1 Monday, 28 October 2002
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 4.00 p.m.
6 JUDGE HUNT: Call the case, please.
7 THE REGISTRAR: Good afternoon. This is case number IT-98-30/1-A,
8 the Prosecutor versus Miroslav Kvocka and others.
9 JUDGE HUNT: Appearances for the Prosecution. Mr. Staker.
10 MR. STAKER: May it please Your Honour, my name is Christopher
11 Staker. I appear on behalf of the Prosecution with my colleagues
12 Mr. Anthony Carmona, Ms. Norul Rashid, Ms. Helen Brady and our case
13 manager for today is Ms. Susan Grogan.
14 JUDGE HUNT: For the appellants. Mr. Kvocka.
15 MR. K. SIMIC: [Interpretation] Good afternoon, Your Honour. My
16 name is Krstan Simic, and I represent Mr. Kvocka in this case.
17 JUDGE HUNT: Thank you. Mr. Radic is next on the list, yes.
18 MR. FILA: [Interpretation] Your Honour, my name is Toma Fila, an
19 attorney, and I am the Defence counsel for Mr. Radic.
20 JUDGE HUNT: Thank you, Mr. Fila. For Mr. Zigic.
21 MR. STOJANOVIC: [Interpretation] Good afternoon, Your Honour. My
22 name is Slobodan Stojanovic, and I am the Defence counsel for Mr. Zigic.
23 I hope there's no misunderstanding on that score, because we have received
24 the documents from the authorised representative of the Registrar. If
25 Your Honour considers it necessary, you will be able to hear from
1 Mr. Zigic himself. Thank you.
2 JUDGE HUNT: I'll come back to that, Mr. Stojanovic, because there
3 is something of a problem, I think, between you and your client as to
4 where your respective responsibilities lie.
5 For Mr. Prcac.
6 MR. J. SIMIC: [Interpretation] Good afternoon, Your Honour. I am
7 lawyer Jovan Simic, and I am Defence counsel for Mr. Prcac.
8 JUDGE HUNT: Thank you. Well, this is a Status Conference called
9 in accordance with the provisions of Rule 65 bis. Is there anything the
10 Prosecution seeks to raise in accordance with the Rule?
11 MR. STAKER: No, Your Honour.
12 JUDGE HUNT: Whilst you're there, though, the Prosecution
13 consolidated a Respondent's brief. When will the public version of that
14 be available?
15 MR. STAKER: Your Honour, we have given attention to that. We've
16 actually found in practice some difficulty in producing a public redacted
17 version in relation specifically to incidents that are referred to in the
18 judgement itself where reference is made to transcripts dealing with
19 incidents that are described in the judgement. It's sometimes difficult
20 to separate out very precise details that are not mentioned in the
21 judgement from those that are, and we have been exercising our mind as to
22 whether it may be necessary to produce a public redacted version that cuts
23 out individual words in the middle of paragraphs depending on whether it's
24 a precise detail that was in the judgement or not or whether it may be
25 possible to include some of that detail given that the incident is
1 referred to in the judgement anyway.
2 JUDGE HUNT: It is a very important thing though, Mr. Staker, that
3 we do have a public version of it. There seems to be almost a conspiracy
4 sometimes between all the parties in these cases to keep everything
5 confidential. I know it's easier, but nevertheless, we are a public
6 Tribunal and we have to have as much as possible -- as much as possible
7 made public. Now, if it comes down to a document that has black pieces
8 across it, so be it. It's important the public have access to it. It's
9 important that the Chamber have access to it so that when we're writing
10 our judgement we know what parts to be cautious about. We don't have easy
11 access to what is given in some sort of closed court or whatever it is and
12 what is not, so we check -- well, we should be checking anything we write
13 against the public redacted version, and if we come across a particular
14 incident in the Prosecution's briefs and we go to the public one, we see
15 that there's a great big black thing, we know to be cautious. At least it
16 guides us what we can and cannot say.
17 So I know there's probably plenty of time but I just want to keep
18 reminding you it has to be done sometime.
19 MR. STAKER: Thank you, Your Honour. I can say it is being worked
20 on. There is no conspiracy of silence. We just are wondering whether it
21 may be necessary, in fact, to file a motion seek a lifting of protective
22 measures to the extent that certain details of a non-sensitive nature that
23 are nonetheless subject to protective orders may be mentioned in the
24 public redacted version.
25 JUDGE HUNT: Anything to avoid another motion, if I may say so.
1 We seem to be absolutely inundated with public motions at this stage, and
2 we would like to avoid it if possible. But anyway, I'll leave it in your
3 hands, but it should be done at some stage.
4 MR. STAKER: Thank you, Your Honour.
5 JUDGE HUNT: Well, now, is there anything that any of the Defence
6 counsel wish to raise concerning the physical condition of their client or
7 the conditions of detention in accordance with the Rule before we get to
8 the details of the preparation for hearing? All right.
