Tribunal Criminal Tribunal for the Former Yugoslavia

Page 129

1 Tuesday, 15 July 2003

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.45 p.m.

6 JUDGE MAY: Yes. Could the registrar call the case.

7 THE REGISTRAR: Good afternoon, Your Honour. This is IT-01-48-PT,

8 the Prosecutor versus Sefer Halilovic.

9 JUDGE MAY: The appearances, please.

10 MR. WITHOPF: Good afternoon, Your Honours. Good afternoon,

11 counsel. For the Prosecution appear Mrs. Marie Tuma, trial attorney,

12 Mr. Hasan Younis, trial support, and I, Ekkehard Withopf, acting senior

13 trial attorney.

14 JUDGE MAY: Thank you. And for the accused?

15 MR. HODZIC: [Interpretation] Appearing for Mr. Sefer Halilovic,

16 attorney Ahmet Hodzic. The other members of the Defence team are not

17 present.

18 JUDGE MAY: Thank you.

19 This matter is listed as a Pre-Trial Conference in this case. The

20 history is a long one, but the position which we need to work towards is

21 this: That this case is the first or may well be the first reserved case

22 in the list of cases, and it should therefore be ready, if at all

23 possible, for hearing in the autumn.

24 The complications, we know particularly on the Defence side, and

25 we will consider them. We will also consider any matters as far as the

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1 Prosecution are concerned. And it may be simplest to begin with them.

2 And Mr. Withopf, let us begin with your motion to add two

3 witnesses. We'd be inclined to grant that, but we need to consider the

4 application. In fact, we'll grant it, but it will have to be considered

5 in the light of the overall number of witnesses who -- which you're

6 entitled to call. The first matter that we have to consider or one of the

7 matters that we have to consider under Rule 73 bis.

8 Now, will you help us with this: No doubt you've been considering

9 the -- you've been considering the number of witnesses who you -- you want

10 to call. How many live witnesses now is it that you propose to call, Mr.

11 Withopf?

12 MR. WITHOPF: Your Honours, the Prosecution is proposing 57 live

13 witnesses and 45 witnesses under Rule 92 bis. Live witnesses are 24

14 crime-base-related witnesses, 17 in relation to the first crime base,

15 Grabovica, and 7 in relation to the second crime base, namely Uzdol. 33

16 of such witnesses concern notice and knowledge issues, and in particular,

17 as Your Honours are certainly aware of, the issue of command and control,

18 which is -- will be one of the most crucial issues in this case.

19 Five witnesses have been added after the filing of the

20 Prosecutor's pre-trial brief in mid-June last year. There's some

21 likelihood that very few additional witnesses the Prosecution wishes to

22 add. In relation to the necessity, Your Honours - and you already

23 addressed it - of the high number of witnesses, there are a number of

24 characteristics to this case which require such a high number of

25 witnesses. We have very few eyewitnesses in relation to both crime sites,

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1 since almost nobody survived the two massacres. We have four for

2 Grabovica and five for Uzdol. In each case, however, such witnesses have

3 only witnessed portions of the crime. The Trial Chamber will get the full

4 picture only after all eyewitnesses have been heard.

5 In addition, the Prosecution, and that particularly relates to the

6 Grabovica crime, has to rely on a number, on a significant number of

7 witnesses which fall under the category of so-called insider witnesses.

8 Ten of such witnesses are alone from the ABiH 1st Corps 9th Mountain

9 Brigade, the brigade which allegedly is responsible for the killings.

10 Again, in order to get the full picture and to get all bits and pieces of

11 the evidence, it appears to be necessary that such witnesses have also to

12 be heard.

13 And finally - and that is one of the main concerns of the

14 Prosecution - this will be the first case which is a pure Article 7(3)

15 case, meaning command responsibility alone. We have to prove full notice

16 and knowledge. We have to prove full notice and knowledge in relation to

17 both crime sites. And in addition, we have to fully prove all elements

18 which constitute the elements of Article 7(3) of the Statute in regard to

19 both failure to prevent and failure to punish in respect to all -- to both

20 crime sites.

