Tribunal Criminal Tribunal for the Former Yugoslavia

Page 33

1 Friday, 18 May 2001

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.08 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Yes, Your Honour. This is the case number

8 IT-98-32-I, the Prosecutor versus Vasiljevic.

9 JUDGE HUNT: Appearances for the Prosecution. Yes, Mr. Groome.

10 MR. GROOME: For the Office of the Prosecution, Dermot Groome.

11 MR. OSSOGO: Frederic Ossogo.

12 JUDGE HUNT: Mr. Domazet.

13 MR. DOMAZET: [Interpretation] Yes, Your Honour. Vladimir Domazet,

14 counsel for Mr. Vasiljevic.

15 JUDGE HUNT: Thank you. Mr. Vasiljevic, are you able to hear the

16 proceedings in a language which you understand? Are you able to hear the

17 proceedings in a language which you understand?

18 THE ACCUSED: [Interpretation] Yes, Your Honour.

19 JUDGE HUNT: Thank you. Sit down, please, sir.

20 This is a Status Conference held in accordance with the Rules.

21 Mr. Groome, you've got outstanding here a motion for protective

22 measures. Perhaps I could ask Mr. Domazet what his attitude is.

23 Mr. Domazet, we've had no response from you to the motion of the

24 26th of April in which the Prosecution are seeking some further protective

25 measures for their witnesses. Are you able to tell us what your attitude

Page 34

1 towards that application is?

2 MR. DOMAZET: [Interpretation] Your Honour, having received the

3 motion, I first contacted the wife of the accused to check whether she

4 had, and if so, when, contacted any one of the potential witnesses.

5 Though I was not aware of any details regarding any such contact. She

6 denied having ever, and that means also in May 2000, as is indicated in

7 this motion, contacted any one of the Muslims who might be potential

8 witnesses. However, the Defence has always agreed to protective measures

9 proposed by the Prosecution, both those applying to Defence witnesses and

10 those applying to Prosecution witnesses, and it still maintains its

11 position. So that with respect to draft amendments 1 and 2, I have no

12 objection.

13 As for point 3, which instructs the family, friends, and associates

14 of Mitar Vasiljevic not to contact any witness or potential witness

15 identified by the Prosecution. In my opinion, the problem is that the

16 family really cannot know who might be the witnesses or potential

17 witnesses, in view of the fact that I am not allowed to convey to them the

18 names of the witnesses whose statements have been disclosed to me, and

19 these are not accessible to them in any way. That is why I fear that

20 there may be a possibility of a family member or an associate contacting a

21 person without knowing that that person may be a witness of the

22 Prosecution.

23 In any event, I have reiterated to the family of the accused, and

24 I will do so again, to avoid any contact with persons who could be

25 potential Prosecution witnesses. If necessary, I am at your disposal,

Page 35

1 Your Honour, for any additional explanations.

2 JUDGE HUNT: But you would oppose the order because it's one which

3 really cannot be policed; That's the basis of your objection, isn't it?

4 MR. DOMAZET: [Interpretation] Yes. It seems to me that as regards

5 point 3, as it is worded, it is indeed difficult to police, because

6 friends and family really cannot know who the potential witnesses may be

7 of the Prosecution.

8 JUDGE HUNT: Well, Mr. Groome, I think there's a lot to that. How

9 can we make an order which can't possibly be policed?

10 MR. GROOME: I would agree with Your Honour that until these

11 people actually appear before the Court, there's no jurisdiction over them

12 to order their conduct. I would note that there has been no incident

13 in over -- or approximately a year. The witness who is described in the

14 motion gave a public statement, so the Prosecution doesn't believe that

15 there was anything on Mr. Domazet's part or the defendant's part regarding

16 the disclosure of her name. She did give a public statement on the TV and

17 we believe that is how her name became public. We are satisfied that Mr.

18 Domazet is taking adequate precautions to safeguard the personal

19 information of witnesses and the proof of that is that we have disclosed

20 all the new statements in an unredacted form to him and have not sought

21 protective measures. I would ask that the Court order the relief

22 requested in 6 and 7 and we will trust that Mr. Domazet's conveying to the

23 family the importance of not contacting witnesses. We will trust in the

24 effectiveness of that.