9 Well, now, Mr. Stojanovic, you raised this issue about some
10 confusion between you and your client as to who is doing what. I want to
11 make it very clear that you are appearing as his counsel in the appeal
12 against conviction. That includes the motion to admit further evidence or
13 additional evidence. That's part of his appeal, because your client has
14 filed a document as if he were unrepresented in relation to that, and he
15 clearly is not unrepresented in relation to that particular matter.
16 What he sought was an extension of time until he'd got an English
17 translation of the original motion. Now, I'm not going to make that
18 order. Clearly he's not entitled to it because you are appearing for him.
19 MR. STOJANOVIC: [Interpretation] May I respond, Your Honour, Judge
20 Hunt? I think that you have understood the proceedings and everything
21 that this is about. However, it is a misunderstanding which has emerged
22 from the relationship between myself and my client. My client in fact did
23 not have any intention of doing away with my power of attorney, and he
24 explained this in a motion that he submitted. I'm not sure that you have
25 the translation of that document as it was written and compiled one or two
1 days beforehand. It was a misunderstanding, and he does not wish to
2 revoke my power of attorney. So I wish to apologise to the Appeals
4 JUDGE HUNT: I want to make it very clear that that is a matter
5 which has been sorted out between you and him and the Registry, and I
6 understand how the mistake occurred. I'm not concerned about your power
7 of attorney. What I'm concerned about is his application which he filed
8 in person and I've only just received the English translation of it in
9 which he seeks an extension of time in which to respond to the
10 Prosecution's response on the motion to admit further evidence.
11 Now, he's not appearing in person in relation to that motion. You
12 are appearing for him. And his desire to have an extension of time
13 because he doesn't have an English translation of part of the motion is
14 not going to be granted. And it seems to be that there is perhaps a
15 misunderstanding between you and him. He is representing himself only in
16 relation to the appeal from the Registrar's decision to refuse further
17 legal aid. Now, apart from that, everything is in your court.
18 MR. STOJANOVIC: [Interpretation] That's precisely it, Your Honour.
19 However, over the last 25 days, I have not received any documents because
20 all the documentation was sent to Mr. Zigic. So instead of Zigic, I now
21 need an extension of time. But I would make a minimum request, perhaps
22 only four or five days extension time, nothing more than that.
23 JUDGE HUNT: I'll certainly grant you that. Perhaps you'd better
24 contact the Registry and tell them when it was you last received a
25 document so that everything can be now given to you.
1 MR. STOJANOVIC: [Interpretation] Thank you.
2 JUDGE HUNT: It's unfortunate the Registry is getting itself
3 confused as well as accusing Mr. Zigic of being confused. But there have
4 been matters dealing with that motion for the admission of further
5 evidence which you will have to deal with. The Prosecution objected to
6 material which had been put in reply, an order was made that that be added
7 to the motion, the Prosecution then responded, and there has to be a reply
8 from your client to that further response.
9 I will certainly give you time if you like. You can have another
10 seven days from today. That's almost double what you're entitled to, but
11 I can see that you will have to do a bit of reading. I will make that
12 order later on today if you wish.
13 MR. STOJANOVIC: [Interpretation] Yes, Your Honour, I have received
14 those documents, and I would like to express my gratitude for giving me
15 this extension of time. I think I will succeed within that period of time
16 for fulfilling what is expected of me. Thank you.
17 JUDGE HUNT: Before I deal with Mr. Zigic's own matters,
18 Mr. Staker, this question of disclosure. Can you explain to me how the
19 priorities are fixed? Is it only if some Chamber says we want this done
20 more quickly that they get some priority?
21 MR. STAKER: Your Honour, that is a difficult matter of
22 coordination in the sense that it's not the practice of Chambers to
23 indicate the order in which cases will be dealt with.
24 JUDGE HUNT: Well, clearly you would be entitled to know whether
25 Krnojelac is going to be heard before this, and that depends upon the
1 speed with which you complete your disclosure. So we don't want exactly
2 to be left in your hands. I mean, this appeal has been standing for a lot
3 longer than Krnojelac.
4 MR. STAKER: Indeed, Your Honour. The document that was filed by
5 the Prosecution with the status report on disclosure indicated what the
6 respective time frames would be if this case were dealt with before the
7 Krnojelac case or vice versa.
8 JUDGE HUNT: Well, only to the extent that they said they wouldn't
9 be finished until April of next year, which is a very grim prospect. But
10 it then goes on to discuss that in the absence of any further order, that
11 is the situation. But if we said, "Look, these people have been in
12 custody for a very long time. It's a long time since the decision was
13 given, much longer than since the Krnojelac decision. What would be the
14 prospects of getting it earlier than April of next year"?
15 MR. STAKER: Your Honour, I think the reality is that the Office
16 of the Prosecution has a given number of resources. If further resources
17 were devoted to this case, that would mean less resources and
18 corresponding delays in other cases.
19 JUDGE HUNT: That's matter for the Office of the Prosecution to
20 work out how it allocates the resources which it has. You see, from the
21 Appeals Chamber's point of view, if this matter is not ready because of
22 the delay in disclosure, then they will list Krnojelac, because they say
23 they must get on with their conviction appeals. But it seems to me that
24 Krnojelac is going to take priority over these appellants simply because
25 it's going to be easier to do the Rule 68 disclosure for him than it is
1 for these, and there seems to be some sort of imbalance there.
