Tribunal Criminal Tribunal for the Former Yugoslavia

Page 70

1 Wednesday, 19 March 2003

2 [Status Conference]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 2.32 p.m.

6 JUDGE HUNT: Call the case, please.

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

8 IT-98-33-A, the Prosecutor versus Radislav Krstic.

9 JUDGE HUNT: Appearances. For the Prosecution.

10 MR. STAKER: May it please Your Honour, my name is Christopher

11 Staker, I appear for the Prosecution with my colleague Mr. Xavier Tracol,

12 and our case manager is Ms. Nicola Bonfield.

13 JUDGE HUNT: Thank you. And for General Krstic.

14 MR. PETRUSIC: [No interpretation]

15 JUDGE HUNT: Thank you. This is a Status Conference called in

16 accordance with Rule 65 bis. Is there anything which the Prosecution

17 wishes to raise?

18 MR. STAKER: No, Your Honour. A status report was filed earlier

19 this week, which sets out the current position.

20 JUDGE HUNT: Yes. I'm very grateful for that. It is a helpful

21 document.

22 Anything that the Defence wishes to raise?

23 MR. SEPENUK: Norman Sepenuk, Your Honour. Just very briefly on

24 General Krstic's medical condition. I'm sure Your Honour is aware that he

25 had his leg amputated below the knee. He's had several surgeries, the

Page 71

1 last of which was in February 2001. Since that time he's had great

2 difficulties with his leg, considerable pain, an infection in the area of

3 the amputation. General Krstic would like, if possible, to have the

4 surgeon who performed the February 2001 surgery come and see him. He has

5 never -- the surgeon has never visited him since the surgery. I did call

6 the detention centre this morning. Mr. McFadden wasn't there. I spoke to

7 his assistant and he told me that General Krstic should speak to Dr.

8 Falke, I believe it is, who might arrange for the visit of the surgeon. I

9 left my name and number with the detention centre to pass along to Dr.

10 Falke. This is not by way of any kind of complaint, Your Honour. I think

11 General Krstic is generally pleased with the treatment he's received at

12 the detention centre but his medical condition, particularly more

13 recently, has deteriorated and he is undergoing a considerable amount of

14 pain, and hopefully something can be done about that.

15 JUDGE HUNT: Mr. Sepenuk, this was raised at the previous Status

16 Conference. Mr. Petrusic said it was matter they were going to raise with

17 the Registry. Now, you may or may not be aware, but there's a particular

18 procedure laid down in relation to the Detention Unit that you have to

19 deal first of all with the superintendent or whatever title Mr. McFadden

20 has, and then if you aren't satisfied with that, then you make a complaint

21 to the president. But one thing the Chamber has no control over are

22 matters within the Detention Unit.

23 I don't know whether the doctor you refer to is the Dutch doctor

24 who, like so many Dutch doctors, believes the body will heal itself, but

25 it would be unfortunate if your client is having an infection and nothing

Page 72

1 is being done about it. But I really can't say any more than that you

2 will just have to take the matter up with the superintendent, and if he is

3 not able to assist you, then you have to make a complaint to the

4 president.

5 I hope, though, that if only for the selfish reason that we don't

6 want the general to be in the hospital at the time we're hearing the

7 appeal, that something is done about it pretty soon.

8 MR. SEPENUK: Thank you, Your Honour. And we'll follow through

9 with the detention centre.

10 JUDGE HUNT: I should add I had not asked General Krstic whether

11 he could hear the proceedings in a language which he understood, because

12 every time I asked him that, he stands up and I don't want him to have to

13 go through that rather painful process, but I'm sure he can hear it, so

14 that's all right.

15 There's a question that arises about the Rule 115 material. There

16 are a number of questions which arise about it. Since you filed your

17 previous application and the addendum, there's been further material

18 disclosed to you by the Prosecution, so the status report discloses to us.

