Tribunal Criminal Tribunal for the Former Yugoslavia

Page 18

1 Friday, 12 April 2002

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 3.05 p.m.

5 JUDGE KWON: Good afternoon. You can hear it?

6 MR. BALIJAGIC: [Interpretation] [No interpretation].

7 JUDGE KWON: Madam Registrar, would you kindly call the case.

8 THE REGISTRAR: Case number IT-01-48-PT, the Prosecutor versus

9 Sefer Halilovic.

10 JUDGE KWON: May I have the appearances.

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

12 THE INTERPRETER: Microphone, please.

13 MR. WITHOPF: I apologise. Good afternoon, Your Honour, good

14 afternoon, counsel. For the Prosecution appear Mr. Carl Koenig on my

15 right-hand side, trial attorney, Mr. David Le. The case manager on my

16 left-hand side, and myself Ekkehard Whitopf, Senior Trial Attorney.

17 JUDGE KWON: Thank you, Mr. Whitopf. And for the Defence?

18 MR. BALIJAGIC: [Interpretation] Good afternoon, Your Honour. My

19 name is Faruk Balijagic. I am the Defence counsel for Mr. Sefer

20 Halilovic.

21 JUDGE KWON: Thank you, Mr. Balijagic.

22 MR. BALIJAGIC: [Interpretation] Thank you.

23 JUDGE KWON: Well, the first Status Conference took place on

24 January 8th, if I'm correct, and this is the second Status Conference. I

25 think there are several matters to be considered during this conference,

Page 19

1 one of which will be the Prosecution's motion regarding the application

2 for the extension of time. But before we get to that matter, I'd like to

3 firstly deal with the issue of Defence counsel.

4 I heard, Mr. Balijagic, that you were planning to withdraw from

5 the case due to your illness and to have co-counsel, and I noticed that a

6 legal assistant has been -- was assigned to you last month. So I'd like

7 to hear from you what your current position is. Yes. Thank you.

8 MR. BALIJAGIC: [Interpretation] Your Honour, I would like to thank

9 the Registry. I was assigned a legal assistant three or four days ago.

10 It is Dijana Kreho an attorney. I would like to familiarise her with the

11 case. In the previous meetings with Ms. Featherstone, we did broach this

12 issue, but it will not affect the course of the proceedings as I will

13 inform you in more detail in my later pleadings.

14 JUDGE KWON: Could you also make any comments on the matter of

15 co-counsel --

16 THE INTERPRETER: Microphone, please.

17 JUDGE KWON: Yes. Could you make any comments on the matter of

18 co-counsel as you said previously, or have you applied for the assignment

19 of co-counsel yet?

20 MR. BALIJAGIC: [Interpretation] Ms. Dijana Kreho has already been

21 appointed, and she is in fact getting familiar with the case and will soon

22 be ready to -- will know everything that there is to know about the

23 indictment and the Defence moves so far. So I would like to assure you

24 that there will be no delays in the proceedings because of this. And I am

25 also duty-bound to let you know that 15 days ago I submitted a motion to

Page 20

1 Chief Prosecutor Carla Del Ponte containing 49 pages, with a number of

2 documents containing some facts which can be verified and this is all in

3 support of our motion to withdraw charges against Sefer Halilovic. The

4 Chief Prosecutor has not yet received this motion, but she will be

5 considering it in due time.

6 Do I have to make any other clarifications?

7 JUDGE KWON: Well, those kinds of matters regarding substance,

8 substantial matter, will be dealt with separately, and the main purpose of

9 this pre-trial procedure is to deal with some procedural matters and to

10 make the case get ready for the trial. So that will be dealt with later

11 on. But could you make comment, did I hear about the resignation of

12 yourself? I'm clarifying to you whether you are going to resign or not,

13 because I heard that.

14 MR. BALIJAGIC: [Interpretation] No. No. I am not going to

15 resign. I simply said that I need an assistant or co-counsel to be

16 assigned to me because if my illness progresses, that would make it

17 possible for me to withdraw at that stage and that person could then

18 replace me. And according to what I can say right now, it seems likely

19 that I will withdraw from the case, but I have to abide by the wishes of

20 my client.

21 JUDGE KWON: Very well. There might have been some

22 misunderstanding. Thank you, Mr. Balijagic.

23 MR. BALIJAGIC: [Interpretation] Thank you, Your Honour.

24 JUDGE KWON: Okay. I remained seized of the Prosecution's

25 motion. I have them in front of me, the motion of 28th of March in which

Page 21

1 the Prosecution has requested an extension of time to file a pre-trial

2 brief due to reasons of untranslated materials and the belated date that

3 an expert report can be produced.

4 However, it is my understanding also that the Prosecution is able

5 to submit a pre-trial brief at the end of this month, but it would like to

6 have this one as a provisional one with the final brief being submitted in

7 September.

8 In this regard, I'd like to hear your submissions, but please bear

9 in mind that I have the written motion already. So please make it as

10 brief as possible.

11 MR. WITHOPF: Your Honour, I will make it as brief as possible.

12 At the latest Status Conference held on 8 January, Your Honour ordered the

13 Prosecution to file its pre-trial brief by 29th of April, 2000. The

14 Defence was ordered to file its pre-trial brief on 31st July, 2002. Since

15 the last Status Conference, a number of issues have arisen that have

16 serious impact on the further proceedings, especially on the further

17 schedule. Those developments have intensively been discussed with the

18 officer on the Rule 65 ter meetings and I am aware that you have been

19 comprehensively been briefed about these meetings. All of these

20 developments and especially impact on the schedule on the future

21 proceedings were not foreseeable prior to the last Status Conference in

22 January 2002. Some of them are actually caused by the Defence and you

23 addressed one of them, especially since my learned colleague, Mr.

