1 Friday, 25 July 2003
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.02 p.m.
6 JUDGE ORIE: Good afternoon to everyone. Madam Registrar, please
7 call the case.
8 THE REGISTRAR: Case Number IT-95-10/1-PT, the Prosecutor versus
9 Ranko Cesic.
10 JUDGE ORIE: Thank you, Madam Registrar. We are here today for a
11 Status Conference in the case of the Prosecution against you, Mr. Cesic,
12 but before continuing, I'll ask you whether you can hear me in a language
13 you understand.
14 THE ACCUSED: [Interpretation] Yes, Your Honour, I can hear you
15 very well.
16 JUDGE ORIE: Yes. Thank you, Mr. Cesic.
17 As we discussed before, sometimes it's easier, as far as the
18 microphone is concerned, that you remain seated, because you have to bend
19 over again and again to make yourself heard, and therefore I wouldn't mind
20 if I address you or if you give an answer, that you remain seated. But as
21 you wish. Yes.
22 Please be seated, then.
23 May I have the appearances for the Prosecution first.
24 MR. HARMON: Good afternoon, Your Honour. My name is Mark
25 Harmon. Appearing with me today, Mr. Vladimir Tochilovsky and Mr. Thomas
1 Hannis and case manager Susan Grogan.
2 JUDGE ORIE: Thank you, Mr. Harmon. And for the Defence.
3 MR. BAKRAC: [Interpretation] Good afternoon, Your Honour. My name
4 is Mihajlo Bakrac and I represent the accused Ranko Cesic.
5 JUDGE ORIE: Yes. Mr. Bakrac, I think it's for the first time
6 that we meet in this formal setting, because at the last Status
7 Conference Mr. Cesic was still represented by another counsel. Welcome.
8 I suggest to you that we would deal with the matters the same
9 matters as have been discussed yesterday during the 65 ter meeting, and
10 Mr. Cesic, since you were not there, I'll just briefly inform you, you
11 might have been informed already, but I'll just briefly inform you that
12 the major issues discussed at this agenda were the disclosure, that is,
13 information from one party to another, how many witnesses the Prosecution
14 intended to present at trial, and whether there was any need for
15 protective measures, whether there was any agreement on matters of fact
16 between the parties. The pre-trial work plan was discussed. The
17 preparation for today's Status Conference was discussed, and some other
18 matters which I'll not go into in any detail at this very moment.
19 Would there be anything to be added to that on the agenda? I read
20 the transcript of the 65 ter meeting and I noticed that specifically the
21 potential application of Rule 11 bis would need further attention. So
22 we'll pay specific attention to that at a later stage. But apart from
23 that, is there any other issue you'd like to raise? If you'd prefer to
24 add something to the agenda in closed session or if you'd like to say
25 something in closed session, please apply for it. But is there any
1 addition to the agenda requested?
2 MR. HARMON: There's nothing on behalf of the Office of the
4 JUDGE ORIE: Thank you, Mr. Harmon.
5 MR. BAKRAC: [Interpretation] Your Honour, there is nothing that
6 the Defence would like to add, nothing in addition to the issues that we
7 discussed at the 65 ter meeting yesterday.
8 JUDGE ORIE: Yes. Thank you, Mr. Bakrac.
9 Then the first issue discussed yesterday was disclosure, and as
10 far as I understood, the parties have no specific requests as far as
11 disclosure is concerned. I do understand that the Defence might not have
12 concentrated mainly on that during the past period, but there's nothing
13 specifically to deal with in respect of disclosure. Is that correct,
14 Mr. Bakrac? Yes. I see you're nodding for the transcript, nodding yes.
15 I take it that the Prosecution takes the same position, Mr. Harmon.
16 MR. HARMON: We expressed our position yesterday in complete
17 detail. We have nothing to add.
18 JUDGE ORIE: Yes. So no problems in that respect.
19 Then the next issue would be the number of witnesses the
20 Prosecution would like to present. As I read from the transcript of
21 yesterday, that the Prosecution has in mind to present 14 live witnesses
22 at trial and two experts under Rule 92 bis.
