Tribunal Criminal Tribunal for the Former Yugoslavia

Page 96

1 Wednesday, 12 November 2003

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 [The accused Gruban not present]

6 --- Upon commencing at 3.01 p.m.

7 JUDGE ROBINSON: Will the Registrar call the case, please.

8 THE REGISTRAR: Case number IT-02-65-PT, the Prosecutor versus

9 Zeljko Mejakic, Momcilo Gruban, Dusan Fustar, and Dusko Knezevic.

10 JUDGE ROBINSON: Thank you.

11 May we have the appearances, for the Prosecution.

12 MS. KORNER: Joanna Korner, Ann Sutherland, and Michael McVicker,

13 assisted by Ruth Gustin, case manager. Good afternoon, Your Honour.

14 JUDGE ROBINSON: Thank you, Ms. Korner.

15 MS. KORNER: I'm sorry, Your Honour, I've just come out another

16 court. Assisted by Ruth Karper, case manager.

17 JUDGE ROBINSON: Thank you very much.

18 And for the Defence?

19 MR. SCUDDER: I'm Theodore Scudder. I'm here representing

20 Dusan Fustar.


22 MS. NEDIC: [Interpretation] Slobodanka Nedic, attorney of --

23 attorney at law from Belgrade, representing Mr. Knezevic.

24 MR. DUNDJER: [Interpretation] Your Honours, Milenko Dundjer,

25 attorney at law, for Momcilo Gruban.

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1 MR. SIMIC: [Interpretation] Good afternoon, Your Honour.

2 Jovan Simic, attorney at law, representing Zeljko Mejakic.

3 JUDGE ROBINSON: Thank you very much.

4 Let me just get it right. It's Mr. Dundjer for Mr. Gruban?

5 MR. DUNDJER: [Interpretation] Yes, Your Honour.

6 JUDGE ROBINSON: Thank you.

7 Well, we have a number of matters to get through in this Status

8 Conference. I will proceed according to the list that I have, and I will

9 call on counsel to make comments as appropriate.

10 I'll deal first with the pre-trial motions. There is before the

11 Chamber a motion, a preliminary motion, filed by the Mejakic Defence, and

12 it is awaiting determination by the Trial Chamber. And I have to say that

13 the Chamber will give its decision on this matter soon.

14 There is also a Prosecution motion to amend Schedule B to the

15 indictment. No responses have been received to that motion, and indeed

16 the time for filing such responses has passed. And I am to say again that

17 a decision will be given soon, within a week on this motion.

18 Additional filings following the arrival of Mejakic. At the last

19 conference, the Prosecution had indicated it would need to supplement its

20 pre-trial brief in connection with the criminal responsibility of Mejakic

21 and to add a schedule detailing specific events relating to Mejakic. I

22 required the schedule to be filed by the 20th of August, but on the 21st,

23 the Prosecution filed a notice advising that on further review the

24 schedule was not needed. However, on the 3rd of October, the Prosecution

25 filed a revised consolidated pre-trial brief, which was said to be subject

Page 98

1 to any further change necessitated by the eventual decision on the Mejakic

2 preliminary motion.

3 In view of the turn of events in this matter, I will require the

4 Prosecution to file a version of the revised pre-trial brief by

5 December -- by Wednesday, 26th November, with the changes identified, with

6 the changes marked, and the Defence teams may supplement their pre-trial

7 briefs in response by Wednesday, 10th December, 2003.

8 I turn next to disclosures. And my information is that

9 considerable efforts have been made with regard to the outstanding

10 matters, in relation to 66(A)(i) and 66(A)(ii) disclosure, and that the

11 only items remaining are an English translation of the statement of

12 Witness number 17 and the disclosure to the Knezevic Defence of some photo

13 boards used for identification.

14 The Fustar and Gruban Defence teams, my information is that they

15 wish to double-check the latest batch of disclosure, so I call on them to

16 give me information on that particular matter.

17 Counsel for Fustar.

18 MR. SCUDDER: Your Honour, we have just received in Chicago about

19 ten days ago substantial material. I was engaged in a trial at the time.

20 We started to review that material. We have not finished reviewing it.

21 We expect to finish reviewing it shortly, probably within the next ten

22 days.

23 JUDGE ROBINSON: Within the next ten days.

24 MR. SCUDDER: Yes. We also received yesterday two witness

25 statements that we had not received before. I don't believe those relate

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1 to Mr. Fustar, but we're looking at those also.

2 JUDGE ROBINSON: Well, I urge you to act very quickly and

3 expeditiously in this matter.

