Tribunal Criminal Tribunal for the Former Yugoslavia

Page 101

1 Monday, 13 October 2003

2 [Open session]

3 [Status Conference]

4 [The appellants entered court]

5 --- Upon commencing at 3.03 p.m.

6 JUDGE WEINBERG DE ROCA: Will you please read the case.

7 THE REGISTRAR: Case Number IT-98-30/1-A, the Prosecutor versus

8 Miroslav Kvocka, Mladjo Radic, Zoran Zigic, and Dragoljub Prcac.

9 JUDGE WEINBERG DE ROCA: Thank you. Appearances for the

10 Prosecution.

11 MR. CARMONA: Your Honour, my name is Anthony Carmona -- Your

12 Honour, my name is Anthony Carmona and I appear on behalf of the

13 Prosecution. Appearing with me for the Prosecution is Ms. Norul Rashid

14 and Ms. Helen Brady. Ms. Lourdes Galicia is our case manager. Thank you.

15 JUDGE WEINBERG DE ROCA: Thank you very much. And for the

16 Defence.

17 MR. K. SIMIC: [Interpretation] Good afternoon, Your Honour, my

18 name is Krstan Simic and I appear for Miroslav Kvocka.

19 MR. FILA: [Interpretation] Good afternoon, Your Honour, I am

20 attorney Toma Fila and together with attorneys Zoran Jovanovic, I appear

21 for Mladjo Radic.

22 MR. STOJANOVIC: [Interpretation] Good afternoon, Your Honour, I am

23 attorney Slobodan Stojanovic, and I appear for Mr. Zoran Zigic. Thank

24 you.

25 MR. J. SIMIC: [Interpretation] Good afternoon, Your Honour, I am

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1 Jovan Simic and I appear for Mr. Prcac.

2 JUDGE WEINBERG DE ROCA: Thank you very much.

3 I want to ask the parties if there's anything they want to raise

4 at this Status Conference.

5 Prosecution.

6 MR. CARMONA: No, Your Honour.

7 JUDGE WEINBERG DE ROCA: I have one question to the Prosecution.

8 And that is if there's still much material pending to disclose.

9 MR. CARMONA: Your Honour, I can indicate that we have, in fact,

10 completed our disclosure inquiry. And, in fact, as late as the 17th of

11 September, approximately one month ago, we, in fact, disclosed some

12 material to the Defence. I can indicate further that it is our habit that

13 six months after a particular disclosure inquiry is done, we complete

14 another. So that in the context of how we operate our modus, I can

15 indicate to you that our next inquiry which would take place sometime in

16 December. This is contingent of material being generated as a result of

17 ongoing trials or as a result of investigations. Thank you.

18 JUDGE WEINBERG DE ROCA: Thank you very much. Would it be too

19 much to ask if the future disclosure that you just don't disclose the

20 whole lump, but select what may be pertaining to the case.

21 MR. CARMONA: Certainly. It is our intention. We have, in fact,

22 been doing that. Given the limited material that is coming forward, we

23 are prepared to do the requisite review. In the context of relevance and

24 in the context of the Rule 68 directive.

25 JUDGE WEINBERG DE ROCA: Thank you very much.

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1 Counsels.

2 MR. K. SIMIC: [Interpretation] Your Honour, I have no special

3 issues to raise, but I must express my concern because of the length of

4 these proceedings. Mr. Kvocka has been sentenced to seven years in

5 prison. He has already been in detention for almost six years. And if

6 these proceedings continue at this speed, I am afraid that he will have

7 served his sentence before the documents are disclosed. We are rebutting

8 the evidence in the file, not new evidence. So we wish to present our

9 case as soon as possible and put an end to these lengthy proceedings,

10 which I'm sure need not have taken so long. Unfortunately they have taken

11 a long time and I am afraid that in these proceedings the right to an

12 expeditious and fair trial has been imperilled and that has already been

13 mentioned at the last Status Conference. Thank you.

