Tribunal Criminal Tribunal for the Former Yugoslavia

Page 24

1 Friday, 19 January 2001

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 9.15 a.m.

5 [The accused entered court]

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: [Interpretation] Case IT-98-32-PT, the Prosecutor

8 versus Mitar Vasiljevic.

9 JUDGE HUNT: Appearances.

10 Ms. Korner.

11 MS. KORNER: Joanna Korner, representing the Prosecution together

12 with Dermot Groome.

13 JUDGE HUNT: Thank you.

14 Mr. Domazet.

15 MR. DOMAZET: [Interpretation] Vladimir Domazet. I represent Mitar

16 Vasiljevic.

17 JUDGE HUNT: Thank you.

18 Mr. Vasiljevic, are you able to hear the proceedings in a language

19 which you understand?

20 [The accused stands up]

21 JUDGE HUNT: I'll ask the question again now that you have your

22 earphones on. Are you able to hear the proceedings in a language which

23 you understand?

24 THE ACCUSED: [Interpretation] Yes, Your Honours.

25 JUDGE HUNT: Thank you. Sit down, please.

Page 25

1 [The accused sits down]

2 JUDGE HUNT: This is a Status Conference called in accordance with

3 the provisions of Rule 65 bis.

4 Yes, Ms. Korner.

5 MS. KORNER: Your Honour, we're here. I don't know what matters

6 Your Honours wish to be addressed on at the moment.

7 JUDGE HUNT: Well, there's very little that we can do because the

8 position about when this case will be heard and by whom will not be

9 resolved until late next month at the elections. But it seems to be

10 proceeding with the -- we now have a pre-trial brief, but I think it would

11 be unwise to make any further orders in relation to that at this stage.

12 It's no good having all the parties absolutely ready and then having to

13 wait a couple of months before the trial commences.

14 We do have a motion from you, though, for a medical examination.

15 Is this by consent?

16 MS. KORNER: Your Honour, I have spoken to Mr. Domazet this

17 morning. We were aware, may I say, that he didn't object, but we thought

18 that we had better do it formally by way of written motion. I have spoken

19 again to Mr. Domazet this morning who has very helpfully told us that he

20 has no objection.

21 JUDGE HUNT: I think it has to be something more than that, I'm

22 afraid, because, you see, we are compelling the accused to testify against

23 himself.

24 MS. KORNER: Well, the Rule which we looked at -- yes, Your

25 Honour, Rule 74 bis --

Page 26


2 MS. KORNER: -- "... may, at the request of a party, order a

3 medical, psychiatric or psychological examination of the accused." I

4 don't actually see anything in the Rule that says there has to be anything

5 more.

6 JUDGE HUNT: The Rules don't overcome the Statute, though. The

7 Statute says, in perfectly clear language, that the accused is entitled to

8 the minimum guarantee of not being compelled to testify against himself.

9 MS. KORNER: Yes.

10 JUDGE HUNT: I'm not suggesting that it can't be done by consent.

11 It clearly can. From the attitude that the accused, through Mr. Domazet,

12 has previously expressed about this alibi matter, they obviously are very

13 confident and they probably will consent. But I think it has to be by

14 consent and not merely, "do not object." You can see that this may arise

15 later, and I'd like to get the procedural parts of it straight.

16 MS. KORNER: Yes. Your Honour, in our submission, it would be

17 rather like the taking of fingerprints.

18 JUDGE HUNT: Precisely, and that is something which a Statute is

19 required; indeed, a hotly-disputed legality even to some Statutes,

20 certainly in my country.

21 MS. KORNER: Yes. Your Honour, it's the same in my jurisdiction,

22 but there are Statutes which say that fingerprints may be taken, and if

23 there is a refusal, there can be the forced taking of fingerprints, but --

24 JUDGE HUNT: My point is, I think, a fairly simple one; the

25 Appeals Chamber has said that the Rules are subject to the Statute and

Page 27

1 that the Plenary meeting of the Judges cannot enact the law through the

2 medium of the Rules so that the Rules can only be procedural, and

3 certainly you may make an application. But if there was an objection, I

4 do not understand how you could possibly succeed in light of Article 21 of

5 the Statute.