4 Counsel for Gruban.

5 MR. DUNDJER: [Interpretation] Your Honour, the Defence team of

6 Momcilo Gruban received yesterday, after the 65 ter meeting, the evidence

7 that we had earlier required under Rule 66(A)(ii), but we will have to

8 review it in the next two days to double-check the material we received

9 yesterday and we'll be ready within two days.

10 JUDGE ROBINSON: Within two days. Thank you.

11 Rule 68 disclosure is, I'm told, also largely complete; although,

12 I understand that the matter was complicated by some material from another

13 case, the Kvocka/Omarska case, and the Prosecution had commenced review of

14 this material.

15 Ms. Korner, could you say something about this?

16 MS. KORNER: Your Honour, that's right. There's been ongoing

17 discussion, if I can put it that way. The Defence -- well, we're going on

18 about 40 CDs of material.

19 Your Honour, disclosure was made in the Omarska appeal. We are

20 now going to review the disclosure that was made in the appeal to see if

21 there's anything which is material Rule 68 in this case, and that will be

22 completed as -- as your senior legal officer was informed, by Christmas.

23 JUDGE ROBINSON: Thank you.

24 MS. KORNER: But Your Honour, I make it absolutely clear, we're

25 fully aware that our obligation under Rule 68 continues throughout, and we

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1 keep these matters under review the whole time.

2 JUDGE ROBINSON: Thank you.

3 I also understand that in order to facilitate this matter, the

4 Mejakic Defence was to meet with the Prosecution to identify particular

5 areas of interest to them which would assist the Prosecution in its

6 searches. Is that so?

7 MR. SIMIC: [Interpretation] That's correct, Your Honour. At

8 yesterday's meeting, the Defence team of Mr. Mejakic suggested - and we

9 believe indeed it would be purposeful - to narrow down our requirements to

10 certain issues and certain subjects which would facilitate the selection

11 of material, and that would also facilitate the search being done by the

12 Prosecution. As soon as we come to Belgrade, we will write this up as

13 soon as we can, and in contact with the Prosecution I think we'll deal

14 with this fairly quickly.

15 JUDGE ROBINSON: Thank you very much. I think that's very useful.

16 Rule 68 itself is -- is under review, and it may be that your -- the step

17 you're taking is somewhat anticipatory, but it's to be commended.

18 Ms. Korner, Rule 68 material from the Banovic interviews.

19 MS. KORNER: Your Honour, that's being reviewed effectively as we

20 speak. And we should be able to provide it - I think Ms. Sutherland

21 said - within the next seven days.

22 JUDGE ROBINSON: Thank you.

23 I turn next to witnesses, dealing first with expert witnesses.

24 The transcripts of Dr. Greve's prior testimony have already been admitted

25 by the Trial Chamber, and therefore she will not be called. And you can

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1 confirm this for me, Ms. Korner, but I was just told that in respect of

2 the experts Clark and Wright, that you no longer intend to -- to use them.

3 MS. KORNER: Your Honour, that's right.


5 MS. KORNER: The evidence that they would have given will

6 effectively be covered by the investigator, Mr. Sebire, who has dealt with

7 all exhumations in this case.

8 JUDGE ROBINSON: And he will be called as a -- as a witness.

9 MS. KORNER: And he will be called, if required for

10 cross-examination, and I understand it's already been indicated he will be

11 required.

12 JUDGE ROBINSON: And since you're on your feet, I also understand

13 that the -- you do not intend to call any expert in relation to -- to

14 Gruban?

15 MS. KORNER: Your Honour, no. This was raised yesterday. And

16 we're at a loss to know what your senior legal officer was referring to.

17 Although, we went back and had a look. The only expert, other than

18 Dr. Greve, who you say has been admitted, would be the expert testimony of

19 Dr. Donia in the Brdjanin case, and that will only be called if we cannot

20 reach some kind of agreement on facts which are background matters.

21 JUDGE ROBINSON: Okay. Thanks.

22 Rule 92 bis and 89(F). I understand that all the Defence teams

23 have objected to the admission of witness statements under 92 bis unless

24 the witness is called for cross-examination. Much of the evidence is said

25 to go to the acts and conduct of the accused, and therefore not admissible

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Page 103

1 under that Rule.

