Tribunal Criminal Tribunal for the Former Yugoslavia

Page 125

1 Tuesday, 26 October 2004

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE ROBINSON: Will 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 Zeljko Mejakic, Momcilo Gruban, Dusan

9 Fustar, and Dusan Knezevic.


11 May we have the appearances.

12 MS. SUTHERLAND: Ann Sutherland, Michael McVicker, Katharina

13 Margetts, and Sebastiaan Van Hooydonk, acting case manager for the

14 Prosecution.

15 JUDGE ROBINSON: Thank you, Ms. Sutherland.

16 And for the Defence.

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

18 attorney-at-law Jovan Simic on behalf of the accused Zeljko Mejakic.


20 MR. IVETIC: Good afternoon, Your Honour. May it please the

21 court, attorney Dragan Ivetic from Chicago for Mr. Dusan Fustar.

22 JUDGE ROBINSON: Thank you.

23 MR. LUKIC: Good afternoon, Your Honour. Mr. Branko Lukic for

24 Mr. Momcilo Gruban.

25 JUDGE ROBINSON: Thank you.

Page 126

1 MS. NEDIC: [Interpretation] Good afternoon, Your Honour. My name

2 is Slobodanka Nedic. I'm here on behalf of Mr. Dusan Knezevic.

3 JUDGE ROBINSON: At the outset I should say two things. Firstly,

4 that I am aware that there is an application on the Rule 11 bis for this

5 case to be transferred to another jurisdiction. That is being considered.

6 Naturally, pending that determination, the pre-trial work must continue.

7 The Senior Legal Officer had requested the parties to submit brief reports

8 on matters of interest and any information that they wished to raise at

9 the Status Conference by Wednesday, the 20th of October. So far we

10 received a report from the Prosecution and one from the Knezevic Defence.

11 I take it that the Defence of Mejakic and Fustar have no specific

12 matters to raise, but if they do they will be provided with an opportunity

13 to do so.

14 Our first pending motion. There was the Prosecution motion on the

15 Rules 92 bis and 89(F) and a request for protective measures. The Chamber

16 has issued a decision in that.

17 Then there is the Prosecution addendum to the Rules 92 bis and

18 89(F) motion and a decision has also been issued in response to that

19 motion.

20 And there is a Prosecution motion to add four witnesses and to

21 withdraw one. And a decision has been issued.

22 There is the Prosecution motion to amend the schedules to the

23 indictment and today the Chamber issued a decision asking the Prosecution

24 to clarify certain matters relating to that motion.

25 That leaves outstanding the Prosecution's motion pursuant to Rule

Page 127

1 68 for exempting specific material from disclosure. That just came in and

2 requires review and further consideration.

3 Our pre-trial briefs and Rule 65 ter filings, the pre-trial

4 submissions are complete. As for disclosure, disclosure is complete in

5 terms of Rule 66(A)(i) and 66(A)(ii). Rule 68, except for the motion I

6 just mentioned, my understanding is that the Prosecution has completed its

7 review of databases and other relevant sources and has disclosed all

8 Rule 68 material, the last batch being disclosed to the Defence on the

9 20th of October. And the Prosecution informs us that there has been some

10 progress on the electronic disclosure system. Rule 68 material is

11 available online, including the Omarska appeal material.

12 I have another heading here, Rule 66(B), but the applications were

13 in fact made on the Rule 66(A)(ii) and Rule 68. And I'll tell you how I

14 think Rule 66(B) arises when we discuss the matter. The Fustar Defence

15 sought disclosure of material from the interview with Predrag Banovic.

16 And that material was couriered to the Fustar Defence on the 20th of

17 October. Now, the Knezevic Defence has sought to obtain a number of

18 documents that it claims are in the Prosecution's custody. First,

19 photoboards produced during the course of testimony of six named

20 witnesses; secondly, patients' logbooks which the Defence claims were

21 seized by the Prosecution at the Prijedor hospital; and finally the full

22 unredacted transcripts of the appeal hearing in Kvocka, which according to

23 the Defence contains exculpatory material.

