Tribunal Criminal Tribunal for the Former Yugoslavia

Page 103

 1                          Thursday, 15 February 2007

 2                          [Status Conference]

 3                          [Open session]

 4                          [The accused entered court]

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

 6            JUDGE THELIN:  Good afternoon.  Could we have the case called,

 7    please.

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

 9    IT-98-32/1-PT, the Prosecutor versus Milan Lukic and Sredoje Lukic.

10            JUDGE THELIN:  Thank you, Madam Registrar.  Before we proceed,

11    could I have an indication that both the accused can understand what is

12    being said.  It is enough if you give me, both of you, a nod, to

13    acknowledge that you are receiving what I am saying in a language that you

14    can understand.  Thumbs up from you.  And a nod from you.  I'm satisfied.

15    Thank you.

16            Could we then have the representation.  Prosecution.

17            MR. HARMON:  Mark Harmon on behalf of the Office of the

18    Prosecutor.  Appearing with me, Carmela Javier, who is the case manager.

19            JUDGE THELIN:  Thank you.  And for the accused.

20            MR. YATVIN:  Good afternoon, Your Honour.  Alan Yatvin, of

21    Philadelphia, representing Milan Lukic, and with me is co-counsel Jelena

22    Lopicic-Jancic.

23            MR. CEPIC:  Good afternoon, Your Honour.  I am Djuro Cepic,

24    Defence counsel for Mr. Sredoje Lukic on my left-hand side.  With me, Jens

25    Dieckmann is a co-counsel and Defence team.

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 1            JUDGE THELIN:  As you know, this is the first Status Conference

 2    that I am, as Pre-trial Judge, chairing.  This case has obviously been

 3    characterised by the fact that we have a parallel proceeding going on in

 4    the shape and form of an 11 bis referral.  And it is -- I would like to

 5    say that up front that it is a bit unfortunate that this happens in

 6    circumstances where the Referral Bench is handing down its decision

 7    without too much delay, problems should not normally occur.  I am not

 8    saying this in order to indicate that I am criticising another arm, as it

 9    were, of the Tribunal, but I merely note that the 11 bis proceedings have

10    been ongoing since February last year.  There was a meeting on the 15th of

11    September, also last year, where the parties put forward their arguments,

12    and now the Referral Bench have been considering the issue and no decision

13    has been announced as of yet.

14            Again, I'm not privy, obviously, to what the other Chamber is

15    doing.  Now, as a decision by me, a day before the oral arguments in the

16    Referral Bench issue, or the 11 bis issue, was called, and that was in

17    order to obviously in anticipation of a swift decision by the Referral

18    Bench to suspend normal pre-trial proceedings.  And I am certain that

19    counsel is aware of that decision.  The more so, since this was challenged

20    by I think Mr. Yatvin.  No, sorry, I'm wrong, it's Mr. Sredoje Lukic who

21    challenged the decision, and certification was denied.

22            That's where we are at this moment.  I understood from the report

23    which the senior legal officer gave me late yesterday about what

24    transpired at the 65 ter conference that both accused now would like to

25    see the order of suspension lifted and that has to do with the fact that

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 1    both counsel expressed concern of the fact that they are not able to what

 2    they see as a job in the lack of discovery from the Prosecution.

 3            The Prosecution on its hand, and I'm saying this in order to

 4    facilitate the discussions, so I'm summarising where I think we are, and

 5    then I will allow you to comment on it.  The Prosecution quotes,

 6    obviously, the need to not do what could be perceived to be unnecessary

 7    work, i.e., were it to transpire that the case is referred, any work in a

 8    pre-trial trial phase could be seen to be redundant.  And obviously there

 9    is merit to that position, given the fact that, were it not for the fact

10    that we have this parallel procedure, we would now a long time ago would

11    have had a work plan and proceeded to implement that plan, starting

12    obviously with the disclosure, which the Rules 66 and 65 dictate.  And we

13    would probably have times for marking down when pre-trial briefs from both

14    sides should be submitted, and so on.

