Tribunal Criminal Tribunal for the Former Yugoslavia

Page 148

1 Thursday, 18 July 2002

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 2.16 p.m.

5 JUDGE MUMBA: Please call the case.

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

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

8 and Amir Kubura.

9 JUDGE MUMBA: This is a Status Conference. May I have appearances

10 for the Prosecution, please.

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

12 counsel. For the Prosecution appear Mr. David Re, trial attorney;

13 Mr. George David Hackney, legal officer; Ms. Diana Dicklich; and myself,

14 Ekkehard Withopf, acting senior trial attorney.

15 JUDGE MUMBA: Thank you. Appearances for the Defence.

16 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honour. On

17 behalf of the defence of Mr. Enver Hadzihasanovic, I'm Edina Residovic

18 from Sarajevo and with me is my colleague Mr. Stefane Bourgon from --

19 MS. VIDOVIC: Good afternoon, Your Honours. My name is

20 Vasvija Vidovic I'm an attorney from Sarajevo and with Mr. John Jones,

21 attorney from London. I'm the Defence counsel for Mr. Mehmed Alagic.

22 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honour. The

23 Defence counsel for Mr. Amir Kubura. My name is Fahrudin Ibrisimovic and

24 with me is Mr. Rodney Dixon.

25 JUDGE MUMBA: Thank you. We'll begin with outstanding motions.

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1 There is the Defence joint [Microphone not activated] arising from the

2 amended indictment. The Trial Chamber has got [Microphone not

3 activated] -- The Trial Chamber has received all the submission that are

4 necessary, and it is not going to have any oral hearing. The decision on

5 this motion should be expected soon after the summer recess.

6 The other motion which is on the form of amended indictment, it is

7 also dependent on this first one, on the jurisdiction, so it will be also

8 rendered following soon after the first one, the first decision has been

9 rendered. But that will depend on whether or not there is an appeal by

10 whichever party will be affected, will be adversely affected by the

11 decision. So that the motion, the second one, would only be decided after

12 the final decision, whether that will be the Trial Chamber decision or the

13 Appeals Chamber decision.

14 The next matter I want to discuss is the motions related to

15 variations of conditions of provisional release so far before the Trial

16 Chamber. The Trial Chamber has been informed that during the meeting

17 under Rule 65 ter, the Prosecution did indicate that they have no

18 objection to the variation sought by the two accused persons. I just

19 wanted confirmation from the Prosecution to be on record.

20 First I'll deal with the motion by Mr. Kubura, and especially

21 paragraph 3 of the variations that they seek, that is paragraph 3 A, B, C,

22 and D. I would like to hear the Prosecution whether they have looked at

23 these particular paragraphs and they maintain their position that they

24 have no objection.

25 MR. WITHOPF: Your Honour, prior to the filing of the Defence

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1 motions, there has been a series of meetings between the Defence counsel

2 and the Prosecution. The changes have been discussed to some length. The

3 submission of the Defence that the Prosecution would not oppose the

4 amendments is correct. For the record, I again repeat it: We will not

5 oppose such modifications.

6 JUDGE MUMBA: Very well. Then the Trial Chamber will go ahead and

7 make its decision.

8 Regarding the other one, that is Enver, again, the variation with

9 regard to paragraph 23 A, B, C, and D, is it the same answer by the

10 Prosecution?

11 MR. WITHOPF: Again, Your Honour, it's the same answer. The

12 Prosecution doesn't oppose such modifications.

13 JUDGE MUMBA: Thank you. Very well. The Trial Chamber, again,

14 will make its decision as soon as possible.

15 The Trial Chamber was informed about the efforts being made by

16 both parties regarding disclosure matters and the various documents with

17 the various authorities and archives, so that there is nothing to be

18 discussed during this Status Conference.

19 The other matters regarding adjudicated facts, agreed facts, and

20 also the trial dates again are dependent on the decisions of the Trial

21 Chamber on the motions that are outstanding, that is, on jurisdiction and

22 as well as on the form of the amended indictment. So that at the moment

23 the Trial Chamber is of the view that it's premature to make any programme

24 or set any deadlines until those two motions have been decided.

25 The Trial Chamber would like to know whether there are any other

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1 matters the parties would like to raise. The Prosecution?

2 MR. WITHOPF: Your Honour, not on the side of the Prosecution.

3 JUDGE MUMBA: Thank you.

4 The side of the Defence? The Trial Chamber has been following the

5 reports filed by the government on the observance of the conditions of

6 provisional release, and so far the Trial Chamber is satisfied with what

7 is going on and how the accused persons are observing those conditions of

8 their provisional release.

