Tribunal Criminal Tribunal for the Former Yugoslavia

Page 23

1 Wednesday, 13 December 2000

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.27 p.m.

6 JUDGE BENNOUNA: [Interpretation] To begin with, could the

7 registrar please call the case.

8 THE REGISTRAR: Case number IT-95-16-A, the Prosecutor versus

9 Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, and

10 Vladimir Santic.

11 JUDGE BENNOUNA: [Interpretation] Very well. Could we now have the

12 appearances, please. We shall begin with the Prosecution.

13 MR. YAPA: May it please Your Honour. I'm Upawansa Yapa,

14 appearing for the Prosecution with Mr. Norman Farrell. Ms. Adele Erasmus

15 is the case manager.

16 JUDGE BENNOUNA: [Interpretation] Thank you.

17 And for the Defence?

18 MR. RADOVIC: [Interpretation] Ranko Radovic for Zoran Kupreskic.

19 MS. SLOKOVIC-GLUMAC: [Interpretation] Good afternoon, Your

20 Honour. Jadranka Slokovic-Glumac for Mirjan Kupreskic.

21 MR. LIVINGSTON: John Livingston for Vlatko Kupreskic.

22 MR. SUSAK: [Interpretation] Luka Susak for Drago Josipovic.

23 MR. PAVKOVIC: [Interpretation] Good afternoon, Your Honour. I'm

24 Petar Pavkovic, appearing here for Vladimir Santic. Thank you.

25 JUDGE BENNOUNA: [Interpretation] Thank you. I should like to

Page 24

1 remind you briefly of the context within which this Status Conference was

2 convened. It was convened on the basis of Article 65 bis of the

3 Statute -- excuse me -- of the Rules. And Rule 65 bis speaks about the

4 appeals -- speaks about the Status Conference, and this text reads:

5 [as interpreted]

6 "The Appeals Chamber or an Appeals Chamber Judge shall convene

7 the Status Conference, within 120 days of the filing of a notice of

8 appeal, to allow any person in custody pending appeal the opportunity to

9 raise issues in relation thereto, including the mental and physical

10 condition of that person."

11 Therefore, in pursuance of this Rule 65 bis and as of the Status

12 Conference matter of the 13th of September, 2000, it was decided to

13 convene this Status Conference within 120 days, indicated above.

14 There are two aspects of this Status Conference. The first one is

15 to hear the representatives of the parties about the procedure which is

16 underway. You will also have the opportunity to raise any matter which

17 you deem of importance at this stage of the proceedings. And second, it

18 is also -- we turn to the detained, that is, the accused who are present

19 here, and they, as the text of the Rule says, can speak about -- they tell

20 us about the mental and physical condition. This question will be asked

21 later on.

22 However, first I should like to remind you that as regards the

23 decision on the admission by the Appeals Chamber of additional evidence,

24 that decision will be taken as soon as the Appeals Chamber receives all

25 the pieces, that is, all the arguments of the parties. And in line with

Page 25

1 this, a decision - you have perhaps already received it, or will receive

2 it today - however, a decision was taken at the request of the -- at the

3 request of four appellants - Zoran Kupreskic, Mirjan Kupreskic, Vlatko

4 Kupreskic, and Drago Josipovic - which allows them additional time to

5 answer. And this supplementary time to reply to the Prosecutor has to do

6 with this question regarding the presentation of evidence. This time has

7 been extended, at the request of the Defence, until the 18th of December,

8 2000. And when we receive the reply of the Defence within the time limit

9 that has been now extended, then the Chamber will consider all the

10 questions and will make its ruling.

11 I believe that for the time being, these last procedural points

12 which I have just mentioned, if you now have -- if the OTP or parties, if

13 they have any questions to raise or draw attention to of the Appeals

14 Chamber, I believe now is the time to do that.

15 MR. LIVINGSTON: Yes. Your Honour, I have to --

16 JUDGE BENNOUNA: [Interpretation] Mr. Livingston.

17 MR. LIVINGSTON: I have one matter which I would like to raise

18 about the timetable and it's this: The Appeals Chamber has very kindly

19 given us until the 18th of this month to file a reply to the Prosecution's

20 response to the Rule 115 motions. We have made, both in our original Rule

21 115 motion and in the draft of the reply which has been prepared, we have

22 asked the Appeals Chamber to allow us an oral hearing on the Rule 115

23 motion in this case. There are really two reasons for that.

24 Firstly, we would hope that any court would feel that it was

25 assisted in terms of focussing on the issues and being able to pose to the

Page 26

1 respective advocates any difficulties that they may have with any of the

2 points that they make. We would hope that any Court would be assisted by

3 an oral hearing in doing that and the whole point, in our submission, of a

4 system such as this is to put in written briefs which will cut the amount

5 of time spent on oral arguments down, but not to do away with the oral

6 process all together.

7 The second point is, and this is really the most important point,

8 but if one reads the appellant's brief which has been filed with the Rule

9 115 motion in Vlatko Kupreskic's case, it is apparent that the additional

10 evidence motion is central to the appellant's brief, and because it is so

11 important to his appeal as a whole -- and if it is just swept aside, for

12 example, on paper without an oral hearing, a very large part of his appeal

13 will be swept aside without any oral hearing at all. In our submission,

14 that is unfair to Vlatko Kupreskic.

