Tribunal Criminal Tribunal for the Former Yugoslavia

Page 88

1 Wednesday, 21 July 2004

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 11.04 a.m.

6 JUDGE KWON: Good morning, everybody. My apologies for a slight

7 delay -- actually, I entered the wrong courtroom.

8 Registrar, please call the case.

9 THE REGISTRAR: Yes, Your Honour. Good morning, Your Honour.

10 This is Case Number IT-03-68-PT, the Prosecutor versus Naser Oric.

11 JUDGE KWON: Thank you.

12 Will both parties make their appearances, please.

13 MR. WUBBEN: Good morning, Your Honour. For the Prosecution team

14 my name is Jan Wubben, senior trial attorney; co-counsel, Gramsci

15 Di Fazio; legal officer, Kristina Carey, together with Deanna Boles, case

16 manager. Thank you.

17 JUDGE KWON: I note Mr. Jayasuriya has been replaced?

18 MR. WUBBEN: Not yet, but he couldn't attend.

19 JUDGE KWON: And for the Defence, please.

20 MS. VIDOVIC: [Interpretation] Good afternoon or good day, Your

21 Honours. My name is Vasvija Vidovic, and together with my colleague John

22 Jones we are representing Mr. Oric. Ms. Jasmina Cosic is also with us as

23 our legal assistant.

24 JUDGE KWON: Thank you, Madam Vidovic.

25 This is the fourth Status Conference held in accordance with

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1 Rule 65 bis of the Rules of Procedure and Evidence. Thanks to the

2 incredible diligence of both parties, I'm now pleased to inform the

3 parties that this is -- this case is ready for trial and actually has been

4 scheduled to commence soon after the summer recess. With the permission

5 of the President of the International Tribunal, I can tell you now that

6 this case is to be heard by one of the sections of Trial Chamber II being

7 presided by the Honourable Judge Carmel Agius. And Judge Agius kindly

8 indicated to me that the pre-trial conference could be held early in the

9 week of 27th of September, 2004 with the full trial commencing the

10 following week as early as 4th of October, 2004.

11 So I would like to hear from the parties if there's any problem in

12 having a pre-trial conference on Tuesday, 28th of September, 2004, and the

13 trial starting on next Tuesday, 5th of October, 2004. I see no

14 objections.

15 MR. WUBBEN: No objections, Your Honour. In addition, I would

16 like to make a remark, because we indicated through our contacting with a

17 group of more than 30 witnesses, that last week they didn't have a

18 passport yet, and so we processed it. And due to the cooperation with

19 police authorities, they will see to it that it will be processed and

20 there's supported. And an estimation is that they will need six weeks, so

21 that should be fine, and I indicate no problem.

22 JUDGE KWON: Thank you.

23 Having set the trial date, this case will be given some sort of

24 priority, and I encourage you to do your best to get ready.

25 And I see no objections from the Defence either. So it will be so

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1 ordered.

2 Having said that, then, I would like to wrap up briefly the

3 current state of the case. There's a pending motion with respect to

4 Prosecution's requesting to add two witnesses. My understanding is that

5 there's no objection from the Defence on this. So the motion is hereby

6 granted.

7 In general, the pre-trial preparations with respect to disclosure

8 under Rule 66 and 68 and everything has been going have been smoothly.

9 Before we deal with the disclosure matter, I understand that there's an

10 issue raised by the Prosecution to intend to add to their list of

11 witnesses some ten witnesses. So can I hear -- can we hear the start from

12 the matter.

13 Mr. Wubben.

14 MR. WUBBEN: Thank you, Your Honour, for raising this issue,

15 because after the -- after Monday, the 65 ter conference, we prepared to

16 submit more information in that regard.

17 On Monday we stated that we intended to seek permission to add

18 approximately 10 to 15 new witnesses to the Prosecution's witness list.

19 During that Status Conference, concerns had been expressed about the total

20 number of witnesses sought to be added and the possibility that these

21 witnesses and their companion evidentiary material might cause delay to

22 the commencement of trial. To facilitate an early trial date and to

23 prevent an unnecessary delay, the Prosecution has reviewed its proposed

24 group of potential witnesses that it wishes to add to the list and has

25 reduced the number to six witnesses; however, we will seek to obtain two

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1 further witnesses, and I will provide details of that couple later on in

2 my submission.

3 So back to the reduced list of six witnesses. Two of those

4 projected six witnesses are forensic handwriting and document experts who

5 will give evidence as to the authenticity and authorship of documents on

6 the Prosecution's exhibit list. Defence counsel has been provided with a

7 courtesy copy of their first and principle report with a second

8 supplementary report to be delivered to the Defence this week. The

9 Defence has expressed its intention to challenge the authenticity of

10 documents on the Prosecution's exhibit list. These two experts will

11 assist the Trial Chamber in determining the question of authenticity. The

12 Defence has expressed its intention to call its own forensic handwriting

13 and document expert.