24 Balijagic, on the Defence side has chosen to withdraw from the Defence.

25 There are a number of issues I would like to address. The first

Page 22

1 is the withdrawal of Mr. Balijagic as Defence counsel. The second one is

2 a jurisdictional issue that has been arisen in the Hadzihasanovic and

3 others case, and that will play a crucial role in this case as well.

4 The issue of stipulation would be the third issue I would like to

5 address, and again we will address the issue of translations, the usual

6 bottleneck of ICTY proceedings and finally the issue of the military

7 expert.

8 I very much appreciate that you, Your Honour, already have

9 addressed the issue of a potential or a likely withdrawal of Mr. Balijagic

10 from his position as a Defence counsel for Mr. Halilovic, the accused.

11 And again, what he told us today is confusing, and it's not the first time

12 confusing.

13 I will give you a brief summary what happened. Mr. Balijagic, on

14 the occasion of the Rule 65 ter meeting in February this year, for the

15 first time announced that he would withdraw from the Defence due to health

16 problems. He repeated this announcement on 21st of March on the occasion

17 of the last Rule 65 ter meeting.

18 In February, Mr. Balijagic stressed that he would get an assistant

19 soon. In March, meaning 21st March 2002, but however, Mr. Balijagic had

20 not yet a co-counsel assign. He then announced that his client, the

21 accused would like to hire an US attorney. Again today in a meeting we

22 had with Mr. Balijagic a few hours ago, he corroborated as he did in front

23 of you his announcement to resign without being specific as to the date

24 when this will happen. He announced, however, at least to us that this

25 will happen very soon, in the next future. According to him, and this has

Page 23

1 been corroborated now, he got an assistant signed only three to four days

2 ago.

3 Mr. Balijagic is still not in a position to clarify as to whether

4 this further lawyer would take over as a Defence lead counsel after he has

5 withdrawn. That means we know that there will be a change in the person

6 of the Defence counsel in near future, very soon. We do not know,

7 however, when this will happen and who will succeed him.

8 From the beginning of the pre-trial proceedings, Your Honour,

9 until today, Mr. Balijagic has been the only, and I repeat it, the only

10 Defence counsel for the accused. According to himself, he only since for

11 a very short period of time has an assistant, we just heard, since three

12 to four days. He never had and he still doesn't have a Defence

13 co-counsel. If he would withdraw in near future, meaning only a few

14 months before the Defence is supposed to file its pre-trial brief, it can

15 be anticipated that a successor, whoever it may be, will not be in a

16 position to familiarise him or herself with the complex factual basis of

17 this case and the even more complex legal issues involved in the present

18 case, whose knowledge are crucial for any substantial defence of the

19 accused.

20 The new Defence counsel, the new lead Defence counsel, would have

21 to go through more than 100 witness statements that form part of the

22 supporting materials. He or she would have to familiarise him or herself

23 with a significant number of documents that form part of the supporting

24 materials. He or she, furthermore, would have to read not only the

25 additional material the Prosecution disclosed in fulfilling its disclosure

Page 24

1 obligations but also a significant amount of material, hundreds of pages,

2 mainly in B/C/S, that Mr. Balijagic, in support of the defence of his

3 client, provided to the Prosecution a few weeks ago.

4 In addition, any new Defence counsel, he or she would have to

5 develop his own or her own Defence strategy. This Defence strategy, Your

6 Honour, may be very, very different from the Defence strategy of the

7 current Defence counsel. He or she eventually would have to file a

8 Defence pre-trial brief and to file it not later than 31st of July

9 2002. That's the situation in a nutshell, Your Honour.

10 A reasonable new Defence counsel, even the very best one, Your

11 Honour, would not be able to do all this with the diligence that is

12 necessary.

13 JUDGE KWON: Mr. Whitopf, I'm sorry to interrupt you, but having

14 heard from Mr. Balijagic that he would not resign as counsel, can you move

15 on to another topic?

16 MR. WITHOPF: Yes. I want to stress that the --

17 JUDGE KWON: I can get back to the counsel issue later.

18 MR. WITHOPF: No, only one sentence. The information we got from

19 Mr. Balijagic is each time confusing. The one time he says he will get an

20 assistant, the one time he says he will get a co-counsel, the next time he

21 says he will withdraw, the next time he says he will not withdraw. That's

22 the situation we have to address and you have, as the Pre-Trial Judge in

23 this matter, you have to take in consideration.

24 JUDGE KWON: But having heard that, does it have anything that has

25 something to do with the timing for the Prosecution to file a pre-trial

Page 25

1 brief?

2 MR. WITHOPF: It has something to do, otherwise I wouldn't have it

3 outlined to such an extent. It definitely means a delay, a delay caused

4 by the Defence, a significant delay caused by the conduct of the Defence

5 side. This delay is caused irrespective of the filing date of the

6 Prosecution's pre-trial brief. Keeping this in mind, it doesn't make any

7 sense to maintain the order that the Prosecution is obliged to

8 file its pre-trial brief by 20 April 2002 since the Defence would never be

9 able to file the response, the Defence pre-trial brief, on 31st of July

10 2002.

11 But I will move on to the next issue. That's even a more

12 interesting and a more crucial issue. That's the jurisdictional issue.

13 The Defence in the case the Prosecutor versus Hadzihasanovic and

14 others has raised the issue as to whether Article 7 (3) of the Tribunal

15 Statutes is applicable in a situation of a non-international armed

16 conflict, in a non-international armed conflict. The applicability of

17 Article 7(3) in a non-international armed conflict is an issue that plays

18 a role in this matter as well. It is a preliminary issue, Your Honours.