24 Ms. Sutherland, would you like to comment on that?

25 MS. SUTHERLAND: Yes, Your Honour.

Page 128












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 129

1 JUDGE ROBINSON: Starting first with the photoboards, and I should

2 say I am in receipt of your latest filing and I presume the Defence is,

3 too. This is a filing which is dated the 22nd of October and the 21st of

4 October.

5 MS. SUTHERLAND: Yes, Your Honour. The Defence are in possession

6 of copies of those letters. They were addressed to them.

7 With respect to the photo issue, one of our priorities over the

8 last few months has been to resolve this issue and the evidentiary issues

9 raised in Ms. Nedic's letter. We could respond to her in a piecemeal

10 fashion but we want to do it in one substantive reply. And in that regard

11 we need to speak with a Rule 70 provider before we can do that. A meeting

12 is being scheduled in the next month for that to occur in a third country

13 and after which we will be in a position to respond fully to Ms. Nedic's

14 letter.

15 JUDGE ROBINSON: Thank you.

16 MS. SUTHERLAND: In relation to the hospital records, Ms. Nedic's

17 original request was a broad one in relation to the victims named in the

18 scheduled incidents attached to the indictment. The latter request of

19 last week was more specific. We have re-reviewed the materials and we

20 disclosed an additional five documents on Friday, the 22nd of October.

21 As far as the assertions that they contain exculpatory material,

22 we have reviewed that material and disclosed those documents we deem that

23 fall within the ambit of the rule. And unless Ms. Nedic can provide us

24 with perhaps a list of persons in the Keraterm camp, then we will

25 re-review the documents again. But at this stage the Prosecution is not

Page 130

1 prepared to disclose willy-nilly documents relating to patient records.

2 JUDGE ROBINSON: The unredacted transcripts?

3 MS. SUTHERLAND: The Omarska appeal, we disclosed on Thursday a

4 transcript of a witness who testified in that case with a pseudonym. We

5 have reviewed the closed session/private session materials for Rule 68,

6 and we are of the view that the closed session -- there are no Rule 68

7 excerpts within the private session/closed session material.

8 JUDGE ROBINSON: But they are seeking disclosure of the statements

9 of all the witnesses, not just one.

10 MS. SUTHERLAND: The transcripts are available to the Defence.

11 The open-session transcripts are available to the Defence on the system,

12 the electronic system, on the Internet. We have reviewed the closed

13 session and private session transcripts, and we have -- the transcript

14 that was disclosed in the latter part of last week related to one of our

15 witnesses, so it was pursuant to Rule 66(A)(ii), and we apologise for that

16 oversight.

17 JUDGE ROBINSON: Thank you.

18 Ms. Nedic.

19 MS. NEDIC: [Interpretation] Well, Your Honour, I must confirm that

20 I have indeed received some of the documents that I had requested. I

21 accept that at this point in time the Prosecution cannot fully respond to

22 our request as far as the photoboards are concerned, and I am sure they

23 will follow the procedure in terms of disclosure of these materials.

24 As for the medical documents, some of those documents have been

25 forwarded to us. It is a fact that these were not the originals that we

Page 131

1 had requested and that had been seized at the Prijedor hospital, though.

2 The OTP informed us that we should in a way prove that there should be

3 disclosure pursuant to Rule 68. In view of paragraph 16 of the indictment

4 where it is stated that the prisoners had no or insufficient medical care,

5 we believe that constitutes a sufficient reason for us to request the

6 disclosure of these documents.

7 What this is about is that we have received some typewritten

8 records. I am not sure if there had been a careful selection of those

9 texts that were typewritten. This was certainly not in the order in which

10 the patients were admitted. We are seeking to receive those that had been

11 hand written and had been accessible at one point in time. Before the OTP

12 seized those documents, those documents had appeared in the Omarska case

13 as exhibits purportedly.

