Tribunal Criminal Tribunal for the Former Yugoslavia

Page 626

1 Tuesday, 23rd November, 1999

2 [Status Conference]

3 [Closed session]

4 [The accused entered court]

5 --- Upon commencing at 2.35 p.m.










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[Open session]

Page 629

1 JUDGE ROBINSON: We have two motions filed by

2 Mr. Brashich. At this stage we're just considering the

3 procedure that is to be followed in dealing with those

4 motions.

5 Mr. Brashich.

6 MR. BRASHICH: Your Honour, as I had

7 indicated in my last filing on Saturday, I have done

8 some research with regard to the writ of habeas corpus,

9 and all of the reading that I have done -- of course,

10 not in an international setting, rather, in a national

11 or domestic setting -- indicates to me that the writ is

12 a civil remedy.

13 I have read the recent decision of the

14 Appeals Chamber for Rwanda, and it appears to me that

15 the Appeals Chamber has viewed the writ as a remedy

16 that can be addressed by this Court.

17 If I read the teachings of the -- and I must

18 admit I have difficulty with the name -- but it's

19 called the Jean-Bosco case -- then the Trial Chamber

20 can pass upon the petition, and if it passes upon the

21 petition and grants the writ, it would then hold an

22 evidentiary hearing.

23 It would seem to me that at that time the

24 burden of proof would shift to, as I have styled in my

25 papers, the respondent, whether represented by the

Page 630

1 Prosecutor, as to the nature and basis of the

2 detention.

3 JUDGE ROBINSON: Mr. Brashich, just let me

4 get something clear. Did you say that if the Chamber

5 passes upon the petition and grants the writ it will

6 then hold an evidentiary hearing? Is an evidentiary

7 hearing coming after the Chamber has -- after or before

8 the Chamber has ruled on it?

9 MR. BRASHICH: Well, the petition brings the

10 body of the detained individual before the court. At

11 that particular point, once the body -- and the body is

12 here -- is before the court, then there is an inquiry

13 by the Court as to the nature of the detention. That

14 is my understanding of the procedure that should be

15 followed if we follow the teachings of the system that

16 I am familiar with.

17 On the motion for a return to country of

18 refuge, I would think that the burden of proof is upon

19 me, and that while I have established a prima facie

20 case with the filing on October 16th of a sworn or a

21 statement made under the penalties of perjury, should

22 that be questioned then I have the burden of proof of

23 going forward with my client as a witness and with any

24 other witnesses that I would call on behalf of the

25 motion for a return.

Page 631

1 The only other thing is -- again, I had read

2 a number of treatises in the short period of time that

3 I've had since the ICTR rendered its decision on

4 November 3rd -- the independent judiciary that is

5 envisaged by the writ of habeas corpus is not the

6 judiciary, at least in the English teachings and in the

7 American teachings. It is not the judiciary that is

8 passing upon the innocence or guilt of the accused.

9 And I've been wrestling with that issue and have

10 discussed it at length with other practitioners,

11 including European practitioners, in seeking some

12 solution to this criminal/civil dichotomy and, frankly,

13 I don't have an answer.

14 JUDGE HUNT: Surely the answer, Mr. Brashich,

15 is that we have no power to issue writs. We have no

16 power to hear any application against the governor of

17 the detention unit. What we do have power to determine

18 is the legality of your client's detention, which is

19 the fundamental point in a writ of habeas corpus. All

20 that the Appeals Chamber from Rwanda dealt with was

21 something in the nature of habeas corpus. Because we

22 have no writs, we are not a civil court, it is quite

23 wrong to suggest that a petition then passes burdens of

24 proof. We are here solely on your application to

25 determine the legality of your client's detention.

Page 632

1 As to onus of proof, may I suggest to you

2 that what happens is the Prosecution says, "We arrested

3 him in accordance with the warrant of arrest issued by

4 this Tribunal," and that's all it has to say, and the

5 burden then passes back to you, the evidentiary burden

6 passes back to you to show that there is something

7 wrong with that.

8 So the issue under your petition and the

9 issue under your motion for return is exactly the same,

10 in the end, and there's no question that I can see,

11 certainly not in the Appeals Chamber decision, about

12 evidentiary hearings. The burden is upon you to show

13 that your client is wrongfully held, after the

14 Prosecution shows that there was a valid warrant of

15 arrest.

16 MR. BRASHICH: Perhaps, Your Honour, then I

17 have misread the Jean-Bosco decision. I understand

18 that the dicta in the Jean-Bosco decision was in a

19 totally different setting. I am mindful -- that's why

20 I brought it up -- that this Court does not have the

21 authority to issue out writs. If I have misinterpreted

22 the Jean-Bosco decision and its teaching, then you will

23 rule that I have done so and that I have misread it.

24 If, on the other hand, we are on a motion for return to

25 the country of refuge, I agree with Your Honour that

Page 633

1 the burden, once they have shown that he was arrested

2 pursuant to a warrant, is upon me, and the burden of

3 proof rests upon me.

4 JUDGE ROBINSON: Mr. Niemann? Remember that

5 the narrow issue that we are considering now is the

6 procedure that you will follow in disposing of these

7 motions.

8 MR. NIEMANNN: If Your Honours please, we

9 agree entirely with the remarks of His Honour, Judge

10 Hunt, in relation to this. It's clear, in our

11 submission, from the decision in Barayagwiza, and in

12 particular, Your Honours, at paragraph 88 on page 50 of

13 the majority decision. Their Honours there say

14 specifically that writs of habeas corpus are not

15 specifically addressed in the Rules, but the notion

16 that a detained person shall have recourse to an

17 independent judicial officer is provided for in the

18 Rules.

19 So in our submission, Your Honours, it

20 doesn't assist to go into the procedures associated

21 with habeas corpus as such, it being a civil procedure,

22 as has been mentioned by counsel. In our submission,

23 Your Honours, it is appropriately a motion under

24 Rule 73(A), paragraph (A) of the Rules, and we have

25 addressed that in our written submissions upon which we

Page 634

1 rely, that we say that the procedure to be followed,

2 and the responsibility to bring the motion, rests on

3 the party pursuant to that provision of Rule 73,

4 paragraph (A), and in our submission, it can be dealt

5 with either by the Chamber on the written pleadings or

6 a combination of both the written pleadings and the

7 oral submissions of the parties.

8 Unless I can assist Your Honour with other

9 matters --

10 JUDGE HUNT: I'm a little curious about your

11 answer to the claim that he is in custody, as clearly

12 he is. Do you not have to establish a valid arrest, in

13 the sense of pursuant to an arrest warrant issued by

14 this Tribunal? That's all. I'm not suggesting you

15 have to go back any further. But do you not have to

16 show that? We've got a statement from your co-counsel

17 on the last occasion that that's what happened, but

18 that's all we've got, is that statement.

