Tribunal Criminal Tribunal for the Former Yugoslavia

Page 66

1 Tuesday, 14th September, 1999

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 10.08 a.m.

5 JUDGE HUNT: It's almost time for another

6 Status Conference, and I thought it may be

7 appropriate -- I'm sorry I haven't given you warning,

8 but when I looked up the dates, I realised the

9 timing -- it may be appropriate to treat this as a

10 Status Conference. If there is anything that you want

11 to raise, either party, later on which you would have

12 raised at a Status Conference, I will, of course,

13 reconstitute it for that purpose.

14 The only thing that is outstanding from the

15 previous one is this troublesome matter of the

16 exculpatory material, Rule 68. Ms. Kuo has been

17 telling me how valiantly the Prosecution has been

18 searching for this material each time. I think the

19 time has come when we have some sort of a time limit on

20 it.

21 THE INTERPRETER: Microphone for counsel,

22 please.

23 MR. RYNEVELD: Your Honour, having recently

24 taken over conduct of this matter, I'm going to ask my

25 colleague, Ms. Kuo, to deal with the issue of the

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1 exculpatory material. I understand that a number of

2 materials have, in fact, been gathered, but I will let

3 Ms. Kuo elaborate upon that to satisfy the Court's

4 enquiry.

5 JUDGE HUNT: Thank you.

6 Yes, Ms. Kuo.

7 MS. KUO: Yes, Your Honour. We anticipate

8 that within two month's time, we should have the

9 exculpatory materials. We should be able to go through

10 the materials we currently have and turn over any

11 exculpatory materials.

12 JUDGE HUNT: It's anything within your

13 possession or within your knowledge, which would

14 include material not only within your possession but

15 material you know about.

16 MS. KUO: Yes, I understand that as well.

17 JUDGE HUNT: There had been a number of

18 problems in trials recently with the compliance with

19 this Rule, and I think that the time has come where we

20 have to put some form of additional onus on the

21 Prosecution.

22 What I had in mind would be like an affidavit

23 of discovery, which those of us who are familiar with

24 the common law system would be very aware of. Perhaps

25 the case manager should be able to take the

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1 responsibility for saying that there has been a

2 complete search of all that material.

3 I think there has come, myself, a time for

4 this sort of procedure to be followed.

5 MS. KUO: We would certainly be able to

6 comply with that, Your Honour.

7 JUDGE HUNT: Two months, you say?

8 MS. KUO: Yes.

9 JUDGE HUNT: That's a Sunday. I think if we

10 make it Monday, the 15th of November, would that be all

11 right?

12 MS. KUO: That's agreeable, Your Honour.

13 JUDGE HUNT: All right.

14 I'm sorry. Is there anything you want to say

15 about this, Mr. Vasic? It's all in your favour, I

16 would think, what I'm proposing, or in your client's

17 favour, should I say. Is there anything you want to

18 say about it?

19 MR. VASIC: [Interpretation] Thank you very

20 much, Your Honour.

21 We understand that this is favourable to the

22 Defence, and the more comprehensive material we

23 receive, the better we will be able to prepare our

24 defence. We are now expecting the materials from the

25 Prosecution. I was even told that today I would be

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1 receiving further supporting materials. Based on what

2 we receive, we will proceed as needed. The Defence

3 will submit all the preliminary motions in as short a

4 period of time as possible.

5 As my client has pointed out, 15 months

6 later, we have a further initial appearance, so we are

7 at the starting point, but I want to thank Your Honour

8 for considering the interests of the Defence in this

9 case.

10 JUDGE HUNT: I know it's of no comfort to

11 your client when I say this, but his trial is not in

12 any way delayed by the need for the Prosecution to

13 re-plead the indictment and for your client to

14 re-plead. He is still the next trial but one in Trial

15 Chamber II, but hopefully we'll have some better news

16 for him about when his trial is due to start by the end

17 of the year.

18 I propose to make these orders. I'll hear

19 what you want to say about the terms of them after I

20 have set them out, and I'll make the order in these

21 terms if there is no objection taken to them.

22 "1. The prosecution is to comply, on or before

23 the 15th of November, with its obligation

24 pursuant to Rule 68 of the Rules of Procedure

25 and Evidence to disclose to the defence the

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1 existence of evidence known to it:

2 (a) which may in any way tend to suggest

3 the innocence of, or to mitigate the

4 guilt of, the accused, or

5 (b) which may affect the credibility of

6 the prosecution evidence.

7 The expression 'evidence' is intended to

8 include any material which may put the

9 accused on notice that material exists which

10 may assist him in his defence, and it is not

11 limited to material which is itself

12 admissible in evidence.