15 Even if the Court doesn't think that it is substantially unfair,

16 substantively, I'm sorry, unfair, we would say that it seems to him to be

17 unfair and, in our submission, an appellant is entitled to feel that not

18 only is justice being done but justice is being seen to be done to him in

19 the case of his appeal which he takes very seriously.

20 So I reiterate now that we are asking for an oral hearing. I

21 don't think that would necessarily take that long to deal with, bearing in

22 mind the written briefs that have been put in, but we would not be happy

23 about being shut out of arguing our case before the full Appeals Chamber;

24 in other words, with it just being dealt with on the papers.

25 So that is plainly something that will affect the time schedule

Page 27

1 and will affect when a decision is made on the Rule 115 motions if the

2 Appeals Chamber agrees to hear the oral argument.

3 That's all I wish to say about that particular matter.

4 JUDGE BENNOUNA: [Interpretation] Thank you, Mr. Livingston. Do

5 other counsel wish to say something?

6 MR. RADOVIC: [Interpretation] Your Honour, Ranko Radovic, Defence

7 counsel for Zoran Kupreskic. Mr. President, I think that in this current

8 stage of the proceedings, it would be premature to pass a definite

9 decision with regard to our presentation of additional evidence. Why is

10 this so? We have requested and you have granted to us that the Prosecutor

11 should submit transcripts to us concerning the testimony of one of the

12 protected witnesses. May I finish, please?

13 JUDGE BENNOUNA: [Interpretation] Mr. Yapa, do you have an

14 objection?

15 MR. YAPA: I have an objection in this way: My learned friend is

16 making reference to a matter which is subject to protective measures and

17 it is a confidential matter. I don't think it could be taken up in this

18 way by my learned friend.

19 JUDGE BENNOUNA: [Interpretation] Will you please wait,

20 Mr. Radovic. Are we in a private session? I think we can go into closed

21 session

22 [Appeals Chamber and legal officer confer]

23 [Closed session]

24 (redacted)

25 (redacted)

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23 [Open session]

24 JUDGE BENNOUNA: [Interpretation] Mr. Pavkovic, as has just been

25 explained, I believe that the Prosecutor has already given his opinion,

Page 31

1 given his view. Mr. Radovic was speaking about matters which are ex parte

2 and about elements which are -- about pieces of evidence which are covered

3 by confidentiality and protection and cannot be revealed. Now, during the

4 exchange which took place here, do you submit -- if you wish, with regard

5 to what has just been said, to make a motion to the Chamber, you are fully

6 entitled to do that. But matters which were raised by Mr. Radovic cannot

7 be discussed and we shall not go beyond that during this Status

8 Conference. However, if you have a request to make in this regard, you

9 need to send it to the Chamber and it will rule upon it. I hope I have

10 answered your question.

11 MR. PAVKOVIC: [Interpretation] Thank you, Your Honour. Yes.

12 JUDGE BENNOUNA: [Interpretation] Mr. Radovic, do you -- excuse

13 me.

14 MS. SLOKOVIC-GLUMAC: [Interpretation] Mr. President, I would like

15 to state my views in relation to the proposal made by our calling

16 Mr. Livingston. He suggested that we have an oral discussion on these new

17 submissions and motions. I'm speaking about Mr. Radovic, or rather

18 Mr. Mirjan and Zoran Kupreskic. We agree with this proposal that there be

19 an oral discussion of these additional pieces of evidence, and after all

20 the arguments are presented by both parties, the Chamber can rule. I

21 think that indeed that would be the most efficient way of proceeding and

22 ultimately reaching a decision.

23 JUDGE BENNOUNA: [Interpretation] Thank you, Ms. Slokovic-Glumac.

24 Does the Prosecutor wish to tell us what he thinks about the

25 situation?

Page 32

1 MR. YAPA: Thank you, Your Honour. On this question of an oral

2 hearing, my learned friend Mr. Livingston referred to this matter in his

3 submissions when he filed the motion for additional evidence, and

4 comprehensive and copious submissions were made in moving for the receipt

5 of additional evidence. We have responded adequately and comprehensively

6 to the motion filed by my learned friend. And for the present, I should

7 say that there does not appear to be any reason for an oral hearing. On

8 the material presented before Your Honours, it is open and it is possible

9 for Your Honours to make a ruling without an oral hearing, so I do not see

10 the necessity for an oral hearing. And if it is Your Honours' view

11 that -- if the Chamber views that an oral hearing be heard on this - the

12 matter is not resolved, it is not complete yet, because in respect of

13 additional evidence - we would move that we be permitted to file

14 submissions on the question of the oral hearing on a later date. I thank

15 Your Honour.

16 JUDGE BENNOUNA: [Interpretation] I don't quite understand. You

17 want us to put something in writing about the oral hearing?