19 MR. NIEMANNN: Yes, Your Honour, in our

20 submission, what happens is that the motion has to be

21 brought under 73(A). In our response to that,

22 certainly there is no difficulty associated with us

23 producing and tendering the warrant, and we will do

24 that. Beyond that --

25 JUDGE HUNT: And there could be no dispute, I

Page 635

1 should think, that it was, in fact, served on him. But

2 you see, in your response, you've taken a slightly more

3 technical approach, on the basis that this is a second

4 run, as it were, and there is no warrant for it. Of

5 course, the first run was based on the premise, which

6 has been shown to be wrong, that the burden was always

7 on the Prosecution. Having lost on that and lost the

8 appeal, he now comes and says, "Well, I'm going to give

9 evidence." Is there any reason why we shouldn't hear

10 it?

11 MR. NIEMANNN: Well, other than, Your

12 Honours, in our original submissions in the matter, we

13 said -- and admittedly it didn't become an issue for

14 final determination, but we did make the submission

15 that if one was to accept everything that was alleged

16 by the accused associated with his arrest, that that

17 still didn't warrant the remedy that he sought,

18 namely --

19 JUDGE HUNT: I'm not suggesting to the

20 contrary. I'm only worried about the question of the

21 technicality, when you said in your response in this

22 case to both motions -- I'm sorry, to the petition and

23 to the motion -- that we shouldn't hear it because it

24 is ultimately raising the same issue as he sought to

25 raise on the last occasion. Is there not a new factor

Page 636

1 in accordance with that decision of the Appeals Chamber

2 which you cite, something different which would warrant

3 a further hearing?

4 MR. NIEMANN: It would only warrant a further

5 hearing insofar as it may be necessary to establish

6 that there was in existence a warrant.


8 MR. NIEMANN: That would be the end of the

9 hearing, in our submission. All other issues have been

10 dealt with.

11 JUDGE HUNT: If your argument is right about

12 the law, I would agree with you, but that may be a

13 matter we've got to hear argument upon. But are you

14 pursuing your point that this should be dismissed

15 because it's already been dealt with?

16 MR. NIEMANNN: Insofar, Your Honours, as it's

17 never been raised, the validity of the warrant itself

18 has not been raised -- and I'm not convinced that it's

19 even raised now -- that there is any dispute about the

20 validity of the detention based upon the warrant

21 itself. It seems to me that that is a formal matter

22 which the Prosecution would have to pursue should this

23 matter proceed further, but it doesn't seem to me to be

24 an issue that needs to be resolved. In fact, I don't

25 apprehend that there is any dispute between the parties

Page 637

1 as to the validity of the warrant.

2 That being so, if that is, in fact, the case,

3 and that is the only issue, in our submission, all

4 other issues that we raise in our response are

5 applicable to the matter being dismissed.

6 [Trial Chamber confers]

7 JUDGE MAY: Mr. Brashich, do you have a

8 response?

9 MR. BRASHICH: Yes, Your Honour.

10 I've spent some time with my client this

11 morning, and I believe that there might be questions of

12 fact that would have to be determined by the Trial

13 Chamber.

14 The arrest, as I understand it, of my client

15 occurred on the premises of the Tuzla air force base.

16 The detention of my client is divided in two parts.

17 There was an initial detention by four unknown

18 individuals which occurred in the territory of the

19 FRY (S & M), and the territory of BiH. Then there was

20 a second detention prior to arrest pursuant to the

21 warrant which occurred elsewhere and continued for

22 approximately 45 minutes until arrival at Tuzla.

23 So I think that there is an initial fact

24 finding determination to be made by the Chamber. And I

25 would have to disagree with my brother on the other

Page 638

1 side of the aisle that a mere warrant being offered

2 into evidence would terminate the proceedings.

3 JUDGE HUNT: Mr. Brashich, at the time that

4 this comes up for hearing, no doubt that will be a very

5 interesting argument to pursue, but this particular

6 proceeding today is to ensure that everything is ready

7 for that hearing when this takes place.

8 Now, you brought an application for

9 assistance from Bosnia and Herzegovina, which was

10 dismissed because there was no outstanding

11 application. Now, is that something that you wish to

12 pursue in order to be ready for the hearing?

13 MR. BRASHICH: I discussed that very issue

14 with my client this morning, Your Honour. These

15 proceedings have been ongoing for quite some time. The

16 request, Your Honour, was with regard to assistance of

17 the Ministry of the Interior of the FRY (S & M). If I

18 could request of the Chamber one moment to consult

19 orally with my client right here in the courtroom, I

20 would be prepared to decide on that immediately, if I

21 could just walk over to the defendant.

22 JUDGE ROBINSON: Yes, you may.

23 [Mr. Brashich and the Accused Todorovic

24 consult]

25 MR. BRASHICH: Your Honour, let the record

Page 639

1 reflect that I have consulted with my client, and upon

2 such consultation I am withdrawing formally my

3 application for assistance with regard to the Ministry

4 of the Interior of the FRY (S & M).

5 JUDGE HUNT: Does that mean we have before us

6 all of the evidence which you propose to lead?

7 MR. BRASHICH: No, Your Honour. I would have

8 two other witnesses, fact witnesses, beyond

9 Mr. Todorovic who would be ready to testify.

10 JUDGE BENNOUNA: Have you envisaged any date

11 or have you any proposal on the period of time?

12 MR. BRASHICH: Yes, Your Honour, I do. I had

13 spoken to my client, and depending on how we proceed

14 next week, I am mindful that the Chamber has set aside

15 Monday and Tuesday to finish the Rule 77 contempt

16 proceedings. However, I've also noticed in the

17 scheduling order that this Court has possibly set

18 Wednesday and Thursday as available dates. I have not

19 consulted with the witnesses, but I would be -- if we

20 finish, subject to their availability, start with my

21 client on Wednesday, and then hopefully get the two

22 short fact witnesses here on Thursday if they're

23 available.

24 JUDGE ROBINSON: Mr. Brashich, you know that

25 the fixing of dates is a difficult matter because we're

Page 640

1 involved in other work of the Chamber. We think it

2 would be better if you got yourself ready for tomorrow

3 and begin with the accused, who is here. Then we could

4 then see where we could find a date for your other

5 witnesses. But the dates that you mentioned next week

6 are, in fact, reserved for another case, but I don't

7 wish to get into that. I think you can have a

8 discussion with the senior legal officer afterwards.

9 MR. BRASHICH: I would be prepared to go

10 forward with my client tomorrow, Your Honour. The only

11 request that I would have is could we could break by --

12 I have a 7.15 flight; Thanksgiving is the next day. If

13 I could break by quarter of five to get out to the

14 airport, I would be very grateful.

15 JUDGE ROBINSON: Of course, that depends on

16 how long you examine your own witness.