19 As in the Hadzihasanovic and others case, traditional logic

20 requires that the present case -- that we get a decision in the present

21 case or in the Hadzihasanovic and others case on this issue prior to any

22 other movements. The Trial Chamber in Hadzihasanovic, as you already

23 know, has issued a Scheduling Order. The parties in that case have to

24 file final submissions by the end of 2002. Afterwards, the Trial Chamber

25 in Hadzihasanovic and others has to issue its decision. It's obvious that

Page 26

1 the party's whose submissions will not be granted will appeal. Whatever

2 the decision will be, a binding -- a binding decision by the Appeals

3 Chamber will only be issued late fall this year, maybe even later.

4 That's the second issue, Your Honour. There's a third issue, and

5 unfortunately this issue concerns stipulations.

6 In January, we were very optimistic that Mr. Balijagic and the

7 Prosecution would be able to find some agreements on facts. But

8 unfortunately, this did not happen. We submitted Mr. Balijagic a

9 comprehensive list of facts we would like to get his opinion. We got a

10 response, but it was not a response in a yes or no format. We got a

11 response making comments to certain facts. That's obviously not the

12 format you need for stipulations.

13 The Prosecution submitted another set, a very similar one, on 21st

14 March, and only today we got the answer of the Defence outlining that the

15 accused is not willing and not ready to enter in any discussions with the

16 Prosecution on stipulations. That is a new movement and that to a high

17 extent changes the situation as compared to the situation in January this

18 year. Again, another reason to defer the current deadline of a final

19 pre-trial brief.

20 Let me now address the issue of translations, and I'm sure Your

21 Honour is very familiar with the overall situation on translations.

22 We all know that translations are the bottleneck of all ICTY

23 proceedings. The Prosecution in this matter over the last month did

24 everything possible to significantly narrow down the amount of material

25 that needs to be translated, and I'm sure you are aware of the discussion

Page 27

1 we had during the Rule 65 ter meetings.

2 We have 1.171 pages to be translated by CLSS, but this is only the

3 material that was provided to us prior to February 2002, prior to the fact

4 that we got a large amount of additional material by both, by the Defence

5 and the Bosnian government in answering a number of Prosecution requests.

6 These documents are ranging in a number of thousands of pages that may

7 have serious impact on the present case, both culpatory and exculpatory

8 nature.

9 The area in particular to be considered are JNA manuals which the

10 accused, in the course of his interview as an accused, in late fall last

11 year provided the Prosecutor with. Translations of these manuals need to

12 be provided to the Prosecution military expert. The Defence military

13 expert, and I want to stress that the Defence military experts are able

14 and are in a position to read the B/C/S material, apparently relied on

15 those materials. The Prosecution cannot address issues raised by the

16 Defence military experts in its pre-trial brief without exactly knowing

17 what the manuals are saying.

18 Although the Prosecution has narrowed down the translation request

19 to the absolute minimum, and I want to repeat to the absolute minimum some

20 400 pages need to be translated with regard to the JNA manuals.

21 Translation of those manuals need a particular expertise. Last inquiries

22 have revealed that 58 pages are currently translated, and this task will

23 not be finished prior to summer this year.

24 To summarise on this issue also, the Prosecution has done

25 everything, everything possible to narrow down the amount of material to

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Page 29

1 be translated. Large amounts of crucial materials, crucial for our final

2 pre-trial brief, still evade translation.

3 Coming to an end now, Your Honour, I want lastly to address the

4 issue of a military expert. I already briefly touched on it. The current

5 situation on the Prosecution side is not the result of a late call by the

6 Prosecution. The Prosecution has made first efforts already in September

7 last year, efforts to identify a suitable military expert, a general whose

8 mother tongue is neither one of the official languages nor B/C/S has been

9 chosen. Members of the trial team met him, met him in October last year,

10 and it turned out that the General was well-qualified as a Prosecution

11 military expert witness. However, after further consideration, the

12 Prosecution decided not to use him. The main reason for that, and I'm

13 sure Your Honour will appreciate this, has been that the General doesn't

14 speak English and that this would cause further delay.

15 A new military expert has now been identified. The team met him a

16 few weeks ago. Significant amounts of materials have been handed over to

17 the military expert. The expert is supposed to come back to us next week

18 to inform us whether he's willing and in a position to assist the

19 Prosecution.

20 After the meeting I just mentioned, a professional schedule has

21 been discussed. We were told by the expert that he would not be able to

22 submit his written expert opinion prior to August 2002 at the earliest.

23 Your Honour, the Prosecution is well aware that it is not obliged

24 to file a or the written military expert opinion with the pre-trial

25 brief. However, the final written expert opinion in a case like the

Page 30

1 present one may have such significant impact on the contents of the

2 pre-trial brief that the Prosecution is hardly in a position to file its

3 pre-trial brief without the sound opinion of a military expert.

4 To summarise, and now coming to an end, each of the reasons just

5 outlined gives reason enough to defer the filing of the Prosecution's

6 pre-trial brief. The combination of these reasons, in the opinion of the

7 Prosecution, makes it necessary. From the point of view of the

8 Prosecution, end of September, end of September seems to be a realistic

9 deadline to file its final pre-trial brief.

10 Thank you very much, Your Honour, having given me the opportunity

11 to extensively outline the Prosecution's position.

