Tribunal Criminal Tribunal for the Former Yugoslavia

Page 64

1 Wednesday, 19 January 2005

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 2.59 p.m.

5 [The accused entered court]

6 JUDGE LIU: Well, call the case, please, Mr. Court Deputy.

7 THE REGISTRAR: Good afternoon, Your Honour. Case Number

8 IT-95-12-PT, the Prosecutor versus Ivica Rajic.

9 JUDGE LIU: Thank you. Good afternoon and happy new year, ladies

10 and gentlemen. For the sake of the record could I have the appearances,

11 please.

12 For the Prosecution.

13 MR. SCOTT: Yes, Your Honour. Good afternoon. Kenneth Scott for

14 the Prosecution, along with Josee D'Aoust, and also Denise Gustin. Thank

15 you.

16 JUDGE LIU: Thank you.

17 For the accused.

18 MR. OLUJIC: [Interpretation] Good afternoon, Your Honour. I am

19 Zelko Olujic attorney-at-law from Croatia, and I represent Mr. Ivica

20 Rajic.

21 JUDGE LIU: Thank you.

22 Mr. Rajic, can you hear the proceedings in a language you

23 understand?

24 THE ACCUSED: [Interpretation] Yes, I can.

25 JUDGE LIU: Do you have anything to complain about during your

Page 65

1 detention period?

2 THE ACCUSED: [Interpretation] I don't have anything special to say

3 about my detention. And if you will allow me, Your Honour, at the end of

4 today's session I would like a minute to address Your Honour.

5 JUDGE LIU: Thank you. We'll come to you at a later stage.

6 Well, this is a Status Conference in accordance with Rule 65 bis.

7 The purpose of this conference is to help both parties for the preparation

8 of this case. There are several matters on the agenda. The first matter

9 as usual is the stage of disclosure. I believe that during the last

10 Status Conference the Prosecutor has already informed the Chamber, the

11 Pre-Trial Judge, as well as the Defence that the state of the disclosure

12 under Rule 66 and Rule 68 has already been completed. And as regards to

13 the Rule 66 disclosure, all the supporting material and the written

14 statement made by the accused and by the potential witnesses, have now

15 been submitted to the Defence.

16 Am I right? Yes.

17 MR. SCOTT: Your Honour, as I informed Mr. Harhoff in our 65 ter

18 meeting this morning, yes, you're -- Chamber's fundamentally right. We

19 have -- of course the supporting material was disclosed a long ago. The

20 66(A)(ii) witness statements have been disclosed and the vast majority -

21 and I'll explain that in a minute - of the Rule 68 material have been

22 disclosed. As I also explained, however, as I think Your Honour knows

23 from your tenure at the Tribunal so far, the OTP collections are large and

24 we do conduct various searches from time to time. And we have some weeks

25 ago begun another project to review certain collections of materials which

Page 66

1 we should complete in the next few weeks. And I anticipate there being

2 some -- I can't estimate a volume, I don't think it will be a huge volume,

3 but there will be some additional material for disclosure to the Defence

4 at that time. That is just part of our ongoing review which frankly will

5 continue from now until judgement in the case. So that's the report.

6 JUDGE LIU: And how about the Rule 68 material?

7 MR. SCOTT: That was -- that was the Rule 68 material,

8 Your Honour.

9 JUDGE LIU: Thank you very much.

10 And how about the status of those translations of those materials?

11 Is there any problem concerning the translation?

12 MR. SCOTT: I don't know of any in terms of what has been produced

13 before. I'm sure counsel will correct me if I'm wrong. I'm not aware of

14 any. As to the new material I just brought to your attention, yes, of

15 course, it's possible that we may find to some of it does require

16 translation. But that's just looking ahead. I can tell the Chamber, or

17 Your Honour, that there was another item. The Court will remember that

18 the Chamber was good enough to -- kind enough to provide protection for

19 three sensitive witnesses. And we had committed, according to the Court's

20 direction, to provide summaries to the Defence of the evidence, not to

21 disclose at this time the identities of the protected witnesses, but to

22 provide a summary so that the Defence would at least be familiar with the

23 substance of the anticipated evidence. And that has been provided to

24 counsel.