17 MR. BRASHICH: I shall try to be very short.

18 JUDGE ROBINSON: Tomorrow at 2.30 we'll start

19 the hearing with your witness, the accused, and he will

20 then be subject to cross-examination and followed by

21 re-examination. We believe that we should be able to

22 complete that in time for your departure at a quarter

23 to five.

24 MR. BRASHICH: And I take it, Your Honour,

25 that your hearing of my client's testimony tomorrow is

Page 641

1 subject to the Prosecutor establishing arrest pursuant

2 to warrant at a later date.

3 JUDGE ROBINSON: We are not getting into that

4 issue, no. Following the evidence which you will lead,

5 I think you will then be able to make submissions.

6 We'll hear submissions from both sides.

7 That completes the procedural aspect of this

8 matter, and we proceed now to hear oral argument on,

9 first, the motion by Simo Zaric for a separate trial,

10 and in that regard I call on Mr. Pisarevic.

11 I ask you to bear in mind that we have the

12 submissions on paper from both parties.

13 MR. PISAREVIC: [Interpretation] Your Honour,

14 I am well aware of the fact that our motions have been

15 submitted, and I am not going to repeat what the

16 motions already contain.

17 The basic argument for the filing of this

18 motion is the fact that we argue that Mr. Zaric should

19 be given a fair trial, and we believe that the

20 arguments we have submitted in our written arguments

21 are serious enough to allow the Trial Chamber to grant

22 our requests.

23 Based on both the indictment and the factual

24 basis and the evidence which has been offered, I am not

25 convinced that Mr. Zaric should be on the same

Page 642

1 indictment with the other accused. A number of

2 witnesses proposed by the Prosecution do not mention

3 Simo Zaric but a very small number of witnesses do, and

4 we believe that his trial would be organised in a very

5 speedy and expeditious way, given the number of

6 witnesses who would only give evidence on counts with

7 which Mr. Zaric has been charged.

8 The second reason is that a large number of

9 witnesses during the trial -- which we hope will start

10 soon -- will give evidence on different mistreatment

11 and alleged crimes that were committed in the

12 municipality of Samac. We believe that such atmosphere

13 would reflect negatively on Mr. Zaric, and we believe

14 that the Trial Chamber may succumb to the facts or the

15 evidence that the other witnesses may give against

16 other accused.

17 All this, we believe, may lead to Mr. Zaric

18 being forced, being on the same indictment, to be

19 subjected to a very long, complex trial, and there is

20 no additional reason for him being joined with the

21 other accused in the same indictment.

22 I would like to point out that Mr. Zaric was

23 a member of the army of Republika Srpska and the former

24 JNA, and the indictment itself does not charge

25 Mr. Zaric with any crimes against humanity, and we

Page 643

1 believe that -- we believe that his presence at this

2 trial is not necessary. We believe that this would not

3 lead to a fair trial for Mr. Zaric.

4 Should the Trial Chamber grant the request,

5 we are prepared to proceed to trial as soon as

6 possible. Thank you.

7 JUDGE ROBINSON: Mr. Niemann?

8 MR. NIEMANN: Your Honours, please, we rely

9 on your written submissions, but just in response to a

10 couple of matters that have been raised; firstly, Your

11 Honours, an application for separate trial, as Your

12 Honours realise, under Rule 82(B) requires the

13 applicant to raise the issue of a conflict of interest

14 that might cause prejudice. In our submission, the

15 mere statement of fact that a person operates in a

16 different capacity, whether it be military or civil,

17 without more is insufficient to satisfy that

18 requirement.

19 It's our submission that an application for

20 separate trial is not an application for a speedy

21 trial, and a separate trial wouldn't necessarily ensure

22 the accused has his trial any faster than that which

23 would occur if there was to be a joint trial. Indeed,

24 Your Honours, the justice of the matter may well go the

25 other way, that the other accused themselves, who have

Page 644

1 a joint trial, should, in fact, proceed ahead of an

2 accused that was granted a separate trial.

3 So Your Honours, in our submission, if one

4 looks at particularly the written submissions that were

5 filed in this matter, they do concentrate on the issue

6 of dealing with the trial expeditiously. It may be, in

7 fact, correct that a separate trial of one accused

8 would be shorter in terms of time or length of the

9 trial itself but, in our submission, that wouldn't

10 necessarily mean that the trial would take place

11 first.

12 The only other matter that I wish to raise,

13 to assist Your Honours, is the fact that -- I'm sorry,

14 Your Honours.

15 The only other matter that I wish to raise is

16 that when an application of this type is brought, it is

17 incumbent upon the applicant to produce some evidence

18 to demonstrate the prejudice, and in our submission,

19 that has not been presented in this case.

20 JUDGE ROBINSON: Thank you.

21 [Trial Chamber deliberates]

22 JUDGE ROBINSON: The Chamber has considered

23 this matter. We will dismiss the motion and put our

24 reasons in writing later.

25 The next motion to be considered is the

Page 645

1 motion to fix a trial date, filed on behalf of Simic,

2 Tadic, and Zaric. Who will begin?

3 MR. O'SULLIVAN: Yes, Your Honour, thank

4 you.

5 Your Honour, a joint motion was filed on

6 August the 14th, at the point in which we were in the

7 midst of the Rule 77 matter. The hearing at that point

8 was scheduled, I believe, for late September, which is

9 why we brought the motion in mid-August, with a view of

10 expediting all outstanding matters, pre-trial matters,

11 to clear the way for the commencement of the trial.

12 I will not repeat the submissions, the

13 written submissions, but only add that it appears that

14 many of the matters which have to be taken care of

15 pre-trial are perhaps being done at this time, during

16 this Status Conference, which we hope opens the door to

17 a very early trial date in the new year. Matters now

18 have been pending, because of the Rule 77 matter, but

19 also before that. Pre-trial detention for some of the

20 accused is almost two years now. In the case of our

21 client, Mr. Simic, he has been indicted for that period

22 and has been burdened with the inconvenience and

23 everything that goes along with being accused before

24 this International Tribunal.

25 So our hope is that all pre-trial matters can

Page 646

1 be dealt with in this session and that a trial date can

2 be fixed as soon as possible after the Rule 77 matter

3 is determined.

4 JUDGE ROBINSON: Are you then still pressing

5 ahead with the motion?

6 MR. O'SULLIVAN: Well, our hope today is that

7 if, indeed, we can have the trial date fixed today,

8 that would be of great assistance to us, both in

9 regards to gearing up once and for all for the trial

10 date, which we started once so many months ago, and it

11 has been put on hold. It would help us as well to

12 prepare witnesses and strategies, knowing exactly when

13 that moment will come.

14 JUDGE HUNT: Mr. O'Sullivan, the sad fact is

15 that where you stand on the list at the moment is there

16 is a trial ahead of you which is still proceeding.