18 [Prosecution counsel confer]

19 MR. YAPA: Your Honour, what I stated was if the other Defence

20 counsel are joining Mr. Livingston in moving for an oral hearing -- they

21 have not done so up to now. If that is the case, in respect of the

22 additional evidence that they are moving for, we would urge Your Honour to

23 permit us to file written submissions on that question

24 JUDGE BENNOUNA: [Interpretation] If I understand you well, what is

25 being asked is that the additional evidence -- the admission of this

Page 33

1 additional evidence has been requested by -- in writing and by the 18th of

2 December the documents have to be filed. What Mr. Livingston is asking is

3 to hold an oral hearing in order to round off the argument. But they will

4 not be presenting additional evidence at this oral hearing; they are

5 simply asking for an oral hearing, for an oral argument, not to introduce

6 additional evidence, just to have an oral argument. So if you wish, this

7 matter has nothing to do -- there is nothing out of the ordinary that

8 there be an oral hearing. But after we examine the submission in writing

9 and the written argument - and we shall address that on the 18th of

10 December, as I have told you - the Chamber will examine this submission of

11 Mr. Livingston, understanding that Ms. Slokovic-Glumac and Mr. Radovic are

12 endorsing for the two accused, for Zoran Kupreskic and Mirjan Kupreskic,

13 that they join this request. We shall examine the submission and we shall

14 keep you informed about -- if the Chamber so decides, we shall let you

15 know about the possible date of an oral hearing.

16 MR. SUSAK: [Interpretation] Your Honour, I would like to join my

17 learned colleagues in proposing an oral hearing so that we would indeed

18 have all the documents put together as well as all our requests related to

19 new evidence.

20 JUDGE BENNOUNA: [Interpretation] Thank you, Mr. Susak. The

21 Chamber will take note of this.

22 Yes, Mr. Pavkovic.

23 MR. PAVKOVIC: [Interpretation] Your Honour, may I also support

24 what Mr. Livingston moved for. Although I don't know what he will be

25 saying exactly, but on the basis of what he has submitted so far in his

Page 34

1 Defence, it seems to me that it would be acceptable to have it elaborated

2 orally here as well. My client and I both feel that this could be

3 useful. Thank you.

4 JUDGE BENNOUNA: [Interpretation] Therefore, the Appeals Chamber

5 takes note of the fact that the counsel for all the accused have asked, at

6 least at this conference, to hold an oral hearing, pursuant to Article

7 115, before the Chamber takes the ruling. We shall, of course, keep you

8 informed about the position of the Appeals Chamber and the date of an oral

9 hearing, if it is to take place. Naturally, the oral hearing will take

10 place in order to round off -- if it does take place, it will be held in

11 order to round off the argument which was filed in writing.

12 Are there any other matters to raise at this Status Conference in

13 this particular case? I do not see any.

14 Yes, Mr. Livingston.

15 MR. LIVINGSTON: Your Honour, I am specifically asked to raise one

16 other matter by Mr. Vlatko Kupreskic, which is to reiterate to Your Honour

17 one point which I made back on September 13th, which is that he is

18 particularly anxious that this appeal be dealt with as speedily as it can

19 be. And what we are anxious to avoid is his appeal being held up by quite

20 legitimate applications - I'm not suggesting they wouldn't be - made by

21 other appellants. He's very anxious to know his fate one way or the

22 other, and I would ask you specifically, at his request, to bear that in

23 mind during all your deliberations. Thank you very much.

24 JUDGE BENNOUNA: [Interpretation] Thank you, Mr. Livingston. I

25 think I said so last time, so I do not think really it is necessary to

Page 35

1 repeat it, but -- and the Appeals Chamber heard you, and we are speaking

2 only about the application of the Statute of this Tribunal; that is, we

3 are here to dispense justice as fairly as possible and as expeditiously as

4 possible. It must be -- the Court -- the Tribunal must be fair, must take

5 note of the interests of the Defence, but at the same time there is

6 absolutely no reason which could justify the prolongation of anyone's

7 detention pending the judgement. So we -- the Chamber is fully aware of

8 that. However, for the time being it is the Defence which has asked for

9 an extension, for an extension, which has been granted, in order to take

10 note perhaps of the time necessary to prepare the Defence under the best

11 possible conditions. But I wish to rest -- rest assured that all the

12 members of the Appeals Chamber are very aware of this and the decision

13 will be taken with the least possible delay, and we're also there to see

14 that the proceedings take place under the best possible conditions.

15 Beyond that, are there any other questions? No, I do not see

16 any.

17 Now it remains to turn to the accused, the appellants present

18 here, and ask them if they have any questions to raise regarding the

19 conditions of their detention, as is envisaged by the Rules, and to

20 inquire about the state of their mental and physical health.

21 So I'm turning to the accused and also, of course, to their

22 counsel. You may now raise with the Chamber any matters that you wish to

23 inform us. You may speak for yourselves or you can speak through your

24 attorneys.

25 So you do not have any questions, I see for the time being.

Page 36

1 Before I adjourn this hearing, this Status Conference, we shall keep you

2 abreast of any further developments in the proceedings.

3 --- Whereupon the Status Conference is adjourned at

4 3.00 p.m.