Tribunal Criminal Tribunal for the Former Yugoslavia

Page 185

1 Monday, 15th November, 1999

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 4.30 p.m.

5 JUDGE MUMBA: Registrar, please call the

6 case.

7 THE REGISTRAR: [Interpretation] This is case

8 number IT-96-23/PT, the Prosecutor versus Dragoljub

9 Kunarac and Radomir Kovac.

10 JUDGE MUMBA: May I have the appearances of

11 the parties.

12 MR. RYNEVELD: If it please the Court. The

13 Prosecution is represented today by myself, senior

14 trial attorney, along with my colleagues, Peggy Kuo and

15 Hildegard Uertz-Retzlaff, and our case manager as well,

16 George Huber.

17 JUDGE MUMBA: Thank you. And the Defence for

18 Mr. Kunarac?

19 MR. PRODANOVIC: [Interpretation] Your Honour,

20 I am Slavica Prodanovic, Defence counsel for the

21 accused Dragoljub Kunarac, and I have my assistant,

22 Mara Pilipovic, a lawyer from Belgrade, with me.

23 JUDGE MUMBA: Defence counsel for Mr. Kovac.

24 MR. KOLESAR: [Interpretation] Your Honour, I

25 am Defence counsel, Momir Kolesar, for the accused

Page 186

1 Radomir Kovac.

2 JUDGE MUMBA: Thank you. I would like to

3 find out from the accused whether they can understand

4 the proceedings.

5 Mr. Kunarac first. Do you understand?

6 THE ACCUSED KUNARAC: [Interpretation] Yes,

7 Your Honour. I do understand and can follow you.

8 JUDGE MUMBA: Thank you.

9 Mr. Kovac?

10 THE ACCUSED KOVAC: [Interpretation] I

11 understand you.

12 JUDGE MUMBA: Thank you.

13 This Status Conference is held to go through

14 a checklist on what been done so far by both parties as

15 we proceed towards the trial date.

16 First of all, Mr. Prodanovic, I would like to

17 find out -- I have information that you now have an

18 investigator or two investigators. I would like to

19 find out from you -- and also a legal assistant.

20 MR. PRODANOVIC: [Interpretation] Your Honour, I

21 received, as assistants, one investigator and a legal

22 representative as well. I still have not been assigned

23 a second investigator.

24 JUDGE MUMBA: I want to find out whether you

25 had asked for a second investigator.

Page 187

1 MR. PRODANOVIC: [Interpretation] Yes, Your

2 Honour.

3 JUDGE MUMBA: When was the request made?

4 MR. PRODANOVIC: [Interpretation] The request was

5 made sometime at the end of last month. I can't tell

6 you the exact date because I haven't got the fax with

7 me.

8 JUDGE MUMBA: So you're saying you have only

9 one investigator and one legal advisor and a legal

10 assistant.

11 MR. PRODANOVIC: [Interpretation] Yes, Your

12 Honour.

13 JUDGE MUMBA: Thank you, Mr. Prodanovic, unless

14 you have something else to say on this.

15 MR. PRODANOVIC: [Interpretation] Not for now,

16 Your Honour. Thank you.

17 JUDGE MUMBA: I just want to inform the

18 parties that the Trial Chamber's schedules have

19 improved, and this trial is now set for commencement on

20 the 1st of February, which is a Tuesday, the year 2000,

21 at 10.00.

22 In view of this date, I would expect the

23 parties to expedite whatever steps are remaining

24 towards this date so that we can start on the scheduled

25 date.

Page 188

1 The first thing I would like to say to the

2 Prosecution is that, in view of the date as having been

3 given, and also in view of the millennium holidays, I

4 wish to order the Prosecutor to serve the Defence, both

5 Defence counsel, with unredacted statements of the

6 witnesses no later than the 20th of December, 1999 so

7 that the Defence have sufficient time, in view of the

8 holidays, to make their preparations for their defence

9 case.

