Tribunal Criminal Tribunal for the Former Yugoslavia

Page 69

 1                          Thursday, 18 January 2007

 2                          [Status Conference]

 3                          [Open session]

 4                          [The accused not present]

 5                           --- Upon commencing at 4.02 p.m.

 6            JUDGE THELIN:  Good morning -- sorry, good afternoon, everyone.

 7    Could we please have the case called.

 8            THE REGISTRAR:  Good afternoon, Your Honour.  This is case number

 9    IT-04-79-PT, the Prosecutor versus Mico Stanisic.

10            JUDGE THELIN:  Thank you.

11            And the representation.  Prosecution.

12            MR. TIEGER:  Good afternoon, Your Honour.  Alan Tieger, Anna

13    Richterova, and Willem Wijermars, case manager, for the OTP.

14            JUDGE THELIN:  Thank you.

15            And for the Defence.

16            MR. BEZBRADICA:  Good afternoon, Your Honour, I am Stevo

17    Bezbradica, the counsel for Mico Stanisic.

18            JUDGE THELIN:  Thank you.  And we note that the accused is on

19    provisional release, and as far as I understand he is doing well.  Isn't

20    that so, Mr. Bezbradica?

21            MR. BEZBRADICA:  Yes, it is.

22            JUDGE THELIN:  Thank you.

23            What I intend to do now is to cover the ground which are now have

24    covered by the Senior Legal Officer at the 65 ter conference yesterday

25    just so we are all on the same line.  Are we having any technical

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 1    problems?

 2    Good.  That's fine.

 3            Well, the outstanding motions are some which we hopefully will be

 4    able to deal with today.  The motion on adjudicated facts is one which the

 5    Chamber is presently considering, and we will hope to see that coming out

 6    and filed in due course.  I can tell the parties that it was my intention

 7    to try to have that out in order for the parties to benefit from the

 8    decision when preparing their pre-trial briefs, but that was, for various

 9    reasons not possible.  But we're doing what we can in order to get it out.

10            We have also an outstanding motion from the Defence on his request

11    to have Mr. Slobodan Cvijetic assigned as co-counsel.  Just to assure you

12    that that has not been forgotten, and we will also hope to be able to deal

13    with that and file a decision in the near future.

14            We have two motions from the Defence seeking access to

15    confidential material in the Plavsic case and the Mrdja case; and if I'm

16    informed correctly, the decision on the Plavsic case has been filed today

17    and the motion is granted, meaning that you have to have access to

18    confidential material in that case relating to the sentencing judgement

19    and proceeding in that case.  And we hope, again, to have a decision also

20    on the Mrdja case out and filed in the near future.

21            And we then also have a -- two motions that are more the matter

22    for decision today.  One is a motion from you, Mr. Bezbradica, dealing

23    with a request for the Chamber to apply Rule 73 bis (D), which you filed

24    early this year.  And we have received the response from the Prosecution

25    on this, and the Prosecution, I think rightly, points out that this is a

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 1    matter, i.e., the possibility for the Chamber to request that the

 2    Prosecution limits its case that the Chamber could do a proprio motu;

 3    however, it's obviously in your right, if you will, Mr. Bezbradica, to

 4    file this request and the Chamber's attention to it.

 5            But rest assured that we are very much aware of the possibilities

 6    which the Rule gives us, especially since this amendment in May last year.

 7    However, it's at this stage a bit too early, I think, to walk down that

 8    road.  We will not at this point exclude the possibility that we will

 9    indeed be exercising the rights under that rule, but with this I think,

10    Mr. Bezbradica, we could consider your motion dismissed.

11            We then come to an area which is of more complexity, and that is

12    your motion, Mr. Bezbradica, that the Prosecution did not comply with an

13    earlier decision to file the pre-trial brief according to Rule 65 ter (E),

14    and that again is a motion that you filed on the 2nd of January, 2007.