14 JUDGE WEINBERG DE ROCA: Thank you very much.

15 MR. FILA: [Interpretation] Your Honour, I wish to support what my

16 colleague has said. If you look at the record of the last Status

17 Conference, I said that the Prosecution is protracting these proceedings

18 in the Krnojelac case. The judgment has been issued and I think there is

19 no need any longer to waste time. Soon it will be two years from the

20 decision of the Trial Chamber and this is actually a violation of human

21 rights. Thank you.

22 JUDGE WEINBERG DE ROCA: Thank you very much.

23 MR. STOJANOVIC: [Interpretation] Your Honour, certainly we are

24 also in favour of a speedier resolution of this case, but we have to

25 express our concern because three members of the Appeals Chamber have been

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1 changed, including the pre-Appeal Judge. We do not have any doubts about

2 the abilities of the new Judges, and we are sure that they will fulfill

3 everything that's required of them, but they will need time to familiarise

4 themselves with this case, especially the case of Mr. Zigic. I feel that

5 the case of Mr. Zigic is very complex. There are numerous counts,

6 according to which he has been found guilty, numerous convictions, and we

7 have appealed against these, which is why we feel that a thorough approach

8 should be taken to the consideration of all these circumstances regardless

9 of time. We do not require a decision which would be speedy, but based on

10 erroneous facts. We are considering several new motions, including a

11 motion based on Rule 115. We have a full understanding for the

12 standpoints of other defence counsel who are in a hurry to have this

13 appeal completed as soon as possible. And we would not object to this

14 case being severed. We think this would make sense because Zigic has

15 nothing in common with the others involved in the -- allegedly in the

16 joint criminal enterprise. They are not accused of the same actions. So

17 we would not oppose the case being severed.

18 We feel that in this context, speed might be reflected in a poorer

19 quality of proceedings, so we beg that all this be taken into account.

20 Thank you.

21 JUDGE WEINBERG DE ROCA: Thank you very much. I do not think that

22 speed and fairness are contradictory, and as far as I understand you have

23 already two 115 motions presented. Do I understand from what you just

24 said that you intend to present a third 115 motion?

25 MR. STOJANOVIC: [Interpretation] Your Honour, we have two motions,

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1 plus an additional motion. And we are considering yet another one. We

2 feel that this has to do with some circumstances that have arisen since

3 our appeal, so we feel that this would be timely.

4 JUDGE WEINBERG DE ROCA: Well, in due time, the Bench will deal

5 with your motion, if it is presented.

6 MR. J. SIMIC: [Interpretation] Your Honour, we agree with what our

7 colleagues have said, but would like to add something. In our view, the

8 Prosecution has a continuous obligation to disclose, and this is something

9 that goes on. Otherwise, waiting for them to disclose everything at the

10 rate at which they are doing it, we might find ourselves in a situation

11 where they never disclose everything. If new material is discovered and

12 they disclose it to us, we can then present our case to the Court.

13 However, now, if you look at the records from the previous Status

14 Conference, you will see that we have even waived our right to this

15 material because we have an idea of what it might contain and the Defence

16 has looked through most of this material during the trial itself. And we

17 simply have been waiting for two years. Mr. Prcac is now in a poor state

18 of health. During the trial we had health problems. Now he has been

19 hospitalised for the third or fourth time, and his stays in hospital are

20 growing longer and longer, and he's obviously under psychological pressure

21 and is subject to psychosomatic complaints. So we are in a situation

22 where we might fall ill because of the length of these proceedings.

23 That is why we feel that Your Honour should set a deadline up to

24 which the Prosecution should disclose everything they have. Please let us

25 have a deadline for these review proceedings and then I really don't see

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1 what the problem is and why we have to wait for them to disclose

2 everything. Thank you.

3 JUDGE WEINBERG DE ROCA: Yes. Does the Prosecution want to

4 respond?

