Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5

1 Monday, 6 June 2005

2 [Status Conference]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 2.15 p.m.

6 JUDGE SHAHABUDDEEN: Well, good afternoon to everybody. Madam

7 Registrar -- Mr. Registrar, will you please call the case?

8 THE REGISTRAR: Good afternoon, Your Honour. This is case number

9 IT-99-36-A, the Prosecutor versus Radoslav Brdjanin.

10 JUDGE SHAHABUDDEEN: I should first do what every judge

11 customarily does, and that is to test out the audio equipment. And so I

12 shall ask whether everybody hears me.

13 Mr. Brdjanin, do you hear me in a language you understand?

14 THE APPELLANT: [Interpretation] Good afternoon, Your Honour.

15 Yes, I can hear you in a language I understand, thank you.

16 JUDGE SHAHABUDDEEN: There are two appeals, one by the

17 Prosecution, one by the Defence. And I think the Prosecution goes first;

18 is that right, Mr. Ackerman? So I shall call for the appearances on the

19 part of the Prosecution.

20 MR. MARCUSSEN: Thank you, Your Honour. Mathias Marcussen

21 appearing with Lourdes Galicia for the Prosecution.

22 JUDGE SHAHABUDDEEN: And then the appearances on behalf of Mr.

23 Brdjanin.

24 MR. ACKERMAN: Good afternoon, Your Honour. I'm John Ackerman.

25 I'm here on behalf of Mr. Brdjanin, along with Aleksandar Vujic.

Page 6

1 JUDGE SHAHABUDDEEN: We have made an order admitting the brief

2 from amicus curiae. Is there any appearance for the amicus curiae, or

3 need we concern ourselves at this time? The consensus of the bar?

4 MR. ACKERMAN: I think we need not concern ourselves, Your

5 Honour. They have applied for an extension and received it, and will be

6 filing in due course, I'm sure.

7 JUDGE SHAHABUDDEEN: So the consensus of the bar is that we need

8 not bother about them.

9 Now, this is a status conference. A scheduling order for the

10 purpose was issued on the 27th of May.

11 This is the second status conference to be ordered in this case.

12 The first was held on the 3rd of February, and the second should have

13 been on the 3rd of June, because, under the law, a status conference has

14 to be held every 120 days, but Defence counsel had some professional

15 difficulties and the accused waived his right to insist on a status

16 conference being held strictly in accordance with the Rules and so we

17 have appointed today as a date for hearing this appeal, rather, as a date

18 for this conference.

19 Now, the purpose of the conference is set out in Rule 65 bis(B)

20 of the Rules of Procedure and Evidence. We read them out on the last

21 occasion. Is there need for these -- this rule to be read again? No.

22 So the Rule, then, concerns two questions. One is whether the

23 appellant, Mr. Brdjanin, has any concerns as regards his conditions of

24 detention, and the second has to do with an updating which the Court

25 should give as to the status of the appeal.

Page 7

1 Now, then, Mr. Ackerman, are there any concerns that your client

2 would like to present to the Court at this time?

3 MR. ACKERMAN: None that he's expressed to me, Your Honour. I

4 think there are none.

5 JUDGE SHAHABUDDEEN: Well, then, I see a sign of concurrence from

6 behind you on the part of Mr. Brdjanin. Now, you agree with that, Mr.

7 Prosecutor?

8 MR. MARCUSSEN: Yes, Your Honour.

9 JUDGE SHAHABUDDEEN: Yes. Now, the updating is very simple. The

10 judgement in this case was given on the 1st of September last year. The

11 Prosecution then filed its notice of appeal on the 30th of September, and

12 Mr. Brdjanin followed suit the next day, the 1st of October. The

13 Prosecution then presented its brief on the 28th of January. Mr.

14 Brdjanin's response to that brief was filed on the 10th of May. The

15 Prosecution replied to that response on the 25th of May this year. So,

16 the pleading procedure for the appeal by the Prosecution looks to me as

17 if it's concluded; is that right?

18 MR. MARCUSSEN: Yes, Your Honour, save the issue that was raised

19 with respect to the amicus curiae.