25 JUDGE LIU: Thank you very much.

Page 67

1 Could I turn to the Defence counsel, Mr. Olujic, any comments, any

2 remarks you would like to make on this issue?

3 MR. OLUJIC: [Interpretation] Yes, thank you, Your Honour. First

4 of all, we have to split this issue into two groups. Obviously we have

5 received some of the material according to the rules of this Tribunal.

6 However, as far as the summaries are concerned, as far as I understood

7 what has been said, this has to do with what was said earlier on at 65 ter

8 conference, and that was offered to me by my learned friend. We were also

9 informed about the additional protection of witnesses. We don't have any

10 objections to that at this moment. I appreciate what my learned friend is

11 saying about the disclosure of new documents. However, I would kindly ask

12 for the new documents to be disclosed in Croatian so that my client could

13 have a complete insight into all of these documents and prepare for his

14 Defence.

15 JUDGE LIU: Well, what do you mean by Croatian?

16 MR. OLUJIC: [Interpretation] I mean that all the documents that

17 are in English should be translated into Croatian, the language that is

18 understood and read by the accused. This is what I meant and what I had

19 in mind was the additional documents that the Prosecutor proposes to

20 disclose in the future.

21 JUDGE LIU: You are not implying there's some nuance between

22 Serbian and Croatian, you do not mean that?

23 MR. OLUJIC: [Interpretation] Your Honour, when I say "Croatian," I

24 am saying that my client is Croat and he speaks Croatian. However, if the

25 documents are translated into Serbian or Bosnian, he will understand the

Page 68

1 translation. In the Republic of Croatia, the official language is

2 Croatian; in the Republic of Serbia, the official language is Serbian.

3 JUDGE LIU: Thank you. The rules are that the document should be

4 translated into a language that the accused understands. Yes.

5 Well, at this moment I have to remind the Prosecution of his

6 obligation for the disclosure of the 68 Rule materials, which is a

7 continuing obligation on the part of the Prosecution. And it means that

8 whenever you have these kind of materials, you should -- are under this

9 obligation to disclose them to the Defence.

10 Let's turn to the next issue. The next issue is the agreed facts

11 or the agreement on certain facts. I believe that during the last Status

12 Conference the Prosecution is very kind to inform us that it has submitted

13 on the 11th of August, 2004, a list of some proposed agreed facts to the

14 Defence which is about 200 to 220. And as a Pre-Trial Judge, I appreciate

15 this offer very much, and I believe that at that time I urged the parties

16 to meet as soon as possible to the list. And I also requested that the

17 parties could reach kind of agreement before this Status Conference.

18 Could I hear that -- whether if there's any development in this

19 aspect. Yes, Mr. Scott.

20 MR. SCOTT: May it please the Court. Your Honour's memory is

21 hundred per cent accurate. We did provide counsel with a set of proposed

22 facts last August, and it's come up at several of our Status Conferences

23 since then and of course again today. We of course bonded with counsel on

24 a number of occasions, again as recently as the 11th of January this year,

25 a few days ago, so see if progress could be made on this, for reasons that

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Page 70

1 I'm sure Mr. Olujic can explain to you, we don't seem to have -- been able

2 to make any progress to date. Although we certainly are confident -- the

3 Prosecution is confident that there should be a substantial amount of this

4 information that can be agreed. But I am sad to report that we have not

5 been able to make progress with the Defence to the present time.

6 JUDGE LIU: Well, could you be more specific. You mean that you

7 haven't got any chance to meet with Defence on this issue, or you already

8 met but there's no progress on this aspect?

9 MR. SCOTT: We've had several meetings in the course of -- when

10 these schedules -- these conferences have been scheduled and other times

11 for other reasons Mr. Olujic has needed to be in The Hague. So we have

12 met on a couple of occasions in which we discussed, in honesty, the topic

13 of the proposals and the fact that progress needed to be made, but

14 Mr. Olujic has reported to us the need at all occasions to meet with his

15 client. And frankly, Your Honour, I'd be more comfortable for Mr. Olujic

16 to tell you whatever difficulties he had than for me to try and interpret

17 that for him.