5 MR. CARMONA: Indeed, Your Honour. I think my learned colleagues

6 on the otherwise, with the exception of Mr. Simic, to some extent, do not

7 fully appreciate the responsibilities of the Prosecution in relation to

8 Rule 68. As indicated previously, Rule 68 material is not something that

9 we essentially have sitting there. It may be something that is, in fact,

10 generated from a trial where you have similar-type witnesses giving

11 evidence. Apart from that, Your Honour will appreciate that ongoing

12 investigations that may generate material that will essentially assist the

13 Defence. So it is in their interest, as has been outlined and delineated

14 by the previous Appeal Judge for the Prosecution to continue to

15 vigorously, in fact, pursue its obligations in relation to Rule 68, and

16 this is what we have done.

17 We are not simply looking, sitting back. We are in fact -- if at

18 any point of time there is material that comes to the fore, we make it

19 available immediately. We say, for example, in our rule to be fair and

20 just -- we say, for example, every six months we do such a review for that

21 particular and specific purpose. Additionally, we are, in fact, quite

22 anxious to expedite this appeal. But there is a process, and the process

23 would inevitably incorporate potentially, if 115 material is accepted by

24 the Chamber we, in fact, would have to in fact -- would have to file or

25 adduce rebuttal evidence. So there is process. And it is a process that,

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1 in fact, that in no way we are attempting to stymie the expedition of the

2 trial. We are anxious, as anxious, to expedite this matter.

3 Additionally, I just wish to reiterate that this argument with

4 regard for the need to severance was addressed previously by the

5 pre-Appeal Judge and it was rejected. And we, in fact, continue to hold

6 our ground on that issue, that this is a matter that should be heard in

7 total with all the individual parties here in this court, being in a

8 position for us to respond as is normal in a situation involving four

9 accused persons. So to put it categorically: We oppose any request for

10 severance because we think that the justice of this case holds that this

11 matter be heard in its entirety with all the appellants.

12 JUDGE WEINBERG DE ROCA: Thank you very much. Anyway, it's not

13 for the pre-Appeal Judge in a Status Conference to decide on this request

14 for severance. I can only assure Mr. Zigic's counsel that even if there

15 are new Judges on the bench, we are well acquainted with the case and that

16 will not mean any delay.

17 Is there any other matter the parties want to raise?

18 MR. K. SIMIC: [Interpretation] Your Honour, I would like to dwell

19 for a moment on this issue, because the Prosecutor was not present during

20 the trial. The Kvocka Defence raised the issue of severance in July last

21 year. However, this became moot because it appeared that the proceedings

22 might be completed very soon. This was in July last year but now it's

23 October and we are still on square one. I am touched by the Prosecution's

24 concern for the interests of my client.

25 I have to say, however, that the practice of this Tribunal has

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1 been that after having served two-thirds of their sentence, convicted

2 persons have been released. On the 9th of December, 2002, my client

3 served, so to speak, two-thirds of his sentence, and he's now nearing the

4 end. Documents will keep turning up until 2010. Does this mean that my

5 client has to wait for the year 2010 for us to be sure that the

6 Prosecution wishes him well?

7 That is why I suggest that as no decision was made regarding the

8 issue of severance, because this question became moot, I propose that this

9 be considered. We feel that there is no need for things that still have

10 to be done to slow the proceedings for the other accused. Everything that

11 has been done with regard to my client has actually been a waste of time.

12 And it left the impression that this was really an obstruction of the

13 proceedings, rather than an effort to be helpful. Thank you.

14 THE INTERPRETER: Microphone, please.

15 JUDGE WEINBERG DE ROCA: Thank you, Mr. Simic, and I understand

16 you're the only one who did not present a 115 motion.

17 If there's no other request for the floor, this conference will be

18 adjourned.

19 ---Whereupon the Status Conference

20 adjourned at 3.21 p.m.