10 I am informed, and I would like confirmation

11 from the Prosecution, that following our order to have

12 the indictment amended following the motion on the form

13 of the indictment by the accused Mr. Kovac, the process

14 is not yet through.

15 MR. RYNEVELD: That's my understanding as

16 well. We did file almost immediately, and we're

17 awaiting the pleasure of the --

18 JUDGE MUMBA: The Confirming Judge.


20 JUDGE MUMBA: Thank you. I would also like

21 to find out from the Prosecution when and if they are

22 going to file an updated pre-trial brief which would

23 address both accused.

24 MR. RYNEVELD: Yes. We, of course, take the

25 view that we must wait until a confirmed amended

Page 189

1 indictment is, in fact, in hand, but upon receipt of

2 that, we believe we would be in a position to file an

3 amended indictment fairly quickly thereafter -- I'm

4 sorry, the pre-trial brief immediately thereafter.

5 JUDGE MUMBA: Because in this pre-trial

6 brief, the Trial Chamber is interested in finding out

7 or is interested in seeing that there are clearly

8 defined lines between the offences as charged -- rape,

9 outrages upon personal dignity, and enslavement -- so

10 that it is clearly stated in that pre-trial brief

11 whether it is the same type of activities, the details

12 which are serving in either of these charges, or they

13 are different actions alleged on the part of either

14 accused, so that the accused can be clear as to what

15 type of conduct is being indicted under which charge.

16 If the pre-trial brief can make those

17 distinctions very clear, the Trial Chamber would be

18 very grateful. It will be much easier to go through

19 with the trial.

20 MR. RYNEVELD: We will certainly attempt to

21 address those issues, Your Honour.

22 JUDGE MUMBA: I think the next point is to

23 find out from all parties as to whether there have been

24 any agreements at all on matters of law or on facts,

25 according to the indictment.

Page 190

1 MR. RYNEVELD: I can advise that we have met

2 again today in an attempt to deal with a list of

3 proposed stipulations that the Prosecution has

4 provided, and we have made a modicum of headway in that

5 respect. We hope that in the not-too-distant future we

6 will be able to progress even further. There are, of

7 course, some matters that the Defence required some

8 further time, as I understand it -- I'll let them speak

9 for themselves -- but we have agreed to summarise the

10 matters, and there are others that they need more time

11 before they can conclusively agree to.

12 JUDGE MUMBA: Thank you.

13 Mr. Prodanovic, is that the state of

14 affairs?

15 MR. PRODANOVIC: [Interpretation] Yes, Your

16 Honour. We received this late, that is to say, the

17 proposals, and will have to deliberate so that -- and,

18 in fact, I was not able to check out some things in

19 Foca, but we're not going to contest most of it.

20 Perhaps there are just two or three issues that we're

21 not going to agree upon, but we have allowed for this

22 possibility because we gave all material, the

23 documents, to the Prosecution with regard to command

24 responsibility and so on, and perhaps we can take a

25 step further sometime in December.

Page 191

1 Thank you, Your Honour.

2 JUDGE MUMBA: Thank you very much.

3 Mr. Kolesar.

4 MR. KOLESAR: [Interpretation] Your Honour, it

5 is correct that we had a meeting today with the

6 Prosecution and that most of the things are not

7 contested by us. I understood you to mean that it was

8 the intention of the Trial Chamber to have a hearing

9 called for the 1st of February, at 10.00, in the year

10 2000. Let me say straightaway that some facts -- I

11 have to give my opinion on some facts.

12 Since the very beginning, I have said that I

13 always wished to have cooperation and good

14 collaboration, but I do insist that my defendant be

15 allowed a fair and just trial. These proceedings have

16 been going on for some time now, that is to say, the

17 pre-trial proceedings, and Mr. Kunarac and myself have

18 just entered upon this area.