12 JUDGE KWON: Thank you. Do you have anything to say, Mr.

13 Balijagic, to this?

14 MR. BALIJAGIC: [Interpretation] I certainly have. Your Honour, I

15 have listened to Mr. Whitopf with great attention indeed, and I must say

16 that in my today's discussions in the Chief Prosecutor's office with

17 Mr. Whitopf, and I must say that we not only have the language barrier

18 between us but it seems to me sometimes that I live on planet Mars. I say

19 this regarding the indictment against my client. That is why I asked the

20 representatives of the OTP to take care of the charges listed in the

21 indictment and the pleadings in the indictment, not worry about the

22 defence of my client. I said that on our part, we will not be the cause

23 of any delay. And I will repeat here that we are ready to start trial as

24 soon as tomorrow. I want to point out that we have provided the

25 Prosecution already with all the Defence witness statements.

Page 31

1 In order to facilitate the work of this Court and for the sake of

2 the truth, allow me to add one more thing. I was truly shocked today, at

3 the office of Mr. Whitopf. My client and I understood our cooperation

4 with the Prosecution office, and we have stated so in this court, that

5 this cooperation is to serve the purposes of establishing the truth, and

6 my client even said that he would even be prepared to sign his own

7 conviction. Mr. Whitopf also raised the issue of my client's pronouncing

8 himself guilty. My client will certainly not do that.

9 Last year, I referred the representatives of the Prosecution

10 office to the file of the secret police in Sarajevo, titled "Sefer

11 Halilovic." The existence of this file means that he was the subject of

12 special treatment. Top experts of the secret police, Mustafa Zdravko, the

13 chief of the Yugoslav secret police, said that such a man could not

14 command a group of people let alone a wide military operation. We have

15 also provided the OTP with numerous military expertise, all with a view of

16 facilitating the work of this Court and establishing the truth on the

17 crimes committed.

18 For all these reasons, I believe that it is extremely incorrect

19 and unfair on behalf of the Prosecution to conclude that we will be late

20 with our pre-trial brief, which was scheduled to be filed before the 31st

21 of July, the last Status Conference of the 8th of January. We are

22 expecting the Prosecution's pre-trial brief, and we will be immediately

23 ready to respond to it.

24 And there is one more thing. Our witnesses were taken as samples,

25 and we have already heard, talked to 30 very high-quality witnesses, but

Page 32

1 we are ready to call 500 more witnesses to help establish the truth, and

2 we are ready to provide the Court and the OTP with their statements, if

3 necessary.

4 I would therefore like you to accept if I say that there is

5 absolutely no need to defer the filing of this pre-trial brief, and I am

6 ready, on the instructions of my client, to start this trial as urgently

7 as possible because this indictment, pleaded as it is, is a great burden

8 to him. And I regret that you are unduly burdened by this issue of the

9 Defence of Mr. Halilovic.

10 And that would be all I have to say. Thank you very much.

11 JUDGE KWON: Thank you. Before getting to the individual issues

12 raised by the Prosecution's motions, I'd like to stress at this moment

13 that the -- before that, I noticed that the Prosecution seems to emphasise

14 that, by this extension of time, the actual commencement of the

15 trial will not be delayed, but I'd like to stress that the -- whether the

16 actual commencement date will be delayed or not is not a real issue.

17 It seems to me that the Chamber of this Tribunal, before I arrived

18 here, has made it a principle to have cases get ready for trial as soon as

19 possible, that is in six months after the indictment. The reason being is

20 this: As you know, since this Trial Chamber is tied up with

21 Mr. Milosevic's trial for the moment, and which is expected to last

22 certainly more than a year from now, and thus this case might not possibly

23 be heard until the end of that case.

24 But however, we cannot exclude the possibility that the current

25 Milosevic trial could be adjourned for an extensive period of time for any

Page 33

1 reason or that there might be another possibility of a couple of cases

2 being heard at the same time in parallel. But in such cases, suppose

3 there's no case in this Trial Chamber ready for trial. Then it will be

4 very frustrating. So it is our aim to make cases get ready as soon as

5 possible, irrespective of the actual commencement of the trial. And

6 that's the underlying position of the Trial Chamber, and I will deal --

7 let's deal with these individual issues.

8 When was this case indicted? This seems a quite recent one.

9 September 2001. It's a quite recent indictment compared to other cases.

10 So my guess is that the Prosecution should have a fresh memory than any

11 other case, which means that there will be no great difficulty for the

12 Prosecution to produce a pre-trial brief.

13 So I'd like to hear why do you need to assess the newly obtained

14 materials? And do you think it will -- the outcome of the assessment of

15 the newly obtained materials or the military expert report will affect the

16 basic structure of the indictment greatly?

17 MR. WITHOPF: Your Honour, may I refer to the military expert side

18 in that's our main concern. This is a 7.3 case, command responsibility

19 under Article 7(3). We got six military expert reports from the

20 Defence side addressing a variety of issues that are crucial for this

21 matter. To respond to these issues, we need to have the JNA manuals fully

22 translated. I outlined the current situation with regard to this issue.

23 We will only be in a position to respond, to respond in a pre-trial brief

24 to these crucial issues as soon as we have the JNA manuals translated.

25 That takes time. The military expert, the Prosecution military expert

Page 34

1 will need sufficient time to provide his expert opinion, and that's the

2 main reason we would like to file a final pre-trial brief at a later

3 stage, and as I already mentioned, September 2002 would be a very

4 realistic time frame.

5 Another solution would be that we file a provisional pre-trial

6 brief as it has been granted in a variety of other cases, and we would

7 file a final pre-trial brief later on. Again, September would be a

8 realistic time frame.

9 JUDGE KWON: The reluctance for the Court to accept the word

10 "provisional" is that -- it's my personal feeling that the word

11 "provisional" seems to make the work of the -- whoever it is, the brief

12 lacking some kind of sincerity. So what I want is a final brief. The

13 word "final" meaning the best brief you can produce at this moment. And

14 that does not necessarily prevent the parties or necessarily prevent the

15 pre-trial brief supplemented to or added to later on.