19 Do you propose to file a further application under Rule 115?

20 MR. SEPENUK: We're not sure, Your Honour. We're trying to

21 interview one further witness that hasn't been mentioned in our previous

22 submissions who may be added to our Rule 115 list, but we're trying to

23 interview that person very shortly, and the Prosecution has been very

24 helpful in arranging that, and as soon as -- and that should take place, I

25 would say, certainly within the next week. Mr. Petrusic? Yes. Sometime

Page 73

1 within the next week or so. Hopefully within the next week. Two weeks at

2 the most. And then we'll know at that time whether we'll be adding him to

3 our list or not.

4 JUDGE HUNT: In your previous material, you said there were four

5 witnesses. This is a fifth one, is it?

6 MR. SEPENUK: This would be a fifth one, yes.

7 JUDGE HUNT: And have you got any further problems about the four

8 that -- you were having some problems about finding them.

9 MR. SEPENUK: There are two witnesses. One is what we call

10 Mr. Mercenary. That's the supplemental motion which we filed. I believe

11 it was on January 10th, and it was a statement we had -- actually a little

12 bit later than that, but we received the statement on January the 10th.

13 This is a gentleman, again we don't know his name yet, but we call him

14 Mr. Mercenary, and again the Prosecution has been very helpful in helping

15 us to arrange an interview.

16 The other person, Mr. Mimunovic, we have real problems there. We

17 have now sent Mr. Amir Ahmic, the Bosnian liaison officer for the

18 Prosecution, two letters requesting Mr. Mimunovic to talk to us, and we've

19 given him written questions. He does not want to talk to us, and so we

20 will eventually, probably quite soon, try to -- try to get the help of the

21 Court in doing that.

22 There's also a gentleman named Galic who also refuses to talk to

23 Mr. Petrusic, and we may need the assistance of the Court in arranging for

24 him to talk to us.

25 JUDGE HUNT: Well, you understand, as the Prosecution has pointed

Page 74

1 out in relation to some of the existing witnesses, that it's no good just

2 standing there -- standing back and saying, "They won't talk to us." You

3 do have to demonstrate that you have attempted to follow all of the

4 procedures there are available to you. Whether those procedures will

5 assist in the end doesn't matter, you've got to try. For example,

6 subpoenas and things like that.

7 There is a very real problem, as you yourself have pointed out in

8 your replies, that many of the processes which are available to the -- to

9 an accused require you to demonstrate that the witness will be able to

10 give evidence which assists your case. That's a fair point, but I'm not

11 sure that every one of the procedures that are available would do so. I

12 don't want you to sit back on that point and just do nothing. If you come

13 along and you seek to have a subpoena issued because you have credible

14 material which demonstrates this witness will assist you, not just on a

15 fishing expedition but that you've got something that you really think

16 that he can say, I would have thought that would have been sufficient

17 under Rule 54 to get some sort of an order that he attend.

18 Now, he may not comply with it, of course, but you really do have

19 to do more than just say, "Well, they won't talk to us."

20 MR. SEPENUK: Your Honour, I think we have laid the foundation

21 out, particularly with Mr. Mimunovic, by sending two letters, not getting

22 any answers, and our view is now to proceed with subpoena. The

23 difficulty, though, and it may be just my own ignorance of procedures,

24 although I must say I've asked around quite a bit amongst my brethren in

25 the Defence bar at least, and they -- you can't subpoena someone, as I

Page 75












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 76

1 understand it, to your office, for example. You must subpoena that person

2 to the court. And if the person continues to refuse to speak to us, if he

3 simply shows up in court cold, it would be very difficult indeed, and I

4 would say unwise in the extreme for Mr. Petrusic and I to start

5 questioning in front of Your Honour and the other Appeals Court Judges.

6 JUDGE HUNT: Nobody would expect you to do that. Taking

7 depositions, I think you call it in the United States, a procedure whereby

8 you can go along and ask anybody anything in someone's office certainly is

9 not available here. Nevertheless, if you get him here, the witness will -

10 assume that they turn up - will be asked by the Judge why he won't assist.

