Tribunal Criminal Tribunal for the Former Yugoslavia

Page 18

 1                           Thursday, 16 October 2008

 2                           [Status Conference]

 3                           [Open session]

 4                           [The appellant entered court]

 5                           [The appellant Sljivancanin not present]

 6                           --- Upon commencing at 3.00 p.m.

 7             JUDGE MERON:  Please be seated.

 8             Registrar, would you please call the case.

 9             THE REGISTRAR:  Good afternoon, Your Honour.  Good afternoon to

10     everyone in the courtroom.  This is case number IT-95-13/1-A, the

11     Prosecutor versus Mile Mrksic and Veselin Sljivancanin.

12             JUDGE MERON:  Thank you.  Let me begin by making sure that the

13     audio equipment is working.

14             Mr. Mrksic, can you hear the proceedings in a language you

15     understand?

16             THE APPELLANT MRKSIC: [Interpretation] Yes, I can hear.

17             JUDGE MERON:  Counsel for Defence and the Prosecution, can you

18     all hear me?  Thank you.

19             I would call now for appearances.  Prosecution, please.

20             MR. ROGERS:  Good afternoon, Your Honour.  Paul Rogers appearing

21     with Ms. Kristina Carey and our case manager today, Alma Imamovic.

22             JUDGE MERON:  Thank you, Mr. Rogers.

23             Counsel for Mr. Mrksic.

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

25     afternoon to everyone else in the courtroom.  The Defence of Mr. Mrksic

Page 19

 1     today will be represented by Mr. Miroslav Vasic, that is to say, myself.

 2             JUDGE MERON:  Thank you, Mr. Vasic.

 3             Counsel for Mr. Sljivancanin.

 4             MR. LUKIC: [Interpretation] Good afternoon, Your Honour, and

 5     everybody else taking part in these proceedings.  Lead attorney

 6     Novak Lukic is representing Mr. Sljivancanin today.  Thank you.

 7             JUDGE MERON:  Thank you, Mr. Lukic.

 8             As you are all aware, Rule 65 bis (B) of the Rules of Procedure

 9     and Evidence require that Status Conferences be held every 120 days for

10     each appellant in the Tribunal's custody.  A Status Conference serves two

11     primary purposes.  First, it allows the appellant an opportunity to voice

12     concerns relating to his appeal or detention conditions.  Second, it

13     provides an opportunity to update the appellants with respect to the

14     status of their case.  The Status Conference is also an opportunity for

15     the Tribunal to inquire about the mental and physical condition of the

16     detained person.

17             The last Status Conference in this case took place on 19th June

18     2008.  While Mr. Mrksic is presently in custody at the Tribunal's

19     detention unit, Mr. Sljivancanin is currently on provisional release

20     pursuant to a decision by the Appeals Chamber of 11 December 2007.

21             Let me begin the core of the Status Conference by inquiring into

22     Mr. Mrksic's health.

23             Mr. Mrksic, how are you doing health-wise?  Everything is okay?

24             THE APPELLANT MRKSIC: [Interpretation] Thank you for asking,

25     Your Honour.  For the moment, everything is all right.  Of course, given

Page 20

 1     my age and my case history and everything, I had two heart operations but

 2     I'm keeping well.  Thank you.

 3             JUDGE MERON:  Thank you.  Thank you.  I'm glad to hear that.

 4             Let me now update the case.  I think the parties would benefit

 5     from that.

 6             The briefing for the appeals have now been completed, and public

 7     redacted versions of all the briefs have been filed, save for

 8     Mr. Sljivancanin's reply brief.  However, it is my understanding that the

 9     counsel is looking into that, and I would ask him to file a public

10     redacted version by the end of the day on Monday.

11             Any problem with that?

12             MR. LUKIC: [Interpretation] Your Honour, Judge Meron, we will

13     abide by that deadline, and I was going to suggest that we do file it by

14     Monday, and it will be.  There was just a technical problem with respect

15     to the two different computer systems and so on, but it certainly will be

16     ready by Monday, yes.

17             JUDGE MERON:  Thank you.  I appreciate that.

18             Given the fact that briefings have been completed and this last

19     public redacted version will be in our hands by the end of the day on

20     Monday, I expect that the Appeals Chamber will schedule the appeal -- an

21     appeal hearing shortly, for the second half of January, second half of

22     January 2009.

23             It is also my understanding that a confidential motion was filed

24     yesterday by Mr. Mrksic pursuant to Rule 115 of the Rules of Procedure

25     and Evidence.  The motion is incomplete, however, as it does not attach

Page 21

 1     the additional evidence which Mr. Mrksic is asking the Appeals Chamber to

 2     admit.  Therefore, I would request that Mr. Mrksic files a confidential

 3     addendum, a confidential addendum to his motion containing the additional

 4     evidence, and I would request that this confidential addendum be filed

 5     also by the end of the day on Monday.