23 MR. HARMON: We are still juggling with the figures in terms of
24 the 92 bis witnesses. We expect to present at least two witnesses, 92
25 bis, and possibly a third witness 92 bis.
1 JUDGE ORIE: Did I well understand that at least the two you have
2 in mind were expert witnesses?
3 MR. HARMON: That is what we said yesterday. We have two
4 witnesses -- two expert witnesses who would be 92 bis.
5 JUDGE ORIE: Yes. Just for my better understanding, Mr. Harmon:
6 As we all know, Rule 94 bis deals with testimony of expert witnesses. Is
7 it because of the testimony earlier given in other cases that you'd rather
8 rely on 92 bis where you could include also parts of the transcripts --
9 MR. HARMON: That's correct. These experts testified in the
10 Jelisic case. On that basis we would submit their testimonies and their
11 expert statements. I suggest that that written evidence be accepted by
12 the Court in lieu of oral testimony.
13 JUDGE ORIE: Yes and rule 94 bis would only provide for the
14 acceptance of an expert statement and not for testimony -- transcript of
15 testimony given in other cases. That's the reason why you rely on 92 bis
16 rather than 94 bis.
17 MR. HARMON: That's correct.
18 JUDGE ORIE: That's at least clear to me what determines your
19 preference for 92 bis. So I do understand you're still considering a
20 third expert. I don't hope that after every night's sleep another witness
21 will be added in your mind, but as far as the agreement on facts is
22 concerned, I do understand that Defence could expect a proposal from the
23 Prosecution, and, well, not having received it, Mr. Bakrac, of course, you
24 could not take any position in respect of that but I take it you'll then
25 consider what the -- yes, Mr. Harmon.
1 MR. HARMON: Your Honour, in terms of adjudicated facts since the
2 previous case that was litigated ended with a plea of guilty there could
3 be no adjudicated facts as I understand the current jurisprudence in this
5 JUDGE ORIE: It should be adjudicated as far as I understand.
6 MR. HARMON: Consequently, an agreement on the facts would rely on
7 an agreement of those facts which are expressed within the indictment
8 itself which would entail counsel and I getting together and going through
9 the indictment and seeing if there are any facts that would be the subject
10 of an agreement. Those are the facts I'm talking about in terms of any
11 agreements in fact and not adjudicated facts.
12 JUDGE ORIE: Yes. I do understand. And I also now understand
13 that you might not come up with a proposal ready to accept or not to
14 accept but rather to sit together, and since I, with great joy, read that
15 both parties seem to appreciate the relationship as professional and
16 constructive, we'll hear what the outcome of that communication will be.
17 Then going to the next point of the agenda, I do understand that
18 the investigation as far as the Prosecution is concerned is completed,
19 that the Prosecution would be ready at relatively short notice to file a
20 pre-trial brief, and of course with all the annexes to be added to that.
21 And as far as I understand, Mr. Bakrac, the Defence has not fully
22 completed its investigations, but is at a level of preparation which would
23 allow to join in the schedule as it has been suggested yesterday. I'll
24 come to that soon.
25 The schedule suggested would include that mid-September the Office
1 of the Prosecution could file a pre-trial brief, that the Defence could do
2 so after some three weeks, that means by the 10th of October; that a
3 Pre-Trial Conference would be feasible for the end of October, and that
4 then the case would be ready to be heard by a Trial Chamber.
5 This brings me to the next point and perhaps one of the issues
6 that has created some confusion, and that is the potential application of
7 Rule 11 bis, referral of the case. I do understand that the confusion is
8 not limited to you, Mr. Bakrac, but also to Mr. Cesic. So therefore,
9 since it has been a very short time since yesterday, I will try briefly to
10 explain first what the view of myself, as Pre-Trial Judge, on the issue
11 is, and also in respect of the time schedules involved.