11 You can get some assistance, even if it's of a psychological nature, as to

12 why the witness won't cooperate. And it may go so far as establishing

13 beyond any doubt that he won't cooperate.

14 That's the sort of thing that you've just got to try. Try

15 everything. It's no good standing back.

16 MR. SEPENUK: Your Honour, on the deposition point, if I may,

17 you're saying that it's clearly not available? Because that was one of --

18 the Prosecution, in its response brief, said that that was also an

19 available procedure under Rule 71.

20 JUDGE HUNT: Rule 71, depositions, where the evidence is taken,

21 not that they come along and just be asked any question in some sort of

22 private sphere that nobody else gets to know about.

23 MR. SEPENUK: Right. I would be willing -- on the deposition

24 point, we're perfectly happy to have the government present when we

25 interview this person. We simply want to know what he has to say. We

Page 77

1 don't particularly care about doing this ex parte. We would be happy, if

2 it would help, to have the government present at an interview or at a

3 deposition. We have no problem with that.

4 JUDGE HUNT: Your word deposition, like so many words in the

5 English language, differs from what we understand it to mean. Your

6 deposition is something which you just go along to find out what the

7 witness is going to say. Our deposition is where the evidence which is

8 actually tendered in the trial is taken, and it's usually because the

9 witness can't come here because of illness or some disability. And that's

10 a very different thing. The Rule 71 to which the Prosecution refers is

11 certainly not what you're after.

12 And indeed, the Prosecution is going to have a hard time

13 persuading me, at least, that Rule 71 has got anything to do with it,

14 unless the witness merely says, "I do not want to come to The Hague

15 because I fear flying or I fear being arrested and safe conduct

16 won't suffice so far as I'm concerned." Then there may be a case for

17 taking his evidence - and that means the evidence that's going to be

18 tendered at the trial - back in Yugoslavia somewhere, if I may so refer to

19 the country as such.

20 So you shouldn't get confused over this word "deposition."

21 MR. SEPENUK: Your Honour, we will -- our intention now is to

22 follow up on what Your Honour has said and try to get the assistance of

23 the Court with a subpoena. Again, the necessity thing is what has been

24 the hurdle for us, showing necessity when the person won't even talk to

25 us, but we will proceed in that way, and perhaps when a subpoena is served

Page 78

1 he might change his mind and agree to talk to us.

2 JUDGE HUNT: He may. But you see, Rule 54 is not limited in the

3 way in which I think you are reading it.

4 54 says: "Necessary for the purposes of an investigation or for

5 the preparation or conduct of the trial."

6 Well, preparation would be, I would think, include finding out

7 what this witness can say. But it would not be appropriate for us to have

8 to sit down and listen while you probe him. We either use some form of

9 moral coercion upon him to talk to you or we have to have it done in some

10 other way. I think we all need to look at this from rather a fresh

11 viewpoint.

12 MR. SEPENUK: I very much appreciate Your Honour's comments, and

13 we will follow up on that.

14 JUDGE HUNT: Now, I think I drew attention to this on the last

15 occasion: Although, according to the Rules, the old Rule 115 applies to

16 these proceedings, which allowed applications to be made up to 15 days

17 before the hearing of the appeal, I want to make it very clear that's not

18 going to apply in this case. We will not fix a date for hearing until the

19 Rule 115 material has been sorted out. And at some stage, perhaps after

20 the first stage of the proceedings when we say what we think is capable of

21 altering the Trial Chamber's decision, we're going to have to find out

22 from you how long you need to do the final preparation for the hearing so

23 we can say, all right, we'll have a hearing in two weeks or three weeks'

24 time, this sort of thing.

25 Now, the Rule 115 material is under way. I must say it hasn't

Page 79

1 been made any easier both by the failure by the Defence to really give us

2 very much assistance as to their due diligence, and also by the

3 Prosecution's usual blanket response in almost the same terms in every

4 case without applying very much consideration to the particular witness or

5 documents that we have to consider, but it is under way and hopefully it

6 will be given -- a decision -- the primary decision will be given

7 reasonably shortly.