 6             I see that Mr. Vasic has no problems with that.  Correct?

 7             MR. VASIC: [Interpretation] Yes.  Thank you, Your Honour.  There

 8     will be no problems.

 9             JUDGE MERON:  Thank you.

10             Now, we are all aware of the fact that the relevant

11     Practice Direction grants the Prosecution 30 days to file a response to

12     this type of motion.  Now, in order to minimise delays, I would ask the

13     Prosecution to file its response within 15 days of the filing of

14     Mr. Mrksic's addendum to his Rule 115 motion, so that 15 days would start

15     running from the end of the day on Monday.

16             For the same reasons, I would ask the counsel for Mr. Mrksic to

17     file his reply, if any, within seven days of the filing of the

18     Prosecution's response.

19             On this issue, I suppose, I do hope that neither the Prosecution

20     nor the Defence for Mr. Mrksic have any problems with that.

21             MR. ROGERS:  Your Honour, we had anticipated the opportunity to

22     deal with the things in the fullness of the time available to us under

23     the Practice Direction.  Plainly, as the entirety of the materials upon

24     which the Defence rely have not been filed with the motion, it's

25     difficult to anticipate precisely how long it will take, but in the

Page 22

 1     spirit of compromise may I ask Your Honour for 21 days in which to file?

 2     It's down from the 30, but it gives us that little bit of extra time to

 3     deal with things.

 4             JUDGE MERON:  You really think that you need that extra week?

 5             MR. ROGERS:  Your Honour, if I didn't think we needed it, I

 6     wouldn't ask for it.

 7             JUDGE MERON:  Okay, you will have it.

 8             MR. ROGERS:  I'm grateful.

 9             JUDGE MERON:  I'm afraid that now Mr. Vasic will reciprocate by

10     asking for some additional time.

11             MR. VASIC: [Interpretation] Your Honour, I don't think I'll have

12     any need to seek additional time.  I hope that what my colleague files

13     will be succinct and that I'll be able to respond within seven days,

14     although he does have 21 days.  But I do have another problem with

15     respect to this issue, and that is additional evidence that I received

16     from my learned colleagues and which I found in my locker just yesterday.

17     So quite possibly, they could fall within the framework of Rule 115 as

18     well, because I haven't had enough time to study them sufficiently, but

19     they are additional evidence and testimony by witnesses who testified in

20     the trial and that were of vital interest for the first instance

21     judgement.

22             Unfortunately, I received an announcement that there'll be more

23     evidence waiting for me in The Hague.  I received the announcement by

24     e-mail in Belgrade, so it wasn't until I had arrived here that I was able

25     to pick the material up.  And I think I might find elements for applying

Page 23

 1     Rule 115, which will mean that I need an extension of the deadline for my

 2     filing of additional evidence, because as I say, they were witnesses who

 3     were crucial witnesses at the trial itself in the first instance, and

 4     they were provided here, Your Honour, in another trial.

 5             So I don't know, given those circumstances, how the plan stands,

 6     the agreement we've just reached, in view of that.

 7             JUDGE MERON:  So let me understand.  You are talking about

 8     additional materials that you have received yesterday, and they are not

 9     in -- covered by the motion you have already filed, and they have been

10     disclosed to you by the Prosecutor.

11             MR. VASIC: [Interpretation] Yes, Your Honour, that's right.

12             JUDGE MERON:  Well, you will -- you will, I'm sure, review these

13     materials, and if you see that you have to file an additional motion, if

14     they meet the requirements that you think that -- then do file that

15     motion and we will review the motion.  I'm --

16             MR. VASIC: [Interpretation] Thank you, Your Honour.

17             JUDGE MERON:  I am, to say the least, unhappy at the endless

18     dragging of additional things at this stage, but if interest of justice

19     requires it then so be it, and we will look at it.

20             This does not affect the conclusions we have reached now.  If

21     there is another motion, we will establish what are the time limits that

22     have to be applied to it, whether the regular ones or time limits that we

23     would find it necessary to modify to speed up the process, but we will --

24     it's not yet, in fact, sure that you will find it necessary to submit

25     additional motion, so there is no need to -- to proceed with that now.

Page 24

 1             MR. ROGERS:  Your Honour, perhaps I can just assist you with the

 2     nature of the material.  It arises from the trial, ongoing trial in the

 3     case of Seselj, as I'm sure Your Honour appreciates.

