Tribunal Criminal Tribunal for the Former Yugoslavia

Page 74

1 Wednesday, 2 July 2003

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.05 p.m.

6 JUDGE AGIUS: Yes. Good afternoon. Madam Registrar, could you

7 call the case, please.

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

9 IT-95-13/1-PT, the Prosecutor versus Mile Mrksic and Miroslav Radic.

10 JUDGE AGIUS: Thank you. Mr. Mrksic, good afternoon to you.

11 THE ACCUSED MRKSIC: [Interpretation] Good afternoon, thank you.

12 JUDGE AGIUS: Can you follow what I am saying in a language that

13 you can understand?

14 THE ACCUSED MRKSIC: [Interpretation] Yes, I can, Your Honour.

15 Thank you.

16 JUDGE AGIUS: I thank you. Please take a chair. Mr. Radic, good

17 afternoon to you, too. Do I take it that you can follow the proceedings

18 in a language that you can understand?

19 THE ACCUSED RADIC: [Interpretation] Yes, I can.

20 JUDGE AGIUS: Thank you. Please state the appearances for the

21 Prosecution.

22 MR. WUBBEN: Good afternoon, Your Honour. My name is Jan Wubben,

23 senior trial attorney. Together with me is attorney Mark McKeon and

24 Ms. Kristina Carey and David Bruff as case manager.

25 JUDGE AGIUS: I thank you. And good afternoon to you all.

Page 75

1 Appearances for Mr. Mrksic.

2 MR. VASIC: [Interpretation] Good afternoon, Your Honour. For

3 Mr. Mrksic, it's Mr. Miroslav Vasic, attorney.

4 JUDGE AGIUS: I thank you and good afternoon to you. And

5 appearances for Mr. Radic.

6 MR. BOROVIC: [Interpretation] Good afternoon, Your Honour. My

7 name is Borivoje Borovic, the attorney for Miroslav Radic.

8 JUDGE AGIUS: All right, thank you. And good afternoon to you,

9 too.

10 So welcome. This is a Status Conference that is being convened

11 this time with two of the co-accused under this indictment present. I

12 will inform you about further developments that are expected in this trial

13 with regard to the third person who has actually arrived here in

14 The Hague, Mr. Sljivancanin and whose initial appearance will be tomorrow

15 at 3.30. The last Status Conference was convened on the 5th of March of

16 this year, and as you may imagine, it was only Mr. Mrksic present,

17 together with his counsel. Mr. Radic had not yet been taken into custody

18 at the time. And so this is the first time that Mr. Radic is having a

19 Status Conference.

20 The initial appearance of Mr. Radic took place, as you all

21 remember, on the 21st of May of this year. And I will repeat just for

22 your sake, Mr. Radic, what I have stated and told Mr. Mrksic on previous

23 occasions, is that our Rules and Rule 65 bis requires me, as the Pre-Trial

24 Judge, to summon to all a Status Conference within 120 days after the last

25 Status Conference. So in other words, Mr. Mrksic has his Status

Page 76

1 Conference today, within the 120-day period. In your case, and

2 again in the case of Mr. Mrksic, you will have another Status Conference

3 within another 120 days to be reckoned from today.

4 And the purpose behind this provision under our Rules is a very

5 practical and useful one. Mr. Mrksic, obviously, has heard this before.

6 But Mr. Radic hasn't, and so I will repeat what the raison d'etre of the

7 Status Conference is for your sake. The idea is to have these periodical

8 interconferences for two or three mains purposes. The first one is to

9 organise and establish exchanges between the parties, with a view to

10 ensuring an expeditious preparation of the trial. And I can assure you

11 that that is on my mind, and also on the mind of the other two Judges that

12 constitute together with me Trial Chamber II. We are doing our level best

13 to chase matters up so that the trial can start without any undue delay.