16 So you can agree to this?

17 MR. WITHOPF: On principle, I would agree with you, Your Honour.

18 However, there are further considerations I have to make. First of all,

19 provisional pre-trial briefs have been granted in a number of ICTY cases.

20 They have been granted in Galic. They have been granted in Ademi. They

21 have been granted in Krajisnik and Plavsic and they have recently been

22 granted in Stakic, and I think all cases should be treated similar.

23 An even more crucial issue is the fact that we have to include

24 exhibits, list of exhibits -- add a list of exhibits to our pre-trial

25 brief, our final pre-trial brief. This is a quite difficult exercise

Page 35

1 since currently we would be able to include 156 exhibits, but as I already

2 announced, as I already informed you about, we have to wait for

3 translations, and we can anticipate that for our final pre-trial brief in

4 September we would thoroughly be able to refer to around 500 exhibits.

5 That's another reason why we would like to file our final pre-trial brief

6 at a later stage.

7 Finally, it will finally serve the acceleration of the trial

8 itself.

9 JUDGE KWON: Thank you.

10 MR. BALIJAGIC: [Interpretation] Your Honour, if I may. Just a

11 word.

12 JUDGE KWON: Yes, Mr. Balijagic.

13 MR. BALIJAGIC: [Interpretation] Your Honours, I have reached an

14 agreement today with representatives of the OTP and I would like to have

15 it on record. The file of Sefer Halilovic containing 3.250 pages belongs

16 in the category of material whose discovery or disclosure leads to the

17 acquittal of the accused. The file of the terrorist group Seve who

18 committed a terrorist act against my client Sefer Halilovic -- will you

19 allow me to finish, please, sir.

20 JUDGE KWON: Could you make it very briefly.

21 MR. BALIJAGIC: [Interpretation] I wish this to be entered in the

22 record, namely, my request that this material be made available to the

23 Defence as exculpatory material. Thank you very much, Your Honour.

24 JUDGE KWON: Is it that you are triggering the Rule 66(B)

25 disclosure, if I understand it correctly?

Page 36

1 MR. WITHOPF: Your Honour, may I first strictly oppose any attempt

2 by the Defence counsel to enter into a discussion on the merits of this

3 case. That's what he tried to do right now.

4 Secondly, you --

5 JUDGE KWON: Yes, thank you. That's what I was going to point out

6 later. Yes. Next point.

7 MR. WITHOPF: You are quite rightly addressing the subject of

8 reciprocal disclosure and that is a subject has been confused on the

9 Defence side all the time.

10 Mr. Balijagic, as the Defence counsel for the accused, submits a

11 high amount of material to the Prosecution. That would mean he is

12 actually doing what he would be requested under Rule 67(C) if he would

13 have triggered reciprocal disclosure. However, the Prosecution asked him

14 several times does he explicitly trigger reciprocal disclosure. We never,

15 never ever got a clear answer.

16 We are currently working under our disclosure obligations. We

17 consider them Rule 66(A)(i)-(ii), Rule 68. There is no explicit either

18 verbal nor written announcement that reciprocal disclosure has been

19 triggered, and I would like to have it on the record what is the situation

20 on the Defence side.

21 JUDGE KWON: Thank you. Coming back to the issues, the issues

22 relating to the military expert report and some translations of newly

23 obtained materials.

24 In my opinion, those circumstances, they will cause a delay in

25 producing a pre-trial brief. You like to call it a provisional pre-trial

Page 37

1 brief but with the possibility that the pre-trial brief can be

2 supplemented to. I would like you to produce a pre-trial brief as soon as

3 possible. So I would not allow an extension of time to file a pre-trial

4 brief for the reasons that are stated above only, but however, there is

5 one thing I have in mind, I'm really concerned about. It's about

6 stipulations, as you stated.

7 What I heard from the Senior Legal Officer is that the parties are

8 very cooperative, but I notice it's quite different today. So has there

9 been any progress? I'd like to hear from -- having heard from the

10 Prosecution, I'd like to hear from Mr. Balijagic about the stipulations or

11 agreed facts.

12 MR. BALIJAGIC: [Interpretation] Your Honour, it is true that we

13 have made maximum efforts to cooperate with the OTP with a view to

14 establishing the truth about crimes in Grabovica and Uzdol. It is true

15 that the Prosecution offered us some incontestable facts. However, after

16 analysing the evidence that is available to the Defence, we responded by

17 describing the situation as it is actually. We had it translated into

18 English. On the 19th of February, together with about 50 documents which

19 haven't been translated, that's true, presented this to the OTP.

20 The Prosecution was not satisfied with our response because our

21 response contains the truth and only the truth which is exculpatory and

22 acquitting for Sefer Halilovic, and they suggested that we draft a new

23 response, replying with a yes or no.

24 When I informed my client, the accused Halilovic, about this, he

25 was very concerned and shocked indeed, and couldn't understand why

Page 38

1 Mr. Whitopf was ignoring our claims made in the response concerning

2 incontestable facts or stipulated facts. That is why we have to leave it

3 to the Court to decide on the merits. We really have --

4 JUDGE KWON: Mr. Balijagic, I'm sorry, I have to interrupt you at

5 this stage. The merit will be decided, will be heard and decided upon

6 later on, after the trial commences. So why don't you at this moment

7 concentrate more on procedural matters and especially at this moment on

8 the stipulations.

9 So you haven't answered to the question of the Prosecution. Could

10 you clarify that? You said you just sent extensive materials to the

11 Prosecution without any response to the questions of the Prosecution. Is

12 it true?