 4             JUDGE MERON:  I understand that.

 5             MR. ROGERS:  And we do, as Your Honour will remember from the

 6     last Status Conference, but there was an element of criticism for saving

 7     up witnesses to hand over to the Defence --

 8             JUDGE MERON:  Excuse me.  Before you proceed, are these

 9     confidential materials?

10             MR. ROGERS:  Your Honour, some of them are.  I'm not going to

11     explain precisely what they.

12             JUDGE MERON:  I just wanted to warn you not to mention things in

13     open court.

14             MR. ROGERS:  No, no.  I'm not going to.  I'm not going to mention

15     any names, but simply just to explain the situation is that when we

16     receive the information from the trial teams, we assess it as quickly as

17     we can and we turn it over to the Defence as quickly as we can if it

18     meets the criteria under the rules for disclosure.  So there's no -- this

19     isn't material we've been sitting on, if I can put it that way.  It does

20     go out as quickly as we can and as soon as we receive it, so that

21     Your Honour understands.

22             JUDGE MERON:  No, I understand.

23             MR. ROGERS:  I'm grateful.

24             JUDGE MERON:  I did not mean to attribute to you any kind of

25     dilatory tactics.  I'm simply worried about the results that we are faced

Page 25

 1     with at the appeals stage with so many matters pertaining to Rule 115.

 2     When I tell my colleagues from other courts, say in the United States,

 3     that we have the 115, they say, "How can you -- how can you do that and

 4     deal efficiently with appeals while admitting additional evidence at this

 5     stage?"  And I explain to them why we do need that.  Still, it is

 6     something that does not make our task easier, and we are trying to -- to

 7     cope with that, and I do, because of that, appreciate the readiness of

 8     both parties to limit the time -- times which are stated in the

 9     Practice Direction.

10             At this point, I would like to ask the parties whether they have

11     any other issues that they would like to raise at this time.

12             Mr. Rogers, let me start with you.

13             MR. ROGERS:  Your Honour, yes.  Again in the spirit of informing

14     all the parties for their best efforts to prepare, the Prosecution will

15     not be pursuing subground (2), that's error 2 under ground 1.  In light

16     of the recent ruling in the case of Martic, the ground that relates to

17     definitions of civilians that appears under ground 1, subground (c), on

18     our brief, we will not be pursuing.  Obviously the other grounds remain

19     live, and we would invite, and I've spoken to my learned friends already,

20     we would invite them, again in the spirit of defining the issues that

21     need to be dealt with on appeal, to review their response briefs and file

22     or notify the Court and us of any change to their positions arising from

23     the Martic judgement.  I'm sure they need little time to reflect upon

24     that judgement, but it would assist everybody, including the Court in

25     particular, if we were able to confine and define the issues efficiently

Page 26

 1     and effectively, and I think it's over to the Defence now to indicate any

 2     changes in their briefs should they so wish to do.

 3             That's one issue.  So far as --

 4             JUDGE MERON:  Before you proceed, I would like to have some

 5     response as soon as possible from the -- from Mr. Vasic.

 6             MR. VASIC: [Interpretation] Yes.  Thank you, Your Honour.

 7     Mr. Lukic and I did consider the matter before coming to this

 8     Status Conference, and the Defence does have certain proposals which it

 9     would like to put forward, and Mr. Lukic will deal with the matter on

10     behalf of both Defence teams, and he has written a motion on the subject.

11             JUDGE MERON:  Okay.  So we will be getting a motion on this

12     question.

13             MR. LUKIC: [Interpretation] I'll replace my colleague, Mr. Vasic.

14             I was going to address you orally, but if you would prefer to

15     have it in writing, that's what we will do.  We'll follow your

16     instructions.

17             We did have a discussion, my colleague Mr. Vasic and myself, a

18     moment ago before this Status Conference, and in light of what the

19     Prosecutor has just said, it is obvious that the Martic judgement

20     which -- the second instance which came several days ago and which deals

21     with certain topics and has grounds for the Prosecution appeal, gives a

22     new task to the Defence to look at these allegations in the first

23     instance judgement.  It was our proposal, and I can present it orally

24     here, Your Honour, Judge Meron, and that is that the Defence be allowed,

25     in light of the conclusions, the legal conclusions from the Martic

Page 27

 1     judgement that the Defence be allowed to write an additional response to

 2     the appeal in writing, and we would like to have a 21-day time limit for

 3     that, and we'd be completely satisfied if we were to be allowed to use up

 4     to 6.000 words for that.  And fully conscious of the fact that all the

 5     submissions have already been handed in which relate to the appeals, the

 6     replies and so on, that we be allowed to have additional time for oral

 7     arguments to be presented, and in them we would deal with what the

 8     precedent has to say in light of the second instance Martic judgement.