9 Are there any matters that the Defence wish to raise? Yes.

10 MS. VIDOVIC: [Interpretation] Yes, Your Honour.

11 Unfortunately, the Defence for General Alagic had some further

12 complications as regards his provisional release. We did inform the

13 Trial Chamber, through the legal officer, about the fact that

14 General Alagic has received a final judgement, and there have been some

15 problems relating to the fact that he would perhaps have to serve his

16 sentence, but by filing an additional appeal, we managed to postpone the

17 serving of the sentence. This, however, has made it a bit more

18 complicated for us to file our motion for the amendment of the conditions

19 for the provisional release, especially in view of the fact that his

20 health is quite bad, and we wanted to make it possible for him to come to

21 Sarajevo, but in order to do so, we would need appropriate medical

22 documents. We have reached an agreement with the Prosecution whereby we

23 would obtain all the necessary documents and we would file the same motion

24 as the Defence for Mr. Hadzihasanovic and for Mr. Kubura.

25 From our discussion with the Prosecution, we understood that the

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1 Prosecution would not be opposed to our motion if we sought the same terms

2 and conditions that the Defence counsel for Hadzihasanovic and Kubura did,

3 and this is what I wanted to get from the Prosecution today, in other

4 words, their confirmation that they would not be opposing our motion. We

5 will be filing our motion forthwith, the motion to vary the conditions in

6 the same way that the defence for Hadzihasanovic and Kubura did.

7 JUDGE MUMBA: Very well. I'm of the view that until your motion

8 is on paper and the Prosecutor is able to see that the conditions are as

9 agreed, I don't think I will press the Prosecution for any confirmation

10 that they will not oppose the motion. So I will leave it until the motion

11 is on paper, and then the Prosecutor will say whatever they feel like

12 saying on the motion once they've read the conditions being sought by the

13 Defence.

14 MS. VIDOVIC: [Interpretation] Thank you, Your Honour.


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

17 yourself, we discussed in great detail, at a conference pursuant to

18 Rule 65 ter about the exchange of documents, disclosure of documents with

19 the Prosecution, and about the significant progress that has been

20 achieved. However, I would like to point out a joint motion by the

21 Defence counsel. It's an application by all the Defence counsel for

22 instructions from or guidance from the Trial Chamber as to how to proceed

23 in a situation where we want to establish communication with the

24 Prosecution in order to secure access to the archives that are in the

25 possession of the Prosecution. I'm sure that you are seized of all this.

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1 We want to say that the Defence counsel would like to be in

2 compliance with the Rules; however, the Rules do not regulate every

3 possible situation, and any guidance for our procedures should be

4 Articles 20 and 21 of the Statute. This should govern our behaviour. In

5 other words, we should have such access to the documents as to assure a

6 fair and expeditious trial. I'm referring to a situation in which the

7 Prosecution responded very well as regards to the documents pertaining to

8 the Sarajevo collection. Although they did not have the obligation to

9 grant us access to the entire archive, the Prosecution, however, did that

10 in order to facilitate the preparation of the Defence and to speed up the

11 proceedings.

12 We feel that the Prosecution should act in the same manner if, for

13 instance, the documents in question are documents from the Republic of

14 Croatia, especially the documents stemming from the HVO in the period

15 covered by the indictment, relating to the period covered by the

16 indictment, and to act in the same manner when the documents in question

17 are those that come from the ECMM. We know that this is not an obligation

18 of the Prosecution, but it is the fact that these archives are in the

19 possession of the Prosecutor, and this fact may make it easier for all of

20 us, especially in light of our duty to prepare fully for the trial, and it

21 would also save a lot of funds and resources for the Tribunal, and it

22 would make it possible for all of us to complete the pre-trial proceedings

23 quickly.

24 If this doesn't happen, we will be forced to seek for an order to

25 be issued by this Trial Chamber, either to the state authorities, relevant

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1 state authorities, or to the international organisations, and with a great

2 deal of efforts and expenditure of resources of the Tribunal, we would

3 achieve the same goal. That is why we would be very grateful if the

4 Trial Chamber could issue some kind of a guidance in this respect, and if

5 the Trial Chamber could confirm that our efforts in this respect are going

6 in the right way. Thank you.

7 JUDGE MUMBA: Very well. I would like to hear the Prosecution on

8 that, if anything.

9 MR. WITHOPF: Your Honour, first to the situation regarding the

10 defendant Alagic, it's correct that the Defence counsel and Prosecution

11 had a preliminary meeting on this issue. A number of details have been

12 discussed; however, the Prosecution is of exactly the same opinion as the

13 Pre-Trial Judge. First we want to get the motion, we want to get all

14 annexes and disclosures, and after we've had a chance to read the motion

15 and to review the annexes and the disclosures, the Prosecution will make

16 its final decision.

17 Regarding the second issue, access to archives, there are two

18 archives in question. The first one is the ECMM or EUMM archive. The

19 second one is the Croatian archive.

20 The situation is as follows: On 5 March this year, the Defence

21 requested from the Prosecution access to both archives, the ECMM archive

22 and the Croatian archive. This request has been answered by a letter of

23 the Deputy Prosecutor of early April this year. There are two sets of

24 considerations that have to be made, the first that is a legal one and the

25 second set is a factual, practical one, the letters referring to

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1 resources.