18 To answer the Chamber's questions, your questions, Your Honour,

19 yes, we have met here in The Hague in which this topic has come up and

20 been discussed, but we have not been able to make progress.

21 JUDGE LIU: Thank you very much.

22 Mr. Olujic.

23 MR. OLUJIC: [Interpretation] Thank you, Your Honour. To follow-up

24 on my learned friend's words as far as the agreed facts are concerned and

25 the proposition sent to me by the Prosecution in the month of September,

Page 71

1 as soon as this was translated I handed it over to my client and I started

2 with very serious work on this material. The Prosecution from its point

3 of view included among the 200 facts proposed for agreement - and although

4 this is not a subject of our discussion at the moment - a lot of these

5 facts will be rejected because we will not be able to reach agreement on

6 them. However, the Defence wants to reach an agreement in as many aspects

7 as possible before the trial. We have come into a rather awkward

8 position, Your Honour, me and my client, Mr. Rajic. Based on the facts,

9 based on the material proposed by the Prosecution, my client has to

10 re-construct certain developments and he has to try and recollect some

11 events which took place ten years ago. In order for me to help him with

12 the preparation of his Defence, I put certain documents on CDs. However,

13 in communication with my client I cannot cooperate with him by handing

14 these materials over to him because the Detention Unit wants to clear all

15 these materials first.

16 My client, Mr. Rajic, is strongly against that and he has bound me

17 not to hand over any material on CD to him indirectly, that all the

18 material has to reach him directly. Since we haven't been able to do

19 that, I haven't been able to comply with his request because there was no

20 goodwill on the part of the Detention Unit. That is why my client has

21 objected on several occasions to the Detention Unit. He has also informed

22 me that he requested a personal contact with the representatives of the

23 registry of this Tribunal, all in order to resolve this issue which in any

24 case slows us down in the analysis of all the materials and facts.

25 In other words, we have been preparing our reply to the 200

Page 72

1 proposed facts; however, we have been slowed down because the two of us

2 cannot cooperate in the way we would like to, and that is for me to be

3 able to hand over certain materials to him, for him to study those

4 materials, and for the two of us to agree on the tactics, with regard to

5 what has been proposed by the Prosecution. Unfortunately until today we

6 have only been able to deal with only 40 or 50 per cent of the material,

7 because everything has been slowed down. And everything now boils down to

8 me manually processing some documents and handing them over to him. If we

9 could do it by means of CDs, it would speed up the process which is our

10 wish as well at the end of the day.

11 This, Your Honour, is a problem that we face and this is I believe

12 the reason for which Mr. Rajic wishes to address Your Honour at the end of

13 this meeting. Thank you very much.

14 JUDGE LIU: Well, Mr. Olujic, when I was informed about this CD

15 issue in the UN Detention Unit, I made an inquiry into it. The answer I

16 got is as follows: This is a normal procedure in the Detention Unit, and

17 the guards in the Detention Unit is fully understanding of the privilege

18 between the counsel and his client. They just put a mark on that CD

19 without looking into the content of that CD. And this rule applies to

20 everybody, every counsel, and every detainee in there. There's no

21 discriminative intent behind it. I hope you could understand that is a

22 purely normal safety procedure in the Detention Unit.

23 At the same time, I also urge you to have a serious study of the

24 proposals submitted by the Prosecution. We really believe that this

25 proposal will greatly help both parties to identify the issue in this

Page 73

1 case, and in a great way help the positions of your client. You might

2 divide the list into three sections. Maybe one section is just for the

3 basic facts; the second category might be something that is in dispute,

4 which means that you do not agree; the third section may be something you

5 need to consider and to think it over. That will greatly facilitate the

6 proceedings. I believe that in every case there are some basic facts

7 which do not require the other side to produce evidence to prove it.