 9             So in that sense it would mean a lot if we could be given 45

10     minutes more time than the time specified for oral arguments so that we

11     can state our views in respect of that and in respect of the Martic

12     judgement.  And I would just like to mention that both Defence teams are

13     still studying the Martic judgement and we haven't defined our positions

14     yet quite clearly, but in any case, I think that we would like to present

15     additional arguments in light of the judgement.  Thank you.

16             JUDGE MERON:  Okay.  Let's take the question of the supplemental

17     document first, submission first.  I would like on that a motion from you

18     requesting that, because I may want to consult on that with my colleagues

19     on the Bench, and I would -- I'm wondering whether you could have that

20     motion, adjust that motion by the end of the day tomorrow?

21             MR. LUKIC: [Interpretation] I'd be very grateful to you,

22     Judge Meron, if you were to set the time for Monday, because my

23     co-counsel is absent, but he will be here tomorrow.  So may we be allowed

24     to take until Monday, please?

25             JUDGE MERON:  Yes.  I will -- in this case, perhaps by midday on

Page 28

 1     Monday?  Okay.  With regards --

 2             MR. LUKIC: [Interpretation] Certainly.  Thank you.

 3             JUDGE MERON:  Thanks.  As regards the other question, namely of

 4     additional time for the oral argument, we will consider that in preparing

 5     the Scheduling Order.  I think it's a bit early now, before I know what

 6     are the additional points you would like to argue, and it may very well

 7     be that if we allow a supplemental brief, that this will cover it enough.

 8     But in any event, I don't want to go into that now.  When we prepare --

 9     when we work on the Scheduling Order, we will take this question into

10     consideration.  Okay?

11             MR. LUKIC: [Interpretation] Yes, indeed.  Thank you.

12             JUDGE MERON:  Now, as I see -- I see there is close coordination

13     between Mr. Vasic and Mr. Lukic, so I'll -- I suppose they don't have any

14     additional issues to raise at this stage.

15             MR. VASIC: [Interpretation] No, Your Honour, none.  Thank you.

16     No, Your Honour.

17             MR. ROGERS:  Your Honour, forgive me, before you move on.

18             JUDGE MERON:  Yes.

19             MR. ROGERS:  If I may.

20             JUDGE MERON:  Sure.

21             MR. ROGERS:  There was just one other matter I wanted to raise

22     with you.

23             JUDGE MERON:  Oh, yes.  I am terribly sorry.  I did not come back

24     to you.

25             MR. ROGERS:  Not at all.  Your Honour, it's relating to the

Page 29

 1     hearing date.  Firstly, we're very grateful for the indication that

 2     you've been able to give so far today, but may I ask if -- because

 3     understanding the Tribunal's practice, certainly from the

 4     Appeals Chamber, to provide questions to the parties, such matters that

 5     concern the members of the panel that will be hearing the case, given the

 6     Christmas break that is approaching and to enable us all to effectively

 7     work through the period in order to prepare fully to assist the Court at

 8     the hearing, might I ask that the Scheduling Order come out in good time

 9     before Christmas with the questions that the Court wishes to raise so

10     that the parties, not just ourselves but the Defence as well, can focus

11     their resources, if we like, on -- on issues that are most troubling the

12     Appeals Chamber?  And I'm just conscious that if an order were to come

13     very shortly before the Christmas period, those resources may not be best

14     utilised.  I'm sure the Court, wishing to ensure efficiency, will do its

15     best to provide the parties with as much notice as possible to enable the

16     effective preparation of the case for hearing.

17             So might I invite the Court, if possible, to provide its

18     Scheduling Order with its questions in perhaps the first week, if I may

19     ask, of December or thereabouts so that we can prepare and allocate

20     resources appropriately.

21             JUDGE MERON:  Thank you.

22                           [Trial Chamber and legal officer confer]

23             JUDGE MERON:  Mr. Rogers, I have listened very carefully to your

24     point, and I am -- I am receptive to the idea.  We will do our best.  If

25     we cannot issue the Scheduling Order, including the questions, the first

Page 30

 1     week of December, we certainly will do that during the second, as early

 2     as possible during the second week of December.

 3             MR. ROGERS:  I'm very grateful.  Thank you.

 4             JUDGE MERON:  I think that we have exhausted everything which was

 5     on our agenda for this afternoon, and if there are no matters, and there

 6     are no further matters, I understand, that the Prosecution or the counsel

 7     for the Defence would like to raise, we will now rise and the meeting is

 8     over.

 9                           --- Whereupon the Status Conference adjourned

10                           at 3.26 p.m.