17 When that is going to finish, nobody knows.

18 When a date was fixed to commence this

19 trial -- I think it was in July, was it not? June? --

20 it was hoped that there would be some ability to run

21 two trials at the same time. Experience has taught

22 everybody, I think, that that is not satisfactory for

23 anybody. It means that both trials take twice as long,

24 and people are trying to juggle two sets of facts at

25 the same time. It was perhaps unfortunate, from your

Page 647

1 point of view, that the Rule 77 proceedings interrupted

2 the commencement of that experiment, but I think

3 everybody now realises we cannot run two trials at the

4 same time. It's physically impossible.

5 So you will have to wait until the trial

6 ahead of you in the list is finished, unless some other

7 Trial Chamber becomes free. But that's a matter very

8 much in the dark at the moment.

9 MR. O'SULLIVAN: Is that other option, having

10 another Trial Chamber hear this trial, being explored?

11 JUDGE HUNT: There has been some discussion,

12 not in relation to this particular trial, but there has

13 been no determination yet as to how that could be

14 done. There are difficulties in change of personnel in

15 some of the Trial Chambers, and overlaps are very

16 difficult to ensure they coincide, so you can jump from

17 one trial into another one in another Trial Chamber.

18 So it is being explored, but I would not like

19 to hold out any hope for you that something will be

20 available for you, or a Trial Chamber will be available

21 for you, early in the new year.

22 MR. O'SULLIVAN: If I might ask Your Honours,

23 you're referring to the Kordic trial as the --

24 JUDGE HUNT: That's the one that's ahead of

25 you on the list here, yes.

Page 648

1 MR. O'SULLIVAN: Where are we on that

2 matter?

3 JUDGE HUNT: I'm glad to say I'm not involved

4 in it.

5 JUDGE ROBINSON: Thank you very much,

6 Mr. O'Sullivan.

7 Any other counsel on this matter?

8 Mr. Pantelic.

9 MR. PANTELIC: May I take this position, so

10 that I can see the Trial Chamber in the whole.

11 Your Honours, thanks to the very precise and

12 very brief explanations done by the Honourable Judge

13 Hunt, I see where we are now. Actually, we have a

14 problem with availability of the other Trial Chambers.

15 Obviously this Trial Chamber cannot be in a situation

16 to deal with our case, since this Trial Chamber is

17 actually dealing with the Kordic and Cerkez case. That

18 brings me to the conclusion that we practically have to

19 find other ways and solutions with regard to the issue

20 that we have raised in our motion for fixing the date

21 of trial.

22 It will be of very great assistance for us to

23 speak openly as much as possible with this Trial

24 Chamber with regard to this issue. Otherwise, this

25 kind of hearings and this kind of professional

Page 649

1 discussions are, with all due respect, it seems to me,

2 as the French say, "l'art pour l'art."

3 So I respectfully ask this Trial Chamber to

4 give us a hand of help, because, as you well know, I

5 speak on behalf of my client. He came to The Hague in

6 February '98. He voluntarily surrendered here, and he

7 is still here, without any significant move with regard

8 to the procedural issues. He's been sitting here

9 almost 24 months. That will be a serious issue for

10 another submission that I am going to make with regard

11 to the provisional release issue, so I don't want to

12 open now, but I kindly ask to see whether we have any

13 kind of realistic approach about the specific situation

14 of our case conducted by this Trial Chamber.

15 The question is simple. As I understood, and

16 I absolutely agree with that, this Trial Chamber cannot

17 deal with two cases similarly; that means, for example,

18 with the Kordic and Cerkez case in the morning and with

19 our case in the afternoon. Give us the answer. Give

20 us just a general idea when we can see a possibility to

21 start with our trial, whether with this Chamber or the

22 other Trial Chamber, if it's possible, of course.

23 Thank you so much, Your Honours.

24 JUDGE ROBINSON: Thank you.

25 Mr. Pisarevic, for Zaric?

Page 650

1 MR. PISAREVIC: [Interpretation] Your Honours,

2 after what I have heard today, all I can do is say how

3 worried I am about the way matters are proceeding. I

4 must say that we are very surprised and disappointed by

5 the impossibility of my client, Mr. Zaric, who

6 volunteered to come here, who surrendered, of having a

7 trial. He is simply being denied the trial. Taking

8 into consideration all the problems and all the

9 situation in which the Trial Chamber finds itself, I

10 would like to ask the Trial Chamber to delegate this

11 serious problem either to the President of this Court

12 or someone else, so that a way can be found for this

13 trial to begin.

14 We are truly at the end of our tether. It is

15 very hard for us to sit here for 24 months, and the

16 last time something was actually done on this case was

17 on the 2nd of April, 1998. I am sure that what we have

18 heard today has brought all the accused into an even

19 more difficult situation, and I really see no way out

20 of this situation. We had hoped that a trial date

21 would finally be set.

22 I have to say that Mr. Zaric has been very

23 cooperative; he cooperated with the Prosecutor. We

24 have done our very best to create the conditions for a

25 trial, but we have not achieved any result.

Page 651

1 Thank you.

2 JUDGE ROBINSON: Mr. Niemann?

3 MR. NIEMANN: If Your Honours please, in the

4 Barayagwiza decision, the Appeal Chamber observed that

5 the Prosecution has certain responsibilities about

6 matters even though they are not within their direct

7 responsibility. In that case, the Appeals Chamber

8 observed that even though it's not for the Prosecutor

9 to set a matter down for an initial appearance, it was

10 incumbent upon the Prosecutor to encourage matters so

11 as to bring things on as quickly as possible.

12 Your Honours, this is not an initial

13 appearance, it is the trial; but we find ourselves in a

14 like situation here, and we feel that's we must join

15 with the Defence in requesting that this matter be set

16 down for trial as quickly as possible. We do

17 understand the difficulties; we appreciate them. But,

18 Your Honours, it has been some time that these accused

19 have been in custody, and we are concerned about the

20 length of time that we are waiting for the commencement

21 of this trial.

22 [Trial Chamber confers]

23 JUDGE ROBINSON: The Chamber has listened

24 very carefully to all the submissions that have been

25 made with regard to fixing a trial date as early as

Page 652

1 possible. We take to heart all the submissions that

2 have been made. This is a problem that is being looked

3 at on a general level by the Tribunal as a whole,

4 because this is not the only case that is involved,

5 although there are significant elements that would tend

6 to particularise this case.

7 I want to assure you that the Chamber will be

8 making the strongest representations to ensure that

9 this case is set down for trial at the earliest

10 opportunity. We will be keeping in touch with all the

11 parties, and we are very impressed by the fact that the

12 Prosecution has joined in this general motion for an

13 early trial date. So we will make the strongest

14 representations, and we will do everything that is in

15 our power, bearing in mind, of course, the reality

16 which faces all of us. At the earliest opportunity, we

17 will set it down for trial. Thank you.