2 Ms. Korner, I understand that you propose a partial admission of

3 transcripts --

4 MS. KORNER: Yes.

5 JUDGE ROBINSON: -- Of 38 witnesses under 92 bis.

6 MS. KORNER: Your Honour, that's right. Can I explain? All of

7 those 38 witnesses have testified in one trial or another. In order to

8 make this an efficient presentation of the Prosecution case as shortly as

9 possible, we propose to put in the transcripts under Rule 92 bis, excising

10 that part of the transcript that go directly to the acts and conduct of

11 any accused and to call them simply on that short point. We anticipate

12 that with each witness, therefore, evidence in chief should take no more

13 than at a top -- I was going to say top whack -- at a maximum, one hour.

14 So that should narrow things down very much.

15 I know that there's been the ruling by the Appeals Chamber in the

16 Milosevic case on the total admission of all these statements, including

17 those that go to the acts and conduct of the accused, but it's our view

18 we're happy to abide by whatever ruling the Court makes on that, but that

19 the same effect will be achieved by that method, so that the transcripts

20 of the previous testimony go in as the majority of the evidence in chief

21 with a few questions to deal with those matters that go directly to the

22 accused.

23 JUDGE ROBINSON: Very well. In that case, I've considered

24 the -- the time. The case is nearly ready for trial, and with that in

25 mind I would require that you file your motion under whatever Rule by

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1 November the 26th, and responses from the Defence by December the 10th.

2 MS. KORNER: Your Honour, we're content with that. And we, as I

3 say, we'll excise from that anything that goes directly to the accused.

4 JUDGE ROBINSON: Thank you.

5 Exhibits. I understand again, Ms. Korner, that you will be filing

6 a motion for leave to add a further 17 exhibits and to withdraw one item?

7 MS. KORNER: That's right.

8 JUDGE ROBINSON: Yes. Did you wish to say anything more in

9 relation to the question of exhibits?

10 MS. KORNER: Well, Your Honour, I think there's one question that

11 is -- but it's tied up with Mr. Simic's representation. And I think it

12 may be as well to discuss that as a -- as a block, because as Your Honour

13 knows, we've got in as an exhibit -- we're proposing to add Prcac's

14 interview. But Your Honour, that's a separate topic on its own, which we

15 do need to place squarely before Your Honour today.

16 JUDGE ROBINSON: But in placing it before me, bear in mind the

17 ruling that the Chamber has already made. I would not wish to have

18 reopened any matter on which the Chamber has already ruled.

19 MS. KORNER: Well, Your Honour, then can I put it this way: Your

20 Honours have ruled. What we were proposing to do was point out the

21 difficulties that were going to arise, which weren't quite so apparent at

22 the time that we filed our motions. But Mr. Simic has raised that

23 difficulty, which is namely how is he going to represent Mr. Mejakic if

24 Mr. Prcac is a witness or his interview goes in? And the problem equally

25 arises as to how we can have any dealings with Mr. Prcac direct over the

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1 question of his testimony when Mr. Simic is acting both for him and for

2 Mejakic.

3 Your Honour, all I can do is -- the matter, I think, was

4 ventilated or attempted to be ventilated before your senior legal officer,

5 and we were told this was a matter for the Trial Chamber. But,

6 Your Honour, I don't -- effectively, we just made our position clear. It

7 is our intention to either call Prcac live as a witness or to put his

8 interview in, if it's accepted. So one way or another, Your Honour, I

9 think that is going to create a problem for -- not for us but certainly

10 for Mr. Simic.

11 JUDGE ROBINSON: Well, let -- let me hear briefly from Mr. Simic.

12 Very briefly, because I think if the Prosecution wants to have this matter

13 settled, if it's a different issue, then they can file a motion. Yes.

14 Yes.

15 MR. SIMIC: [Interpretation] Your Honour, I think there is actually

16 no problem here. We are creating one without any reason at all. Namely,

17 this Defence team can immediately accept the admission of the interview of

18 Mr. Prcac and the statement made by Mr. Mejakic before he volunteered to

19 surrender, we also accepted. That is what the Prosecution wants, and we

20 see no other problem here.

21 Another issue, a different issue, is how somebody can call a

22 witness without having any context. He is accused and before the

23 termination of the proceedings against him, he cannot be called here under

24 subpoena. If introducing the interview is a problem, this Defence team is

25 hereby giving its approval immediately. But how can we introduce the

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1 interview without any approval? We will not call Mr. Prcac for

2 cross-examination. I believe this resolves all the problems that could

3 possibly arise in this connection.

4 JUDGE ROBINSON: Thank you, Mr. Simic.

5 As I said, if the Prosecution is of the view that she has a matter

6 for the consideration of the Chamber, then she can put it to the Chamber.

7 If it is different from the issue that has already been settled -- it may

8 be related, but perhaps different.