25 JUDGE HUNT: Very well, then. I think that's very realistic, if I

Page 36

1 may say so. I will therefore make orders in the terms of paragraphs 1 and

2 2 of the draft order attached to the motion that the Trial Chamber orders

3 that the Vasiljevic defence may only contact a witness identified by the

4 prosecutor or whose written statement or statements or non-public or

5 protected testimony has been disclosed by the Prosecutor on reasonable,

6 prior written notice to the Prosecutor. The Trial Chamber also orders

7 that the Prosecutor may only contact a witness identified by the

8 Defence on reasonable prior written notice to the Defence.

9 Now, is there any other matter that you want to raise,

10 Mr. Groome?

11 MR. GROOME: Your Honour, there are a number of matters I wish to

12 advise the Court of the status of these matters. If I might say so, there

13 are about five, excluding this one that we have just discussed. Perhaps I

14 can go through them one by one and if there is any other discussion that

15 the Court would like to engage in. The first is that there has been a

16 reassignment of attorneys in the case. The three attorneys on the case

17 representing the Office of the Prosecutor will now be myself, Mr. Ossogo,

18 and Ms. Sabine Bauer. There's also been a new case manager assigned to

19 the case, and that is Mr. David Bruff, to my left.

20 The first point I'd like to advise the Court about is the matter

21 regarding the alibi of the accused. The investigators in this case have

22 been working hard to find all relevant evidence regarding the accused's

23 alibi, and there has frankly been evidence pointing in both directions.

24 That evidence has been provided to Mr. Domazet on an ongoing basis. One

25 of the witnesses that was newly discovered is of particular interest to

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1 Mr. Domazet, and we have made arrangements to facilitate his interview of

2 that witness on the third week of June.

3 JUDGE HUNT: May I -- is that what you want to say about the

4 alibi?

5 MR. GROOME: A few other matters on the alibi.

6 JUDGE HUNT: All right. You go ahead.

7 MR. GROOME: We have received the report of the medical expert.

8 Because this will be evidence at trial, it's probably not appropriate to

9 go into the findings at this stage, but I would say that based on the

10 report submitted by the medical expert, the Prosecution would like to make

11 an additional inquiry to this medical expert. Because that expert is a

12 court expert, we would propose to do that in the way of a motion which we

13 would file with the Court early next week.

14 JUDGE HUNT: Well, it's about this report that I want to raise

15 with you. A number of very serious problems with the report. It is, of

16 course, the obligation, or the burden on the Prosecution to prove beyond a

17 reasonable doubt that it was Mr. Vasiljevic who was at the scene of these

18 events which are described in the indictment, and this alibi that has been

19 raised is, of course, an evidentiary issue. The Defence will no doubt

20 tender the hospital reports, which, as I recall, were described to me at

21 the time they were produced by the doctor covered with something like

22 eight or nine years' dust, and certainly there has been nothing to suggest

23 that they've been interfered with, and he will say he is the person who

24 was in hospital. That is the sole extent of his onus, and it's an

25 evidentiary onus only. There remains a legal onus on the Prosecution to

Page 38

1 prove that he was at the scene of these events and to prove it beyond

2 reasonable doubt in those circumstances means that the Prosecution has to

3 demonstrate that there is no reasonable possibility that it was the

4 accused who was in hospital.

5 Now, I have to say that on the basis of Dr. Degreve's

6 report it does not go within a bull's roar of doing so. I know he has

7 asserted a very strong opinion at the end, but there are a number of

8 problems in it which I wonder whether he understands where the onus of

9 proof lies in this. He spends a lot of time criticising the quality of

10 the second x-ray. And significantly, he says that it appears to have been

11 taken at a different angle. And yet he doesn't deal with that

12 possibility - I'm sorry - that particular fact leading to the possibility

13 that the edge of the heel and the length of the bone may be different

14 because of the different angle from which the x-ray was taken. And that

15 would be vital before any Trial Chamber could say beyond a reasonable

16 doubt that it was not this man in the hospital.

17 He also puts forward the possibility that the original x-ray might

18 have been of the other leg reversed, because there's no record of it. But

19 the real problem is the quality of the second document, when he says

20 that in the strict sense of scientific comparison, the incidences aren't

21 comparable.

22 Now, upon the basis of that, I would have to say that there is no

23 value in his report at all. It may be that Dr. Degreve, who is a very

24 enthusiastic gentleman, I've seen him give evidence, has been more

25 interested in criticising the technician who took the x-ray than applying

Page 39

1 his mind to the issue. And what I suggest is that the Prosecution

2 obtained from him a fresh statement, by somebody who has English as their

3 first language, I suggest, in which we try to obtain from him, in layman's

4 terms, precisely what it is he is saying. He uses different medical terms

5 which may or may not be interchangeable, but I think were intended to be,

6 and we shouldn't be left in doubt about that as well.