14 And the second, and perhaps extremely important reason for holding

15 such conferences is to give you the opportunity, Mr. Mrksic and Mr. Radic

16 personally or through your counsel to raise issues relating to your

17 detention here in Scheveningen and in The Hague, and also in relation to

18 your mental and physical conditions. And I can assure you that you can

19 speak frankly here, and that you will suffer absolutely no consequences at

20 all for any grievance or complaint that you may have and air here. I am

21 informed by my senior legal officer that in preparation for this Status

22 Conference, he held under my direction a Rule 65 ter meeting with the

23 Office of the Prosecutor and the Defence counsel for both accused. And

24 this was held on the 30th of June. That's a couple of days ago. I am

25 also informed by Mr. Von Hebel that as a result of this Rule 65 ter

Page 77

1 meeting, there is no need for me as a Pre-Trial Judge or for the pre-trial

2 Chamber to go into certain matters which were dealt with during the Status

3 Conference on which there is agreement and consensus.

4 There are, however, some outstanding matters that today we will go

5 straight into. You will recall, although Mr. -- I did mention this during

6 the initial appearance of Mr. Radic, too, you will recall that we are

7 still operating under an indictment that goes back in years and includes

8 the name also of another co-accused at the time that is no longer amongst

9 the living. And that before the arrival of Mr. Radic here, the indictment

10 against Mr. Mrksic had undergone some amendments, while Mr. Radic was

11 arraigned here on the basis of the original indictment. There was at the

12 time already expectations of the arrival of the third person,

13 Mr. Sljivancanin, and there is no doubt that at the present moment, there

14 is an absolute need for the indictment to be amended and updated. I know

15 through Mr. Von Hebel that it was raised during the 65 ter meeting he had

16 with you, and that he has emphasised with you that it is imperative if we

17 are not to undergo undue delays, unnecessary delays, it is necessary that

18 the amended indictment is filed before the end of this month. And I have

19 been given the date of the 21st of July of this year as the deadline,

20 which you should observe.

21 And that is in accordance with a previous decision that we took.

22 So do I take it, Mr. Wubben - forgive me if I don't pronounce your name

23 well, correctly - do I take it we shall have an amended indictment by the

24 21st of July?

25 MR. WUBBEN: Yes, Your Honour. We start drafting it and we will be

Page 78

1 ready at that time.

2 JUDGE AGIUS: As I told you a few minutes ago, Mr. Sljivancanin

3 has arrived here. And tomorrow, there will be his initial appearance.

4 And I take it that he will be arraigned as well, like Mr. Radic, on the

5 basis of the old indictment. So what my suggestion to you, and I know

6 that you probably are operating along these lines already, is to ensure

7 that any amendment to the indictment would incorporate Mr. Sljivancanin

8 because, as I pointed out during the last Status Conference, there is

9 already a decision of Trial Chamber II that for all intents and purposes,

10 the three persons I mentioned, Mr. Sljivancanin, Mr. Radic, Mr. Mrksic,

11 will be tried together, the same trial as codefendants. So the indictment

12 needs to be amended accordingly so as not to have to go through the

13 exercise again after the arraignment of Mr. Sljivancanin. In other words,

14 he will be then served with another copy of the indictment as amended, and

15 we can take it then from there.

16 MR. WUBBEN: Yes, Your Honour. I can confirm that we will file a

17 new consolidated indictment against those three accused.

18 JUDGE AGIUS: Thank you. That's perfect.

19 Mr. Radic, you have filed a motion for provisional release. The

20 Prosecution has promised us to file a response, we are expecting that

21 response. As soon as it arrives, you will have an opportunity, if you

22 want, to present further comments. But it is already on the agenda of

23 Trial Chamber II, which basically means that we have already made

24 preparations, Judge Schomburg, myself, and Judge Mumba, to give your

25 motion for provisional release all due consideration. And we promise you

Page 79

1 that we will proceed with handing down a decision at our earliest. This

2 is to put your mind at rest that your motion is receiving attention. But

3 we are at the moment awaiting the response from the Prosecution.

4 Yes, Mr. Wubben.

5 MR. WUBBEN: Your Honour, we filed today -- we filed our response

6 today.

7 JUDGE AGIUS: All right. Which basically -- thank you,

8 Mr. Wubben. Which basically means -- have you received a copy of it? Not

9 yet.