2 MR. STAKER: I think all I can say, Your Honour, is that our
3 filing has explained the situation, and beyond that, we're in the hands of
4 the Appeals Chamber.
5 JUDGE HUNT: Well, the most helpful thing that Mr. Blewitt's
6 submission has done is to tell me what the name is for those accents on
7 the letters. They're called diacritics, apparently. I often wondered
8 what they're called. But apart from a that he's left it up in the air.
9 He says they won't be ready until April if he keeps the same resources on
10 it now that are presently on it. We think that there's a time, especially
11 for an appeal, that there should be some diversion of other resources to
12 get this one ready. Understanding all the problems about doing these Rule
13 68 searches during the course of a trial, nevertheless there is an
14 obligation on the Prosecution to keep going on Rule 68 even after the
15 trial. And it seems to me that that obligation has to be looked at in
16 accordance with the priority given to the cases in the ordinary course,
17 and the ordinary course is this case has got priority over Krnojelac. But
18 if we are met with the statement that you won't be ready until April 2003,
19 well, then the Appeals Chamber will simply list Krnojelac first, and that
20 seems to be unfair.
21 MR. STAKER: Your Honour, I should also indicate, I think this is
22 clear from the filing, that it is the same resources that are working on
23 this case that would work on the Krnojelac case and that on the current
24 scheduling -- on the current scheduling, that is why the one case would be
25 dealt with after the other has been finished, and that if more resources
1 were to be given that would the be expense not of the Krnojelac case but
2 of some other case.
3 JUDGE HUNT: Well, it may be that that will have to be done.
4 We're not here to tell the Prosecution how to order its resources, but are
5 here to say, "We've got to get on with this appeal." And if Rule 68
6 hasn't been complied with, well then, it is unfortunate, but the
7 Prosecution does have an obligation and it has to order its priorities not
8 just to this little team that you have doing Rule 68 material. I think we
9 said somewhere in the decision that Rule 68 is just an important an
10 obligation as getting an indictment in and giving the material which you
11 rely upon to support the indictment, and it seems to mean something which
12 unfortunately has been put to one side as to be done when possible.
13 Now, it may be just a matter of terminology, but in paragraphs 11
14 and 12 of Mr. Blewitt's document I read it, I hope wrongly, as saying that
15 you'll wait until you've got all the material before you start work on
16 it. In each case in the last sentence: "Within six weeks of receiving
17 the last of the documents" and again, "within two months of receiving the
18 last of the documents," or is it going to take two months to check the
19 last document?
20 MR. STAKER: Well, the document says it will take up to two months
21 to check up to the last of the documents.
22 JUDGE HUNT: Why? Why isn't the work being done as it comes in?
23 MR. STAKER: It is, Your Honour.
24 JUDGE HUNT: I don't understand what's intended by those two
25 paragraphs or the last sentence in each of them. If you said it's going
1 to take -- the amount of material that has already come up on the initial
2 check-through such that it's going to take us five months or six months or
3 eight months to check it all, I can understand it, but that's not the way
4 it reads. It reads as if you are going to wait until the last document
5 comes in and you're going to then start checking it, whereas, I can't
6 imagine it would take two months to check a document.
7 MR. STAKER: Your Honour, the documents are being looked at as
8 they're received by the Appeal Section from the ISU. Nonetheless, it's
9 not the case that the documents necessarily come on a day-by-day basis but
10 in batches, and time is required to review and in some cases to deal with
11 translations or other verification or checking.
12 JUDGE HUNT: Well, what is it you feel that is the way around
13 this, that we just order that it be given expedition?
14 MR. STAKER: Your Honour, the same resources are also doing the
15 disclosure searches for other appeals cases.
16 JUDGE HUNT: Yes. Who is doing the ones for the Trial Chambers?
17 MR. STAKER: It's the same ISU.
18 JUDGE HUNT: That's what I thought. Well, don't you think that
19 with the problems that we've been having about Rule 68, and they have
20 accumulated massively over the last four years since I've been here, that
21 some more resources should be given to that particular unit?
22 MR. STAKER: Your Honour, that is a matter that goes beyond my
23 brief in this case.
24 JUDGE HUNT: I know, but I'm wondering what we can do to impress
25 upon the Office of the Prosecutor that it's not just sufficient to say,
1 "Well, we only have 15 or 25 or whatever it is people to do this."
2 They've got to pull their resources from somewhere else to assist them
3 because it is vital to have this material disclosed, and I know that the
4 orders I've been making occasionally on the seizure of documents are not
5 exactly popular upstairs, but it's because of the failure to do this in
6 the first place that most of our problems about disclosure have occurred.
7 I'm talking about the Appeals Chamber's point of view, that matters are
8 found in the Office of the Prosecutor for the first time after the
9 judgement has been given by the Trial Chamber, and despite every endeavour
10 that we have made over the years to try and improve it, nothing seems to
11 be happening to improve that situation.