13 2. On or before that date, the prosecution is to

14 file an affidavit of its case manager for

15 this case, sworn in accordance with the law

16 and procedure of the State in which such

17 affidavit is signed, in which he or she

18 testifies:

19 (a) that a full search has been conducted

20 throughout the materials in the possession of

21 the prosecution or otherwise within its

22 knowledge for the existence of such evidence;

23 and

24 (b) that he or she is aware of the continuing

25 nature of the obligation pursuant to

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1 Rule 68."

2 Is there anything you want to say about those

3 terms?

4 Yes, Ms. Kuo.

5 MS. KUO: Your Honour, the only thing is

6 whether it needs to be the case manager. Our analyst

7 on the team is the one that's been most intimately

8 involved in this, and would it be more appropriate,

9 perhaps, for that person to sign an affidavit?

10 JUDGE HUNT: Yes. I had suggested the case

11 manager earlier only because I thought he or she, as

12 the case may be, at any particular time would have the

13 best knowledge. The analyst is what, a legal officer?

14 MS. KUO: I'm not sure exactly the technical

15 status, but it's the person who has been working -- she

16 has a law degree.

17 JUDGE HUNT: Is she employed as a P-2, or

18 whatever, that's what I'm really after, as a legal

19 officer?

20 MS. KUO: I believe so. I don't know the

21 exact -- I know it's a professional level, but I don't

22 know the exact title.

23 JUDGE HUNT: "Professional level" will do.

24 The analyst; all right. Is that a sufficient

25 description of the position, "analyst"? Analyst for

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1 this case?

2 MS. KUO: Yes, Your Honour.

3 JUDGE HUNT: Well, by substituting the word

4 "analyst" for "case manager," I make orders in those

5 terms.

6 Is there anything else that either party

7 wants to raise?

8 MR. RYNEVELD: If I may, if it please Your

9 Honour --

10 JUDGE HUNT: Yes, Mr. Ryneveld.

11 MR. RYNEVELD: The manner of swearing of the

12 affidavit requires clarification, of course --

13 JUDGE HUNT: I follow the terms of the

14 Rules.


16 JUDGE HUNT: There is a rule relating to

17 affidavits, and that is the terms.

18 MR. RYNEVELD: Fine.

19 JUDGE HUNT: So if it's signed here in the

20 Netherlands, then somebody will have to find out how

21 you swear an affidavit in the Netherlands.

22 MR. RYNEVELD: Thank you. The second issue,

23 of course, is that my understanding is that the

24 obligation for providing exculpatory material is an

25 ongoing obligation, and I take it that if, as of the

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1 15th of November, the affidavit indicates that all of

2 the information then known to the Prosecution would be

3 captured in that affidavit, if, of course, additional

4 information became available thereafter, we would be on

5 a continuing obligation to provide that to the Defence

6 as quickly as it became known to us. Certainly there

7 is a rule there as well.


9 MR. RYNEVELD: I just want to make absolutely

10 sure that we understand that our obligation is an

11 ongoing obligation and that the affidavit simply

12 captures the information known to the Prosecution up to

13 the date of the swearing of the affidavit.

14 JUDGE HUNT: That's so, but there is an

15 ongoing obligation to disclose anything else that comes

16 to the knowledge or into the possession of the

17 Prosecution.

18 MR. RYNEVELD: Absolutely, Your Honour.

19 That's the point.

20 JUDGE HUNT: And it continues right up to the

21 judgement.

22 MR. RYNEVELD: And perhaps, arguably, even

23 thereafter.

24 JUDGE HUNT: Oh, dear, yes, I suppose it

25 does, yes.

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1 MR. RYNEVELD: Thank you, Your Honour.

2 JUDGE HUNT: But thank you for that.

3 Is there anything that you want to raise,

4 Mr. Vasic?

5 MR. VASIC: No, thank you, Your Honour. I

6 believe that this deadline of two months, since we have

7 a new lead Prosecutor, is a necessary one, and we

8 believe that we will receive all the pertinent

9 materials within that period of time that we are

10 supposed to be getting from the Prosecution.

11 Thank you.

12 JUDGE HUNT: Thank you very much.

13 All right. If there is nothing else, I'll

14 note that this has been a Status Conference and that

15 the time limit imposed by the Rules for the next Status

16 Conference will run from today.

17 I'm grateful to counsel and to the parties

18 generally for their assistance, and I'll adjourn.

19 --- Whereupon the hearing adjourned at

20 10.20 a.m. sine die