12 Mr. Cesic, Rule 11 bis of the Rules of Procedure and Evidence
13 provide for a possibility that the Tribunal refers a case to the
14 authorities of another state, and that would then be the state on whose
15 territory the crime has been committed or in which you the accused - that
16 would be you - would be arrested. The state where the events, the acts
17 with which you are charged were committed is the state of
18 Bosnia-Herzegovina, and I'd like, for practical reasons, to concentrate on
19 that. What would that mean, a referral of the case? That would mean that
20 the president of the Tribunal appoints a Trial Chamber to consider whether
21 a specific case should be referred to such a state. The President can do
22 that just by its own, on its own initiative, but it could also be the
23 initiative of the Prosecution asking the President to assign the Trial
24 Chamber. Before a referral will take place, you will be heard, since
25 you're in The Hague, that would be different if you would be at large, but
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 you would then be heard.
2 The Rules also indicate what kind of cases would qualify for such
3 a referral. The indication refers to a Security Council presidential
4 statement in which it says that the gravity of the crimes charged and the
5 level of responsibility of the accused should be taken into
6 consideration. If we look at your case, then the gravity of the crimes
7 charged could not be qualified as the most serious of cases of the
8 Tribunal, without ignoring the consequences for victims. And I'm not
9 expressing myself on who is responsible for those crimes - but the crimes
10 as they are charged - without ignoring the importance for those who were
11 as victims involved in those crimes. The crimes you're charged with are,
12 although serious, are compared to other cases relatively limited,
13 especially in number. Of the a little bit over ten counts, most of your
14 acts have been described in two different legal ways. We find some six
15 people who died according to the charges, and we have a case of sexual
16 assault on two charges. Compared to other cases, and I emphasise compared
17 to other cases, they are of less importance for this Tribunal. This
18 Tribunal is mainly established to hear the most serious crimes.
19 The same is true for the level of responsibility. There are other
20 accused who have to appear before this Tribunal who had a higher level of
21 responsibility according to their military or police or civilian rank.
22 Therefore, your case, looking at this criteria, might well qualify for a
23 referral. What would that mean? That would mean that you would send back
24 and all the information would be sent back as well, and if I say sent
25 back, that presumably would be to Bosnia-Herzegovina. And in order to
1 avoid any misunderstanding, most likely to Sarajevo, because during a
2 certain period of time now preparations are ongoing for the establishment
3 of a special court in Sarajevo which would hear such cases.
4 The Prosecutor might send observers to proceedings that would take
5 place as a consequence of such a referral, and the Rules do not fully
6 exclude a possibility of the case taken back to the Tribunal, although
7 you'll understand that that's not the purpose of a referral, so that, I
8 would say, would be under exceptional circumstances.
9 I explained to you this referral in order to be satisfied that you
10 are perfectly aware of what a referral means. If you would have any
11 questions in this respect, things that might not be clear to you, please
12 ask them, so that no confusion remains.
13 Part of the confusion seems to be the result of, at the one hand,
14 the scheduling in time for the preparation of a trial before this
15 Tribunal; and at the same time, alluding to the possibility of a referral
16 of this case to Bosnia and Herzegovina. Cases in this Tribunal are heard
17 by a Trial Chamber whenever they are ready to be heard - that means that
18 the parties have completed the preparation for trial - and when a Trial
19 Chamber is available to hear that case. What we discussed a couple of
20 minutes ago was how the parties would complete their preparation for
21 trial, and as you may have noticed, it appears that the parties would be
22 ready for trial in two and a half months approximately from now on in --
23 I have to check what I exactly said, but I think it was in October. No,
24 it was November. So by the beginning of November, the parties would be
25 ready for trial.
1 The second condition was that there's a Trial Chamber available to
2 hear your case. The Trial Chambers are, if I could say it this way, are
3 fully booked at this moment. Nevertheless, sometimes cases which were
4 expected to take a couple of months might be finished earlier, other cases
5 might take more time than we could expect. Your case is a relatively
6 small case. You have been in the Tribunal in detention in The Hague since
7 a little bit over one year. Well, it's not a surprise to you that you're
8 not the detainee who is longest in detention at this moment, so for that
9 reason you might not be one of the first cases that could be heard.
