatever. But we have here "justice delayed is

24 justice denied." We cannot postpone forever hearing of appeals wherein

25 the filings have been concluded simply because we have to wait until you

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1 have completed the disclosure and search process in the Kvocka case.

2 So I would be extremely grateful if you would pass on to the

3 Prosecutor herself my concern about it. And let me assure you that my

4 concern about the speed or the slowness of that process is very widely

5 shared by my colleagues on the Bench. I know you are in difficulties

6 because you do not have that personnel at your disposal, but perhaps the

7 OTP has. And in order to further indicate our concern about that, and

8 perhaps expedite the process somewhat, may I tell you, Mr. Staker, that we

9 will be expecting that you would file at the end of each of the coming

10 months a status report on disclosure explaining what the Prosecution is

11 doing and giving an indication of when the Rule 68 search and disclosure

12 process can be completed.

13 I am personally convinced that work on Rule 68 disclosure could be

14 expedited, and I am confident that the Prosecutor will take the necessary

15 measures to that effect.

16 Now, do the parties have any comments on any additional matters?

17 Mr. Staker.

18 MR. STAKER: Your Honour, I would merely respond -- or certainly

19 convey the message. Simply to clarify, we did set out a time frame for

20 disclosure in this case in our status report on disclosure. What I

21 indicated today, if it wasn't specific, was that ultimately the time frame

22 may be somewhat shorter, depending on what happened in the Kvocka case.

23 I would also like to seek to clarify that it's not the case that

24 one case is being worked on at a time. The process, as I've described it,

25 involves different people dealing with different aspects at different

Page 30

1 times, and it's a case of juggling. But certainly more than one case is

2 in the disclosure pipeline, at different stages, at any given time.

3 JUDGE MERON: Thank you. But your own report indicates that we

4 are being deferred or delayed because of your work in Kvocka. So I am

5 very, very close to the descriptions that you have, yourself used. We

6 really must move on faster on that. It's quite impossible to proceed at

7 that speed. Yes, you did give us certain dates, suggested dates, in your

8 status report. But those dates I find extremely far away. Here is a case

9 where filings have been completed. We could have held hearings, were it

10 not for the Rule 68 problem, at the end of February, maybe even at the end

11 of January.

12 Now, I note your commitment to discuss that with your colleagues

13 in the Prosecutor's Office, and I trust you will do your best to improve

14 the present situation.

15 Now, if the parties have no further comments or suggestions, I

16 suggest that this Status Conference be adjourned. So we will now adjourn.

17 And thank you for attending.

18 --- Whereupon the Status Conference

19 adjourned at 3.29 p.m.