6 MS. KORNER: Your Honour, I don't know whether Your Honour wants

7 to hear argument on this at this stage.

8 JUDGE HUNT: May I suggest that we deal with it in a very much

9 straightforward way. I'll ask Mr. Domazet.

10 MS. KORNER: Certainly.

11 JUDGE HUNT: Mr. Domazet, does your client consent to this

12 examination? As I understand it, it's in order to demonstrate whether he

13 was indeed the patient who was in hospital at the time shown in the

14 medical records, and you have, as I understand it, been very cooperative

15 in enabling all the tests necessary to ascertain the validity of those

16 records, and this is the next step. But I take the view myself that we do

17 need a consent from your client to such an examination, X-rays and blood

18 tests.

19 THE INTERPRETER: Microphone, please.

20 MR. DOMAZET: [Interpretation] Yes, Mr. President. Personally,

21 I've gone through these documents, and I'm sure that Mr. Mitar Vasiljevic

22 was at the hospital and he was there since the 14th of June, 1992, and I

23 have not objected -- I did not object to all the examinations required for

24 the reason that I have just received this morning in my locker this

25 document, but I have not had the opportunity to speak with my client

Page 28

1 Mr. Vasiljevic about the fact.

2 Personally, I'm not opposed to that, and I've said so to

3 Ms. Korner this morning. However, maybe it would be better if I could

4 have the opportunity to talk to my client and then I could tell you if we

5 object or not to this examination.

6 JUDGE HUNT: But, Mr. Domazet, I want something more than a mere

7 absence of objection. What we need is your client's consent to having

8 these examinations.

9 Now, certainly I think it would be very advisable for you to speak

10 to your client, and whilst you are here today, this would be the

11 opportunity to do so, but I don't want any documents subsequently filed

12 merely to say that your client does not object. We want the words that he

13 consents to it, if that be the case. If he does not, then Ms. Korner

14 apparently has some argument which may overcome it, but I think that this

15 will be the most direct and straightforward way of disposing of it if we

16 can. And if Ms. Korner wants to argue that, notwithstanding the absence

17 of such a consent, the Prosecution is still entitled to have the accused

18 testify against himself, then we'll hear that argument, or perhaps it can

19 be done in writing.

20 So would you please arrange to have this conference with your

21 client today and, if possible, file some document today so that the matter

22 can be disposed of, hopefully without any further ado. But, otherwise, we

23 will await what you have to say in that document.

24 MR. DOMAZET: [Interpretation] Yes, Mr. President. I agree with

25 your proposal. I'll comply.

Page 29

1 JUDGE HUNT: Thank you.

2 Now, is there anything else that the Prosecution wants to raise,

3 Ms. Korner? I don't want there to be some constitutional argument that

4 goes up to the Appeals Chamber on a matter like this if we can avoid it.

5 I'm not being obstructive, I hasten to add, but I am concerned that I, at

6 least, comply with the terms of the Statute.

7 MS. KORNER: Yes. I am aware from other cases that Your Honour

8 takes the view that certain matters may be seen to be compelling a person

9 to give evidence against themselves.

10 JUDGE HUNT: You say that --

11 MS. KORNER: I don't --

12 JUDGE HUNT: You say that in terms which suggest that you don't

13 believe that anybody else does, but I'll take that.

14 MS. KORNER: I wouldn't want to start 2001 off by disagreeing with

15 Your Honour.

16 JUDGE HUNT: But it is, I think, a matter of some importance. I

17 have been involved in a lot of litigation dealing with this sort of thing,

18 and there are some very real problems involved in it if it has to be

19 argued. That's all I can say. I think that in most of the cases I have

20 argued, I ended up losing.