15    The Prosecution has responded to that.  It was also covered in the 65 ter

16    conference yesterday, and if I could just summarise what I understand is

17    the position of the parties is that you, Mr. Bezbradica, would like to see

18    the Prosecution file in its brief also a witness list and a list of

19    exhibits all in accordance with (ii) and (iii) of Rule 65 ter (E), and

20    also you have pointed out that the requirements in 65 ter (E)(i) has not

21    been fully complied with.  That is the rule which I would venture is a

22    rule that tries to link the indictment and its counts to the pre-trial

23    brief.

24            The position, if I understand it from the Prosecution - and

25    obviously the parties will have a chance to correct me if I'm doing this

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 1    in the wrong way - is that you feel that in order to comply with 65 ter

 2    (E)(i), there may be an editing necessity.  I think the term used was

 3    cosmetic changes.

 4            Let me say, Mr. Tieger, that I'm -- when I look at the indictment

 5    and look at the pre-trial brief, that there seems indeed to be a missing

 6    link, if you will, from the counts to the pre-trial brief.  The pre-trial

 7    brief - and I have to give Mr. Bezbradica that is merit in his

 8    observation - the link is missing from the counts and the summary of

 9    evidence in the indictment to the pre-trial brief.  It's a very nice

10    narrative, and we have appendices to it; but I think in order to fulfil

11    the requirements of (i), there needs to be some editing done in order to

12    make the linkage between the indictment and the ten counts and what is now

13    in the pre-trial brief clearer and also the -- the summary of evidence

14    that goes with each count, which also goes to the difference in

15    responsibility, i.e., the question of whether 7(1) or 7(3) are alleged.

16            When it comes to the question of witness lists and exhibit lists,

17    (ii) and (iii) in the rule, it seems to me you have not supplied that

18    because you felt the order was not clear enough.  Well, I would like to --

19    to feel that this is an honest interpretation of the order and not an

20    opportunity to procrastinate and not fulfil what was, in my mind, a very

21    clear order.  You should file the pre-trial brief the 1st of December.  If

22    you file something, it missed (ii) and (iii).  There was no exception

23    made.  I grant you that we had a discussion at the earlier conferences

24    regarding the necessity to find common ground, not only on adjudicated

25    facts, a decision on that, but also when it comes to agreed facts and you

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 1    advanced that as one explanation why you have not fulfilled the

 2    requirement regarding 65 ter (E).

 3            Well, that's my understanding on where the parties are on this

 4    issue.  Anything you wish to add to this, starting with Mr. Tieger.

 5            MR. TIEGER:  Thank you, Your Honour.  Nothing in particular to

 6    add.  Let me offer a couple of comments quickly.  First of all, I

 7    appreciate the Court acknowledging that it is giving the Prosecution the

 8    benefit of any doubt with regard to the misunderstanding concerning the

 9    order, and I can explicitly and formally assure the Court that it was

10    nothing more than that.  We're happy to file the witness list and exhibit

11    list in compliance with 65 (E)(ii) and (iii).

12            Secondly, with respect to the first prong the Court mentioned,

13    that is the portion of 65 ter that refers to the pre-trial brief,

14    65(E)(i), I guess I should say I appreciate the Court's favourable comment

15    about the narrative.  We will, of course, comply with the Court's

16    instruction to make the linkage more explicit so that there is no issue

17    concerning either the responsibility of the accused in relationship to

18    particular counts or the portions of the pre-trial brief that refer to

19    7(3) responsibility, as discussed at the 65 ter conference.  The issues

20    raised by Mr. Bezbradica was not the question of 7(1) responsibility in

21    respect of the pre-trial brief, but the issue of 7(3) and we'll focus our

22    attention on that as well in order to make it as explicit as possible.

23            JUDGE THELIN:  Thank you, Mr. Tieger.

24            Mr. Bezbradica.

25            MR. BEZBRADICA:  Your Honour, I don't have to add anything.

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 1    Thank you.