19 The Defence, unfortunately, would like to

20 indicate that after the last Status Conference held,

21 the Prosecution has supplied us with very extensive

22 documentation. They did so last time and they did so

23 today. We have received 14 videocassettes and five

24 files of subject matter, mostly in the English

25 language, and four files of these five are the findings

Page 192

1 by Dr. Gow in the trial of Dusko Tadic, Zejnil Delalic,

2 and the others, and this is all in English, which means

3 that we're going to have it translated, and, as the

4 Prosecution has told us, this expert will be used in

5 this trial as well, his testimony.

6 So I am almost certain that physically we

7 won't be able to have this translated, which means we

8 won't be able to study it and to devise our strategy,

9 together with the defendants, and I don't think this

10 could be done by the 1st of February.

11 As far as our work is concerned, hand in hand

12 with the work we're going to have to do to study all

13 the new documents, we're still studying the one we were

14 supplied with the last time, after the last Status

15 Conference. I went to Foca, I went to Novi Pazar to

16 check out certain data, and I have worked with the

17 investigator as well.

18 With the Defence of Mr. Kunarac, let me say

19 that, in agreement with the Prosecution, I just

20 received documents with regard to the facts that are

21 contested and are not contested. I haven't received

22 any other documents. I'm not sure that the documents

23 sent me is binding enough.

24 In my motion of the 20th of October, I asked

25 the Trial Chamber at today's Status Conference to

Page 193

1 permit the Kunarac Defence and Kovac Defence to be

2 given a free reign in exchanging material and evidence

3 that we have. This would enable our work a great

4 deal.

5 In light of all these facts, I am afraid that

6 the 1st of February is not enough time, that this

7 deadline is too soon for us to be able to prepare our

8 case properly.

9 Thank you, Your Honour.

10 JUDGE MUMBA: I note your concerns,

11 Mr. Kolesar, but if you look at the indictment,

12 Mr. Kovac has got four counts which you have to deal

13 with, for which you have to prepare the defence.

14 I want to confirm with the Prosecutor that

15 the documents supplied are not translated into

16 Serbo-Croat. Because what I want to point out is that

17 these documents are for the accused, not the Defence

18 counsel, so the fact that the accused can only

19 understand Serbo-Croat is crucial here.

20 MR. RYNEVELD: Excuse me one moment.

21 We were of the impression that Rule 68

22 material is not material that needs to be translated

23 into B/C/S. Perhaps I'm wrong about that, but that is

24 the nature of what this material, of course, is.

25 I don't mean to be picky, but my

Page 194

1 understanding as well is that under Article 14, in most

2 cases, it is preferable, if not mandatory -- it may

3 even be mandatory that Defence counsel speak at least

4 one of the two official languages of the Court. Now, I

5 understand that my learned friends have a difficulty in

6 that respect; however, the Rule is there, I believe,

7 perhaps to obviate this exact problem that we're now

8 encountering.

9 Dr. Gow has testified in at least four

10 matters, and the translations are done into English and

11 French, which are the official languages. My

12 understanding is that those documents are not

13 transcribed into B/C/S. Therefore, we are not in a

14 position to provide them. However, there may be tapes

15 available, I don't know, there may be some other means

16 whereby we can accomplish the same objective. But I

17 just thought I'd point that out.

18 JUDGE MUMBA: Okay. They are materials under

19 Rule 68, which, as you rightly pointed out, there is no

20 obligation to translate them, as long as they are in

21 one of the official languages of the Tribunal.

22 Mr. Kolesar, you understand that?

23 MR. KOLESAR: [Interpretation] Your Honour, I

24 do understand that. I'm just pointing out that we need

25 a certain amount of time for the translation, physical

Page 195

1 time.

2 JUDGE MUMBA: But I would urge you to work as

3 hard as possible, as quickly as possible, because you

4 have the rest of this month, also after the amended

5 indictment is served, and then have you most of

6 December and all of January to prepare your defence.

7 The next item is authenticity of exhibits,

8 first by the Prosecution. It saves a lot of time

9 during the trial if documents that are required as

10 exhibits by the Prosecution are discussed with the

11 other parties and issues of authenticity are cleared,

12 so that we don't have to call witnesses to produce any

13 of the documents during the trial. But I would like

14 such documents, if it is agreed upon by the parties, to

15 be produced during the trial so that they are part of

16 the public record.

