Tribunal Criminal Tribunal for the Former Yugoslavia

Page 24

1 Thursday, 29 November 2001

2 [Status Conference]

3 [The accused entered court]

4 --- Upon commencing at 2.55 p.m.

5 JUDGE MUMBA: Good afternoon. Please call the case.

6 THE REGISTRAR: Good afternoon, Your Honour. Case number

7 IT-01-47-PT, the Prosecutor versus Enver Hadzihasanovic, Mehmed Alagic,

8 and Amir Kubura.

9 JUDGE MUMBA: May I have the appearances for the Prosecution,

10 please.

11 MR. WITHOPF: Good afternoon, Your Honour, good afternoon

12 counsel. For the Prosecution appear Mr. Michael Johnson, Chief of

13 Prosecutions, Madam Jocelyne Bodson, senior trial attorney, Ms. Cynthia

14 Fairweather, legal officer, Ms. Diana Dicklich, and myself, trial

15 attorney.

16 JUDGE MUMBA: Thank you. May I have appearances for the Defence,

17 please.

18 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honour. I'm

19 Edina Residovic, an attorney from Sarajevo, and I'm here defending General

20 Enver Hadzihasanovic.

21 MS. VIDOVIC: Good afternoon, Your Honour. I'm Vasvija Vidovic,

22 attorney from Sarajevo, and together with Mr. Johnson Jones, I will defend

23 Mr. Mehmed Alagic.

24 MR. IBRISIMOVIC: Good afternoon, Your Honour. I'm attorney

25 Fahrudin Ibrisimovic, and together with Mr. Dixon, we will be representing

Page 25

1 Mr. Amir Kubura.

2 JUDGE MUMBA: I would like to find out from the accused persons

3 whether they can follow the proceedings in a language they understand. Do

4 you understand the proceedings?

5 THE ACCUSED HADZIHASANOVIC: [Interpretation] Your Honour, I do

6 understand entirely.

7 JUDGE MUMBA: Thank you. The next one, please.

8 THE ACCUSED ALAGIC: [Interpretation] Your Honour, Madam Judge, I

9 do understand the language that I can hear in my headphones and the

10 language I can see on the display.

11 THE ACCUSED KUBURA: [Interpretation] Your Honour, I can understand

12 everything. I can hear and see.

13 JUDGE MUMBA: This is a Status Conference under 65 bis. This is a

14 Status Conference under Rule 65 bis. I'm aware that the parties had a

15 meeting with the Senior Legal Officer and the other legal counsel for

16 Chambers, and that several matters were discussed, and the Trial Chamber

17 has been briefed. So this Status Conference is scheduled to hear other

18 matters that may be of concern to the parties, not a review of the meeting

19 that was held, and also to hear whether there are any concerns in the

20 welfare of the accused persons.

21 So I'll start with the Prosecution.

22 MR. WITHOPF: Your Honour, since all of the interesting matters

23 were discussed --

24 THE INTERPRETER: Microphone.

25 MR. WITHOPF: Sorry. Your Honour, since all the interesting

Page 26

1 matters were discussed on the Tuesday meeting, from the Prosecution

2 there's at this stage nothing to raise.

3 JUDGE MUMBA: If I may ask the Prosecution regarding protective

4 measures on the materials that have been served on the Defence and that

5 are going to be served on the Defence. I was wondering whether there are

6 any concerns that they may have.

7 MR. WITHOPF: Your Honour, so far, the supporting material was

8 filed confidentially, and the material cannot be disclosed to the public.

9 Otherwise, we will file a motion requesting protective measures.

10 JUDGE MUMBA: Does that mean that there is any -- there are any

11 protective measures that the Defence may not know about?

12 MR. WITHOPF: I don't think so.

13 JUDGE MUMBA: All right. I wanted to find out from the Defence.

14 MS. RESIDOVIC: [Interpretation] Your Honour, as you have said on

15 the 27th, we looked into 11 issues which are of interest to the parties

16 and the proceedings, and for preparations for the trial, and you have been

17 informed about this. I would just like to add that certain obligations

18 undertaken at that meeting have already been met by the Prosecutor.

19 Yesterday, we were given part of the annexes which we had told

20 them would be of interest to the Defence. I also wish to add that after

21 the meeting, I received your supplemental order concerning the preparation

22 of our motions, and regarding that, I would like to give you my opinion.