14 As for these materials from the appeals hearings in the Kvocka

15 case, it is true that we have received some documents and that the

16 identity of those witnesses have -- has been disclosed to us, at least in

17 as far as the Defence has so far been able to go through the documents

18 found in our locker.

19 JUDGE ROBINSON: Ms. Sutherland, I was wondering whether you have

20 considered whether the Prosecution does not have an obligation under 66(B)

21 to disclose some of this material which is in its possession on the basis

22 that it is in your custody and that it is material to the preparation of

23 the Defence. Although the Defence requested it on the 66(A)(ii). It may

24 be that 66(B) is also applicable.

25 [Prosecution counsel confer]

Page 132












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 133

1 MS. SUTHERLAND: Your Honour, this material could be construed as

2 being material to the Defence position pursuant to Rule 66(B). However,

3 the request was made under Rule 68 for records. It is the Prosecution's

4 allegation that there was -- medical care was non-existent or inadequate.

5 And from that point of view it is arguable that the Defence are interested

6 in any records of people from the camps who were treated at the Prijedor

7 hospital. We are erring on the side of caution because these records

8 relate to people's personal medical records, and we did re-review the

9 records once we had Ms. Nedic's more specific request last week. We can

10 discuss this -- I spoke with Ms. Nedic just prior to the Status Conference

11 a moment ago and said that we could further discuss this issue after the

12 Status Conference this afternoon. And it may be that we can come to some

13 sort of an agreement.

14 JUDGE ROBINSON: Thank you, Ms. Sutherland.

15 Ms. Nedic, of course you will want to consider all the

16 possibilities that are open to you under the Rules and take whatever

17 action is in the best interest of your client.

18 MS. NEDIC: [Interpretation] Certainly, Your Honour. We shall try

19 to reach an agreement with the OTP on this point.

20 JUDGE ROBINSON: As for the witnesses, 59 witnesses - and this is

21 on the basis of information provided by the Prosecution - of whom nine are

22 to be called live, ten statements and transcripts under Rule 92 bis; 40

23 statements and transcripts under Rule 89(F); thus a mixture of live

24 evidence, statements, and transcripts with or without cross-examination,

25 and on that basis the Prosecution estimates the length of the case

Page 134

1 excluding cross-examination to be four weeks. That would be quite

2 magnificent.

3 Is that still your estimate, Ms. Sutherland?

4 MS. SUTHERLAND: Yes, Your Honour. That was if the motion

5 pursuant to Rule 89(F) and Rule 92 bis was going to be granted. So in the

6 event it's not, then that time period obviously expands greatly. The

7 prior estimate given by Ms. Korner was six weeks, and that was excluding

8 cross-examination, and that was under the old Rule 92 bis motion. So if

9 neither of those motions were going to be granted, the Prosecution case,

10 the length of the Prosecution case would be a lot greater.

11 JUDGE ROBINSON: It may very well be that this case may be heard

12 much earlier than you might imagine.

13 Any other matters? Ms. Nedic?

14 MS. NEDIC: [Interpretation] Yes, Your Honour. In my letter I also

15 stated that my client asked me to start this discussion before the Trial

16 Chamber at a Status Conference, the issue namely of counsel travelling to

17 Prijedor in order to set up our defence because there is -- the registry

18 has refused to compensate us financially for these travel needs. And my

19 client believes that this severely prejudices his chances of setting up a

20 defence. Therefore he's pressing to have these issues resolved. I have

21 exchanged several letters with the registry with regard to this, and

22 they -- since April they have stood by their position that the Defence

23 would not be compensated for their travel needs to Prijedor and the

24 carrying out of investigations there.

25 JUDGE ROBINSON: It would then be a matter for you, Ms. Nedic, to

Page 135

1 decide what action to take in view of the stage of the discussions that

2 you've had with the Registrar. Those matters are essentially matters for

3 the Registrar, but the Trial Chamber will always ensure, seek to ensure

4 the fairness of the trial.