20 JUDGE SHAHABUDDEEN: Yes, of course.

21 MR. MARCUSSEN: And our possibility of maybe responding.

22 JUDGE SHAHABUDDEEN: We can come to that. You have filed a

23 recent motion on that issue, have you?

24 MR. MARCUSSEN: Yes, Your Honour, in our response to the amicus's

25 request for an extension of time we raised this issue.

Page 8

1 JUDGE SHAHABUDDEEN: Then I come to Mr. Brdjanin's appeal. He

2 applied for leave to file a supplementary notice of appeal on the 20th of

3 May this year and so that application was granted a few days later, on

4 the 3rd of June this year - That's last week, last week Thursday, or

5 Friday - and his appeal brief is accordingly due on the 27th of June this

6 year.

7 Now, a question has been raised as to whether the physical

8 perpetrators in a crime must be members of the JCE and this has led to

9 some special pleading on the point. Very briefly, I think the Defence

10 took the position that they were not terribly interested in this area and

11 so with a view to securing some adversarial input in the matter, an

12 amicus brief was order and leave was given to the association of Defence

13 lawyers to file an amicus brief. 30 days were granted and a 15-page

14 limit was affixed and that order will then expire on the 5th of June.

15 Yesterday. Yesterday. An extension was granted on the 3rd of June to

16 the 5th of July next month.

17 So in sum, we have this position: that Mr. Brdjanin's appeal

18 brief is to be expected on the 27th of June this year, and the

19 Prosecution would then have a right to reply to that. So the appeal

20 process there is ongoing.

21 And then we come to the amicus brief. I think this was first

22 ordered by the 5th of July and -- yes. There was an extension granted to

23 the 5th of July so they have up to the 5th of July to file their brief,

24 and accordingly, the pleadings stage of the case is still ongoing.

25 The Prosecution has asked to reply to the amicus brief. That doesn't

Page 9

1 terribly concern you, Mr. Ackerman. So those are the things I have to

2 say.

3 Would you like to say anything, Mr. Prosecutor?

4 MR. MARCUSSEN: Not at this stage, Your Honour, thank you.

5 JUDGE SHAHABUDDEEN: Then I turn to Mr. Ackerman.

6 MR. ACKERMAN: Your Honour, I do have a couple of things.

7 Sometimes I'm not as precise as I would like to be in the things

8 that I write and I wouldn't want the impression to persist that I am not

9 interested in the JCE issue. I'm academically very interested in it.

10 JUDGE SHAHABUDDEEN: I'm sure about that.

11 MR. ACKERMAN: What I was trying to say in my maybe inartfully

12 drafted pleading, Your Honour, was that I thought the issue would be

13 death with better if it was in an adversarial proceeding where both

14 parties really had a legitimate interest in the outcome. If you look at

15 my brief, however, you'll see that I actually briefed it fairly

16 thoroughly, I think.

17 JUDGE SHAHABUDDEEN: I haven't got a practical interest in this

18 case. Is that one way of putting it?

19 MR. ACKERMAN: I'm sorry.

20 JUDGE SHAHABUDDEEN: Is that one way of putting it, to say that

21 you do not have a practical interest in this case?

22 MR. ACKERMAN: Yeah, the outcome of that issue cannot affect my

23 current client. It could affect a future client, so I do have that

24 academic interest.

25 The other thing I wanted to basically inquire of you about:

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Page 11

1 Because of the approval of the additional grounds of appeal, we really

2 haven't done anything about a scheduling with regard to the briefing with

3 regard to those grounds. And what I would like to inquire, Your Honour,

4 is whether or not Your Honour would be receptive to a pleading from me

5 that requests the filing date for the appellant's brief to be advanced

6 another few days, perhaps into middle to late July, so that it could be a

7 consolidated brief including not only the original grounds of appeal but

8 the supplemental that have just been approved. So that way I could file

9 not one but -- if that would be something that you would consider.

10 JUDGE SHAHABUDDEEN: Let me understand you. At the moment your

11 time limit is when?

