Tribunal Criminal Tribunal for the Former Yugoslavia

Page 59

1 Tuesday, 8 April 2003

2 [Open session]

3 [Status Conference]

4 [The accused entered court]

5 --- Upon commencing at 3.18 p.m.

6 JUDGE ROBINSON: Let the Registrar call the case, please.

7 THE REGISTRAR: Good afternoon, Your Honour. This is Case Number

8 IT-02-65-PT, the Prosecutor versus Banovic, Fustar, and Knezevic.

9 JUDGE ROBINSON: May I have the appearances, please.

10 MS. CHANA: May it please Your Honours, Sureta Chana for the

11 Prosecution assisted by David Leese, the case manager.

12 JUDGE ROBINSON: Thank you, Ms. Chana. And for the Defence.

13 THE INTERPRETER: Microphone, please.

14 MS. NEDIC: [Interpretation] Good afternoon, Your Honours, on

15 behalf of Dusan Knezevic, Slobodanka Nedic, lawyer from Belgrade, with my

16 co-counsel Tom Moran.

17 JUDGE ROBINSON: Thank you Ms. Nedic. Yes, next.

18 MS. TURLAKOV: [Interpretation] Sanja Turlakov, counsel from

19 Belgrade, together with my co-counsel Milenko Dundjer. I represent

20 Momcilo Gruban before this Tribunal.

21 MR. IVETIC: May it please the Court, attorney Dragan Ivetic

22 co-counsel for the accused Dusan Fustar on behalf of the Defence of Dusan

23 Fustar.

24 JUDGE ROBINSON: Thank you, Mr. Ivetic. We have --

25 MR. BABIC: [Interpretation] Good afternoon, Your Honours, my name

Page 60

1 is Jovan Babic, counsel from Novi Sad. I represent Predrag Banovic before

2 this Tribunal.

3 JUDGE ROBINSON: Thank you, Mr. Babic.

4 I'll proceed straight to the number of issues that we have to deal

5 with in this Status Conference. First, I want to comment on pre-trial

6 motions. Each Defence team has filed a preliminary motion challenging the

7 form of the indictment. The Chamber has given its decision on those

8 motions. The decision was given on Friday, the 4th. The only other

9 pending motion is from Gruban for variation of the terms of his

10 provisional release, and I am to say that the Chamber will be giving that

11 decision within a week's time.

12 I turn next to the pre-trial briefs. The Prosecution had filed

13 its pre-trial brief, witness list, and exhibit list on the 7th of

14 February. And each Defence team was granted an extension of time for

15 filing the Defence pre-trial brief from the 31st of March to 14 days after

16 receipt of the Trial Chamber's decision on the preliminary motions. The

17 decision was given on the 14th -- on the 4th, and 14 days would put us to

18 the 18th unless any of the Defence did not receive the Chamber's decision

19 on Friday, the 4th. If I don't hear that that is the position, then the

20 date for the Defence pre-trial briefs will be the 18th of April. I note

21 that Banovic Defence had already filed its pre-trial brief on the 31st of

22 March.

23 Disclosure of witness statements, 66(A)(i), that was completed

24 some time ago by the OTP in both English and B/C/S. And as for 66(A)(ii)

25 statements, most of the witnesses to be called have been disclosed under

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1 66(A)(i), other than those of any additional witnesses identified as the

2 Prosecution finalised its witness list.

3 Ms. Chana, any comment on that? Can you confirm that all witness

4 statements have been disclosed?

5 MS. CHANA: Yes, Your Honour, all the witness statements have been

6 disclosed 66(i), and in respect of 66(ii), Your Honour, we still have some

7 which we have not disclosed, but by and large they are almost all

8 disclosed because --

9 JUDGE ROBINSON: When do you expect to disclose those?

10 MS. CHANA: We should be doing them in the next ten days, Your

11 Honour.

12 JUDGE ROBINSON: Thank you.

13 Reciprocal disclosure, not invoked. Doesn't arise. Rule 68

14 material, I understand the Prosecution is still conducting the necessary

15 searches and will disclose as soon as any material is found.