12 Now, it's not for me to make that such an order, but I think it's
13 something which the Appeals Chamber is going to have to consider, because
14 at the moment, as I say, they will list Krnojelac, I'm not in it of
15 course, but they will list Krnojelac if this case is not ready, and they
16 will do it regardless of what your resources are, because the Appeals
17 Chamber is going to get very much further behind if it can't get some of
18 these appeals out of the way.
19 Well, is there anything more you want to add about it?
20 MR. STAKER: Your Honour, I don't think there's anything I can
22 JUDGE HUNT: We all have problems with resources. The Chamber's
23 area of this Tribunal are probably given the least resources of anybody,
24 and we've tried to do our best with what we've got. It's about time, if I
25 may say so, the Office of the Prosecutor faced up to the same situation.
1 Anyway, I'll talk to the rest of the Trial Chamber and see what we
2 propose to do, but if we make an order that expedition be given to it and
3 that's what Mr. Blewitt's document suggests has been done in some cases,
4 then you will be ready for it.
5 All right. Well, thank you very much.
6 MR. STAKER: Thank you, Your Honour.
7 JUDGE HUNT: Now, Mr. Zigic, I want to speak to you, if I may,
8 about your appeal against the Registrar's decision. I want you to
9 understand that you are not just entitled to have access to all of the
10 Registrar's documents. It's what's called a fishing expedition, and I'm
11 sure you understand what I mean. You can't go in there looking to see if
12 there is something which will assist you. You have to demonstrate some
13 reason for getting the material from the Registrar. Now, you did that
14 very well when you said what you wanted -- the last time when you said
15 what you wanted to prove was that you had made complaints to the Registry
16 about the conduct of one of your counsel, and that led them to concede
17 that they would provide the material to you and a whole series of
18 memoranda or extracts from memoranda where you had made what could be
19 interpreted as complaints about one of your counsel, they have been now
20 disclosed to you and to us. But you can't just say, "I want everything."
21 If there's something else you want to establish in your appeal, you have
22 to nominate it. And please do not send your documents to me. They must
23 be filed with the Registry. That's the only way in which everybody will
24 get a copy.
25 So may I suggest that if there is something more you want from the
1 Registry files, you nominate what it is you want to prove and then the
2 Registry will consider whether they should disclose it. If they say they
3 won't, then we'll consider whether we order them to do so. But we want
4 you to do the same as you did when you got those documents. Do you
5 understand that?
6 THE APPELLANT ZIGIC: [Interpretation] Your Honour, I have
7 understood you fully. Thank you for giving me this opportunity to address
8 you regarding this problem. Thank you very much for the suggestion that
9 you have just given me. I have fully understood it.
10 On the 24th of October, I spoke with the Deputy Registrar
11 regarding my problems and regarding my latest motion requiring that the
12 transcripts from the meeting be disclosed to me. I received transcripts
13 that I didn't ask for. I received some other ones, and I clarified that
14 with the representative of the Registry. I have to now give him a very
15 specific list of the dates for transcripts that I'm interested in, and he
16 promised to reply favourably regarding that.
17 Now I have to solve the problem with Mr. Stojanovic who is my
18 attorney representing me in the appeals case, in the appeal against my
19 conviction, and I would now like to apologise to you for the enormous
20 number of motions I sent to you. I know that your time is very valuable,
21 and I hereby promise to you this will not happen again in the future
22 because I now have an attorney representing me.
23 As far as the appeals motion filed on the 8th of July is
24 concerned, Your Honour, I would like to tell you that right now I'm
25 representing myself. If the Chamber should rule that there is a
1 proceeding going on to this effect, I will have to retain an attorney, and
2 I'm not sure who is going to pay for that. Regardless of whether the
3 Registry will agree to pay for my counsel, I will have to have one,
4 because it is obvious that I will not be able to represent myself in the
5 future. Things that I have done so far I did on my own, and the time will
6 tell what the quality of that work is.
7 At any rate, Your Honour, thank you so much for giving me this
8 opportunity to address you.
9 JUDGE HUNT: I don't have the papers here with me, Mr. Zigic, but
10 is the motion that you referred to, the one of the 8th of July, is that
11 the appeal against the Registrar's decision?
12 THE APPELLANT ZIGIC: [Interpretation] The decision of the Registry
13 was rendered on the 8th of July, the decision to refuse any further legal
15 JUDGE HUNT: Are you saying that you're not going to appear
16 unrepresented in relation to that appeal? Because the Registrar has
17 refused to give you any legal representation for that. What is it you
18 want to do about that?
19 THE APPELLANT ZIGIC: [Interpretation] Your Honour, I was informed
20 by Mr. Christian Rohde that there will not be a proceedings instigated
21 regarding this but, rather, an administrative procedure. So there will be
22 no need for me to have a legal counsel. I only said that should there be
23 any proceedings instigated in addition to this administrative procedure,
24 then in that case I will need to have a legal counsel.