8 But quite apart from Rule 115, there is the other issue I raised

9 on the previous occasion and that was your complaint that you were

10 prejudiced by the failure of the Prosecution to comply with Rule 68 during

11 the trial. Now, obviously some of the material that has been produced now

12 is material which you've tendered under Rule 115. So we understand that.

13 We don't have to consider it otherwise but under Rule 115. But there may

14 be cases, and we don't know from anything you've put before us so far,

15 where you are going to complain about the failure to comply with Rule 68

16 because if, it had been complied with, you would have had avenues of

17 investigation disclosed to you or something. Now, we really need to have

18 some better particulars from you as to what you're going to do in relation

19 to Rule 68. Mr. Farrell raised it on the last occasion and I did say to

20 you we wanted to know something about it. We haven't got anything yet.

21 MR. SEPENUK: Your Honour, with the Appeals Chamber's permission,

22 perhaps the way to do it, if you'll let us, is to submit an additional --

23 to put an additional submission on that issue, because what we did is we

24 combined Rule 68 with Rule 115, and there was one portion of our Rule 115

25 motion in which we set out all of what we regard as Rule 68 violations,

Page 80

1 and these were all the pre-judgement interviews. However, in thinking

2 about it, perhaps that's an unfair burden to ask the Court to assume, and

3 I would be very happy -- we would be very happy to file a brief spelling

4 that out. We've just set forth the various Rule 68 violations. We would

5 be happy to spell it out in more detail.

6 JUDGE HUNT: I hope your gestures aren't suggesting that you're

7 going to file a brief about a foot thick.

8 MR. SEPENUK: That's only the Prosecution, Your Honour.

9 JUDGE HUNT: But the -- it would be of assistance, because if we

10 are able to read that sort of material in advance, it will save a great

11 deal of time at the hearing where we may have to pursue the issue with you

12 in more detail. So we would be grateful. I hope it's only an elaboration

13 on what is the particular prejudice in relation to each of the documents

14 which you haven't tendered under Rule 115 but which you say nevertheless

15 there was a breach which caused you prejudice. The mere breach under Rule

16 68 won't get you a new trial or anything like that unless there has been a

17 prejudice to your client's case.

18 Well, I think those are all the matters I want to raise with you,

19 unless there's something else you want to add, Mr. Sepenuk.

20 MR. SEPENUK: No, it's just that we're grateful for the

21 opportunity to make that submission, and I take it Your Honour will at

22 some point, either now or in some written order, tell us how much time we

23 have to do that.

24 JUDGE HUNT: How long do you need to put that document in? I'm

25 hoping it's not going to be very large.

Page 81

1 MR. SEPENUK: No, it's going to be short. My problem is I'm

2 cramped on time a bit in the States and -- can we submit it by the 10th of

3 April?

4 JUDGE HUNT: Yes, certainly. You don't need a formal order for

5 that, do you?

6 MR. SEPENUK: Certainly not.

7 JUDGE HUNT: No. And Mr. Staker, I think when the time arises, we

8 will probably consult your alter ego to see how long he needs to decide

9 how long he needs to reply to it. Mr. Farrell has got now a

10 double-barreled action on this. He wants time to consider before he tells

11 us how long he needs. So we'll worry about that, without any formal

12 orders, at the time.

13 MR. SEPENUK: Excuse me, Your Honour. One modest amendment. Could

14 we make it the 11th of April?

15 JUDGE HUNT: Yes, certainly, 11th of April.

16 But Mr. Staker, there is another problem about 115. We're going

17 to keep on having problems with Rule 115. There is a passage in the

18 Kupreskic judgement to which Mr. Farrell is firmly wedded. It's in

19 paragraph 63, and it talks about applying a relatively low threshold for

20 credibility in admitting additional evidence with the issue of its weight

21 being decided at a later stage.