16 Ms. Chana, any comments on that?

17 MS. CHANA: That's correct, Your Honour, we are still conducting

18 the searches, and we have some binders which have come back. We are

19 reviewing them, Your Honours, and then we will disclose as we review them.

20 JUDGE ROBINSON: No idea of the time frame?

21 MS. CHANA: Your Honour, the time frame on this one will be at

22 least six weeks.

23 JUDGE ROBINSON: I see, yes.

24 I turn next to the question of expert witnesses. I think four

25 expert witnesses were indicated, but as I understand it, their statements

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1 have been disclosed. The forensic anthropologist, the forensic medical

2 examiner, and we have the statement of Dr. Greve, a member of the

3 commission of experts, and the Chamber had already admitted transcripts of

4 Dr. Greve's prior testimony under Rule 92 bis.

5 May I ask Ms. Chana whether these experts are still to be called

6 and just to say whether the relevant reports have been fully disclosed?

7 MS. CHANA: Yes, Your Honour. We have disclosed Wright and

8 Dr. Clark. In respect of Mr. Sebire, Your Honour, he is no longer an

9 expert. I think we had put in the motion to that extent. And we will be

10 disclosing him. We've had the English version, sorry, Your Honour, and

11 the B/C/S is still to be disclosed, which will be done within a week.

12 JUDGE ROBINSON: Sebire will be called as an ordinary witness?

13 MS. CHANA: As an ordinary witness. Yes, as an investigator

14 within the OTP, Your Honour.

15 JUDGE ROBINSON: Right. Any issues relating to him will be dealt

16 with at the trial.

17 Rule 92 bis, I understand that the parties have been encouraged to

18 commence discussions on the use of transcript evidence, in particular from

19 the Sikirica trial and that most of the 92 bis material would be by way of

20 transcript rather than witness statements.

21 May I inquire from Ms. Chana and from the Defence how these

22 discussions are going? Because if they are not proceeding well, then I

23 think the Chamber will have to consider a particular course of action.

24 MS. CHANA: Yes, thank you, Your Honour. In respect of 92 bis, we

25 will all be in a position to know the statements of the transcript with

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1 which we will put into evidence if we have some sort of feedback on the

2 agreed facts that we gave to the Defence. And these were given on the 6th

3 of December last year, Your Honour, and we still have not had any feedback

4 from the Defence as to whether they agree to some of these facts.

5 As I stated at the last Status Conference, Your Honour, if we have

6 agreement on some of these chapeaux elements, then of course we'll only be

7 confined to the criminal responsibility of the accused themselves. And in

8 that event, we will not have that much 92 bis material to put into

9 evidence. It does depend very much, Your Honour, on the agreement which

10 we can get from Defence in this respect. We haven't had any discussions

11 in respect of these facts, and we would appreciate the Trial Chamber's

12 assistance in this regard.

13 JUDGE ROBINSON: Thank you, Ms. Chana. That's the next matter I

14 was going to come to, so we can deal with agreed facts and Rule 92 bis at

15 the same time. It is a fact that the Prosecution presented on the 6th of

16 December, 2002, a list of facts for possible agreement and a list of

17 finding from previous judgements for consideration. But to date, no

18 response from the Defence, so I'm going to ask each Defence counsel to say

19 why this is so.

20 MS. NEDIC: [Interpretation] Your Honour, the Defence team for

21 Knezevic has reviewed the facts as offered, and we thought this would be

22 discussed at a 65 ter conference scheduled for February originally,

23 however, the conference was not held. Therefore, we issued no statements

24 in this regard. In conversation with our client, we agree that our client

25 is the one who should agree on a number of facts, that's in as far as he's

Page 65

1 familiar with those facts. Without his assent, his Defence team will not

2 take those steps, and that is why we have so far offered no reply, for the

3 simply reason that Mr. Knezevic has no knowledge of any of the facts to

4 all intents and purposes with the exception of some publicly known facts

5 such as that Prijedor is in the southwest of Republika Srpska or that he

6 worked as a waiter before the war. But not even his personal data are

7 accurate enough. That is why we were unable to agree on the facts as

8 offered and see them as indisputable. Thank you very much.