18 We move next to the motions for provisional

19 release. These motions are in respect of the accused

20 Tadic and Zaric. The Chamber thought it fit to bring

21 to your attention that at the recently concluded

22 Plenary, there was a change to Rule 65. The words

23 which appear in Rule 65(B), "in exceptional

24 circumstances," have been deleted. As you know,

25 however, there is a time period set for the amendments

Page 653

1 to the Rules to take effect.

2 The senior legal officer may provide the best

3 information on this, but our understanding is that they

4 will come into effect seven dates after the publication

5 of the full text.

6 Next, what the Chamber has in mind is that if

7 the parties agree, we would proceed hearing the

8 submissions in respect of these two motions on the

9 basis that the words "in exceptional circumstances"

10 have been deleted, and we would then give our decision

11 at a later date when the amendments, which include this

12 one, shall have taken effect.

13 I ask whether there is any objection to that

14 procedure from any party.

15 We proceed then with -- Mr. Niemann.

16 MR. NIEMANN: Your Honours, the removal of

17 those words from the provision is indeed, in fact,

18 something I only learnt about this morning, and it does

19 make, in our submission, some difference. The extent

20 of it, at this stage, is not something that we had

21 prepared ourselves for, and we think that we would be

22 in a much better position to assist the Trial Chamber

23 in examining this issue in light of the amendment if we

24 were to be given time to prepare a submission dealing

25 with this amendment to the Rules.

Page 654

1 It seems to us, Your Honours, that if the

2 Defence are willing to proceed with their motion today,

3 having regard to what has fallen from the Bench this

4 afternoon, that is a matter for them. But in our

5 submission, we would seek an opportunity to examine the

6 position in light of the amendment before we are called

7 upon to respond, if Your Honours please.

8 [Trial Chamber confers]

9 JUDGE ROBINSON: Mr. Niemann, may I inquire

10 from you how long would you require to prepare

11 yourself?

12 MR. NIEMANN: If we could have seven days,

13 Your Honour, if that is convenient.

14 MR. PANTELIC: Your Honours, may I have a

15 word, please?

16 JUDGE ROBINSON: I'll come to you,

17 Mr. Pantelic.

18 [Trial Chamber confers]

19 JUDGE ROBINSON: Mr. Niemann, yes.

20 MR. NIEMANN: Thank you, Your Honour. I was

21 going to add that perhaps if it was of any convenience

22 or assistance to the Trial Chamber, we could submit our

23 submissions in writing. They needn't necessarily --

24 needn't be necessary for the Trial Chamber to reconvene

25 for that purpose.

Page 655

1 JUDGE ROBINSON: That would be very helpful.

2 May I inquire whether the Defence would be

3 ready to make submissions today. Mr. Pantelic?

4 MR. PANTELIC: Thank you, Your Honours.

5 First of all, please allow me to respectfully oppose my

6 colleague Mr. Niemann, because it is very simple, Your

7 Honours, we don't have time. We don't have time at

8 all. Seven days is an academic approach for our

9 learned colleagues. In this period of time, they can

10 make some legal researches, they can write submissions,

11 they can write the motions. The question is, Your

12 Honours, that my client is here almost 24 months

13 without any significant movement in our proceedings,

14 and because of this particular situation, my suggestion

15 to my learned colleague is that for this particular

16 person, time is out and we don't have seven days. We

17 don't have even one day.

18 The Defence is ready to proceed with

19 additional submissions with regard to the provisional

20 release, although, I am so sorry to say that, firstly,

21 our plan was my legal assistant Mr. de Saint Just from

22 Paris will be in a situation to deal with it, but

23 according to some technical problems, he will come

24 tomorrow morning, but I'm prepared to, in a very brief

25 way, give some additional submissions in regard to

Page 656

1 provisional release.

2 JUDGE HUNT: Mr. Pantelic, you have to

3 understand that we can't give our decision until the

4 new Rule comes into effect, which is more than seven

5 days. It's seven days after it's published, and it's

6 unlikely to be published until sometime, at the

7 earliest, next week. So we can't give our decision

8 until seven days after the new Rule is in effect.

9 MR. PANTELIC: Yes, you're right, Your

10 Honour, but --

11 JUDGE HUNT: I'm only pointing out to you

12 that giving the Prosecution seven days to make

13 submissions in relation to a very different scenario to

14 that with which we are usually accustomed, is not going

15 to disadvantage your client and it may be of assistance

16 to us all.

17 MR. PANTELIC: You're completely right.

18 You're completely right, Your Honour, and just a small

19 digression; may I ask Mrs. Featherstone, is she more

20 familiar with these time limits and these further

21 procedures?

22 JUDGE HUNT: The answer to that is yes, but --

23 MR. PANTELIC: Yes, but in terms of time.

24 JUDGE BENNOUNA: [Interpretation]

25 Mr. Pantelic, if in the Rules of the Tribunal it was

Page 657

1 decided that amendment will come into effect only a

2 week after its publication, it was decided so precisely

3 because the plenary of Judges was aware that some time

4 was needed by the counsel for the Defence and

5 Prosecutor to adjust to any new amendments and to

6 prepare themselves to intervene within the framework of

7 the new Rules, and this is quite normal.

8 Now, as to what has been suggested by the

9 President a moment ago, and that is to hear you, to

10 hear you on the basis of amendment which is favourable

11 for the accused, it is in his interest, so it is

12 something that is in the interest of the Defence, of

13 course, juridically speaking, if we need to rule on the

14 basis of a new Rule it has to be in effect. Therefore,

15 we have to follow the Rules of the Tribunal and not the

16 Tribunal to follow your desiderata.

17 MR. PANTELIC: [Previous translation

18 continues] ... position and I would say legal position

19 with regard to the -- in terms of Rules of Procedures.

20 I would say that in that case, within seven days

21 Defence will submit additional materials and additional

22 submissions with regard to new Rules of Procedure.

23 Thank you very much.

24 [Trial Chamber confers]

25 JUDGE ROBINSON: The Chamber will grant the

Page 658

1 Prosecution seven days in which to make submissions, to

2 prepare its submissions on this matter, and we'll begin

3 with submissions on behalf of Mr. Tadic by

4 Mr. Pantelic.

5 May I ask, before you begin -- Mr. Pisarevic,

6 are you also in a position to make submissions today?

7 MR. PISAREVIC: [Interpretation] Yes, I'm

8 ready, Your Honour.

9 JUDGE ROBINSON: Mr. Pantelic.

10 MR. PANTELIC: Your Honours, very briefly.

11 Although I'm not so familiar with these new amendments,

12 if we are speaking about the four pre-conditions for

13 Rule 65, which are exceptional circumstances, risk of

14 flight, danger to victims, and position of host

15 country, in that particular case, we are not speaking

16 about the exceptional circumstances but we can clarify

17 our position with regard to exceptional circumstances,

18 although, it is not the case in new amendments.