15            Would it, I Pat here just to give the parties an indication.

16    Would that be a fair assessment of what we are at this point?  I give the

17    floor first to the Prosecution.  Mr. Harmon.

18            MR. HARMON:  Yes, we're quite satisfied with that summary,

19    Your Honour, thank you.

20            JUDGE THELIN:  Thank you.  Mr. Yatvin -- is that how to proceed,

21    protocol-wise?  Mr. Yatvin first.

22            MR. YATVIN:  Yes, Your Honour, quite succinctly put, that is

23    correct.

24            JUDGE THELIN:  Thank you.

25            Mr. Cepic.

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 1            MR. CEPIC:  Thank you, Your Honour.  I also can say that is

 2    correct.  Thank you.

 3            JUDGE THELIN:  Thank you.  Well, when I then understood that

 4    yesterday the issue of disclosure was raised again, I thought it proper,

 5    in order to save everybody's time, to proceed -- to see whether indeed

 6    things have changed since the 14th of September.  From my perspective, at

 7    this point, time has obviously been a factor.  It's five months now since

 8    the order to suspend the pre-trial proceeding.  In order to assess whether

 9    time in itself is enough to change that, and to see when -- whether there

10    could from now and in the foreseeable future be any indications from the

11    Referral Bench when they're ready to hand down the decision.  I have

12    ordered, as you have seen, this morning that counsel for the two accused

13    are to submit in writing the reasons for the motion to reconsider the

14    suspension of the pre-trial proceedings.  You have seven days in which to

15    do that.

16            Likewise, the Prosecution has seven days within which to respond

17    to this.

18            Any questions in relation to this order?  Mr. Harmon?

19            MR. HARMON:  No, there are none, Your Honour.  Thank you.

20            MR. YATVIN:  Not a question, but as a technical matter, I should

21    advise the Court that the motion was filed by Mr. Cepic, and because of

22    the timing of the order I did not join at that point.  I have discussed

23    with Mr. Harmon rather than filing a completely separate motion, I would

24    just join the original motion.  And I will do that in writing and then we

25    will probably file a joint motion on the reasons to keep this as

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 1    consolidated as possible.

 2            JUDGE THELIN:  Thank you, Mr. Yatvin.

 3            Mr. Cepic.

 4            MR. CEPIC:  No questions about this issue, Your Honour.

 5            JUDGE THELIN:  Thank you.  I'm glad that you, Mr. Yatvin,

 6    clarified the technicalities surrounding this.  We are always very much

 7    helped to have a joint motion from both of the accused.  And I think from

 8    that perspective there is no reason, as far as I can see, to dwell on any

 9    other points that would follow from a pre-trial discussion.

10            Maybe the smoke has lifted as far as was happening, as I have

11    indicated in the Referral Bench, once we have the submissions on this

12    particular issue, whether the order of 14 September, 2006 should be

13    reconsidered; that is 14 days from now.

14            With that, I ask whether the parties have anything else to raise

15    during this Status Conference.

16            Mr. Harmon.

17            MR. HARMON:  Your Honour, not on behalf of the Prosecution.  Thank

18    you.

19            JUDGE THELIN:  Thank you very much.

20            On behalf of the accused.  Mr. Yatvin.

21            MR. YATVIN:  Your Honour, I believe that the issue of disclosure

22    and the issues that flow from it are really our principal reason for

23    having requested a Status Conference in the first place.  Thank you.

24            JUDGE THELIN:  Thank you very much.  Mr. Cepic.

25            MR. CEPIC:  No, Your Honour.  Thank you.

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 1            JUDGE THELIN:  I will also formally inquire as to whether the

 2    accused have any issues they would like to raise, since this is an

 3    opportunity for them, with or without the help of counsel.  A shaking of a

 4    head would be fine.  Two shakes of a head.  Thank you very much.

 5            With that, I think that we have come to a close and I declare this

 6    conference adjourned.  Thank you.

 7                          --- Whereupon the hearing adjourned at 3.11 p.m.