10 MR. BOROVIC: [Interpretation] No.

11 JUDGE AGIUS: So let me suggest the following. I will be

12 approaching at the end of today's hearing Judge Schomburg so that we tie

13 up, together with Judge Mumba, and start deliberating on this. In the

14 meantime, once you have been served with a copy, if you have further

15 comments, I suggest that you file them not later than Wednesday of next

16 week, of this coming week. That should put us in a position to decide

17 without any undue delay.

18 You are aware, I suppose, that we have already handed down a

19 decision, Mr. Borovic, with regard to your motion Defence preliminary

20 motion with regard to the indictment.

21 MR. BOROVIC: [Interpretation] Yes, Your Honour, we have been

22 informed.

23 JUDGE AGIUS: And once you have heard me express myself on the

24 need to have the indictment in general, then you would understand why what

25 is your motion, because it would have been a preemptive measure

Page 80

1 to deal with it otherwise.

2 There is a Defence request on the part of Mr. Mrksic for to this

3 Chamber to rule for communicating on the -- on the rules for communicating

4 with potential witnesses. You will recall that we decided this matter

5 earlier on in this year against the motion. You requested certification,

6 which we granted, and the matter is still pending before the Appeals

7 Chamber. Naturally, we will await the outcome of the decision of the

8 Appeals Chamber before we can take this matter any further. And for the

9 time being, everything will stay put pending that decision.

10 I know that in the course of the 65 ter meeting that you had with

11 Mr. Von Hebel, you discussed also disclosure matters in terms of Rule 66,

12 the various parts of Rule 66. I am informed, and I want a confirmation

13 from you, that you have agreed that this 66(A)(i) material has already

14 been disclosed to the Defence counsel, to both parties; that's both

15 Mr. Mrksic and Mr. Radic. Confirmed?

16 MR. VASIC: [Interpretation] Yes, Your Honour. We did receive

17 supporting material pursuant to this Rule.

18 JUDGE AGIUS: Mr. Borovic.

19 MR. BOROVIC: [Interpretation] Yes, Your Honour. I can confirm

20 that.

21 JUDGE AGIUS: May I suggest, Mr. Wubben, to prepare the same

22 bundle for the newcomer.

23 MR. WUBBEN: It's already prepared, Your Honour.

24 JUDGE AGIUS: Thank you. I would have imagined so.

25 There was a matter which -- on which there seemed to be an absence

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Page 82

1 of an agreement in the course of the 65 ter meeting regard to disclosures

2 under Rule 66(A)(ii). But I understand that you are moving in the

3 direction of disclosing this material, too. I understand that you were

4 finding an objection to disclosing it pending the conclusion of the

5 interview with accused Radic. I take it that you have changed course now

6 and you are going to stick to what is provided by that provision of our

7 Rules and proceed with the disclosure.

8 MR. WUBBEN: Your Honour, let me first confirm that we already

9 abide with the Rules of Procedure and Evidence according to disclosure.

10 But in the previous stage, we had an agreement and discussions with

11 counsel for Mrksic on disclosure. We had even a written agreement on it.

12 But now there's new circumstances. The preliminary motion dealt with by

13 Trial Chamber, an appeal, and a new accused arrived in the meantime and

14 one to come, so there was also discussion at the 65 ter meeting. There

15 were requests and wishes for disclosure policy, and I can now confirm to

16 you that the OTP proposed to both counsel to start the disclosure by

17 filing a substantial package with a view to Rule 68 disclosure to

18 counsels. I informed counsels of it. We will start this package this

19 month, transferring it to counsels. We even will seek the possibility and

20 discuss that with counsels for filing via CD-ROM. That will be then

21 easier according to the volume of it, and that will be then a start of a

22 subsequent step and making steps of further disclosing various packages of

23 disclosing material all in accordance with and in discussion and agreement

24 with counsels. And we will keep contact with counsel during that period.

25 Thank you.

Page 83

1 JUDGE AGIUS: I thank you, Mr. Wubben. But I was particularly

2 referring to the disclosure of the statements of those witnesses the

3 Prosecution intends to call. And I understand that you had raised an

4 objection you would consider it inappropriate to disclose now, at this

5 juncture, the statements of those witnesses you seek to call at the trial,

6 particularly since the interview with the accused Radic was still pending.