13 MR. BALIJAGIC: [Interpretation] We responded to the question, Your

14 Honour, but not with a yes or no. We responded in the form of our own

15 version of stipulated facts and suggested that the OTP respond to that and

16 assume the responsibility for their answer, whatever it is, if they failed

17 to verify them.

18 JUDGE KWON: Have you got any answers?

19 MR. WITHOPF: Your Honour, to make it clear, we submitted a first

20 set of potential stipulated facts to the Defence counsel. It was a set

21 comprised of 100, 150 individual facts, facts obviously related to the

22 indictment.

23 The concept of stipulations only allows to answer by a yes or no.

24 It's not designed to make comments to these facts. Unfortunately,

25 Mr. Balijagic made comments and altered these facts. We didn't appreciate

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Page 40

1 it. We submitted a second set of potential stipulated facts to

2 Mr. Balijagic. It was a very similar set. And today, just a few hours

3 ago, we got an answer, we got an answer by Mr. Balijagic, saying that his

4 client is not willing to enter in stipulations. Thank you.

5 JUDGE KWON: So the Defence will not enter into stipulations to

6 sort out the agreed facts or facts not disputed in the indictment.

7 MR. BALIJAGIC: [Interpretation] Of course, Your Honour. Look, if

8 you will allow me to just briefly describe one thing.

9 I'll take five witnesses who testified before the cantonal court

10 in Sarajevo, and they said my client was [as interpreted] a commander.

11 The same five people testified before the Prosecution and said that he was

12 a commander. So their statements are contradictory. And we cannot agree

13 about this. That's why we failed to reply with a yes or no. We just

14 described things as they really were.

15 JUDGE KWON: It may be that the -- one of the causes which makes

16 the Defence difficult is that the questionnaire itself might be too

17 extensive. I noticed the extensive list of facts. How long was that?

18 You said 150 questions? And the later one consisted of how many?

19 MR. WITHOPF: I can't give you the exact number, but it should be

20 in the range of at least 100. It was two and a half pages. But they were

21 such simple facts as the date of the independence of Croatia, the date of

22 birth of the accused, such kind of thing. You understand? Such very

23 basic things. We didn't get an answer.

24 JUDGE KWON: Mr. Balijagic, at this moment let's forget the

25 merit. So do you understand? Whether Mr. Halilovic, your client is

Page 41

1 innocent or guilty.

2 And having said that, I'd like to ask you whether you can put in

3 writing a brief response to the indictment itself, which consists of one

4 count and two incidents, one in Grabovica and one in Uzdol. So -- among

5 which -- can you sort out facts you can agree to and those you cannot

6 agree to? Is it possible for you?

7 MR. BALIJAGIC: [Interpretation] Your Honour, we can certainly

8 agree and we have agreed, if I may remind Mr. Prosecutor Whitopf on the

9 place of birth, date of birth, conflict, et cetera, but we cannot agree

10 with facts which are founded in unverifiable and false statements and

11 documents.

12 So we have --

13 JUDGE KWON: Mr. Balijagic. Mr. Balijagic. Forget about the

14 evidence. Just concentrate on the indictment itself. You can agree some

15 CVs of your client, Mr. Halilovic was born on some day and blah, blah.

16 You can agree to that matter.

17 MR. BALIJAGIC: [Interpretation] We have already agreed to that.

18 JUDGE KWON: If you go a little further --

19 MR. BALIJAGIC: [Interpretation] But shall I emphasise? We have

20 already drafted certain corrections for the benefit of the Prosecution

21 regarding the schools he graduated from, et cetera.

22 JUDGE KWON: Yes. Thank you. But -- yes. There's a list in the

23 indictment. Is it municipality -- in Grabovica, the list of some 33 dead

24 persons, people. You -- do you dispute whether these people died at this

25 place at that time or you agree to that kind of facts, for example?

Page 42

1 MR. BALIJAGIC: [Interpretation] Your Honour, we have agreed on all

2 facts which do not relate to the merits of the case, and we cannot agree

3 on any facts which bear on the merits.

4 JUDGE KWON: So you do not agree to these -- for example, Mr. Pero

5 died in Grabovica at this time of day, as written in the indictment? So

6 you cannot agree on any facts regarding merits? Is that your position?

7 MR. BALIJAGIC: [Interpretation] Your Honour, how can we agree with

8 that when those things are unfamiliar to us completely? We have learnt

9 about them from the indictment.

10 JUDGE KWON: So the only facts you agree to is the curriculum

11 vitae things of your client? Is that right?

12 MR. BALIJAGIC: [Interpretation] Not only that. There are other

13 things which do not bear on the merits of the case and that we can agree

14 with. But we would like to see a fair draft of these facts or,

15 alternatively, the Prosecution may rely on our set of proposed

16 stipulations.

17 JUDGE KWON: Do you happen to have the questionnaire with you now?

18 No.

19 MR. BALIJAGIC: [Interpretation] I think I have a copy in the

20 Bosnian language.

21 JUDGE KWON: I don't think it will assist me anyway.

22 MR. WITHOPF: Your Honour, the Prosecution opposes such a

23 procedure. The stipulations is an issue between the parties, and at this

24 point in time, I assume Your Honour shouldn't be involved.

25 JUDGE KWON: Yes. Well, it is neither --

Page 43

1 [Trial Chamber and Senior Legal Officer confer]

2 MR. BALIJAGIC: [Interpretation] Your Honour, my answers are here

3 as well, showing what was agreed on and everything else. We entered a

4 correction here as to the year when my client attended military academy.