17 So I would like to find out how far this

18 preparation has gone.

19 MR. RYNEVELD: We have discussed these

20 matters with Mr. Prodanovic, on behalf of Mr. Kunarac;

21 however, we have not yet had an opportunity of so doing

22 with Mr. Kolesar for Mr. Kovac, at least that's my

23 understanding.

24 Needless to say, we are as anxious as the

25 Court is to make this matter as efficient as possible.

Page 196

1 We will comply with that in any way we possibly can.

2 We cannot, of course, anticipate if matters might come

3 up in cross-examination, but certainly we will do

4 whatever we can in comparing documents, showing them,

5 and making sure that whatever exhibits are entered will

6 not be shown for the first time.

7 JUDGE MUMBA: Yes. Also, the Defence

8 counsel, once the intended exhibits are shown to them,

9 it's better to indicate whether or not they will

10 contest authenticity because this saves a lot of time

11 in terms of calling witness to prove the documents, as

12 well as produce them.

13 Any comments, Mr. Prodanovic?

14 MR. PRODANOVIC: [Interpretation] Yes, Your

15 Honour. We had a discussion, I believe, in February

16 this year, and we are not going to contest the

17 authenticity of this evidence. Of course, we are going

18 to contest the substance but not the authenticity of

19 the documents concerned.

20 JUDGE MUMBA: Thank you very much.

21 Mr. Kolesar, any comment on that?

22 MR. KOLESAR: [Interpretation] I haven't

23 studied all the documents yet, so I cannot really state

24 my precise views on their authenticity or anything

25 else. So I ask for your understanding with regard to

Page 197

1 that matter.

2 JUDGE MUMBA: Thank you.

3 The next item is expert witnesses. We note

4 that Ms. Cleiren's statement has been filed.

5 Dr. Gow's, I think, is one of the documents you are

6 still exchanging, isn't it?

7 MR. RYNEVELD: It is, Your Honour, yes.

8 There is also 94 bis for Dr. Rath.

9 JUDGE MUMBA: For Dr. Rath, yes. So you are

10 not yet through with deciding which expert witnesses

11 you are calling.

12 MR. RYNEVELD: We have proposed a witness

13 list, and we are pretty well -- there are a few

14 minor -- of course, until you have a certain trial

15 date, it's sometimes difficult to know exactly which

16 witness for sure may be available. But we certainly

17 have an indication in what areas we want the expertise,

18 Dr. Rath, Dr. Cleiren, Dr. Gow, and a military expert.

19 But my friends have just provided us with some material

20 today, about half an hour ago, and we will have to see

21 whether or not further military experts are necessary

22 on behalf of the Prosecution.

23 JUDGE MUMBA: All right. Thank you.

24 Just as a routine matter, I know that for

25 Mr. Prodanovic, no special defence has been indicated,

Page 198

1 so I take it that we shall have general defences.

2 For Mr. Kolesar, I would just like to confirm

3 that. Is there any defence of alibi or special defence

4 being proposed?

5 MR. KOLESAR: [Interpretation] Your Honour,

6 again, I'm going back to what I said: We haven't

7 studied the entire material, and exercising all

8 possible caution, I would like to say that most

9 probably we are not going to contest anything.

10 JUDGE MUMBA: No. I'm talking about putting

11 up a special defence in terms of Rule 67(A), alibi, or

12 any other special defence which must be notified to the

13 Prosecution at the earliest time possible.

14 MR. KOLESAR: [Interpretation] No.

15 JUDGE MUMBA: Thank you.

16 MR. KOLESAR: [Interpretation] No. No.

17 JUDGE MUMBA: You did raise, Mr. Kolesar, I

18 think, a query that you would like to have freedom of

19 exchanging materials between yourself and

20 Mr. Prodanovic, whatever materials Mr. Prodanovic has

21 and whatever materials you have. There's no need for

22 you to come to the Chamber for that. These are matters

23 that the two Defence counsel can discuss and agree upon

24 themselves, depending upon the strategies of your

25 defence.