5 Any other matters from any of the other Defence counsel? May I

6 then ask the accused persons whether there is anything concerning their

7 detention or concerning the case that they would wish to raise, and I

8 start first with Mr. Mejakic.

9 THE ACCUSED MEJAKIC: [Interpretation] Thank you, Your Honour. I

10 have no objections to the conditions at the Detention Unit. My health is

11 relatively good.

12 There is something else that I would like to raise, two further

13 issues that have been brought up already in a way. One relates to the

14 decision by the registry, a decision that has not been made yet pursuant

15 to an Appeals Chamber ruling with regard to do with the conflict of

16 interests regarding Mr. Jovan Simic's counsel. The Chamber has called for

17 Mr. Simic's counsel to be revoked in two cases, the first time in this

18 case and the other is the Kvocka case. The Registrar has still not made

19 this decision, this ruling, therefore I am not certain that tomorrow I

20 will still be represented by counsel before this Tribunal.

21 The next issue, if you allow, has to do with a Prosecution

22 proposal for my case to be transferred to a national jurisdiction,

23 specifically back to Bosnia and Herzegovina. The procedure has already

24 been set in motion, and I believe motions have been exchanged between the

25 Defence team and the OTP. A special counsel has been nominated that will

Page 136

1 rule on these matters. In order not to be made a mere object of these

2 proceedings, I would like to say the following: If I'm not mistaken, the

3 OTP has brought charges against me before this Tribunal. A Judge of this

4 Tribunal confirmed the indictment. 16 months ago I voluntarily

5 surrendered to this Tribunal, convinced that I would be tried in a fair

6 and just manner. The main reason behind my decision to surrender was to

7 have the truth established. I am determined to give my own contribution

8 to establishing the truth. That is the only way we can have justice for

9 everyone. That is why I would like to ask you to please bear in mind the

10 fact that for me this Tribunal is the only place where this can be done,

11 where this can be achieved. I wish to be tried right here.

12 So much from me. Thank you very much, Your Honour.

13 JUDGE ROBINSON: Thank you very much, Mr. Mejakic.

14 May I say in response to your first point that the matter is with

15 the Registrar. The Registrar will, in response to the decision of the

16 Appeals Chamber, decide on the question of Mr. Simic's representation.

17 And it is at that stage when the Registrar has decided that you will be in

18 a position to take any action that is necessary. In any event, I am

19 confident that the Registrar will see to it that you are not

20 unrepresented. But let us wait for the Registrar's decision.

21 Now, the next matter I had adverted to in my opening remarks; that

22 is, the Prosecution's motion to have this case transferred to another

23 jurisdiction. I hear what you have said. As you are aware, a Chamber has

24 been established for that specific purpose. And under the relevant rule,

25 you will have a right to make representations, you and your counsel. So

Page 137

1 the kind of representations that you have made here today you will have an

2 opportunity to make before that special Chamber that has been established

3 for that purpose. So thank you very much. You may sit.

4 Now, Mr. Fustar.

5 THE ACCUSED FUSTAR: [Interpretation] Your Honour, in relation to

6 the conditions in the Detention Unit, I have no objections likewise. What

7 I have to say on my behalf is I wish to be tried here because this is the

8 Tribunal I surrendered to. I wish now to avoid repeating the very same

9 things that have already been said.

10 JUDGE ROBINSON: Thank you very much. And as I indicated this is

11 not the appropriate forum. There is a forum in which you will have an

12 opportunity to make those representations.

13 Mr. Knezevic.

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

15 to say.

16 JUDGE ROBINSON: Thank you very much. Thank you, Mr. Knezevic.

17 The only other matter is the date of the next Status Conference.

18 And I am fixing Wednesday, the 23rd of February as the date of the next

19 Status Conference.

20 If there is no other matter, the hearing is adjourned.

21 --- Whereupon the Status Conference

22 adjourned at 3.27 p.m.