2 There are a number of legal considerations to make with regard to

3 the ECMM and EUMM archive. I understand that you have been briefed about

4 the meeting we had two days ago --


6 MR. WITHOPF: -- a 65 ter conference. However, I want to stress,

7 there are Rule 70 limitations to consider -- to be considered by the

8 Prosecution. All documents of the ECMM archives or materials are under

9 Rule 708 restrictions. The Prosecution would have to ask ECMM to

10 lift all these restrictions. Otherwise, the Defence stressed in their

11 request that it doesn't consider this request as a request for reciprocal

12 disclosure. The Prosecution is of the exactly opposite opinion. This is

13 a request for reciprocal disclosure.

14 We ask the Defence to explicitly state reciprocal disclosure, to

15 trigger reciprocal disclosure. We got the answer, "No, we don't do so."

16 Regarding the Sarajevo collection, it's not an analogous situation. As we

17 all know, as the pre-trial judge knows, as Defence counsel knows, we got

18 the materials on a basis of a consensual search. We got the originals.

19 We had to be considered as custodians of these materials. It took some

20 time to provide the Bosnian government with copies, as agreed upon, and

21 therefore the Prosecution found it appropriate to disclose all the

22 documents that form part of the Sarajevo collection on CDs. That's a very

23 difficult -- a very different situation from the ECMM archive documents.

24 I will now turn to the practical reasons that involve a lot of

25 resource issues. There is an estimate, and I repeat, it's an estimate -

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1 even a rough estimate - that there are about 2.000 reports produced by

2 ECMM members only covering the relevant area and the relevant time frame

3 for the indictment, meaning Central Bosnia, meaning January 1993 to

4 January 1994. This means several thousands of pages. If the Prosecution

5 would be willing to provide, and I repeat, the Prosecution is not willing

6 to provide at this point in time such access, but if it would be willing

7 to provide access to such an amount of material that would include a room

8 to be exclusively used by Defence counsel for a number of weeks, at least

9 two OTP staff members being around all the time, that would cause

10 interruption of the usual proceedings of the Evidence Unit, possibly

11 leading to an interruption of their services for other trials. Finally,

12 it would set a precedent for other Defence teams, leading to a further

13 drain of the Prosecution resources.

14 To sum this up, the Prosecution currently is not under any

15 obligation to disclose ECMM archives to the Defence. The Defence has not

16 regard Rule 66(B), and even, and I really want to stress it, even if they

17 would trigger reciprocal disclosure, they would not get access to all ECMM

18 archives. They would only get access to what is to be considered as

19 material to the Defence. So at this point in time, the Prosecution sticks

20 to its position that it has taken in April this year.

21 Regarding the Croatian archive, the second archive, that's a very

22 similar situation, Your Honour. It's nearly identical. There's only one

23 exception. Rule 70 restrictions do not apply to all materials. Again,

24 practical issues involved. The total number of pages of the Croatian

25 archives are some 100.000 pages - I repeat, some 100.000 pages.

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1 20 per cent of these materials may be relevant to the Hadzihasanovic and

2 others case, meaning some 20.000 pages. Again, the impact on the OTP

3 resources would be very a very significant one, but again, I repeat,

4 there's no legal reason to provide access to such archives.

5 JUDGE MUMBA: Thank you. I'm of the view that when discussing

6 these Rules on disclosure, as much as possible, the Trial Chamber expects

7 the parties to cooperate. But where there are legal issues that -- on

8 which the parties differ, obviously whichever party is affected, they can

9 apply to the Trial Chamber by motion, and of course the practice is clear

10 by now, because we have had so many such applications in other cases that

11 the party making the application must show sufficiently to the Trial

12 Chamber that what they're seeking -- that they're entitled to what they're

13 seeking.

14 Matters of disclosure can be quite expensive because of the

15 problems of translation, and also, as the Prosecution have explained.

16 Usually there will be so many documents and at the end of the day only

17 very few may be required by either party. So that the Trial Chamber would

18 like, as much as possible, to encourage the parties to discuss and

19 cooperate.

20 After all, in this particular case, there appears to be quite

21 ample time left to the parties to deal with this, pending the decisions of

22 the Trial Chamber on their outstanding motions, so that by the time the

23 decisions are finalised, the Trial Chamber expects that most of the

24 differences between the parties regarding disclosure will have been ironed

25 out. Otherwise, like I said, either party is open to apply by motion to

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1 the Trial Chamber to be able to issue the relevant orders.

2 Any other matters? The Prosecution? The Defence? I see none. I

3 think that's all. We've come to the end of the proceedings on the

4 Status Conference. Until the next time, we shall adjourn. The Court will

5 rise.

6 --- Whereupon the Status Conference adjourned at

7 2.39 p.m.