25 JUDGE HUNT: It may be just a question of terminology, but it is
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 not administrative the way in which your appeal against the Registrar's
2 decision of the 8th of July will proceed will be on the written material
3 which is provided. There won't be a hearing as there is here today. The
4 Judges won't come into court and you will be expected to address us on the
5 matter. It is going to be decided, as I understand it, on the written
6 submissions that are made. So that's may be what Mr. Rohde is referring
7 to. But you are still going to put your submissions in in person; is that
9 THE APPELLANT ZIGIC: [Interpretation] Yes, Your Honour. But right
10 now at this moment, I don't have any instruction to file any motion.
11 Should you in the future put in such an instruction for me to file any
12 submission or a motion, then I will do that on my own without an attorney.
13 And in order to facilitate the situation for you, Your Honour, I'm sure
14 that what you said is correct. And if there is not going to be a typical
15 procedure, a typical hearing with witnesses and so on, and if the decision
16 is indeed to be rendered based on written material only, then I believe
17 that I will have no need to have somebody represent me.
18 JUDGE HUNT: The only thing that you will have to do is to file a
19 reply to the Registrar's response. Now, that haven't been filed yet, and
20 they've been told to get on with it. They will file their response to
21 your appeal and then there will be a translation made of their response
22 and that will be given to you, and you will then be required to file your
23 reply to that. Now, that is something which I haven't spoke to anybody,
24 but I understand will be filed this week as their response. It will
25 obviously take some time to be translated for you, but then once that is
1 done, we will make an order that you file a reply. I had in mind seven
2 days after you receive the B/C/S version of it. So you've got plenty of
3 time. I'll see how big it is. If it is bigger I'll give you more time.
4 Usually you only get four days, but I thought seven would be fair because
5 you are doing it without the assistance of a lawyer. But that's a matter
6 you have yet to do. You can't do it until you've got the B/C/S version of
7 their response. After that, it will be simply a matter for the Appeals
8 Chamber to consider your appeal against the Registrar's decision.
9 So then we need not concern ourselves, need we, about you wanting
10 further representation for that appeal? That's the appeal against the
11 Registrar's decision.
12 THE APPELLANT ZIGIC: [Interpretation] Yes. You're fully correct,
13 Your Honour. I will not be using the services of a legal counsel in
14 response to the reply by the Registry. Thank you for extending the
15 deadline for me.
16 And may I ask this as well: If the response by the Registry is
17 voluminous, then I would ask you for additional time to respond to that.
18 My resources are quite limited. I don't have the entire documentation in
19 my quarters, and maybe I will have to get additional information and
20 certainly additional time will be needed for that. So it all depends on
21 how large the motion filed by Registry is.
22 JUDGE HUNT: I understand that, and I will certainly listen to
23 anything you want to say. When it comes in, I will make an order. I will
24 try and assess it myself. If you believe it's not enough, it's open to
25 you to make an application for further time. But you must remember that
1 the more time that's being taken with this appeal, the later the hearing
2 of the appeal against conviction which we are trying very hard to avoid
3 any further delay there, as you may have gathered with my conversation
4 with the counsel for the Prosecution, but thank you very much.
5 THE APPELLANT ZIGIC: [Interpretation] Thank you.
6 JUDGE HUNT: Well, is there anything else which the parties wish
7 to raise?
8 Yes, Mr. Simic.
9 MR. K. SIMIC: [Interpretation] Thank you, Your Honour. I should
10 like to go back, with your permission, to the problem of disclosure,
11 because I wasn't able to make a comment with respect to the motion of the
12 Prosecution because you asked Mr. Zigic to state his views. So I'd like
13 to go back to something that is very sensitive in this case and these
14 proceedings. May I, with your permission?
15 JUDGE HUNT: Yes.
16 MR. K. SIMIC: [Interpretation] Thank you. We are concerned with
17 the motion and its contents, especially as we're faced with a quite
18 specific situation whereby today we have two accused who, in keeping with
19 the Tribunal's practice, should be released in a short space of time.
20 Mr. Kvocka, on the 9th of December, will have been in prison for
21 six months, and the practice has been that they should be set free after
22 that. And Mr. Prcac is arriving -- has come to that date. I hope that
23 these proceedings will not go on for too long until they complete their
24 sentence, because in one of the paragraphs is says that 292 days are
25 necessary plus 971 which makes it a total of about three years. We're
1 also very concerned about the fact that these documents should have been
2 disclosed during the course of the trial itself. We're now faced with a
3 situation when we have launched our appeal, and we have received a
4 response from the Prosecutor mentioning some 1.000 documents, and this is
5 a difficult situation for us. But the best situation for us, the most
6 favourable would be if you were to set a date for oral argument, and might
7 I be allowed to state that the Krnojelac case and Kvocka case have been
8 ranked. There seem to be different questions, different issues at stake.