23 In your order, it is quite clear that the party wishing to reply

24 to the reply of the other party, based on the motion, needs to ask for

25 leave to do so within three days, based on Article 21(1) of the Statute,

Page 27

1 which provides that all of the parties are equal before this Tribunal. I

2 would like to suggest the following to you: Each party which submits a

3 request will offer its arguments in favour of this request, so that the

4 other party can familiarise itself with the arguments and the other party

5 can reply to these arguments. Very frequently, and I know this based on

6 my experience in working before this Tribunal, there are supplemental

7 arguments given by the opposing party, and we believe that it would be

8 fair to provide an opportunity to the other party to reply to this.

9 So with respect to your order, I would like to suggest the

10 following: Should the Court decide to make a public hearing to allow the

11 parties to state their arguments, then I would agree with your order; but

12 however, should the Court decide to give its opinion based on the written

13 submissions, then I would like to ask you to reconsider your order and to

14 allow the other party to bring out its arguments, because in giving its

15 reply, this party is actually becoming familiar with the arguments of the

16 other side for the first time. I was not aware of this order of yours

17 prior to the meeting we had on the 27th, so this is why I brought this

18 issue up.

19 And one more thing. We have some joint submissions and some

20 individual submissions. To this date, we still do not know, albeit we

21 asked to be granted a public hearing as far as the form of the indictment

22 is concerned, but so far we do not know whether the Chamber has decided to

23 grant us such a hearing or not.

24 Thank you very much.

25 JUDGE MUMBA: If I may answer the last point on the request for a

Page 28

1 hearing on the form of indictment. In practice, the Trial Chambers do not

2 grant oral hearings, for the simple reason that the parties are expected

3 to set out their submissions, the basis for their submissions, and

4 whatever else they want to say in their written motion. This is to avoid

5 having too hearings, because we are quite crowded in terms of courtrooms.

6 So it is the practice that you have to make your submissions in full, so

7 that the other parties are fully informed of the basis of your motion, and

8 then they can respond also in writing. So it is not our practice to have

9 oral hearings, because we always feel that oral hearings, in practice,

10 have always been a repetition of what has been put in writing. So if it's

11 a question of expanding on them, please, the parties must expand on these

12 written motions as much as possible so that nothing is left out, and then

13 the other parties can also respond fully, and then the Trial Chamber can

14 have all the materials they need to decide on the motion.

15 As for the motion on the form of indictment, it is not the

16 intention of the Trial Chamber to have an oral hearing. However, if for

17 any reason any party feels that what they've already submitted may not be

18 sufficient, they should, of course, put in supplementary submissions. We

19 have no intention of holding an oral hearing for this particular motion.

20 The other point you raised about having a short time having to

21 respond, perhaps in three days, that the Trial Chamber will consider. But

22 like I said, from now on the parties must bear in mind that any written

23 motion must be fully defended, fully explored, so that the other party

24 doesn't have a problem responding fully and the Trial Chamber will have

25 all the materials they need to work on their decision, to make a decision.

Page 29

1 MS. RESIDOVIC: [Interpretation] Thank you, Your Honour.

2 JUDGE MUMBA: Any other matters?

3 MS. RESIDOVIC: [Interpretation] I apologise, Your Honour. I would

4 like to be sure that I have understood your reply. Does that mean that we

5 are automatically given leave to reply, or do we need to ask for your

6 leave to reply?

7 JUDGE MUMBA: Which one? Regarding which one?

8 MS. RESIDOVIC: [Interpretation] On any submission, not just our

9 side but any side that is replying to a motion that was submitted.

10 Usually, supplemental arguments are given. Now, does the side that has

11 put in the motion in the first place, does that side have a right to give

12 additional arguments to the reply, or does that side need to ask for leave

13 within three days to give such additional reply?

14 JUDGE MUMBA: Yes. I think we will stick to our routine. The

15 party who wishes to respond will still have to apply for leave. I was

16 discussing the other -- generally, on the motion, when you file any

17 motion. I was trying to say parties should bear in mind that every matter

18 that has to be considered must be put in the written motion, because it is

19 not the practice of the Trial Chamber or, indeed, the Tribunal, to have

20 oral hearings on motions. We try to avoid that as much as possible.

21 So for the order where you already have to apply for leave within

22 three days, that still stands.

23 Any other matters?

24 MS. RESIDOVIC: No, thank you.

25 MS. VIDOVIC: [Interpretation] Your Honour, at our yesterday's

Page 30

1 meeting with your legal officer, we discussed all of the contentious

2 issues. It was especially important for us to have an order issued for an

3 urgent medical examination for General Alagic. We received such order

4 this morning and we would like to thank you for such prompt reaction.

