Tribunal Criminal Tribunal for the Former Yugoslavia

Page 48

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

Page 49

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

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1 addition to the agenda requested?

2 MR. HARMON: There's nothing on behalf of the Office of the

3 Prosecutor..

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.

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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.

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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

4 institution.

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

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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

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13 English transcripts.













Page 55

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

Page 56

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.

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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

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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.

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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

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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.