7 And it was put to you that this -- although it may well be a preference,

8 it's not the preference that can fall or have the blessing of Rule

9 66(A)(ii) and that you need to proceed with the disclosure. Do I have

10 your word and your commitment that you are proceeding with the disclosure

11 of these statements?

12 MR. WUBBEN: Yes, Your Honour. The package will include also the

13 Rule 66(A)(ii) material, though we - and that was the clarification I

14 confirmed at the 65 ter meeting - we have not yet determined our witnesses

15 so far. But the statements we will send, including in the package, are,

16 of course, potential witnesses for us as well.

17 JUDGE AGIUS: All right. Are you happy with that, Mr. Vasic and

18 Mr. Borovic?

19 MR. VASIC: [Interpretation] Your Honour, I would just like to

20 speak in reaction to the words of my colleague pursuant to Rule 68, and

21 that would be that I would accept this option, that most of the package we

22 could receive starting the beginning of this month. As far as Rule

23 66(A)(ii) is concerned, if these statements are part of the package, then

24 the Defence will agree to that. I would just like to remind that it would

25 be good and expeditious for the preparation of the Defence if the

Page 84

1 Prosecutor can forward this material to us in a timely fashion, at least

2 in relation to the witnesses that he is certain will appear. And

3 considering that a whole trial has already been heard here before this

4 Tribunal, it would be good to know which witnesses will be appearing here

5 for this case. And that will certainly help the Defence to prepare our

6 evidence and our witnesses and to be ready for the trial. Thank you.

7 JUDGE AGIUS: Yes, Mr. Borovic.

8 MR. BOROVIC: [Interpretation] Your Honour, we have had

9 discussions, individual discussion, with Mr. Wubben in preparation for

10 this Status Conference in relation to the material pursuant to Rule 68,

11 and the agreement was that the materials would be handed over to us by the

12 end of July, that is within three weeks, that is what we agreed today. So

13 not the beginning of the month, but that will be either through the CD-ROM

14 or the material will be copied and sent to the Defence team members. As

15 far as 66(A)(ii), if the material and documents include -- 68 are

16 included, then that will be good. Your Honour, you have also mentioned

17 that in their submission, the Prosecution said that Mr. Radic will be

18 giving an interview. Now, we are ready in spite of all the dangers that

19 could be threatening an accused, considering that the indictment is in

20 preparation to be amended. At the moment when we had to make a decision,

21 when Mr. Radic's father died, we were then ready to proceed in this

22 direction. However, at this moment, we don't know what the indictment

23 will look like, that is, the joint consolidated indictment with the three

24 accused will look like. So that means that the acts can be completely

25 differently described in the new indictment. If that is so, then once

Page 85

1 that is issued and confirmed, we will have different situations in

2 relation to the interview.

3 As far as the material pursuant to Rule 68 is concerned, it is

4 certain, regardless of the indictment that is to come, I think the

5 Prosecution can start with disclosure of this material because that is

6 something that the accused could certainly use now. As far as the Rule

7 66(A)(ii) is concerned, the materials pursuant to this Rule, we haven't

8 heard from Mr. Wubben when this material will be disclosed to us. Thank

9 you.

10 JUDGE AGIUS: Okay. So the position, Mr. Wubben, I'm addressing

11 you in particular at this point, seems to be the following: I take it

12 from the information that I have with regard to Rule 68 that I had

13 mentioned myself but was raised by Mr. -- both by yourself and Mr. Vasic

14 and Mr. Borovic, that I do appreciate that observing Rule 68 most of the

15 time in most trials proves to be an ongoing process. My duty at the

16 present moment is to remind you that you have a responsibility under Rule

17 68 to disclose to the Defence all exculpatory material that you may be

18 aware of at the present moment. The indication that I have is that you

19 intend to do so, so I will not proceed any further and say anything more.

20 I will leave it in your hands to confirm to what is provided under Rule

21 68. Only thing that will need to be done, if you are not happy with the

22 way the disclosure is taking place under Rule 68, then it is your, in your

23 interest, to bring the matter to the attention of the -- of myself as a

24 Pre-Trial Judge. But I have no reason, basing myself on past experience

25 in this Tribunal, to doubt for a minute that the Prosecution will try to

Page 86

1 avoid complying with this Rule 68.