 2            JUDGE THELIN:  Well, thank you.

 3            I think then it's clear from what has been said, and now

 4    acknowledged, that the Prosecution will comply, not only with clarifying

 5    its obligations under 65 ter (E)(i), but also supplement the pre-trial

 6    brief with the requirements laid out in 65 ter (ii) and (iii).  And the

 7    date I had in mind for this fulfillment - and this is to show that we are

 8    in a generous mode - I considered first 14 days; but given what I've

 9    understood from the 65 ter conference, although you're not writing your

10    pre-trial brief in a vacuum, your grasp of the evidence and witnesses must

11    surely will be well at hand, it still would take you some time.  So I'm

12    minded to give the Prosecution until the 16th of February to fulfil all

13    its requirements under 65 ter (E).

14            MR. TIEGER:  I'm grateful, Your Honour.  Thank you.

15            JUDGE THELIN:  That means, Mr. Bezbradica, as things now stand,

16    you are to submit your Defence brief on the 15th February.  Well, given

17    the order I just laid down, that could not be very advantageous for

18    anyone.  So the deadline for you to file your pre-trial Defence brief is

19    now moved forward to the 2nd of March; that gives you 14 days to absorb

20    and digest what is coming now in the completed pre-trial brief.

21            With that, we have technically dispensed with the outstanding

22    motions.  What I now would like to turn to is that we have so far had very

23    little success, I would say, on the matter of agreed facts.  If I recall

24    correctly, Mr. Bezbradica, it's only paragraph 25 of the indictment that

25    you are ready, on behalf of your client, to note as an agreed fact.  I may

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 1    be misunderstanding in this, but it seems that given what is laid down,

 2    both in the indictment and in the pre-trial brief as it now stands, it

 3    should surely be possible for you, Mr. Bezbradica, to acknowledge what is

 4    in there to a larger agree as nondisputed.  This is what this exercise is

 5    all about, to try to identify the real issues of the case and where the

 6    dispute lies.

 7            I'm fully aware, Mr. Bezbradica, that given your normal place of

 8    practice being in Australia, which is some distance away from where you

 9    had your client, that now and then you could be facing problems of

10    communication with your client.  But I had hoped frankly, Mr. Bezbradica,

11    that we should have been able at this point to have more from you in the

12    field of suggestions as to facts that are not contested on your behalf.

13    And maybe if you are more forthcoming in that respect, you could get what

14    you wish from the Prosecution, i.e., the narrowing of the case.

15            To me, it seems that the position that you are taking at the

16    moment - and, again, I may be wrong in this understanding - that you are

17    giving very little and your only request for the Prosecution is to more or

18    less withdraw the whole case.  And, obviously, that is not likely to

19    happen unless the parties find some other ground for agreement, and I

20    would like to see more of a spirit in the agreement seeking here, Mr.

21    Bezbradica.

22            I understand from the 65 ter conference yesterday that you intend

23    to visit your client following this Status Conference, and you nod in

24    agreement with my assumption.  And I would offer to you that it's

25    important that you not only obviously -- and I'm not telling you what you

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 1    should do as a counsel.  I'm just giving you some reflections from where I

 2    sit, that you should not only listen to your client, obviously, but also

 3    make clear to him how you view the case, not the least in light of other

 4    decisions and judgements that have been handed down by this Tribunal.

 5            And I'm referring in particular to the Krajisnik case, which deals

 6    obviously with the same theory as this case, and we have other cases, they

 7    have been put forward by the Prosecution and will, obviously, be

 8    considered by the Chamber when we, as we are now, deliberating on the host

 9    of issues brought forward by the question of adjudicated facts.  So the

10    question of adjudicated facts and agreed facts are, in a sense, bound

11    together here because they are -- this indictment is not a stand-alone

12    indictment.  It has an environment, and I think this environment should

13    encourage you, Mr. Bezbradica, to seriously consider what it is this case

14    from your client's point of view is really about.

15            There must be I would offer as there is taken the narrative from

16    the Prosecution's pre-trial brief, which your client actually could find

17    are not contestable.  I pause here, Mr. Bezbradica, in order to give you a

18    chance to comment on what I've just said.