14 Of that list of six witnesses, three additional witnesses will be

15 called to establish the fact of the death of three of the victims

16 identified in the amended indictment, so included in the charges. The

17 Prosecution has offered the Defence the opportunity to stipulate to the

18 fact that the victims identified in the indictment are deceased, but the

19 Defence has declined to do so. This necessitates calling relatives of the

20 deceased to prove the fact of death.

21 The final witness, number six, will be called to authenticate

22 radio message intercepts. These intercepts will be provided to the

23 Defence. A subsequent motion will seek permission to add these intercepts

24 to the Prosecution's list of exhibits. However, that intercept witness,

25 number six, can only authenticate four out of the 17 intercepts the

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1 Prosecution will seek to produce into evidence. This witness has already

2 agreed to provide a statement simply on the issue of authentication.

3 Therefore, the Prosecution will seek to call additional witnesses, two

4 witnesses, to prove the remainder of the intercepts. It is intended that

5 these two witnesses will be purely formal witnesses whose evidence will be

6 very brief just to prove the remaining evidence. It may be that --

7 JUDGE KWON: Mr. Wubben, I'm sorry to interrupt you but let me be

8 clear about this thing. Two additional witnesses, two further witnesses,

9 are they included in six or not?

10 MR. WUBBEN: They are not included in six.

11 JUDGE KWON: No. This is in addition to six, you may wish to call

12 two further witnesses to --

13 MR. WUBBEN: Yes --

14 JUDGE KWON: For the -- to prove authenticity of the intercepts.

15 MR. WUBBEN: But I'd like to inform you that we will file a motion

16 in that regard of those two -- six witnesses, and it means that in the

17 future we might get back to an additional opportunity of two witnesses.

18 This is to inform you that it may well be that Defence counsel will not

19 dispute authenticity of the intercepts, in which case these intercept

20 witnesses will not be called at all.

21 JUDGE KWON: Okay. But before I hear from the Defence I would

22 like to encourage you to file your motion as soon as possible.

23 MR. WUBBEN: We will, Your Honour. We will file this seeking --

24 this allowance to add those witnesses at the end of the week.

25 JUDGE KWON: Thank you.

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1 Madam Vidovic, do you have -- Mr. Jones, yes.

2 MR. JONES: Thank you, Your Honour.

3 Well, to a certain extent this may be a matter now which is for

4 Trial Chamber II to decide when the Prosecution brings a motion. So I

5 make three brief points, three brief observations. Starting from the

6 general moving to the particular.

7 The general points --

8 JUDGE KWON: Sorry to interrupt you. But this Trial Chamber can

9 look into the matter. It is for the Trial Chamber.

10 MR. JONES: I'm obliged, Your Honour.

11 Firstly, dealing with the statute and the right of the accused to

12 a fair trial, I'll just make the following point: That as far as any

13 claimed right or any right claimed by the Prosecution to bring witnesses

14 at any stage is concerned, that is obviously subject to the right of an

15 accused to a fair trial guaranteed by Article 21 of the statute. And if

16 at the 11th hour new witnesses are going to be introduced, new evidence,

17 new points, new issues, then obviously that raises the prospect that the

18 accused's right to a fair trial may be jeopardised, given that he may not

19 have the adequate time and facilities to prepare on those points.

20 As far as authenticity of documents is concerned, obviously we

21 have raised this issue, and it's reasonable for the Prosecution to find

22 witnesses to deal with that point. So my point really goes to the other

23 witnesses whom the Prosecution intends to call.

24 Turning to the Rules of Procedure and Evidence next. Rule 66 and

25 Rule 65 ter contemplate an orderly procession, if you like, of various

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1 stages of the pre-trial stage being completed whereby the Prosecution

2 files its list of witnesses it intends to call, it has to serve the

3 statements on the Defence by certain dates. And so for the Prosecution to

4 claim, if they are so claiming, that new statements may be introduced

5 willy-nilly whenever they like, then that would upset the whole logic of

6 the rules. It would upset the economy and rationale of the rules and

7 would make of the rules a charade.

8 We have reached the stage where, as Your Honour has observed, due

9 to diligence on both sides, we are now trial ready and the introduction of

10 new evidence would threaten to upset that stage we have finally reached.

11 And indeed it would be impossible for us ever to really say that we are

12 trial ready if the Prosecution will keep introducing evidence at different

13 stages of the proceedings.

14 As far as the evidence concerning evidence of death of victims is

15 concerned, this is something which right from the start the Prosecution

16 would anticipate would be necessary as part of their case, their case

17 being that these victims died. And so as far as the notion that the

18 Defence could have stipulated to the death of the victims, it is something

19 obviously which is out of the Defence's knowledge, and it was something

20 which the Prosecution always anticipated, as long as a year or a year and

21 a half ago, that they would need to call those witnesses. And so it's my

22 submission it would be extremely late in the day for the Prosecution to

23 seek to prove those points, and it's certainly wrong to suggest that it's

24 due to a failure by the Defence to stipulate to such a controversial point

25 that the Prosecution now has to prove that point.