5 As far as the confidential material is concerned, which is

6 something you asked the Prosecution about, we would like to receive the

7 order of Judge Riad, dated 13th July 2001, in which, when confirming the

8 indictment against Hadzihasanovic, Alagic and Kubura, it was also ordered

9 not to publicly disclose supporting material for the indictment. It is

10 our interest to receive a copy of that order, because otherwise Defence

11 will be put in an especially difficult position and it will face a dilemma

12 whether this material, which perhaps also entails confidential material,

13 could be given further to the investigators or not, because the Defence

14 perhaps could violate one of the Tribunal's orders and be held in

15 contempt.

16 JUDGE MUMBA: Yes. If I may answer that one right away. The

17 Trial Chamber did consider this, and we are of the view that if there are

18 any such orders that may not be known by the Defence, the Trial Chamber is

19 going to issue an order lifting protective measures, I think by Wednesday,

20 5th of December, unless the Prosecution files a motion expressing their

21 concerns or whatever protective measures they would like still to persist

22 on the documents already disclosed or yet to be disclosed. So the Trial

23 Chamber is ready to lift them if -- yes.

24 MR. WITHOPF: First of all, there is no confidential material in

25 the supporting materials. That's basically a non-issue. Secondly, the

Page 31

1 Prosecution would have no objections against such an order.

2 JUDGE MUMBA: Yes. Thank you.

3 Any other matters?

4 MR. IBRISIMOVIC: [Interpretation] Your Honour, the Defence for the

5 third accused fully supports the statements of Defence for General

6 Hadzihasanovic and General Alagic, so we have nothing to add.

7 JUDGE MUMBA: Thank you very much. And I take it there are no

8 concerns regarding the status of the accused in the Detention Unit, apart

9 from the motions for provisional release which are still pending.

10 I take it that there is nothing, so I would like to discuss two

11 matters, especially with the Prosecution, which concern Trial Chambers in

12 the -- once the trial starts. And this is the way you handle the

13 Prosecution witnesses. We do have a few problems once the trial starts,

14 and we do notice sometimes that there are witnesses who would very well be

15 well cutted for -- under Rule 92 bis, if the Prosecution were minded to do

16 so. And the reason we have this rule is to try, as much as possible, to

17 cut down on trial time. The Prosecution can have these statements of

18 their witnesses. Of course, it will be open to the Defence to apply that

19 those witnesses be cross-examined if they have any issues with the

20 contents of the statements, and even if those witnesses come for

21 cross-examination only, at least the time will be spared for other

22 matters, for other witnesses who have to be heard orally. So I would like

23 to impress upon the Prosecution as much as possible to use this Rule,

24 within the confines of the Rules -- of the practices where it applies.

25 And the other point which creates problems during a trial are

Page 32

1 documents, exhibits. We do have problems with translation, because of the

2 overload, obviously, but there is a lot of room for improvement in that

3 area on the documents that the Prosecution wish to use during the trial

4 process. Sometimes we have documents which are only photocopies, and

5 sometimes no satisfactory reasons are given why the originals are not

6 available. Sometimes the photocopies are not legible to anyone, and there

7 are cases where even the Prosecution sometimes have not been able to tell

8 the Trial Chamber satisfactorily what the document is all about. These

9 are very important matters, and they do delay proceedings most of the

10 time.

11 On translation, as much as possible, the full translation should

12 be obtained before any document can be used as an exhibit. Trial Chambers

13 are not satisfied with what is called draft translations.

14 The other problem with documents we experience during the trials

15 is that sometimes the Prosecution will hand over a bunch of documents to

16 the Defence without describing each of those documents in the bundle, and

17 when the trial starts, the Defence will say that they were never given --

18 such a document was never disclosed, simply because it was among a bunch

19 of documents not properly described to the Defence. That should be

20 avoided.

21 These points relate also to the Defence. It's also important for

22 them to handle their documents properly, to avoid delays, to avoid

23 adjournments once the trial starts. And I also want to explain to the

24 Defence the processes under Rule 92 bis. It does not mean that if a

25 statement of a witness is submitted by the Prosecution, then the Defence

Page 33

1 are accepting all the contents of that statement. All it means is that

2 instead of having the witness come into the courtroom to give evidence

3 orally, we are serving on time, we have the written statement there, and

4 the Defence are free to ask that that witness be cross-examined fully on

5 all the points that are in the statement.