10 Therefore, what we know at this moment, that the parties will be ready for
11 trial by the beginning of November. Whether the case will be heard next
12 year March, next year August, or next year December, we do not know. That
13 is a matter of priority, in which many considerations will be -- where
14 many circumstances will be considered, such as length of pre-trial
15 detention, kind of case, time the case will take. So therefore, it's very
16 difficult to predict when it will be your turn when your case will be
17 heard by a Trial Chamber.
18 The preparations for a special court in Sarajevo are such that we
19 could expect that in the second half of next year, cases might be referred
20 to such a court. If your case has not been heard by then in the Tribunal,
21 it might well be that your case will then be referred, at least the case
22 as such would qualify for it. So therefore, as far as there was any
23 confusion, you have to understand that preparation for trial is completed
24 so that your case could be heard whenever a Trial Chamber is available.
25 And if a Trial Chamber is available, keeping in mind the priorities set by
1 the Tribunal, then your case will be heard. If your case has not yet been
2 heard and if there is -- if the conditions for referral are met, your case
3 might be referred. That is, in general, the situation you could expect.
4 If you would have -- or if your counsel or if the Prosecution
5 would have any questions in this respect, I would like to hear those
6 questions at this moment.
7 MR. HARMON: We have no questions, Your Honour. Thank you.
8 JUDGE ORIE: Mr. Bakrac.
9 MR. BAKRAC: [Interpretation] No Your Honour, the Defence doesn't
10 have any questions either.
11 JUDGE ORIE: Mr. Cesic, it's your case so therefore I specifically
12 ask you whether you have any questions in this respect and whether the
13 confusion that might have existed, if there was any confusion, has been
14 clarified by this explanation.
15 THE ACCUSED: [Interpretation] Your Honour, thank you for your
16 detailed explanation. Everything is clear to me. I have been informed by
17 my counsel.
18 JUDGE ORIE: Yes. Perhaps I should have relied more on you being
19 informed by counsel. On the other hand, I was aware that that might be a
20 risk also on the basis of what has been said yesterday during the 65 ter
21 meeting that there might be some confusion. So therefore I preferred to
22 explain it to you myself, so that there would be a direct explanation and
23 no risk of miscommunication.
24 Having explained this and looking at my agenda, I see that the
25 next 65 ter meeting has been scheduled for the 1st of September, 2003.
1 Are there any other matters on the agenda? I have at least one issue,
2 Mr. Cesic. At previous occasion you have told me that you have no health
3 problems. I hope that it's still the same. If not, please tell me, and
4 if there would be any other specific problems in respect of your detention
5 situation or whatever other problem, please tell me. And if you'd prefer
6 to do that in closed session because of the privacy involved, you can
7 apply for it.
8 THE ACCUSED: [Interpretation] Your Honour, there is no need to go
9 into private session. Everything is all right. I'm in good health, and
10 the conditions are good. Everything is in good order.
11 JUDGE ORIE: Thank you, Mr. Cesic.
12 Is there anything one of the parties would like to raise?
13 Mr. Bakrac, is there anything you'd like to raise?
14 MR. BAKRAC: [Interpretation] No, Your Honour. Thank you very
15 much. I believe that at yesterday's 65 ter conference, we were very
16 constructive, and everything that could have become an issue, and
17 everything pertaining to the way we are to proceed, has been thoroughly
18 discussed, so that I have no further issues to raise and no questions,
19 especially in view of the fact that you are also fully informed of
20 everything that took place at yesterday's 65 ter conference. So there is
21 no need to repeat anything. Thank you very much, Your Honour.
22 JUDGE ORIE: Mr. Harmon.
23 MR. HARMON: Your Honour, there are no further issues on behalf of
24 the Prosecutor. Thank you.
25 JUDGE ORIE: Thank you very much. Then I think we have dealt with
1 all the issues that were on the agenda and we'll adjourn this hearing.
2 --- Whereupon the Status Conference adjourned at
3 3.32 p.m.