9 I'm afraid this might be a part of a strategy to have the Krnojelac case
10 dealt with before the Kvocka case for certain positions and stands which
11 would be to the detriment of our clients, not only from the appeals side
12 but also the time they would have to wait. And I'd like to refer to
13 Article 21 of the Statute which does require all participants in the
14 proceedings to ensure a fair and efficacious trial, a speedy trial for the
15 accused. And also Article 11 of the Convention of Human Rights and
16 Freedoms also guaranteeing a speedy trial.
17 I am afraid that in this stage of the proceedings we would have to
18 wait for all this time and from the aspects of Mr. Kvocka, this would
19 serve no purpose. It would not be to our advantage. We are ready now to
20 give up the benefits that can be given to us with the disclosure of
21 documents because they cannot bring anything substantially new. The case
22 is over. The Prosecution did not make an appeal. All that remains to be
23 done is to hear the judgement of the Appeals Chamber and the wording of
24 that. So we do really feel that this is no easy problem, of course. It
25 is one that requires due consideration, because we are dealing with
1 accused here who have been in detention for five years and that period of
2 time is being extended, and we must start out from the indictments and the
3 charges and what it all boils down to. After that we once again have
4 April as a time limit for getting through all the deliberations, which
5 means that I won't be able before next autumn to complete this process.
6 That is why I should like to ask you and appeal to be, because this is a
7 very great problem for us, and that a date be set and that we show respect
8 for this time period for the final presentations. You said that this
9 could be sometime at the beginning of November.
10 Could you please reconsider and look at the position of the
11 accused. Mr. Kvocka is in have very difficult position. The 9th of
12 December was the date when he was to go home, but he has to stay and wait
13 for documents that ought to have been disclosed during the trial itself if
14 he is to be given a fair trial and the right to a fair trial accorded. So
15 this is a serious problem for us. Thank you.
16 JUDGE HUNT: Well, Mr. Simic, may I deal with it perhaps in the
17 same order that you have. You say that the documents which the
18 Prosecution will be producing will have nothing substantially new in them.
19 If that is your belief and that is the belief of all of the appellants,
20 then the Prosecution need not proceed with it. As you point out, they are
21 not putting them forward in support of some appeal of the Prosecution.
22 They're putting them forward as part of their obligation to disclose to
23 you material which may be exculpatory. So that if you feel that there is
24 going to be nothing exculpatory in all of these documents which the
25 Prosecution are searching through, then say so, the lot of you. If you
1 say so, we will tell the Prosecution to forget Rule 68 and we'll get on
2 with the hearing of the appeal. If I were you, I would not do so because
3 it's surprising that in most of the appeals so far the material which the
4 Prosecution is now finding is indeed exculpatory in nature. Now that's a
5 matter for you. There's nothing that requires the appellants in this case
6 to wait for the Prosecution to disclose the material which they should
7 have disclosed earlier under Rule 68. But generally, if I may say so,
8 appellants say, "We want to see what there is which is exculpatory because
9 if it's there we want to rely upon it in our appeal." So that's the first
10 point I want to make.
11 The second one you say according to the ordinary practice of this
12 Tribunal, your client would be free to go home on the 9th of December.
13 Now you would have received the decision of the Appeals Chamber refusing
14 provisional release and you, if you want to establish some particular
15 ordinary procedure or usual rule, you try, but there is no such usual
16 rule. When somebody is going to be released, it depends upon the identity
17 of the country to which he is sent to serve his sentence because all
18 countries have different remissions assistance.
19 So there is no basis for your client to believe he is entitled to
20 go home on the 9th of December. And if you want to go off and serve your
21 sentence and you are lucky enough to get a country that does have a very
22 large remission system, then it's a matter for you. You can go off and do
23 it and be released on the 9th of December. But don't come here and saying
24 your client is being denied his right to release on the 9th of December
25 because that just isn't so.
1 Now, the next thing you said was that there was going to be three
2 years involved in the Rule 68 disclosure. I'm afraid you've fallen for
3 the easy trap that the Prosecution appears to be setting in these cases of
4 referring to the number of days it will take if one person does the
5 exercise so that if it's going to be 700 hours, it will take one person to
6 do it, and then if they put on ten people, it's only going to take 70
7 hours. And we've got some information in Mr. Blewitt's documents as to
8 the number of people they have on this particular exercise. How that
9 extends to April 2003, I'm not sure, but it's no good relying upon the
10 amount of time which they say this is going to take or the number of days
11 it's going to take. That's only if one person is handling it at a time.