8 Well, since you have not been able to finish this job, I might

9 give you some more time to do so. I hope after this Status Conference you

10 could carefully study the list of the proposals and have a good discussion

11 with your client. I hope the parties could meet as soon as possible, try

12 to reach some agreement. I have to emphasise that I'm not forcing any

13 party to agree on some particular issues, but I still think it's a very

14 good practice for the facilitating the proceedings of this trial. I hope

15 before the next Status Conference we will have something concrete, which

16 means the parties will submit to the Pre-Trial Judge a joint statement

17 listing what are the facts that the parties have already agreed and what

18 is still in dispute.

19 Is that agreeable to the parties? Mr. Scott?

20 MR. SCOTT: Yes, Your Honour, it certainly is. I feel compelled

21 to point out as counsel has indicated that Mr. Rajic needs to focus his

22 mind on these matters in order to make some progress. And I just -- I

23 can't imagine a person's mind not being more focused on such matters where

24 they are the basis for him having been here in custody since June of 2003.

25 It seems to me this would be foremost on Mr. Rajic's mind and he would be

Page 74

1 well in a position to respond to these propositions.

2 JUDGE LIU: Well, as the counsel said, about more or less ten

3 years has passed. There is something that happened long ago, time for the

4 accused to recall, it's quite understandable.

5 Yes, Mr. Olujic, do you agree with my proposal on that issue?

6 MR. OLUJIC: [Interpretation] Yes, naturally, Your Honour, I agree

7 with your proposal. As far as what my learned friend has just said, I

8 don't think this is correct, and I believe that your comment is more than

9 sufficient for me. Thank you very much.

10 JUDGE LIU: So before the next statement I am expecting a joint

11 statement on what has been agreed upon by the parties and what is still in

12 dispute. Thank you.

13 The next issue is concerning with the preparation of this case.

14 Mr. Scott, could you inform me somehow about where you are, for instance,

15 whether you are going to submit 65 ter filings or whether the pre-trial

16 brief will be prepared in the foreseeable future and whether there's any

17 preparation for the list of the exhibits which are to be used in this

18 trial. You may brief me on that or give me a rough idea.

19 MR. SCOTT: Yes, Your Honour. As I indicated to Mr. Harhoff this

20 morning, no, that hasn't been on any recent agendas, there hasn't been

21 any -- a specific time schedule to prepare that kind of information, so

22 it is not something that we've looked at very recently. I've certainly --

23 if the Chamber wants to set a schedule for 65 ter filings, obviously we

24 will comply with a schedule. In terms of a pre-trial brief, to be candid,

25 Your Honour, we think it would be very premature to require a pre-trial

Page 75

1 brief the next few months. This case is not scheduled for trial and by

2 all indications will not be scheduled for trial for some time. And

3 frankly my personal view is it's not a particularly a good use of time or

4 not particularly helpful to prepare these documents months and months in

5 advance of trial. Having said that, of course, Your Honour, I'd be happy

6 to provide the Chamber with some additional information in terms of our

7 preparation. Of course, it's ongoing. We look at exhibits, we look at

8 these matters. But I haven't come here this afternoon prepared to give

9 any sort of specific figures.

10 JUDGE LIU: Thank you very much.

11 Is there anything that the Defence would like to say on this issue

12 concerning with the preparation of the case?

13 MR. OLUJIC: [Interpretation] I apologise. Perhaps there was a

14 translation error. At this point in time, given what I have just heard

15 from the submission, I have no other proposals to make. I hear that the

16 case is not ready for trial and that there is not even an indication of

17 when these filings might be submitted. I hope that we will be following

18 the Rules of Procedure and Evidence and that the Prosecution and Defence

19 counsel will do everything to make sure that we can go to trial as soon as

20 possible.

21 JUDGE LIU: Thank you.

22 Now I turn to the last issue, and first of all I would like to

23 give the floor to Mr. Rajic.

24 Mr. Rajic, do you have something to say at this stage?

25 THE ACCUSED: [Interpretation] Thank you, Your Honour. Yes, very

Page 76

1 briefly. As far as the first issue is concerned, my attorney, Mr. Olujic,

2 has already provided sufficient explanations. I believe there is a

3 misunderstanding here. You have mentioned the one procedure for providing

4 material on a CD. I think that they are requesting something else in the

5 Detention Unit, and that's the reason for this misunderstanding. I have

6 asked the registry to deal with this issue and try to revolve the

7 difficulties. If not, I will address you directly through my counsel.