22 Now, the Rule has been amended, not, if I may say so, terribly

23 well, since the Kupreskic decision, and it now says in Rule 115(B): "If

24 the Appeals Chamber finds that the additional evidence was not available

25 at the trial and is relevant and credible, it will determine if it could

Page 82

1 have been a decisive factor." Now, that's obviously the first stage of

2 the procedure. And that word "credible" seems to be something a little

3 bit -- requires something a little bit more than a relatively low

4 threshold of credibility. And it's interesting to see that in the

5 Kupreskic decision, in paragraph 63, it is introduced by these words:

6 "The most appropriate course it was felt at the time was to apply a

7 relatively low threshold for credibility."

8 Now, in Kupreskic, despite the fact that there were 20-something

9 applications for the admission of additional evidence, they ended up with

10 three pieces, I think it was, and it was a very simple matter for the

11 Appeals Chamber to determine all of that during the course of the hearing

12 of the appeal. But since then, Rule 115 has taken off with a life of its

13 own which nobody could ever have foreseen. And in the Blaskic case, for

14 example, there is a very real possibility there may have to be a new trial

15 ordered because there is no way in which an Appeals Chamber can conduct

16 what might be regarded as a limited form of rehearing upon a small number

17 of pieces of evidence.

18 And it seems to me that this relatively low threshold for

19 credibility is going to have to be looked at again in the context of the

20 way in which the Rule is now written. And it may be that we're going to

21 have to devise some system whereby we don't just exclude from the material

22 tendered by the appellant all of that which was available at the trial,

23 hasn't been -- hasn't led to a miscarriage of justice, and all of those --

24 what might be regarded as easy tests in most circumstances, and then have

25 about 50 witnesses that are going to be cross-examined by the Prosecution

Page 83

1 in order to determine whether it could have been a decisive factor. And

2 I'm hoping that the Prosecution will give some thought, as indeed the

3 Defence, to what is the best possible way of dealing with it. It may be

4 that we could exclude everybody or include -- perhaps that's a better way

5 of putting it: Include everybody about which there is some, on the face

6 of it, prospect of passing the test subject to cross-examination, so we

7 can reduce the number of witnesses who are going to be cross-examined.

8 It's a very large task for the Prosecution to have to be ready to

9 cross-examine everybody who has been put forward in these documents.

10 So would you pass it on to Mr. Farrell, who I know is absent

11 because he's on duty elsewhere, that perhaps in his spare time that he has

12 so much of he would like to give some consideration to this, because at

13 some stage I'm going to ask both parties to make some submissions about

14 it. I don't want you to have to answer now. It's not your case. But I

15 think it's a matter we're going to have to consider to make this more

16 manageable.

17 Indeed, I propose to recommend that we have some reconsideration

18 of the wording of the Rule. It's not going to save us in this case, but

19 it really is not working well.

20 So will you pass that on?

21 MR. STAKER: I will, Your Honour.

22 JUDGE HUNT: Now, is there anything else you want to say?

23 MR. STAKER: No, Your Honour.

24 JUDGE HUNT: Very well. Well, I'm very grateful to the parties.

25 I think that perhaps it might be best from the Defence point of view if

Page 84

1 they do speak to Mr. McFadden rather than just the local Dutch doctor and

2 say that somebody who is suffering from infection so long after an

3 operation is clearly entitled to proper medical assistance. Whether that

4 entails pulling the surgeon out to come out to the Detention Unit or not,

5 I don't know, but it doesn't seem that he's getting proper medical

6 attention if he is still having an infection so long after. And you might

7 like to pass on to Mr. McFadden, who I believe is very helpful on these

8 sorts of things, that we will expect him to come up with some sort of a

9 solution.

10 MR. SEPENUK: Thank you, Your Honour.

11 JUDGE HUNT: Thank you very much. I'm grateful to the parties for

12 their attendance, and I'll now adjourn.

13 --- Whereupon the Status Conference adjourned

14 at 3.00 p.m.