12 So the more people they put on, of course the less time it will take.
13 So I understand your client's concern about the time this is
14 taking, and it's a concern we have expressed on several occasions in the
15 Appeals Chamber that these appeals are being delayed because of the
16 problems the Prosecution is having with disclosure. And I think you might
17 have gathered from what I said to Mr. Staker that we're not very happy
18 with the way in which we are being presented with these delays. So you
19 need not concern yourself that we are very anxious to get on with this
20 appeal ourselves. But we are not going to proceed upon the basis that
21 your client has some right to be released on the 9th of December. He
23 Now, is there anything more you want to say?
24 MR. K. SIMIC: [Interpretation] Your Honour, just one sentence. I
25 don't think you understood me. I think that -- I said that it was the
1 practice so far and that the Tribunal released two people from the
2 Detention Unit and didn't send them on for further -- a further period in
3 detention after they had served two-thirds of their sentence, because
4 after they have -- I don't want to mention half the sentence that they
5 have served. They were amnestied afterward. But I will give up my right
6 to Rule 68 so that I could get a decision from the Appeals Chamber as fast
7 as possible. So I'm fully conscious of the fact that these documents
8 could have something among them which would be to my advantage, but I give
9 that advantage up because I should like to hear the stand of the Appeals
10 Chamber as soon as possible. Thank you.
11 JUDGE HUNT: Well, if you persuade all of your colleagues to do so
12 and your clients are fully informed of what they're giving up and they put
13 in writing that they do, then we'll consider listing the appeal. But at
14 the moment, we would not do so unless all appellants gave up their rights
15 under Rule 68, which I can't imagine them doing if they're being properly
16 advised, and that we have something in writing from them saying that they
17 have been properly advised and notwithstanding the fact that in many other
18 cases exculpatory material has been produced as a result of these searches
19 but they don't want to hear about it, that's a matter for them.
20 MR. K. SIMIC: [Interpretation] Thank you.
21 JUDGE HUNT: Now, does anybody else want to add anything to that?
22 Yes, Mr. Fila.
23 MR. FILA: [Interpretation] Your Honour, the subject of my concern
24 is what concerns you and Mr. Simic both, that is to say the length and
25 time all this lasts and how Rule 68 can be applied.
1 In the course of the proceedings, I knew that those documents were
2 with the Prosecution, that the OTP had them, and the Defence of Mr. Prcac
3 and myself asked to see those documents because they are documents in the
4 Serbian language. You will be able to see that my investigator, Mr. Takic
5 from Prijedor, and Dusan Masic as well, legal advisor, co-counsel, in
6 fact, of Mr. Simic, they were given the opportunity to see those
7 documents, and we looked at them for ten days. Take a look at the
8 transcript and you will find in it that we were able to see those
9 documents. But when we asked that all the documents be provided us, the
10 Prosecution refused and said that that was impossible.
11 All this can be found in the transcript from the trials. I
12 haven't got the transcript with me now, but we have four binders full of
13 them, and I can show you them now if you like.
14 But what Mr. Simic is concerned about and what you are concerned
15 about yourself, Your Honour, and I myself too, is why suddenly we are
16 being offered this now when beforehand when we asked to be disclosed these
17 documents we weren't given them. We were refused. And I'm talking to the
18 documents before the final argument on the 29th of July last year.
19 From Mr. Blewitt's letter, it appears that they had received these
20 additional materials two days prior to that, and they failed to inform us
21 about this earlier on, before the closing arguments. They failed to tell
22 us that they had these documents before the closing arguments and did not
23 allow us awhile to take a look at them and then go ahead.
24 So why are we concerned? We're concerned because we feel that
25 there is something else that this is masking. If it is the desire to do
1 with the Krnojelac trial first because there's something they don't like
2 there, to deal with that trial first, but quite obviously the judgement is
3 something that the Prosecution does not seem to like.
4 So I am concerned about the order. I don't want the order upset.
5 I don't want the Prosecution to bring the Appeals Chamber into a position
6 to look at the Krnojelac appeal first and then our own later on. All
7 these documents are in the Serbian language. There is no need for them to
8 be translated. You can provide them to us within a space of 30 days for
9 us to take a look at them, and we can select what we need from all those
10 documents, those that we feel to be exculpatory material. It's not in
11 English, and therefore does not have to be translated into Serbian. It is
12 vice versa.
13 So what we would like the Prosecution to do is to give us those
14 documents in the B/C/S language within a space of seven days, and we will
15 be able to assess whether this material is exculpatory or not, whether it
16 tells us something or not. We know that there is something that might be
17 useful to us. Perhaps not. But nevertheless, it is our concern with
18 respect to the length of this trial and these proceedings, and I can't
19 understand why it was necessary to have 15 or 16 months from the moment
20 they received these documents that suddenly now they have taken it into
21 their minds to disclose it pursuant to Rule 68, whereas they had no desire
22 to do it previously. So that is the concern which we here feel and which
23 Mr. Simic presented and that it probably has something to do with the
24 Krnojelac trial, to have it resolved in a way that is different to the way
25 in which it has been resolved already. And that is why we propose that
1 you order the Prosecution to supply us with the documents that it has in
2 its possession within a space of seven days. We can look through the
3 documents and then have another meeting to say whether we need any of them
4 or not.
5 Let me make things quite clear. We do not need any B/C/S
6 documents to be translated into English and back into Serbian again so
7 that we can read in the B/C/S language whether we need them or not. If it
8 is in the interests of the Prosecution to help us, and I don't really
9 believe that to be the case but I would like it to be, then there's no
10 need to do that and there's no need for Mr. Blewitt to be concerned. Give
11 us all the documents you have and we'll see for ourselves. So you don't
12 have to help us settle our own problems. We will do that ourselves.
13 That's what I wanted to say, Your Honour. Thank you.
14 JUDGE HUNT: Mr. Staker, what Mr. Fila says is something worth
15 considering if I may suggest it. I'm not suggesting that there's some
16 plot by the Prosecution to delay this appeal until after Krnojelac. I
17 know the issue between the Krnojelac judgement and this one where we
18 disagreed with something that had been said in this judgement, but I'm not
19 suggesting that's a matter that I need to concern myself with here. But
20 the suggestion he makes is why do you need to go through the process if
21 you've got this material and these names come up, does it matter if you
22 disclose too much and let them look at it without waiting for it to be
23 indexed and paginated and all the rest of it?