7 But the only two matters that he puts forward which would, if

8 correct, demonstrate that it was not the same person who has been x-rayed,

9 is the length of the leg and the shape of the heel bone, both of which

10 appear to be slightly suspect, in the view of his remarks about the

11 quality and the different angle from which the second x-ray was taken.

12 Now, I don't want to leave this to the trial. I think it's

13 something which should be sorted out well and truly in advance so that

14 everybody knows where they are. Because if he then turns around and says,

15 "Well, bearing in mind what you've pointed out, I cannot say with

16 certitude that it was not the same person," then we'll have to look at it

17 quite differently. But I don't want that to be left to the trial.

18 Yes. You said there were other things about the alibi.

19 MR. GROOME: Just on that matter, Your Honour, before we leave it,

20 because the doctor is a court expert, we've been reluctant to have any

21 kind of direct contact with him. May I take it from your comments now

22 that you are authorising us to have the investigator actually interview

23 him regarding these findings and create a statement?

24 JUDGE HUNT: I frankly take the view that he's your witness. You

25 asked for him and he was taken from the panel. These are adversarial

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Page 41

1 proceedings and the idea of court experts does not sit easily with an

2 adversarial system. Sometimes in a case where there is a medical issue

3 and each party puts forward different interpretations of an x-ray, it

4 would be open to the Trial Chamber to appoint a court expert. But at this

5 stage, so far as I understand it, you -- he's your witness, so you have my

6 authority to approach him and see if you can get a decent report out of

7 him.

8 MR. GROOME: And we will also explore the possibility of retaking

9 the x-ray so that they are --

10 JUDGE HUNT: Well, that might be a very good idea. It might

11 resolve all of his problems. But at the present stage, it is so far from

12 proving beyond a reasonable doubt that they are not the same person that I

13 felt I should draw it to your attention. Yes. You have that leave.

14 MR. GROOME: Thank you, Your Honour. One other matter is there's

15 one more outstanding forensic test and that is on the comparison of the

16 type faces used in the medical reports. That will be completed by the

17 12th of June by the Dutch forensic lab, and I will make that available to

18 Mr. Domazet as soon as we receive it.

19 JUDGE HUNT: Thank you.

20 MR. GROOME: That is all on the alibi. I would propose to move to

21 discovery --

22 JUDGE HUNT: Well, before you do that, Mr. Domazet, I want to make

23 it very clear that you are entitled to have your own expert view all of

24 these x-rays and to give his opinion. It is an adversarial system, and

25 it's a very adversarial issue in this case. So I understand you have been

Page 42

1 informed of that, but I just want to make it very clear to you that that

2 is still the situation.

3 MR. DOMAZET: [Interpretation] Thank you, Your Honour.

4 JUDGE HUNT: Now, disclosure, yes.

5 MR. GROOME: Your Honour, as of today, -- I'm sorry. As I said

6 earlier, we've been disclosing materials to Mr. Domazet on an ongoing

7 basis, in particular documents related to the alibi. As of today, Mr.

8 Domazet is in possession of every statement pertaining to this case.

9 Outstanding are approximately 36, 37 translations. The Translation Unit

10 advises us that they will have them, most of them by mid-June and the

11 remainder by the end of June.

12 JUDGE HUNT: What are they of? Statements?

13 MR. GROOME: They are new witnesses, new statements, some newly

14 discovered, some actually newly taken, and most of them, or all of them

15 are relevant to the alibi.

16 JUDGE HUNT: Yes. And what are they, presently in English, are

17 they?

18 MR. GROOME: Most of them are in English. There are some that

19 were discovered, that were taken by the Bosnian police that have been

20 provided in Serbian, and we are having them translated into English.

21 JUDGE HUNT: Have you served the originals?

22 MR. GROOME: Yes.

23 JUDGE HUNT: Yes. I should say that the projected trial date is

24 the 10th of September, so we want to make sure that all of this discovery

25 is over and done with well and truly before then; 10th of September, yes.

Page 43

1 Yes. Now, what's the -- was that the last matter?

2 MR. GROOME: Well, on discovery. The next matter would be just to

3 advise the Court as far as agreed facts and issues, we have had several

4 meetings with Mr. Domazet to discuss what facts might be agreed to and

5 what might not be. Yesterday's meeting we -- I think we hammered out the

6 final list of the facts that will be agreed to, although there are still

7 many facts contested in this case, there are a significant number now that

8 have been agreed, and we will prepare the Court documentation for that.