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1 And then finally, just dealing very specifically with the orders

2 which Your Honour has issued in this case. Your Honour has been issuing

3 orders with deadlines for the service of documents. For example, Your

4 Honour's order of the 30th of July, 2003, which dealt, inter alia, with

5 the filing of Rule 66(A)(ii) statements and expert reports, and a date

6 which was set in that order was the 14th of November, 2003, which I

7 believe was later extended. And then at the Status Conference of the 28th

8 of November, 2003, Your Honour ordered that all materials under

9 Rule 66(A)(ii) would be filed by the 16th of January this year, with the

10 exception of certain specified materials. And I certainly, or we

11 certainly understand that to mean everything referred to in

12 Rule 66(A)(ii), which would include additional statements, additional

13 Prosecution statements, in the second clause of 66(A)(ii).

14 And so in my submission, it would make a mockery of those orders

15 if, again, more and more witnesses were to be introduced at such a late

16 stage. And the Prosecution certainly, it appears, understood your order

17 in that sense, that they would have to seek leave in order to add any

18 additional witnesses, because indeed in the Prosecution motion, for

19 example, of the 12th of May, 2004, to add witnesses, the Prosecution

20 referred to Your Honour's order and sought leave to add new witnesses. So

21 certainly the Prosecution recognises that this is outside -- this would be

22 outside the deadlines which have been set for filing additional evidence.

23 So in conclusion, Your Honour, the Prosecution can make its

24 application, and it will be a matter for the Trial Chamber to rule upon.

25 But our position, apart from the witnesses dealing with the issue of

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1 authenticity, which we recognise is new, is something which we will

2 vigorously oppose, not least because we will already have to deal with

3 five anonymous witnesses whose statements we will receive unredacted in

4 full only 30 days before the trial starts. We will have to be making

5 inquiries and dealing with those matters. And so to have to deal with

6 other witnesses dealing with, as I say, new issues, new evidence, then

7 that could really put us in a difficult position. But that's just to give

8 us an indication of the Defence's position.

9 JUDGE KWON: Thank you. Having heard your points, can I ask

10 you -- if we receive the Prosecution's motion by the end of this week,

11 when do you think you can file your response to that?

12 MR. JONES: I would imagine fairly rapidly. I would imagine

13 within five days certainly.

14 JUDGE KWON: Thank you.

15 Then the next matter would be 92 bis witnesses. And my

16 understanding is that the parties agreed -- the Defence agreed to

17 admission of one statement without cross-examination and the other six.

18 So therefore the Prosecution is planning to call them in the form of 98 --

19 89(F) or something like that. Am I right in this?

20 MR. WUBBEN: Your Honour, we consider to make use of 89(F) due to

21 expedited trial.

22 JUDGE KWON: However, even if that was agreed by the parties, I

23 would like the parties to file their motions and response formally so that

24 the actual Trial Chamber which is to hear the case to be able to look into

25 the matter, and it's up to them whether they can admit the 92 bis without

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1 cross-examination, despite some opposition from the Defence. So I like

2 to -- I like the motion and response to be filed formally. Can it be

3 done? Mr. Wubben?

4 MR. WUBBEN: Your Honour, you are now referring to 89(F)?

5 JUDGE KWON: Or 92 bis. Or, in the alternative, 89(F).

6 MR. WUBBEN: I'll see to it, Your Honour.

7 JUDGE KWON: And I mentioned the very smooth proceeding in

8 relation to disclosure matter. If there's anything the parties may raise

9 in relation to disclosure, I'd like to hear from the Prosecution. None?

10 MR. WUBBEN: No, thank you.

11 JUDGE KWON: Madam Vidovic.

12 MS. VIDOVIC: [Interpretation] No, Your Honour.

13 JUDGE KWON: Thank you.

14 Mr. Jones mentioned that this unredacted disclosure -- disclosure

15 of unredacted statements of protected witnesses, that's five in number.

16 So those statements in unredacted form should be disclosed prior to -- 30

17 days prior to the commencement of the date. Now the trial date is set, so

18 there should be no problem in disclosing those witnesses' statements. No.

19 And I noticed that the Defence -- the Defence's opposition,

20 objection to the military -- in regard to -- in relation to military

21 expert. Their opposition as to the qualification and the area of

22 expertise still stands?

23 MR. JONES: Yes, Your Honour, that remains our position.

24 JUDGE KWON: That can be dealt with by this Chamber or the Trial

25 Chamber II, which is to hear the case.

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1 Is there any other matter to be raised by the parties at this

2 time?

3 MR. WUBBEN: No. Thank you, Your Honour.

4 JUDGE KWON: Yes, Ms. Vidovic.

5 MS. VIDOVIC: [Interpretation] No, Your Honour. No thank you, Your

6 Honour.

7 JUDGE KWON: Thank you.

8 Mr. Oric, do you want to say anything in relation to your status

9 or your detention? Anything?

10 THE ACCUSED: [Interpretation] I have nothing to say, Your Honour.

11 Everything is in good order.

12 JUDGE KWON: Thank you.

13 Then this hearing is adjourned.

14 --- Whereupon the Status Conference

15 adjourned at 11.26 a.m.