8 Secondly, as far as paying for my Defence is concerned, I received

9 a decision last year stating the percentage that would be paid for my

10 Defence. My Defence team hasn't received a single euro so far. And since

11 I adopt my request according to the Defence strategy, I am in a position

12 in which I can't ask people to work if they are not paid. I think that my

13 rights are not respected in this way, and I would be grateful if you could

14 inform me about when I will be granted the funds that are supposed to be

15 allocated to me so that my Defence can proceed as necessary. Thank you.

16 That's all I wanted to say.

17 JUDGE LIU: Thank you very much.

18 Mr. Olujic, would you please confirm the second issue your client

19 raised just now, which I mean that you haven't received a euro since the

20 starting of the case.

21 MR. OLUJIC: [Interpretation] Mr. Rajic naturally had in view the

22 overall situation and the decision made by the registry. He's been

23 informed that certain funds have been earmarked for his Defence and also

24 that the registry has taken a decision that is violating his rights to a

25 certain extent because the registry believes that he can also contribute

Page 77

1 to the expenses of his Defence and to the expenses that are as a result of

2 investigations, et cetera.

3 JUDGE LIU: Well, first of all I would like to say that the fee

4 paid to the counsel is a matter entirely within the mandate of the

5 registrar. And if there is any complaint and disagreement with the

6 decisions of the registrar, you could make a complaint to the registrar or

7 you could even appeal their decisions to the President in accordance with

8 the rules of procedure.

9 Secondly, certainly it is the Pre-Trial Judge's duty to convey

10 your complaint to the registrar and to see what he could do in this

11 aspect. I believe this is all I can do at this moment, but if there are

12 still some problems, please feel free to let me know and I'll do my best

13 to help the Defence to solve this issue.

14 Mr. Rajic, how about your health?

15 THE ACCUSED: [Interpretation] It's good.

16 JUDGE LIU: I thank you very much. And I believe that you have to

17 take care of yourself. You may sit down, please.

18 THE ACCUSED: [Interpretation] Thank you.

19 JUDGE LIU: At this stage are there any other matters that the

20 parties would like to raise?

21 Mr. Scott?

22 MR. SCOTT: Only this, Mr. President: I just feel a bit compelled

23 to respond to counsel's statements a few moments ago. The Prosecution is

24 taking all steps to have this -- to have this case ready for trial. It's

25 met all of its obligations in a timely way without exception. We proposed

Page 78

1 these agreed facts in August of last year, some months ago. And I can

2 assure the Chamber and I can assure Mr. Olujic, we are taking this case

3 seriously and we meet all our obligations fully and in a timely way, and I

4 just do not want to be -- the suggestion be made that there is any

5 shortcomings in our efforts to do that by counsel or the suggestion that

6 that's the case. We are taking our obligations seriously, as we always

7 do, and stand ready to meet with Mr. Olujic at any time, have met with him

8 before. We stand ready to assist the Chamber in any way we can.

9 JUDGE LIU: Well, I think at the very beginning I already said

10 that we appreciate very much the efforts you have made in the preparation

11 of this case. Now, the ball, I believe, is in the court of the Defence.

12 And taking into consideration the specific situations in this time, I

13 believe both parties agreed that before the next Status Conference you

14 will submit a joint statement on this issue. This is the basis for the --

15 I believe in my view for the 65 ter filings, whether if certain facts have

16 been agreed so there's no need to call that witness or we just simply take

17 a 92 bis statement into evidence with or without cross-examination, which

18 will greatly facilitate the proceedings. So we appreciate the efforts

19 made by the Prosecution.

20 Mr. Olujic, do you have some other matters to raise at this stage?

21 MR. OLUJIC: [Interpretation] No. Thank you, Your Honour.

22 JUDGE LIU: Well, I think that's all for this Status Conference.

23 And according to the Rules, we'll hold the next Status Conference in 120

24 days. And as for the specific time, both parties will be informed in due

25 time. The hearing is adjourned.

Page 79

1 --- Whereupon the Status Conference

2 adjourned at 3.38 p.m.