12 MR. ACKERMAN: June 27th.

13 JUDGE SHAHABUDDEEN: June 27. And would you like July?

14 MR. ACKERMAN: Somewhere between the 15th and 25th of July,

15 somewhere in that neighbourhood. That way I could file a consolidated

16 brief with all of the points.

17 JUDGE SHAHABUDDEEN: Let me try to discover what might be the

18 reaction of the Prosecution to that.

19 MR. MARCUSSEN: Your Honour, I think Mr. Brdjanin now has in the

20 neighbourhood of 180 grounds of appeal and we agreed to the addition of

21 the new 20 grounds of appeal. So we would not -- we would not object to

22 an extension of time.

23 But I would like to just express a concern that is coming up on

24 the part of the Prosecution in this regard. That is that the schedule

25 had moved along so for us it is posing a problem in terms of practical

Page 12

1 its and having staff available to respond. So depending on what the

2 eventual schedule might be we might be seeking an extension of time to

3 file our response brief. Nothing excessive, but it has been difficult

4 for us for timing --

5 JUDGE SHAHABUDDEEN: Response brief to Mr. Ackerman?

6 MR. MARCUSSEN: To Mr. Ackerman's brief. It's simply is that --

7 as the scheduling of the briefing in this appeal has moved from initially

8 being us having to respond during May and June, it has now been --

9 JUDGE SHAHABUDDEEN: Do you have the feeling that this schedule

10 is unravelling before our eyes?

11 MR. MARCUSSEN: I think that it would not be something that would

12 cause concern overall. We would have a number of issues that needs to be

13 dealt with any way. So the Prosecution is not concerned with the overall

14 length of the appeal. I would just like to inform the Chamber that maybe

15 we would be needing an extension of time but we don't object to the

16 request.

17 JUDGE SHAHABUDDEEN: Mr. Ackerman, you're sitting pretty. The

18 Prosecution doesn't object but what I suggest is this: that you leave

19 the matter for the responsible authorities in the chambers to decide in

20 the normal way, bearing in mind both what you have said and what the

21 prosecuting counsel has said.

22 MR. ACKERMAN: I think what you're saying is go ahead and file a

23 motion.

24 JUDGE SHAHABUDDEEN: File a motion and see what comes out of it.

25 We mightn't agree to the full extent of what you have asked for. We

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1 might pare it down. What we have to bear in mind is this: That it's not

2 really a question of applying the rules just because they are there, but

3 it's a question of good order and discipline in the hearing procedures

4 relating to all appeals.

5 MR. ACKERMAN: Well, I can assure Your Honour that I've been

6 working very diligently and this is just a very, very huge appeal with

7 that many grounds of appeal and the number of issues.


9 MR. ACKERMAN: 180 at this point. Some of those I will abandon

10 in the course of preparing because I'm finding they overlap a little bit

11 but -- so some of the grounds, what you'll see is I'll just refer back to

12 writing earlier in the brief on the issue. But there is still a huge

13 number of matters that need to be considered. This was a trial that

14 lasted for 27 months and it's not -- this is not a simple matter. It's a

15 very complicated matter.

16 JUDGE SHAHABUDDEEN: I'm quite sure.

17 MR. ACKERMAN: I understand that rules are rules but by the same

18 token I think the Rules were made for the average case here and I think

19 this case is a bit extraordinary and deserves, perhaps, extraordinary

20 treatment. That's why I even raised the matter, Your Honour. Otherwise

21 I wouldn't raise it at all.

22 JUDGE SHAHABUDDEEN: Good point. We will look at that when it

23 comes. Any other points, then?

24 MR. ACKERMAN: No, Your Honour, that's all, thank you.

25 JUDGE SHAHABUDDEEN: It's a very good thing that we have this

Page 14

1 Rule that brings the two sides together in front of the Court, and it

2 gives to the accused, the appellant, Mr. Brdjanin, an opportunity to know

3 the score of things.

4 So if there is no other business at this time, we will take the

5 adjournment. All right?

6 --- Whereupon the Status Conference adjourned

7 at 2.34 p.m.