2 I do realise that there may be problems trying to disclose all the

3 material at the same time and within a very short time. But I'm pretty

4 sure that you will do your best.

5 With regard to 66(A)(ii), the only concession that I make,

6 Mr. Wubben, is that due to the fact that the indictment is going to be --

7 undergo some amendments, this may, indeed, reflect on the number and the

8 identities of the witnesses that you might want to bring forward. And

9 this is the only concession that I am making. However, I am pretty sure

10 that since this is an indictment that goes back in years, and events which

11 were amongst the very first to be investigated by this Tribunal, that you

12 are certainly in a position to be a hundred per cent sure about the great

13 majority of the witnesses that will be brought forward, will be produced

14 in this case. So I'm going -- not going to make an order today. But I am

15 specifically inviting you to disclose the statements of the witnesses that

16 you absolutely have no reason to doubt retaining as witnesses in this

17 case. And I expect those to be in the great majority, as I said. And the

18 disclosure has got absolutely nothing to do with any interview you may or

19 may not have with Mr. Radic. All right. Point taken?

20 MR. WUBBEN: Yes, Your Honour. Point taken and accepted. Just

21 clarifying to you as well that from this very moment, we cannot provide

22 all the 66(A)(ii) witnesses. We have also, of course, to do the searching

23 and the translations. But as I confirmed, this is an ongoing subsequent

24 step.

25 JUDGE AGIUS: I thank you. And there is one final matter that was

Page 87

1 raised in the course of the 65 ter meeting, and that is about reciprocal

2 disclosure. And I take it that you still maintain that you are not in a

3 position to inform the Trial Chamber -- me, as the Pre-Trial Judge,

4 whether you will trigger off this process. Mr. Vasic.

5 MR. VASIC: [Interpretation] Your Honour, thank you. Mr. Mrksic's

6 Defence is not in the position to say anything about this because we have

7 not received a final text of the indictment, or the material that we

8 expect from our learned friends. Once we receive all these materials, the

9 Defence is going to consider this issue and will inform you in due time,

10 Your Honours. Thank you very much.

11 JUDGE AGIUS: Thank you very much. Mr. Borovic.

12 MR. BOROVIC: [Interpretation] This is our joint position. Once

13 we receive the consolidated indictment and the materials according to this

14 Rule, we will be able to give you our position. Thank you very much.

15 JUDGE AGIUS: So is there anything else you would like to raise

16 with regard to the matters of disclosure?

17 MR. WUBBEN: No, thank you. Your Honour.

18 JUDGE AGIUS: Thank you.

19 MR. VASIC: [Interpretation] Thank you, Your Honours.

20 MR. BOROVIC: [Interpretation] Thank you, no.

21 JUDGE AGIUS: If at any moment you're not happy with the process,

22 the whole process of disclosure, please bring it to my attention.

23 The next matter to be discussed obviously is on the one of which I

24 can say very little, and that is the date of the trial. I repeat that

25 tomorrow there will be the initial appearance of Mr. Sljivancanin. As

Page 88

1 from that moment, he will be joined together with the two other accused

2 that we have here today. There will be, of course, the new amended

3 indictment. There will be pleas. We are still at the very early stages

4 of this whole process, very much depends on how things go on, what pleas

5 we will have, including any possible plea of guilty that you may -- I

6 don't know, but it's not to be ruled out. You may give it a thought as

7 well. And I cannot at the present moment give you an indication of when

8 this trial can start. Depends on when other trials will finish, and it

9 also depends on how we go along in the pre-trial stage. And you all have

10 a part to play in this whole process. The more you prolong the

11 proceedings, obviously the more -- the longer the proceedings will take.

12 And my invitation to you is to remember that it's in everybody's interest,

13 but particularly in the interest of your two clients, to have this trial

14 started at the earliest possible opportunity.

15 Having said that, is there any other matter that you would like to

16 raise? Yes, Mr. Borovic.