9 JUDGE ROBINSON: In any event, whatever the position is, there

10 should be a response, even if it is to the extent that you have just

11 indicated.

12 Yes, may I hear from the next counsel.

13 MS. TURLAKOV: [Interpretation] Your Honour, Mr. Gruban's Defence,

14 that's correct, has not yet delivered what it has been asked to deliver.

15 However, the Prosecution and the Defence could not agree on the undisputed

16 facts, neither on the facts which have already been judged. In our

17 opinion, it is the Prosecution's fault and for the following reason: The

18 Prosecution offered to Defence a proposal of agreed facts which to us was

19 unacceptable and inconsistent, if I may say. Of course, in the opinion of

20 the Defence adjudged facts should not be taken out of the context of the

21 Omarska judgement but should rather be adopted in their original version

22 and text. Furthermore, the Defence claims that double standards are being

23 applied as concerns the indisputed facts. The Prosecution is only

24 offering from the Omarska case what suits their case, but for example, as

25 for the criminal responsibility of Momcilo Gruban. But what for the

Page 66

1 Prosecution represents their res adjudicata which they never appealed

2 against the Prosecution simply neglects that. It is dues to this attitude

3 by --

4 JUDGE ROBINSON: I want to interrupt you. I don't want you to

5 discuss the matter here. It should really be discussed with the

6 Prosecutor, not here now. So let's now get into the substance. I will

7 make a ruling when I've heard from all counsel as to the procedure that

8 should be followed.

9 May I hear from counsel for Banovic.

10 MS. TURLAKOV: [Interpretation] Very well, Your Honour.

11 MR. BABIC: [Interpretation] Your Honour, I discussed these facts

12 with my client, the facts that the Prosecution offered as beyond dispute.

13 There are a number of facts where we don't have res adjudicata or rather a

14 final judgement. We are still reviewing those, whether to accept those or

15 not. The Defence also has some facts to be disclosed to the Prosecution,

16 and we are in touch. I believe we will eventually do this. I must,

17 however, point out that we had agreed on a document containing agreed

18 facts a long time ago. It's a much narrower document in scope than the

19 one being tendered now, but still it is in a manner of speaking under

20 procedure.

21 JUDGE ROBINSON: Thank you. Next counsel.

22 MR. IVETIC: May it please the Court, on behalf of the Fustar

23 Defence I would only add to what my learned Defence colleagues have

24 already said, that in fact we believe that in reviewing the facts that

25 have been offered, at this point in time we are only able to agree in a

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1 limited nature because most of the facts that are asserted are beyond the

2 knowledge of our client and there are some inconsistencies we believe

3 between some of the language of the facts. If this Court deems that we

4 need to do a written response acknowledging which facts we agree with,

5 which facts we dispute, we will be happy to do that within the time frame

6 that the Court would specify.

7 JUDGE ROBINSON: Thank you. And I will specify a time frame. I

8 would like this to be done by the end of May, and for the discussions

9 between the parties to be facilitated by the senior legal officer. And

10 that relates both to agreed facts and Rule 92 bis.

11 I turn next to the length of trial. The Prosecutor had indicated

12 that if it got substantial agreement on the facts in the indictment, its

13 case could be presented in about six weeks; if not, it could be as much as

14 six months. So it's absolutely important to proceed with the endeavour to

15 get agreement. And the Prosecution witness list identifies 55 witnesses.

16 That includes the investigator Sebire. Time estimate for

17 examination-in-chief would be about 110 hours, I understand. Ms. Chana.

18 MS. CHANA: Yes, that sounds about right, but I would like to take

19 that under notice, Your Honour, and not commit myself to that at this

20 point.

21 JUDGE ROBINSON: Yes. We would be looking then if that were

22 possible at a case that could be -- a Prosecution case that could be

23 completed in about six weeks. I'm saying this because if -- or rather

24 when the Defence file their Defence pre-trial brief, this case would be

25 ready for trial. So we have to make every effort to get it as ready as

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Page 69

1 possible for trial at the earliest possible date.