9 I turn next to the question of agreed facts. And I understand

10 here that discussions have been going on for some time and agreements have

11 been reached with the individual Defence teams.

12 I'm grateful to the Prosecution for the summary of the status of

13 their discussions that has been submitted. It's -- it's very useful. I

14 note, however, that absent from it is the indication of any agreement from

15 the Mejakic Defence. Does that mean that the Mejakic Defence has not had

16 enough time to -- to come to an agreement on this or -- or that it

17 objects? Yes.

18 MR. SIMIC: [Interpretation] Your Honours, we have two reasons for

19 not having yet even started to discuss with the Prosecution adjudicated

20 and stipulated facts. The first reason is that we were really hard up for

21 time. We agreed with the Prosecution that within seven or ten days we

22 would make a draft proposal for stipulated facts that we could live with.

23 And the second reason is that the Defence team does not accept any facts

24 from the previous judgement on an Omarska case, and we do not agree with

25 it, even though it's an adjudicated fact. I believe that this

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1 proceedings, this case should concentrate on the role of the accused.

2 JUDGE ROBINSON: Thank you, Mr. Simic.

3 What I will do here is, again, bearing in mind the fact that this

4 case is very nearly ready for trial, I will set a date by which the

5 Prosecution is to file a motion for the admission of facts, and that date

6 will take into consideration the fact that Mr. -- the Mejakic Defence

7 needs further time for consideration. So the Prosecution is to file a

8 motion on this matter by December the 17th, and that will give the Mejakic

9 Defence enough time to consult with the Prosecution on this matter, and

10 responses by January the 9th.

11 The length of trial -- I think, Ms. Korner, you had originally

12 indicated six weeks, if there was substantial agreement on the facts of

13 the indictment and the use that could be made of prior testimony under

14 92 bis or 89(F). If not, then naturally, it would take a much longer

15 time. What is your present estimate?

16 MS. KORNER: Well, if we can reach agreement on, as it were,

17 background facts, and, for example, conditions in the camp, and depending

18 on how much cross-examination, obviously, but six weeks seems to me to be

19 utterly realistic estimate for the Prosecution case.

20 JUDGE ROBINSON: If there is agreement on those--

21 MS. KORNER: If we can get agreement on the conditions in the

22 camp, which I would have thought were so obvious as to not even be worth

23 arguing about. Then I estimate that six weeks is a reasonable time to

24 finish the Prosecution case.

25 JUDGE ROBINSON: And give another six weeks for the Defence?

Page 108

1 MS. KORNER: Well, at this stage I can't assist. I don't know

2 what they intend to do.

3 But, Your Honour, can I emphasise that as far as the

4 Prosecution's concerned we are ready to start trial at any time that the

5 Court orders.

6 JUDGE ROBINSON: I think the intention is to have this trial

7 started at the earliest possible time, early in the new year.

8 Now, once the preliminary motion has been resolved, once the

9 decision has been given, we will fix a date for filing of the Mejakic

10 pre-trial brief and responses, if any, to the revised Prosecution brief.

11 And then I would also set a date for the Pre-Trial Conference. The next

12 Status Conference is to be held by the latest 11th of March next year, and

13 I will set Wednesday, the 10th of March as the date of the next

14 Status Conference. And I understand the next Rule 65 ter Conference has

15 already been scheduled for the 28th of January.

16 Is there any other matter that any counsel wishes to raise before

17 I call on the accused?

18 May I ask the accused, then, whether there is anything which any

19 of them wishes to raise in relation to the case as a whole or in relation

20 to their conditions of detention. I'll start first with Mr. Mejakic.

21 THE ACCUSED MEJAKIC: [Interpretation] Your Honour, I have no

22 remarks to make. I have no need to broach any issues. Thank you.

23 JUDGE ROBINSON: Thank you.

24 Mr. Fustar?

25 THE ACCUSED FUSTAR: [Interpretation] Your Honour, I have no

Page 109

1 remarks to make, no matters to raise. I am satisfied with the Detention

2 Unit, and I have nothing more to add. Thank you.

3 JUDGE ROBINSON: Thank you.

4 Mr. Knezevic?

5 THE ACCUSED KNEZEVIC: [Interpretation] Your Honour, I have nothing

6 to say. The conditions in the Detention Unit are good, and I have nothing

7 further to add. Thank you.

8 JUDGE ROBINSON: Well, on this note of total satisfaction, we

9 adjourn.

10 --- Whereupon the Status Conference adjourned at

11 3.29 p.m.