19 First of all, we've just heard that a

20 possible trial date is not so close to us. Another

21 issue which was raised today was the special

22 evidentiary hearing and proceedings from Todorovic

23 Defence, which will take I don't know how long, and

24 many other issues including the availability of this

25 Trial Chamber and, I would say, the other logistical

Page 659

1 and other problems with regard to judicial economy are

2 present today within this Tribunal, which are, of

3 course, the reasons that this particular proceeding

4 cannot go on, and that without any substantial changes

5 with regard to procedural issues is also present.

6 The position of my client is very clear.

7 From February 1998 he was here. He was the first

8 Bosnian Serb to voluntarily surrender to the

9 jurisdiction of this Tribunal. In our request for

10 provisional release submitted in January 1999, this

11 year, we also offered in our addendum a relevant

12 guarantee of the government of Republika Srpska and all

13 other necessary documents.

14 And if I may, Your Honours, I am now in a

15 position to respectfully ask for a few minutes without

16 sound. I mean, it can be open but just -- because I

17 have some medical documents which are, of course,

18 confidential and they are relating to personal issues.

19 So I kindly ask just a few minutes without sound,

20 external sound, if it's possible.

21 JUDGE ROBINSON: Yes, it is. I think we'll

22 go into private session.

23 [Private session]

24 (redacted)

25 (redacted)

Page 660













13 page 660 redacted in private session













Page 661

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 [Open session]

20 JUDGE HUNT: Mr. Pantelic, I'm interested in

21 the undertaking given by the Minister for the interior

22 from Republika Srpska.


24 JUDGE HUNT: I ask this question simply out

25 of a sense of inquiry: Has Republika Srpska

Page 662

1 surrendered anybody yet?

2 MR. PANTELIC: As far as I am informed, no,

3 but there is a very significant and positive process in

4 Republika Srpska started by the gesture of these three

5 people here.

6 JUDGE HUNT: But that, if I may say so, is a

7 very important point, but a separate one. We still

8 have to be satisfied that they will turn up, and if

9 they don't, that somebody will ensure that they do.

10 Now, perhaps actions speak louder than words,

11 and that's why I asked, has Republika Srpska

12 surrendered anybody yet?

13 MR. PANTELIC: Well, in terms -- it depends,

14 Your Honour, on the basis of which Rule we are

15 speaking. If you are speaking about the Rule 65 where

16 we have a guarantee of Republika Srpska, we have a case

17 here, we have an example here, that they were of very

18 great assistance with the IPTF and SFOR based in

19 Republika Srpska in connection with the case of

20 Mr. Simic about his evidentiary log in Bosanski Samac,

21 and cooperation with the Prosecutor. And I find that

22 this action was the example that you are looking for.

23 JUDGE ROBINSON: Yes. Do you have anything

24 else to add?

25 MR. PANTELIC: Your Honours, I just want to

Page 663

1 reserve my right to respond to the Prosecutor's

2 submissions within seven days, so that we can have, I

3 would say, a definitive approach to this issue in light

4 of amendments to Rule 65.

5 JUDGE ROBINSON: Yes, you will have a right,

6 of course, to respond to the Prosecutor's submissions.

7 MR. PANTELIC: That would be all. Thank you,

8 Your Honours.

9 JUDGE ROBINSON: Mr. Pisarevic?

10 MR. PISAREVIC: [Interpretation] Your

11 Honours, I shall try not to repeat many of the points

12 raised by my colleague Pantelic regarding voluntary

13 surrender and, generally speaking, my client,

14 Mr. Zaric's cooperation with the gentlemen from the

15 Prosecution, his time spent in detention, all these

16 things are reasons which have led to continued

17 detention being psychologically particularly difficult

18 to bear as there is so much uncertainty as to when the

19 proceedings will start.

20 In our additional submission, we have

21 supplied some medical documents based on the findings

22 and opinions of Dr. Falke, who is working in the

23 detention unit, and who has stated the kind of disease

24 that Mr. Zaric has. He has a certain disease of the

25 ear which could affect his sense of gravity, and even

Page 664

1 affect his brain eventually. If our Chamber were to

2 grant our request for provisional release, we would

3 certainly take advantage of that opportunity for

4 surgery to be done on Mr. Zaric's ear in Banja Luka,

5 where there is a clinic in which we have a great deal

6 of confidence.

7 A further point I should like to make

8 regarding guarantees: I don't know to what extent this

9 is known to you, but Mr. Zaric, together with Mr. Simic

10 and Mr. Tadic, first surrendered to our own Ministry of

11 Internal Affairs, and then those bodies of the Ministry

12 of Internal Affairs called the SFOR, and their formal

13 surrender was then organised. I am telling you this

14 because I personally participated in those

15 negotiations, even in talks with the prime minister,

16 Mr. Dodik, the Minister of the Interior, and there is

17 no doubt that they are ready to abide by any orders

18 this trial may order, should our request for

19 provisional release be granted.

20 As you see, we have also been given

21 guarantees from the government and all other relevant

22 bodies that have a part in such decisions. If we take

23 the example of Mr. Simic, who spent some time at

24 liberty, we know that everything functioned properly.

25 He did not leave the Republika Srpska or the town of

Page 665

1 Samac, so that we already have some experience in the

2 way in which people on provisional release can be

3 controlled.

4 I think, in view of all these arguments

5 presented in our motion, and taking into account their

6 conduct so far and their long-since expressed will to

7 surrender and to come and face the Tribunal here,

8 because their desire is greater than anything else to

9 clear their name here in court, once and for all, so

10 that they can resume their normal lives.

11 In preparing my submission, I collected a

12 petition from citizens living in Samac, mostly

13 non-Serbs, who said that their desire is for Simo Zaric

14 and Miroslav Tadic to return to the town which they

15 have left. Many non-Serbs came to bid them farewell

16 when they left for The Hague, so that their return

17 would not cause any kind of disquiet or disturbance

18 among the population.

19 I also think that during the time they were

20 at liberty before their surrender, and if we take into

21 account when the indictments were published in '95,

22 there was not a single incident provoked by them in

23 Republika Srpska or anywhere else, which is testimony

24 of the kind of people they are, the respect they

25 command among the population, and that their release

Page 666

1 would not in any way disturb anyone, even the alleged

2 victims, or anyone else who is living in Samac.

3 This voluntary surrender was carried out in

4 agreement with the president of the republic at the

5 time, the government and the authorities, so that

6 everything was done in a serious and responsible

7 manner, and I believe that all those institutions, as

8 they have proven in supporting our request, take upon

9 themselves all the responsibility for any guarantees

10 they should provide as requested by Your Honours.