6 I think I will also discuss the possible trial dates in the view

7 of the Trial Chamber. Of course, the Trial Chamber has been informed by

8 the Senior Legal Officer about the concerns of the Prosecution, and also

9 the concerns of the Defence. But as both parties are aware, the Tribunal

10 is trying very hard to get these cases going, because of the other cases

11 that are coming up, and more and more may get arrested and others may

12 surrender to the Tribunal. So we would very much like to move on with the

13 backload of trials. This is why we have got ad litem Judges. At any time

14 a Trial Chamber may be constituted to go ahead and try any cases that may

15 be ready.

16 And looking at the work that the parties are doing so far and what

17 is yet to be done, the Trial Chamber is of the view that it is possible

18 for this trial to commence in the month of April, 2002, and the Trial

19 Chamber would like to move the parties to work towards that month as any

20 of the dates that after the Easter holidays. The Trial Chamber is likely

21 to issue a Scheduling Order for the trial to commence then.

22 Of course, that means working at full speed, dealing with the

23 preparations that may come under the Rules, and also it means for the

24 Defence also to work at full speed and get on with the preparations for

25 the defence so that we comply with the pre-trial rules and complete the

Page 34

1 pre-trial procedures as early as possible next year.

2 The Trial Chamber does not see any other matters that may hinder

3 the progress of the pre-trial stage and the possibility of having the

4 trial start in the month of April next year. I hope that is understood,

5 and I do hope that the parties will come up during their meetings with the

6 Senior Legal Officer, with whatever problems they may have. In the

7 meantime, the Trial Chamber will deal with the motions that are pending,

8 hopefully to have the decisions made before the recess this year.

9 MR. JONES: Your Honour, there is a Defence objection to

10 commencing in April next year.


12 MR. JONES: I'll turn to my learned friend Ms. Residovic in a

13 moment to address you on that. But as Your Honour mentioned, there were

14 extensive discussions on this subject with your Senior Legal Officer at a

15 Pre-Status Conference three days ago at which we detailed at great length

16 the tremendous difficulties with documents that the Defence need to

17 thoroughly examine in order to fully benefit from the right which the

18 accused enjoys to have adequate facilities and time to prepare their

19 defence. And moreover, there is, of course, the right to a fair trial

20 which the accused enjoy.

21 I would submit that you can have a trial until April or you can

22 have a fair trial, but you can't have both in April. It's simply too soon

23 and it's a matter of some dismay to hear you announce that, given at the

24 end of the discussions we had on Tuesday it was agreed by the Senior Legal

25 Officer and by the Prosecution that it would be inappropriate at this

Page 35

1 moment to set a trial date. That was given the fact that preliminary

2 motions have not even yet been fully disposed of. Disclosure, pursuant to

3 Rule 66(A)(2) only began two days ago and it's not envisaged that that

4 will be completed until the end of January next year.

5 Until we have full disclosure and the preliminary motions fully

6 disposed of so that the accused know the indictment they will actually be

7 facing at trial, it's unrealistic to posit a date so early next year. So

8 I would request Your Honour to reconsider, and the Chamber to reconsider,

9 that indication of a trial date.


11 MR. JONES: In the interests of a fair trial.

12 JUDGE MUMBA: The Trial Chamber is very much aware of the rights

13 of the accused and is very much aware of the stages that the pre-trial

14 stage has to go through, and is also fully briefed about the documentation

15 that the Defence have to go through, but the Trial Chamber is of the view

16 that given all the time that we have from now on up to the end of, say,

17 February, the documentation should have been completed by then, and also

18 the fact that -- the Prosecution appear to have made an indication as to

19 when all the documents from their archives, which are under discussion

20 between the parties, are likely to be taken back to the archives. So the

21 Trial Chamber is of the view that that will give the Defence ample time.

22 MR. JONES: If I may address you as to that. I think it would be

23 useful to have an indication from the Prosecution of how long it took them

24 to review those archives. From what I understood from our meeting on

25 Tuesday, it took a team of the Prosecution many months to review those

Page 36

1 documents, and I would ask the Prosecution to address us as he did on

2 Tuesday, as to the numbers of documents, the tens of thousands of

3 documents in those archives which are relevant to this case and that

4 should throw light on the difficulties we're facing.

5 JUDGE MUMBA: Yes, but what the Prosecution were doing at the

6 time, really they weren't working on the stages of this -- of only this

7 case. They were looking at the documents as a whole, as the Prosecution

8 as a whole, even including their concerns on the other cases.