2 I turn next to the statutory requirement to make inquiries from

3 each of the accused about the conditions of detention, and this is an

4 opportunity for the accused to mention any matter which is of concern to

5 them in relation to the case or any matter relating to their conditions of

6 detention.

7 May I start with Mr. Knezevic. Mr. Knezevic, would you stand. Do

8 you have anything to say?

9 THE ACCUSED KNEZEVIC: [Interpretation] No, I have nothing to say,

10 Your Honour.

11 I have nothing to say for the time being, Your Honour.

12 JUDGE ROBINSON: Thank you, Mr. Knezevic.

13 THE ACCUSED KNEZEVIC: [Interpretation] You too, Your Honour.

14 JUDGE ROBINSON: I ask the accused Fustar whether he has anything

15 to say.

16 THE ACCUSED FUSTAR: [Interpretation] Good afternoon, Your Honour.

17 I have nothing to say. Everything is normal. The personnel has been

18 treating us in a fair manner. I have no objections for the time being.

19 JUDGE ROBINSON: I am happy to hear that. Thank you, Mr. Fustar.

20 And Mr. Banovic.

21 THE ACCUSED BANOVIC: [Interpretation] Your Honour, as for my

22 health, thanks to you and to the personnel of the Detention Unit, my

23 health is now fine, and everything else is fine as well. Just one

24 question I had, at the last Status Conference, we raised the issue of

25 obtaining a visa for my brother, and we have so far received no reply to

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1 that. So I believe my counsel wanted to raise an issue in connection with

2 that. That is the only problem I have for the time being.

3 JUDGE ROBINSON: Thank you. Let me hear from your counsel, then.

4 MR. BABIC: [Interpretation] Your Honour, at the last Status

5 Conference, we raised the issue of obtaining a visa for Mr. Banovic's

6 brother. This issue was raised in relation to his overall state of

7 health. It was my impression that if his twin brother is not here, this

8 really affects my client's health and his ability to follow the

9 proceedings before this Tribunal. In the meantime, his health has

10 improved considerably, which is very good. He does, however, suffer

11 permanently and is persecuted by the thought not knowing the reason why

12 his twin brother should not be allowed to come and visit him. If the

13 reason is that he came here due to a huge mistake and he left cleared of

14 all accusations without being able to return to this country, then such

15 reasons for him and for me are difficult to understand. Again, we are

16 being told that this is impossible for security reasons.

17 If that is the case, I really can't think of what Nenad Banovic

18 could have done or could do for the security situation to deteriorate

19 around here or for anything else to happen. We believed that the last

20 Status Conference would yield results, however we see no results for the

21 time being. If the Chamber is not in the position or if this is something

22 which is outside the jurisdiction of the Chamber, we shall accept this,

23 but then we are prepared to use other channels, legal channels, to obtain

24 approval for his brother, as for any other citizen arriving in The Hague

25 to visit their relatives at the Detention Unit. That's all I have to say

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1 for the time being.

2 JUDGE ROBINSON: Thank you.

3 Senior legal officer.

4 [Trial Chamber and senior legal officer confer]

5 JUDGE ROBINSON: Mr. Banovic, I've heard what you have said, and

6 I've heard the representations from your counsel. We have made inquiries,

7 but I'd like to have a formal response from the Registry on this matter.

8 So I'm going to ask the Registrar to convey to the Registrar the concerns

9 that have been expressed and ask whether a formal response could be given

10 explaining the position. It may be that they're valid reasons and

11 considerations, but it would be helpful to know them. So we have to leave

12 it at that, Mr. Banovic. The Chamber will request the Registrar to

13 provide a formal response in relation to the matters that have been raised

14 and in relation to which the representations have been made by your

15 counsel.

16 The next Status Conference, we have to fix a date for that, and we

17 have to bear in mind that that could also be the Pre-Trial Conference,

18 once the Defence pre-trial briefs are in, I think we are on stream. And

19 the date I'd like to fix is Wednesday, July the 23rd at 3 p.m.

20 Are there any other matters to be raised by any of the parties?

21 If not, this hearing is adjourned.

22 --- Whereupon the Status Conference adjourned

23 at 3.45 p.m.