5 We corrected that date. And the second set of questions, I think, had the

6 same number of questions.

7 JUDGE KWON: Yes. I don't think that will -- I don't think that

8 will assist the Court right now.

9 It is neither the rule nor the practice in this Tribunal to have

10 the response of the Defence at all at this stage, so as such, the Defence

11 is never obliged to make a response to the indictment itself. But in

12 continental -- in countries which adopt the continental legal system, it

13 is very customary to make a brief answer to the indictment. On some parts

14 we agree, yes, like I agree my date of birth and my graduate school, but

15 the others I cannot agree. "I do not know," or something like. Or some

16 part of it. "Yes, I agree that Mr. X died here but it is not from my

17 fault," for example.

18 So I think -- and it's quite -- it may be said that kind of

19 procedure is similar to that of making, producing a stipulation in common

20 law countries. So what I'd like to ask Mr. Balijagic again is that not --

21 do not respond to the extensive list of facts of the -- from the

22 Prosecution itself but could you sort out the facts which are not disputed

23 by the Defence or accused in the trial among the facts in the indictment?

24 MR. BALIJAGIC: [Interpretation] Of course we shall do that. As

25 far as it does not enter into the merits of the case.

Page 44

1 JUDGE KWON: No. Every fact in the indictment itself, without

2 regard any -- any regard to evidence. And with yes, no, and you can put

3 some -- your position in writing. Is it possible?

4 MR. BALIJAGIC: [Interpretation] Your Honour, what if I say that

5 Pero Peric was killed, if I agree that he was killed and he is discovered

6 to be alive? Will then there be any consequences --

7 JUDGE KWON: No. You can say what you do not know. Just you

8 don't know. Or -- and these facts -- these kind of facts can be

9 classified as facts the Defence will not argue about it. As such, is it

10 possible?

11 MR. BALIJAGIC: [Interpretation] But now that we mention this name,

12 I know that two people mentioned in the indictment died of natural causes

13 several years after the event. I know where they were buried. That is

14 why we shall agree only to what we truly consider to be indisputable. But

15 we cannot agree to anything else.

16 JUDGE KWON: The purpose of having pre-trial procedure in advance

17 to the actual trial is to help the Court and parties to concentrate on

18 real important issues. For example, in this case, whether Mr. Halilovic

19 bears the command responsibility or not. So we cannot disregard it. We

20 can get over the peripheral things very easily in the trial. So if you

21 can sort out some facts you are not going to argue as early as possible,

22 it will -- the Court and the parties will get on very easily. Certainly

23 you can understand my words.

24 MR. BALIJAGIC: [Interpretation] Your Honour, I understand you very

25 well. Please give me some time to consult my client. You must understand

Page 45

1 that he was in a state of shock and anxiety when we received the same set

2 of questions from the Prosecution, with a few exceptions, such as the year

3 of birth, and the Prosecution did not take our comments into account

4 at all. That was a reaction on the part of my client, and of course I

5 have to take instructions from him. But please allow me to discuss the

6 matter with him once again so that we can answer to at least some of these

7 questions with yes or no.

8 JUDGE KWON: Yes, thank you. I would say one of the counsel's --

9 as a professional, one of the counsel's duties is to let his client

10 understand this complicated procedure, so I would appreciate that you can

11 produce some agreed facts with the cooperation of the Prosecution. So in

12 that regard, I would like to give you a month from now. So --

13 MR. BALIJAGIC: [Interpretation] That is very acceptable, Your

14 Honour. We shall do this even sooner.

15 JUDGE KWON: Yes. Have a discussion with your client, and please

16 put in writing as detailed as possible. And then after that, the parties

17 can have a 65 ter meeting with our Senior Legal Officer, and then we'll

18 give the Prosecution a month from that to file a pre-trial brief.

19 Does that sound acceptable to the Prosecution?

20 MR. WITHOPF: Your Honour, I understand that means two months from

21 now?


23 MR. WITHOPF: That sounds possible. That sounds acceptable.

24 JUDGE KWON: Yes. Thank you. I didn't hear about the search

25 programmes, about the search for the witnesses, which -- my impression

Page 46

1 is -- which really concerns the Prosecution is that the search is not done

2 completely at this moment. Could you make a short comment on that.

3 Witnesses.

4 MR. WITHOPF: Your Honour, you know that with regard to disclosure

5 under Rule 66(A)ii), we have to disclose also prior statements of the

6 witnesses we want to call or whose statements we want to use as Rule 92

7 bis statements. The search has been initiated weeks ago. Unfortunately,

8 due to the Milosevic trial, this search has been blocked for quite a

9 number of weeks. It will only start in the near future. Again only a

10 very little percentage of the witnesses, only the result with regard to a

11 very little percentage of the witnesses has been provided to us. I cannot

12 anticipate at this point in time when these searches will be finished.

13 That is just a matter of reality, and ISO, our search unit, is not in a

14 position to predict how long it will take.

15 JUDGE KWON: Thank you. Is there anything the parties would like

16 to raise at this moment? Yes, Mr. Balijagic?

17 MR. BALIJAGIC: [Interpretation] The Defence has nothing to raise,

18 Your Honour.

19 JUDGE KWON: Thank you.

20 MR. WITHOPF: Your Honour, there are two issues that are still not

21 clear to the Defence. First of all, the announced withdrawal of

22 Mr. Balijagic as Defence counsel, and the second issue is the issue of

23 reciprocal disclosure. We still didn't get an answer to our question

24 whether reciprocal disclosure has been triggered or not.

25 JUDGE KWON: Yes. Could you clarify this problem, please

Page 47

1 matters?