11 Thank you.

12 JUDGE HUNT: May I raise one issue with you:

13 Without wishing to suggest in any way any conclusions

14 which have been reached in relation to the current

15 contempt proceedings, there is nevertheless a provision

16 in 65(B) that we have to be satisfied that the accused

17 will not pose a danger to any victim, witness, or other

18 person.

19 If your client is released -- and this also

20 goes for Mr. Pantelic's client -- is there any

21 suggestion they are going to take part in any

22 preparation for trial by accompanying the lawyers to

23 interview witnesses? And I put that in as general a

24 term as possible, because if there is, it may well be

25 that there will be allegations made against them which

Page 667

1 may come back to this Tribunal. Is it suggested they

2 are going to take part in any preparation for the

3 Defence by interviewing witnesses?

4 MR. PISAREVIC: (Interpretation) Your Honour,

5 up to now, nor in the future, will they take part in

6 our preparation of witnesses for trial, nor in any

7 interviewing of witnesses. As far as I can recall,

8 this was prohibited, and this is prohibited; we are

9 aware of that. Any contact with witnesses is out of

10 the question.

11 Let me tell you, not a single witness of the

12 Prosecution is living within the municipality of Samac,

13 so that their contacts with any possible witness are

14 simply out of the question. They are impossible.

15 JUDGE HUNT: What about you, Mr. Pantelic?

16 MR. PANTELIC: Just few words, Your Honours.

17 There is a saying in our nation: "Who is bitten by the

18 snake, he is afraid of the lizard." So our clients are

19 well-informed persons and witnesses during all this

20 unfortunate Rule 77 procedure, and believe me, they

21 know very well what the consequences might be if some,

22 I would say, risky contact, or whatever contact might

23 be contrary to the possible order of the Trial Chamber,

24 what the consequences might be.

25 JUDGE HUNT: I want to emphasise, I am

Page 668

1 raising this not because I feel that your clients, or

2 even Mr. Simic, is the sort of person who would do it,

3 but I am more concerned about the prospect that

4 allegations will be made against them. For that

5 reason, that's why I've raised it; I wanted to know

6 whether there was any suggestion there would be any

7 contact. You would not object, then, to some condition

8 being imposed that they have no contact with anybody

9 who they know to be a witness?

10 MR. PANTELIC: Yes, I understand, Your

11 Honour. But you see, my client is a 64-year-old man,

12 and he's very much committed to his family and family

13 life, ordinary life. Having in mind all this, I would

14 say a second opinion, second-hand situation, that he

15 was a witness during this Rule 77 here, and all these

16 events, believe me that he -- I mean, I would suggest

17 that he will give you a few words about this issue,

18 better than me -- that he will not even try to attempt

19 to contact even friends or some other -- you know,

20 close persons in Samac, because he knows very well what

21 might be if he will not obey the Trial Chamber order.

22 So that would be one of my suggestions, too,

23 to hear a few words from my client, that you can, in

24 direct contact, see his position. Thank you.

25 [Trial Chamber confers]

Page 669

1 JUDGE ROBINSON: Well, the next stage in the

2 motion --

3 MS. PATERSON: Your Honour, may we make just

4 a brief presentation? Despite our request for seven

5 days, I would like to just make one point.

6 JUDGE ROBINSON: Oh, I didn't know you wanted

7 to. If you wish to, yes, Ms. Paterson. Yes.

8 MS. PATERSON: Just briefly, as we said, we

9 are prepared to submit a more detailed written

10 response, and we intend to, particularly looking at the

11 legal issues.

12 The one point I would like to take the

13 opportunity to raise is that there is another

14 significant party of interest in this case, and that is

15 the victims and witnesses of this case. As we stated,

16 we are concerned that this trial has not gone forward,

17 not for our sake, but for the sake of the witnesses.

18 While we appreciate these defendants have been waiting

19 a long time, our witnesses have been waiting since 1992

20 for justice. I would contend, Your Honours, that their

21 interest must be taken into consideration.

22 As Mr. Pantelic himself said, none of our

23 witnesses live in Bosanski Samac, because they were all

24 forced to leave there; but many of our witnesses do

25 live in the region, and they will be affected if these

Page 670

1 men are released. And I would note that there are many

2 different ways that witnesses can be intimidated and

3 infected, and simply issuing an order to the effect

4 that they are not to have contact with them does not

5 preclude other means of intimidating the witnesses and

6 affecting the witnesses' desire to proceed with this

7 case.

8 We have very serious concerns about how this

9 decision, if a decision is made to release these two

10 men, will affect our witnesses in the case and their

11 willingness to proceed forward, especially in light of

12 your statements that this trial may not go forward now

13 for many months. We will make our additional arguments

14 in our written submissions, but we would ask you to

15 give special consideration to how this could impact on

16 our victims and witnesses, and we contend that they

17 have a right to consideration, as well as the

18 defendants, in this matter. Thank you.

19 JUDGE ROBINSON: Thank you, Ms. Paterson. We

20 will await your written submissions within seven days.

21 MR. PANTELIC: Your Honour, excuse me, may I

22 have a word, please?

23 JUDGE ROBINSON: I don't think it's

24 necessary.

25 MR. PANTELIC: Thank you.

Page 671

1 JUDGE ROBINSON: We do have one other

2 motion. It's a motion filed seeking disclosure of

3 evidentiary material by the Office of the Prosecutor.

4 It was filed very recently, and I just wanted to

5 inquire from the Prosecution whether they are in a

6 position to deal with it.

7 MS. PATERSON: Yes, Your Honour, we are,

8 despite the fact we just received the motion

9 yesterday. As we stated in our response to

10 Mr. Pisarevic's motion, we didn't feel that the

11 material was, in fact, exculpatory. We remain in our

12 belief of that; however, for the sake of full and open

13 disclosure, we are more than willing to make copies of

14 the statements available. I have them here in court,

15 and we are prepared to give copies to all of the

16 Defence attorneys, today, of all of the statements that

17 Mr. Pisarevic mentioned. So we will turn those over.

18 In addition, we do have copies of the speech

19 of Mr. Zaric that was translated. I will take

20 responsibility for failure to include that in the

21 record; that was simply an oversight on my part. We

22 have it here. We are prepared to make it available.

23 In addition, we just received yesterday a new

24 translation of one of the videotapes that we've

25 submitted in evidence, a videotape called "Genocide in

Page 672

1 Bosanski Samac." We discovered that a portion of the

2 tape had not been fully translated in the first

3 translation that we received, so we now have a complete

4 translation, and we will also provide that to the

5 Defence.

6 JUDGE ROBINSON: So you will be making

7 available to the Defence all the material that they

8 have requested?

9 MS. PATERSON: I have it right here, Your

10 Honour, and we will give it to them as soon as court is

11 over today.