21 MS. KORNER: Your Honour, may I say that I don't think from what,

22 as Your Honour has already remarked, has been the attitude throughout of

23 Mr. Domazet and Mr. Vasiljevic there is likely to be a problem.

24 JUDGE HUNT: That's right. That's why I would rather deal with it

25 in that sort of a way rather than have to deal with it as a matter of some

Page 30

1 constitutional importance to the Statute.

2 MS. KORNER: Your Honour, the only other matter, and I appreciate

3 the problems there are about setting a date or even deciding how this case

4 is going to be heard because of the administrative changes that may or may

5 not happen in this building, but I don't know whether Your Honour is able

6 to assist on this: In the light of the fact that in Your Honour's list

7 there are two cases awaiting trial, if not a third, I think --

8 JUDGE HUNT: There is a third but it's a long way away somewhere.

9 MS. KORNER: Yes. It's a long way down the list. Is Your Honour

10 able to give any indication, given that this case is a great deal shorter

11 on any showing than the other case, whether it is this case that is likely

12 to be taken first?

13 JUDGE HUNT: Well, let me explain it to you this way: Sometime at

14 the end of February or early in March, we will know who has and who has

15 not been re-elected. There are a number Judges who are not standing for

16 re-election anyway, and the President has discussed this with the Bureau

17 in an endeavour to determine what these Judges can be put to in their

18 remaining time. It is a very short case, this, in the sense that it will

19 probably be over and done with in two, two and a half months, I would

20 think, and it seems an ideal case to be given to three of the Judges who

21 are not standing for re-election so that they can dispose of it by the end

22 of the year.

23 Now, it is, of all the cases which are ready or almost ready for

24 trial, this is clearly the best case for that purpose, and I rather

25 suspect that may happen.

Page 31

1 What is going to happen, and this is anticipated will happen, when

2 ad hoc Judges come on stream in the middle of the year, whichever Trial

3 Chamber has just finished a case or is just about to finish a case will be

4 split up into two or perhaps three subChambers or divisions, with a

5 permanent Judge and two ad hoc Judges or two permanent Judges and an ad

6 hoc Judge. Those Judges will be then given the work that is remaining in

7 that Trial Chamber's list and any others that are ready for hearing.

8 I rather suspect that if we are the ones -- if Trial Chamber II is

9 the one which is going to be split up, that Brdjanin and Talic will be

10 taken by one of those divisions --

11 MS. KORNER: Yes.

12 JUDGE HUNT: -- and it will be dealt with in that way. If we are

13 not the Trial Chamber that's split up, then we will be starting Brdjanin

14 and Talic at the conclusion of the current Krnojelac case, provided that

15 we're all re-elected.

16 MS. KORNER: Yes.

17 JUDGE HUNT: You see the state of indecision we're in.

18 MS. KORNER: Yes.

19 JUDGE HUNT: It's a funny position to be in, to be subject to

20 election as Judges, I can tell you, and I have found it quite strange.

21 Nevertheless, we are in the situation where we just cannot

22 finalise any judicial arrangements for the rest of this year until we

23 know. That is why the United Nations agreed to move the elections to an

24 earlier spot than they usually are.

25 MS. KORNER: I'm very grateful to Your Honour. That is of some

Page 32

1 assistance.

2 JUDGE HUNT: I'm afraid you'll have to share the indecision with

3 us, Ms. Korner.

4 MS. KORNER: Thank you very much.

5 JUDGE HUNT: Now, Mr. Domazet, are there any matters you want to

6 raise in terms of the Rule about the matter -- about the case, about your

7 client's well-being, et cetera?

8 MR. DOMAZET: [Interpretation] No, Mr. President, nothing, nothing

9 related to the Status Conference and the issues that ought to be raised

10 during the Status Conference. Nothing.

11 JUDGE HUNT: I'm very grateful to you.

12 If there's nothing else, we'll adjourn. The next matter starting

13 in this courtroom starts at 10.00.

14 --- Whereupon the Status Conference adjourned at

15 9.30 a.m.