2 MR. BALIJAGIC: [Interpretation] Your Honour, I do require

3 reciprocal disclosure. As I have said, the Defence has disclosed

4 everything to the Prosecution, and we ask that the Prosecution do the

5 same, especially as regards material containing exculpatory evidence. By

6 this I'm referring primarily to the two files which I prompted the

7 Prosecution to obtain, and I wish to remind the Prosecution of the Rules

8 of Evidence and Procedure, under which it is their duty to disclose to me

9 any exculpatory evidence.

10 JUDGE KWON: Yes. And about the first issue? It is certain that

11 you will not resign from this case, will not withdraw from this case?

12 MR. BALIJAGIC: [Interpretation] Your Honour, allow me to explain

13 very briefly the reasons for my withdrawal. I am also a victim of

14 genocide, which is punishable under Article 2. In 1994 I fled Sarajevo in

15 an American plane in order not to be assassinated. All the participants

16 of the attack on me are witnesses for the Prosecution. I do not feel

17 comfortable when I see all this.

18 I asked my client to release me, but I was concerned that an

19 appropriate replacement be found for me. I hope that we will find a

20 replacement in Ms. Dijana Kreho or someone else as Defence counsel, and

21 I think I will withdraw. But let me tell you again that all this depends

22 on my client. If my client insists that I remain, I shall listen to the

23 ethics of my profession.

24 JUDGE KWON: I don't think very appropriate for the Court to ask

25 the client -- the counsel whether it will resign or not any further, so

Page 48

1 let's take it that he will not resign for the moment. And that will not

2 make any difference to the current position of the Prosecution.

3 MR. WITHOPF: Your Honour, with all due respect, I disagree. That

4 will make a difference. Any new Defence counsel will not be in a position

5 to respond to a Prosecution's pre-trial brief within two or there months.

6 That's just not possible if he or she is a reasonable Defence counsel.

7 JUDGE KWON: That is not the problem of the Prosecution in filing

8 a pre-trial brief. That is what I'm pointing out at this moment.

9 MR. WITHOPF: But you have to consider, with all due respect, that

10 this has some implications. The Defence would get definitely much more

11 time, since any, any new Defence counsel will immediately file a motion

12 for extension of time.

13 JUDGE KWON: So that -- but my opinion -- I'm pointing out that

14 will -- cannot be a cause for a Prosecution to delay its pre-trial brief,

15 as you agreed before.

16 And -- yes. Can I see the Senior Legal Officer?

17 [Trial Chamber and Senior Legal Officer confer]

18 JUDGE KWON: Okay. The position of Mr. Balijagic is not quite

19 clear regarding the Rule 66 (B) disclosure, which is reciprocal

20 disclosure. So if you would like to -- if you are saying that you would

21 like to apply for the reciprocal disclosure provided in Rule 66(A)(ii); is

22 that right? 66(B). So could you make it in writing later with some

23 more -- with some clear words? And why don't we leave it as it is.

24 Yes, Mr. Whitopf?

25 MR. WITHOPF: Your Honour, one last observation I have to make.

Page 49

1 Provided that Mr. Balijagic, the Defence, will invoke reciprocal

2 disclosure, that will have a serious, a crucial impact on our resources.

3 That means that it diminishes our ability to file a pre-trial brief, a

4 final pre-trial brief, within the time frame you just mentioned. And

5 unfortunately, I don't get the impression, I didn't get it during the last

6 conference with the senior legal officer and I didn't get it today that

7 Mr. Balijagic, the Defence, understands, understands the concept of

8 reciprocal disclosure and the impact on the proceedings. I unfortunately

9 have to say this.

10 And Mr. Balijagic must give a clear sign what he wants. Of course

11 we are disclosing Rule 68 material. 68 has nothing to do with 66(B)

12 reciprocal disclosure and I'm not sure that the Defence understands the

13 concept of this.

14 JUDGE KWON: Yes. The Prosecution's position has been noted, and

15 I will make it clear if necessary.

16 Yes?

17 MR. BALIJAGIC: [Interpretation] Your Honour, I have understood

18 your order that I should make my submissions in writing. It is true we

19 raised this issue with Ms. Yvonne Featherstone during one of our meetings

20 when Mr. Ekkehard said that their Sarajevo dossier contained 50.000 pages

21 and that it would slow down the proceedings, delay the trial, and then I

22 asked that only Rule 68 evidence be provided, that is, exculpatory

23 evidence focusing only on the two files of Sefer Halilovic and the Seve

24 terrorist group, but I will certainly make my submissions in writing, Your

25 Honour.

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Page 51

1 JUDGE KWON: Yes. One thing I forgot is the timetable for the

2 Defence pre-trial brief. You yourself can respond as soon as --

3 immediately, immediately after the Prosecution's pre-trial brief, but is

4 three months enough for you after the pre-trial brief -- to produce a

5 Defence pre-trial brief?

6 MR. BALIJAGIC: [Interpretation] Yes, Your Honour.

7 JUDGE KWON: Yes. Roughly two months from now the --

8 [Trial Chamber and Senior Legal Officer confer]

9 JUDGE KWON: In two months the Prosecution is ordered to file its

10 pre-trial brief, and afterwards, in three months again, the Defence will

11 file its pre-trial brief.

12 Unless there is anything the parties would like to raise at this

13 moment?

14 MR. WITHOPF: Your Honour, no further observations from the side

15 of the Prosecution.

16 JUDGE KWON: This hearing is adjourned, and you will have a 65 ter

17 conference after the Defence has produced its brief response to the

18 indictment. And it is very much encouraged to both parties to communicate in

19 producing such a response. Thank you very much.

20 --- Whereupon the Status Conference adjourned

21 at 4.22 p.m.