9 MR. JONES: I think it would be useful to hear from the

10 Prosecution on that matter.

11 JUDGE MUMBA: Yes, but it may be useful during your meetings

12 maybe, but I don't think that the Trial Chamber, or indeed this Status

13 Conference, is going to set any deadlines for that sort of preparation.

14 Of course, usually the Trial Chamber would always give sufficient time to

15 the parties when there is a good reason to extend the time.

16 MS. RESIDOVIC: [Interpretation] Your Honour, do you allow me to

17 address you regarding this matter as well?

18 JUDGE MUMBA: Very, very briefly, because, like I said, this is a

19 Status Conference, not a review of the meeting which you had with

20 counsel -- with the Senior Legal Officer. Very, very briefly, you can go

21 ahead.

22 MS. RESIDOVIC: [Interpretation] Your Honour, the interests of my

23 client is to schedule the trial without further delay, but his greatest

24 interest is to have a fair trial. This is why I shall confirm the

25 arguments that we brought out during the meeting, as Mr. Jones has

Page 37

1 described. But based on what the Prosecutor has said, we have to check

2 30.000 documents that are yet to be returned to the archives of Bosnia and

3 Herzegovina, and I would like to ask you to reconsider the fact that we

4 are especially interested in the material from the Blaskic, Kupreskic, and

5 Kordic trials, because in the Blaskic case, at the end of the trial, the

6 Honourable Judge Jorda issued an order to the Prosecution to start

7 investigating those areas where the victims were Croatian soldiers or

8 civilians, which means that that entails some further 10.000 of documents

9 of public nature. And as far as our request to gain access to the

10 confidential documents and testimonies from those cases is concerned, that

11 has not been decided upon yet.

12 So we are hereby asking you and telling you that we took into

13 account all of the arguments, and despite all of our efforts, we were not

14 able to come up with a proposed date for the beginning of the trial.

15 Thank you.

16 JUDGE MUMBA: Yes. I've taken into account all your submissions

17 and your concerns, and of course the Trial Chamber is also interested in a

18 fair trial. That is non-negotiable. That is well understood. But the

19 Trial Chamber would like to impress upon the parties that it is important

20 that the trial starts most, most likely at least midway next year, at

21 least next year, not later than next year. And of course the Prosecution

22 have understood the concerns. They know what is going on and I'm sure

23 that they will oblige and they will take their concerns -- the concerns of

24 the Defence very seriously. So I don't think that the Defence, indeed,

25 the accused, should be unduly worried about whether or not their trial

Page 38

1 will be compromised as far as fairness is concerned. That will never

2 happen, not here in the Tribunal.

3 MS. RESIDOVIC: [Interpretation] Thank you very much for your

4 understanding, Your Honour.

5 JUDGE MUMBA: The Prosecution, any other matters?

6 MR. WITHOPF: The Prosecution only wants to raise one issue. Out

7 of the hundred witnesses we are currently envisaging, there are around 65

8 crime-based witnesses, and the Prosecution invites the Defence again --

9 JUDGE MUMBA: I hear 65 --

10 MR. WITHOPF: Crime-based witnesses. The Prosecution wants to use

11 this opportunity to repeatedly invite the Defence to enter into

12 stipulations and to think about the opportunities that are provided by

13 Rule 94(B).

14 JUDGE MUMBA: Yes. This reminds me -- I also wanted to find out

15 about expert witnesses. Do you envisage, does the Prosecution envisage

16 having any expert witnesses?

17 MR. WITHOPF: Not at the current stage.

18 JUDGE MUMBA: Not at the current stage. Yes. Of course, usually

19 in practice what I have observed is that as soon as witness statements are

20 provided or detailed summaries are provided to the Defence, usually it

21 becomes much easier for them to get instructions and be able to stipulate

22 or make admissions on any of the matters that may be raised by the

23 indictment. So it is really up to the Prosecution to move in this

24 direction much faster, and then the Defence can always handle the matter

25 also much more expeditiously.

Page 39

1 MR. WITHOPF: With the supporting materials, we already provided

2 84 witness statements and we are currently envisaging to rely on only 15,

3 1-5, witness statements, so the Defence is already aware of almost every

4 single witness statement that could be the basis for stipulations.

5 JUDGE MUMBA: All right. I'm sure the Defence have understood and

6 they know what their obligations are. In the meantime, the Senior Legal

7 Officer will continue discussing the stages of the preparations between

8 the parties and may also schedule meetings for matters to follow the

9 pre-trial stages much more fully and comply with the deadlines.

10 Unless there are any other matters, otherwise this is the end of

11 the Status Conference and we shall rise.

12 --- Whereupon the Status Conference adjourned at

13 3.27 p.m.