Page 199

1 MR. KOLESAR: [Interpretation] Your Honour,

2 that's exactly what I wished to hear, and I want to

3 have it in the transcript so that there wouldn't be any

4 embarrassment either for myself or for my colleague,

5 Mr. Prodanovic, in the future. I thank you.

6 JUDGE MUMBA: Mr. Prodanovic, I'm sure you

7 agree to this, that you can exchange whatever documents

8 you wish to exchange between the two of you and that

9 there's no need to come to the Chamber.

10 MR. PRODANOVIC: [Interpretation] Yes, Your

11 Honour, we agree that there is no need to have a

12 special decision. It is important to have this noted

13 in the transcript. We are going to make available all

14 the documents that we have upon our return to

15 Yugoslavia.

16 JUDGE MUMBA: Thank you very much.

17 I just want to remind the parties of the

18 continuing observations under Rule 67(D), and also 68,

19 for the Prosecutor.

20 As for the protective measures, that was done

21 the last time.

22 I just want to know from the Defence counsel,

23 firstly for Mr. Kunarac, whether everything is okay.

24 Any other comments, Mr. Prodanovic?

25 MR. PRODANOVIC: [Interpretation] Your Honour,

Page 200

1 for the time being, none whatsoever.

2 JUDGE MUMBA: Thank you.

3 Mr. Kolesar, apart from what you've informed

4 the Trial Chamber about the documents and the speed at

5 which you think you will prepare your defence case, any

6 other matters you wish to draw to the attention of the

7 Trial Chamber?

8 MR. KOLESAR: [Interpretation] No, Your

9 Honour.

10 JUDGE MUMBA: Thank you. The Prosecutor, any

11 other matters you wish to raise at this stage?

12 MR. RYNEVELD: Yes, Your Honour, there is

13 just one, perhaps more along the lines of a

14 housekeeping matter.

15 My understanding is is that there is

16 presently a binding order for us to file documents by

17 the 17th of November. In light of the fact that we are

18 still awaiting confirmation of our ordered amended

19 indictment, we cannot comply with that, unless, of

20 course, there's a miracle between now and the 17th of

21 November. That's my dilemma, and I wonder whether

22 perhaps the Court might consider an oral motion at this

23 point to extend that binding date to await the pleasure

24 of the Confirming Judge.

25 JUDGE MUMBA: Yes. I think what the Trial

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14 English and French transcripts












Page 202

1 Chamber can do is to vary the deadline by simply saying

2 that within four days of confirmation by the Confirming

3 Judge, the amended indictment should be served.

4 MR. RYNEVELD: That would be excellent.

5 Thank you. I take it that is your order, then.

6 JUDGE MUMBA: Yes, that is the order of the

7 Trial Chamber. Within four days after confirmation by

8 the Confirming Judge.

9 MR. RYNEVELD: Thank you, Your Honour.

10 JUDGE MUMBA: Any other matters, Madam

11 Registrar?

12 THE REGISTRAR: [Interpretation] Nothing else,

13 Your Honour.

14 JUDGE MUMBA: Thank you very much. I think

15 we have come to the end of our Status Conference.

16 I would again appeal to the parties to work

17 very hard so that we can make the trial date early next

18 year. The Trial Chamber has other cases which are in

19 the pre-trial stage, and if we are not started, we may

20 have to start another trial. As you know, there are

21 other accused persons in detention whose cases are

22 awaiting trial by the same Trial Chamber. So I would

23 hope that we would try to work much faster so that we

24 can start the trial as early as possible.

25 With those few words, thank you very much,

Page 203

1 and the Status Conference stands adjourned.

2 --- Whereupon the Status Conference

3 adjourned at 4.56 p.m. sine die