12 JUDGE HUNT: Ms. Paterson, may I ask you

13 this, though: Is this going to be treated by the

14 Prosecution as a trigger for mutual discovery?

15 MS. PATERSON: If they would like to request

16 anything additional --

17 JUDGE HUNT: No, I just wanted to have

18 everything above board, if I may. I'm not sure why the

19 documents weren't produced when they were asked for,

20 but it may have been for some valid reason. But if it

21 is going to be used as such a trigger, I think it

22 should be made very clear that that's the way you are

23 treating it.

24 MS. PATERSON: No, Your Honours, that's not

25 what we intend. To be perfectly honest, what these are

Page 673

1 was Mr. Pisarevic made available to us a few witnesses

2 that they said they intended to call and allowed us to

3 interview them. We interviewed them. The substance of

4 the statements we took from them is virtually the same

5 as the statements that Mr. Pisarevic had given to us

6 ahead of time. We found the witnesses to be not

7 significant in one way or the other, and frankly,

8 because we didn't find them to be particularly

9 significant, we just didn't even give it a second

10 thought. We don't expect anything in return for this,

11 and again, I'll take responsibility for not turning

12 them over. I didn't see it as exculpatory. Since they

13 are their witnesses, they obviously know what their

14 witnesses are going to say, and I didn't honestly --

15 JUDGE HUNT: I would think, though, if I may

16 suggest to you, if this happens in future, that

17 somebody who wants to call those witnesses, knowing

18 they have been interviewed by the Prosecution, may like

19 to know whether having called them, you're going to

20 extract a lot of inculpatory material from them.

21 That's why I suggest to you they probably wanted to

22 have the statements. But whether that operates as a

23 trigger for mutual discovery, I'm not sure.

24 MS. PATERSON: Yes, Your Honour, if we

25 honestly felt they didn't have the right to the

Page 674

1 statements, we would be saying so. We are more than

2 happy to make them available --

3 JUDGE HUNT: But you have said that; that's

4 why I'm curious as to why you've said it.

5 MS. PATERSON: We said it because we didn't

6 think they were exculpatory under Rule 68. As you

7 pointed out, there can be other ways they can look at

8 it, and we're more than happy to make them available to

9 them, and they're free to do with them as they see fit.

10 JUDGE HUNT: You are not treating this as an

11 application under 66(B)?

12 MS. PATERSON: No, Your Honour, we are not.

13 JUDGE ROBINSON: The matter is resolved on

14 the basis that the Prosecution will make available all

15 the material requested.

16 Yes, Mr. O'Sullivan?

17 MR. O'SULLIVAN: Yes, Your Honour, may I

18 raise a matter with you before we rise? It's in

19 regards to the scheduling order of November 18th, the

20 scheduling order which set out the matters for

21 discussion here, and also with certain matters in

22 regards to the ICRC decision.

23 I'm looking at page 4 of that scheduling

24 order, the second point in your order, where you order

25 that the accused Todorovic may have access on the same

Page 675

1 basis as the Prosecution to confidential materials,

2 which I will not go into here because we are in open

3 session, save and except the identity of an

4 individual.

5 Your Honours, on October 25th, there was a

6 joint motion by three of the accused, to which you make

7 reference in paragraph 5 of this same order, two

8 paragraphs, three paragraphs down on page 4. In the

9 joint motion of the 25th of October, the other three

10 defendants respectfully requested having access to

11 filings which included but were not limited to motions,

12 applications, attachments, appendices, and other

13 documents relevant to that ICRC matter.

14 JUDGE HUNT: What possible interest do your

15 clients have in that other than as members of the

16 public? If you will see, in the fourth order, the

17 suggestion is that the whole of this material will be

18 released into the public domain subject to certain

19 redactions. What possible interest do your clients

20 have, other than to see what will be released into the

21 public domain?

22 MR. O'SULLIVAN: The interest we have is the

23 same interest that the accused Todorovic --

24 JUDGE HUNT: No, it's not. You have no

25 application, and I'm not saying that so as to invite

Page 676

1 you to make some application against the Red Cross. At

2 the moment, Todorovic does have an application. At the

3 moment, it does appear, on the face of it, to be a

4 fishing expedition, but that's a matter that we will be

5 dealing with subsequently with Mr. Brashich. You have

6 no application for assistance from the Red Cross.

7 MR. O'SULLIVAN: That's correct.

8 JUDGE HUNT: Then you have no interests in

9 the material, other than as members of the public.

10 MR. O'SULLIVAN: With respect, Your Honour,

11 the request made on October 25th by the three

12 defendants was for disclosure or access to information

13 which would be relevant to trial preparation, which is

14 the same basis on which the OTP had access to these

15 filings and appendices.

16 JUDGE HUNT: I haven't got mine here, but

17 your application was simply to have access to the

18 material which Mr. Todorovic was seeking, but not for

19 the same purpose.

20 MR. O'SULLIVAN: Not for the same purpose;

21 that's correct.

22 JUDGE HUNT: Well, that's the point I'm

23 making. You have no interests other than as a member

24 of the public at this stage, and you will no doubt have

25 access to the material when it is made public after the

Page 677

1 redactions have been made.

2 MR. O'SULLIVAN: But at that point it may be

3 too late to see if there are certain portions which are

4 redacted --

5 JUDGE HUNT: None of this has got anything to

6 do with your client, or even Mr. Todorovic's client

7 [sic]. Mr. Todorovic wishes to argue that the decision

8 of the Trial Chamber in the Red Cross -- the previous

9 Red Cross decision was wrong. He wants to see the

10 arguments that were put and the material which was

11 disclosed in relation to those arguments in order to do

12 so, to argue that the decision was wrong. You are not

13 seeking to argue that the decision was wrong.

14 MR. O'SULLIVAN: No. I'm bringing this

15 application to put ourselves on the same footing as the

16 Prosecution, who has had access to this material and

17 would have used matters in it.

18 JUDGE HUNT: It's got nothing to do with the

19 preparation for the trial. It had to do only with the

20 right of the Red Cross to prevent somebody from giving

21 evidence where that person had obtained information as

22 an officer of the Red Cross.

23 MR. O'SULLIVAN: Well, Your Honours have the

24 advantage of seeing this material and we haven't, and

25 that was why we wanted to see what exactly --

Page 678

1 JUDGE HUNT: I rather thought that might have

2 been the problem. At the moment, you have absolutely

3 no interest in seeing it other than as a member of the

4 public, and you'll see what you can as a member of the

5 public eventually.

6 JUDGE ROBINSON: We'll take the adjournment

7 now and resume tomorrow at 2.30.

8 --- Whereupon the hearing adjourned

9 at 4.20 p.m., to be reconvened on

10 Wednesday, the 24th day of November,

11 1999 at 2.30 p.m.