9 We have also begun a discussion about the possibility of some testimony

10 being introduced as 92 bis. We are both in agreement in principle about

11 the types of witnesses. It will be the beginning of July before we're

12 able to sit down and make concrete decisions about which particular

13 witnesses will be handled in that matter.

14 JUDGE HUNT: The next matter on the list this morning is to

15 discuss 92 bis. It's not exactly a success when the Prosecution seeks to

16 use its original statements, and it's to be hoped that we'll persuade your

17 colleagues to do something better than just have the English statements,

18 or even a B/C/S version of them, certified. The circumstances in which

19 most of those statements are taken, they contain an enormous amount of

20 irrelevant material.

21 So you might like to keep that in mind. Is there anything else

22 you want to raise?

23 MR. GROOME: Just two minor matters, Your Honour, just regarding

24 the other two indictees on this docket. The investigators have been

25 working diligently to locate and secure their attendance in advance of the

Page 44

1 beginning of this case. Unfortunately, I have no positive news to give

2 you today. And the final matter would be that it is our intention, once

3 we have completed our analysis of the evidence regarding the alibi, to

4 submit an amended indictment. I have discussed with Mr. Domazet the

5 contents of this amended indictment. There are no surprises in the

6 indictment. There may be a dismissal of some charges based upon our

7 evaluation of this evidence, but the draft is done and I expect that that

8 will be -- a motion proposing the amendment of the indictment will be

9 filed within the month.

10 JUDGE HUNT: Mr. Groome, I think I should make it very clear that

11 if you turn up with the other two accused just before the trial date of

12 the 10th of September, I don't think it will be fair to Mr. Vasiljevic to

13 delay the trial while they get ready for it.

14 MR. GROOME: I agree with that.

15 JUDGE HUNT: Especially as it has this issue of alibi which the

16 others are unlikely to have. Is that all?

17 MR. GROOME: That's it, Your Honour.

18 JUDGE HUNT: Thank you.

19 Mr. Domazet, are there any matters you want to raise in relation

20 to the matters Mr. Groome has mentioned or generally?

21 MR. DOMAZET: [Interpretation] Your Honours, I can confirm what

22 Mr. Groome has said; that is to say, I have received the rest of the

23 statements mentioned by Mr. Groome, some of them today, and as far as that

24 is concerned, I have no objections.

25 It is also true that we have reached agreement regarding certain

Page 45

1 facts and issues. They have been stipulated or agreed. Speaking for the

2 Defence, I believe we will be ready for the trial to start on the 10th of

3 September, and if there are any changes, if any of the other two indictees

4 are in the meantime brought to The Hague. Of course, although

5 Mr. Vasiljevic would like the trial to begin as soon as possible, I

6 believe it would be much better for these proceedings to ensure the

7 attendance of the other two accused. Unfortunately, that is something

8 that it does not depend on us.

9 I have no other remarks that would be relevant at this Status

10 Conference.

11 JUDGE HUNT: You realise that the Rules relating to your Pre-Trial

12 brief have been amended recently, at least I hope you do, and you had

13 better start getting that ready. When was the Prosecution Pre-Trial brief

14 filed?

15 MR. GROOME: I don't know the exact date, Your Honour, but it was

16 filed several months ago.

17 JUDGE HUNT: Yes. Before the amendments. But nevertheless, I

18 think, Mr. Domazet, it would be best if you followed the amended form of

19 the Rule when you prepare your Pre-Trial brief. That has to be filed,

20 from memory, about three weeks before the Pre-Trial Conference, so you can

21 expect a Pre-Trial Conference sometime in August, late August, or perhaps

22 in July, because of the Court vacation during August. So you had better

23 start getting that one ready.

24 Well, are there any other matters in relation to this particular

25 case?

Page 46

1 MR. GROOME: Not from the Prosecution, Your Honour.

2 JUDGE HUNT: Mr. Domazet?

3 MR. DOMAZET: [Interpretation] Thank you, Your Honour. I have just

4 obtained the latest version in the French language today. I will study it

5 and there will be no problems in my drafting the Pre-Trial brief according

6 to the new Rules within the deadline.

7 JUDGE HUNT: Thank you. Very well. Then we'll -- I'm sorry for

8 the late start this morning. Something went wrong with the logistics of

9 getting the accused here. I'll adjourn now to be able to reassemble for

10 Brdjanin and Talic.

11 --- Whereupon the Status Conference adjourned at

12 10.35 a.m.