19            MR. BEZBRADICA:  Your Honour, it is true.  After this Status

20    Conference, I'm flying to Belgrade and I will stay there a few days.  And

21    I am planning with my client to just discuss all these issues,

22    particularly Krajisnik case, and I will pass your message to him in full.

23    And I just can't tell you, but I'm sure that we will consider all -- all

24    these matters and to find out what is the real issue of this case.  And I

25    can only advise you maybe same time after this what we can do with this.

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 1    Thank you.

 2            JUDGE THELIN:  Thank you.  And if that is actually borne out of

 3    fruition, mainly that the Defence will find that there are, in contrast to

 4    what is now the case, a lot of issues that actually could be put forward

 5    under the umbrella of the agreed facts, I'm certain that the Prosecution

 6    then would be able to review its position and see whether the case could

 7    be somehow narrowed or diminished.  And in all lucky circumstances, the --

 8    we would eventually perhaps have a meeting of minds between the parties.

 9    I'm not saying that this is a requirement, but of course it would be

10    something that also would be the interest of justice and an interest of

11    your client's interest, Mr. Bezbradica.

12            So with that, I intend to leave the questions of the pre-trial

13    briefs and associated matters only to say again, Mr. Bezbradica, that it's

14    clearly important for you to be able to establish contact with your client

15    other than face-to-face meetings, so we don't have a situation where we

16    sit here perhaps at a Status Conference, which probably will be before the

17    usual one on the 120-day period, depending on where we are on the case,

18    and you lack instructions because you haven't been to Belgrade.  So I urge

19    you to stay in contact with your client need be because if you, obviously,

20    have to consult with your client to have meaningful contact with the

21    Prosecution.  And I urge both parties to stay in contact after this Status

22    Conference and given what may come out of the meeting with your client.

23            Are you taking that on board, Mr. Bezbradica?

24            MR. BEZBRADICA:  Your Honour, everything is clear.  Thank you.

25            JUDGE THELIN:  Thank you.

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 1            Well, just to sum up this part, then.  As things now stand, we

 2    look forward to the full pre-trial brief on the 16th of February, Defence

 3    pre-trial brief on the 2nd of March.  When we will have a pre-trial

 4    conference is yet to be determined, as is the start of the case; but as

 5    has said before, at present in this stage of the Tribunal's history, if

 6    you will, there is a constant reviewing of the docket and when cases are

 7    brought forward.  So that's why it's incumbent upon all of us to make sure

 8    that this case is brought to completion as regards the pre-trial stage as

 9    quickly and as fully as possible.

10            And I'm aware that the dates when pre-trial conference and the

11    start of the case is obviously dependent on other factors, and we will

12    review the situation once we have reached the situation on the 2nd of

13    March when we have the pre-trial brief in hand and review the result of

14    the dialogue between the parties and see when it's suitable then to set

15    the next date for either a Status Conference or maybe directly a pre-trial

16    conference.  So that's where we are in the formal frame of this case now.

17            And it's only for me to check whether my information that when it

18    comes to disclosure, the 68 rule disclosure is ongoing and there is

19    nothing I'm told that you need to bring to my attention now, Mr.

20    Bezbradica.  Is that correct?

21            MR. BEZBRADICA:  Everything is under control and recently I

22    received a few CDs and we have to review all of these.  And at this stage,

23    I don't have any problem with that.  If I have something, I will address

24    you in due time.

25            JUDGE THELIN:  Thank you very much, Mr. Bezbradica.

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 1            Finally then, are there any other matters that we have not touched

 2    upon and which the parties need to raise?

 3            MR. TIEGER:  Nothing from the Prosecution, Your Honour.  Thank

 4    you.

 5            JUDGE THELIN:  I take it nothing from you either, Mr. Bezbradica?

 6            MR. BEZBRADICA:  No, Your Honour.  Thank you.

 7            JUDGE THELIN:  Thank you.

 8            Well, that brings this Status Conference to a close, and we are

 9    adjourned.  Thank you.

10                           --- Whereupon the Status Conference

11                          adjourned at 4.37 p.m.