24 MR. STAKER: Your Honour, there is a question of the general
25 structure of the Rules. Rule 68 requires disclosure of exculpatory --
1 JUDGE HUNT: I realise that. I realise Rule 68 requires that, but
2 why don't we treat it, in effect, like an application by them to have
3 access to this material? What is the problem with it? It would be so
4 much faster than having to wait until next April.
5 MR. STAKER: With Your Honour's indulgence.
6 [Prosecution counsel confer]
7 JUDGE HUNT: I should add I don't expect you to give a final
8 statement now, but is there not something worth considering in that?
9 MR. STAKER: Your Honour, I was about to say if I could take that
10 question on notice. I understand there are issues relating to identifying
11 Rule 70 and issue relating to identifying material and may be subject to
12 protective measures in other cases that would require --
13 JUDGE HUNT: May I suggest that when you are giving this some
14 consideration that you follow what we did in Brdjanin and Talic where this
15 similar sort of issue arose? Rule 70 material, certainly that has to be
16 identified, but if you provided everything redacted as to identification
17 and wait until you hear from the appellants whether they particularly want
18 to know the identity of the witnesses whose statements they've been given
19 or whose evidence they've been given before the identity of anybody is
20 disclosed and you deal with it as an application for access to this
21 material, it overcomes all of these problems about Rule 68.
22 I think that most of us understand that the logistical problems
23 which the Prosecution has in relation to Rule 68, but that's not a reason
24 for ignoring it, which I sometimes think Rule 68 is put on the back burner
25 upstairs. But in this case, it seems to me that these people have been in
1 custody for a very long time, and it is a case which should be given
2 priority over Krnojelac.
3 Now, I know the issue about persecution is a fascinating one and
4 that you will all want to get Krnojelac upset, but I don't think we should
5 try to juggle cases, in case this is in anybody's mind, in order just to
6 suit the Prosecution's strategies as it was put. I'm not suggesting there
7 is one, but I hope -- and I hope that there isn't one, but we really must
8 get these appeals off the ground, and next April is not soon enough.
9 Now, when do you think you might be able to come up with some sort
10 of response to what Mr. Fila has suggested?
11 [Prosecution counsel confer]
12 MR. STAKER: If we could request a week, Your Honour.
13 JUDGE HUNT: Yes, certainly. Well, the best thing to do would be
14 if you could file something by, say, next Tuesday, and then we can have a
15 look at it, and there will be an opportunity for the appellants to respond
16 to it. But it seems to me, with all due respect, a very simple way out of
17 your logistical problems that Rule 68 gives rise to, provided that Rule 70
18 material can be easily identified and that the identity of people is
19 redacted until it can be shown that it is of some use, the material is of
20 some use to the appellants. But perhaps if you need more time let me
21 know, but I think we have to put a time limit on it, and I suggest at this
22 stage by next Tuesday, which will be the 5th, 5th of November.
23 Right. Well, now, does anybody else want to -- I'm sorry. Mr.
24 Fila, you want to add something?
25 MR. FILA: [Interpretation] No. Just to make ourselves understood,
1 Your Honour. The first batch of material I have had a look at. They are
2 papers that have been amassed from the Prijedor Police Station and Omarska
3 too, one or two trucks. There's nothing there that would come under
4 Rule 70.
5 JUDGE HUNT: Well, that means it will be easy for them, yes.
6 Thank you.
7 JUDGE HUNT: Now, does anybody else want to say --
8 MR. FILA: [Interpretation] Thank you, Your Honour.
9 JUDGE HUNT: All right, then. Well, we look forward -- yes,
10 Mr. Stojanovic.
11 MR. STOJANOVIC: [Interpretation] I think you've already solved the
12 question. I should just like to emphasise that we should join in this
13 request to have these materials looked at And what Mr. Blewitt mentions.
14 Our case is a very serious one, and it would be a very bad idea to miss
15 this opportunity. And the Zigic case is tied to a lot of incidents and
16 events, a lot of documents are being offered, and we should like to come
17 out in support of this proposal fully that we be supplied with all the
18 documents and material. Thank you so much from me.
19 JUDGE HUNT: Well, now, what I suggest happen is that after the
20 Prosecution has filed this response to Mr. Fila's suggestion, that you, as
21 soon as possible, file your own response to that so that we know where we
22 are, and I can consult my colleagues in the Appeals Chamber as to what
23 attitude we should take towards it. I only say that I think it was a good
24 idea. I'm not suggesting that it's something which we're going to
25 necessarily override any objection from the Prosecution, but it is
1 something which is worthwhile considering in order to block this terrible,
2 terrible procedural problem with Rule 68.
3 Well, thank you all for coming, and I will adjourn.
4 --- Whereupon the Status Conference adjourned
5 at 4.58 p.m.