17 MR. BOROVIC: [Interpretation] Your Honour, I believe we can

18 discuss the following at the Status Conference: The Defence would kindly

19 ask the Chamber to submit to the Defence all the materials which are not

20 confidential or which were not heard ex parte, so all the judicial

21 decisions, statements, that is not confidential.

22 JUDGE AGIUS: I didn't quite understand what you mean. All the

23 materials which are not confidential or which were not heard ex parte, all

24 judicial decisions, statements that are not confidential. In this case,

25 you mean?

Page 89

1 MR. BOROVIC: [Interpretation] I believe that this has not been

2 translated well. All the motions that we have sent either to the

3 Prosecution or to the Chamber, all the court rulings which have not been

4 submitted to the Defence, and not confidential or have not been sent ex

5 parte, if the Chamber is able, can the Chamber send to the Defence of

6 Mr. Radic? Anything that concerns the trial so far.

7 JUDGE AGIUS: Yes. I see absolutely no problem, but what

8 surprises me is that you are not in possession of all the motions. Do you

9 refer also to the motions which were filed and decisions taken prior to

10 the arrival of your client here? Is this what you are referring to?

11 MR. BOROVIC: [Interpretation] I mean all the rulings, all

12 decisions, all the motions that are relative to this case and will have a

13 bearing on the position of Mr. Radic.

14 JUDGE AGIUS: So I take it that what is being requested, Mr. Von

15 Hebel, and there absolutely shouldn't be any problem -- in fact I'm not

16 even consulting the Prosecution on this -- all the documentation

17 consisting of motions and all other filings, and that includes also

18 decisions, both oral and in writing, of this Trial Chamber, and of myself

19 as Pre-Trial Judge given in this case are to be copied and given to

20 Mr. Borovic.

21 Mr. Borovic, those which are only in the English language, do we

22 need to have them translated? You would spare the Tribunal a lot of

23 expenses and a lot of time and resources if you can accept them in the

24 English language in which they probably are.

25 MR. BOROVIC: [Interpretation] Your Honour, I will save the

Page 90

1 Tribunal both the money and the time.

2 JUDGE AGIUS: I thank you, Mr. Borovic. So you will take care of,

3 Mr. Von Hebel. I thank you.

4 Anything else you would like to raise? Mr. Vasic.

5 MR. VASIC: [Interpretation] No, thank you. Your Honour.

6 JUDGE AGIUS: And the Rules require me now to inquire from each of

7 the accused whether they would like to raise any matter related to their

8 state of health and their condition of detention. I'll start with

9 Mr. Mrksic.

10 Mr. Mrksic, the Rules -- you've heard what I said. The Rules

11 require me to inquire from you whether you have anything to state, whether

12 you would like to make a statement with regard to your state of health and

13 state of detention. Do you have reasons to complain about anything? Are

14 you receiving all the attention that you require, given your health

15 condition?

16 THE ACCUSED MRKSIC: [Interpretation] Your Honour, last time, at

17 the last Status Conference, I gave you all the details about my problem.

18 You have extended me all the support. I am undergoing medical checkups.

19 I am receiving an increased amount of medication every day. But apart

20 from that, I have no other objections. So much from me. I thank you very

21 much.

22 JUDGE AGIUS: I thank you, Mr. Mrksic. Please take a chair.

23 Mr. Radic.

24 Microphone, please.

25 THE ACCUSED RADIC: [Interpretation] Your Honours, for the time

Page 91

1 being, I have no health problems. As far as the conditions in the

2 Detention Unit, I have no objections.

3 JUDGE AGIUS: Thank you. If at any time -- if at any time between

4 now and when we have the next Status Conference you have any problem

5 related to your health or to the conditions of your detention in the

6 Detention Unit in Scheveningen, please feel free to bring them to my

7 notice, and I promise you I will act and give the matter my utmost

8 attention. All right.

9 Having said that, I think, unless you would like to raise any

10 other matter, I can close this Status Conference, advising you that the

11 next one will be held within the 120 days that is provided for under Rule

12 65 bis. And the next Status Conference we will have present the third

13 accused. Thank you. And good afternoon to you all.

14 --- Whereupon the Status Conference

15 adjourned at 3.47 p.m.