21 We calculated the length of the examination-in-chief, and the

22 result is that we think within 41 days we will have covered -- we will

23 have examined in chief all live witnesses for the Grabovica crime base

24 incident we anticipate about three weeks; for the Uzdol crime base

25 incident, about four days; and for notice of command and control issues,

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1 about five weeks. We have one military expert, as you certainly are aware

2 of, and two pathologists, one for Grabovica and one for Uzdol. We

3 anticipate one day in examination-in-chief for the military expert and

4 also one day for both pathologists. That means we anticipate in some 43

5 days for examination-in-chief, which means almost -- well, about nine

6 weeks.

7 JUDGE MAY: We can return to the -- well, witnesses in a moment.

8 Help us with matters of disclosure. As we understand the position - as I

9 understand it, I should say - there is some previous statements of

10 witnesses which have not been disclosed. Is that right?

11 MR. WITHOPF: Your Honours, that is correct. That concerns the

12 so-called prior statements under Rule 66(A)(ii) obviously. Very few of

13 such statements have been disclosed in the past; however, the Prosecution

14 over the last few days made significant efforts, and these efforts have

15 results to the extent that today we will disclose 87 of such prior

16 statements of 38 witnesses; 63 prior statements of 24 live witnesses; and

17 24 prior statements of 14 Rule 92 bis witnesses. That means a significant

18 portion of such prior statements will be disclosed today after this

19 conference.

20 The searches will obviously continue, the ISU searches. They will

21 generate results. There's an internal deadline for the live witnesses end

22 of July, meaning within two to three weeks. For the Rule 92 bis

23 witnesses, there's an internal deadline end of August this year, meaning

24 that by end of August, beginning of September we anticipate to be in a

25 position to have disclosed all prior statements. One must also keep in

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1 mind that quite a number of the Prosecution witnesses will not have any

2 prior statements at all.

3 JUDGE KWON: Mr. Withopf, are those prior statements in B/C/S

4 language?

5 MR. WITHOPF: Most, if not all of such statements, are statements

6 taken by the local authorities in Bosnia and Herzegovina, and they are as

7 such, in B/C/S language.

8 JUDGE MAY: So disclosure, then, we can be satisfied will be

9 finished by the end of August for all the witnesses.

10 MR. WITHOPF: That concerns the Rule 66(A)(ii) disclosure. It

11 will be somewhat different in respect to the Rule 68 disclosure

12 exculpatory materials.

13 JUDGE MAY: We'll come to that.

14 The two -- the two experts have not been disclosed in B/C/S; is

15 that right?

16 MR. WITHOPF: Again, Your Honours, there is some positive

17 development. In respect to the expert report of our military expert,

18 General Ridgway, the expert report has been made available to the Defence

19 on 31st of March this year. It has been disclosed, again in English

20 language, on 10th of July. And the B/C/S translation, in the language of

21 the accused obviously, has also been disclosed on 10th of July, meaning

22 last week.

23 The military expert report of General Zorc, will be disclosed

24 today, immediately after this conference in both, in English and in B/C/S

25 translation.

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1 JUDGE KWON: However, you're going to call one only in

2 the -- meaning General Ridgway.

3 MR. WITHOPF: Correct. The Prosecution intends to call only one

4 military expert, namely General Ridgway.

5 JUDGE MAY: And the pathologist's report?

6 MR. WITHOPF: The pathologist report, Your Honours, were part in

7 B/C/S language of the indictment supporting materials, meaning such

8 reports have been disclosed one and a half years ago, and the full English

9 translation has been made available to the Defence on 14th of March this

10 year.

11 JUDGE MAY: Very well. That brings us back to the witnesses.

12 Now, Judge Kwon may have some questions.

13 JUDGE KWON: Among 57, after having -- having a brief and quick

14 look on those statements, I got the impression that some -- some of them

15 appeared to appear more suitable for the admission under Rule 92 bis. So

16 if I can give the witness numbers in 65 ter, those will be Witness number

17 2, 3, 5 -- I'm sorry, I'm mistaken. Witness number 2, 3, 5, 29, 30, 53,

18 54, those witnesses are for the Grabovica. And Witness number 1, 8, 15,

19 and 27, apparently for Uzdol. And Witness number 9, 19, 20, 26, 36, 47,

20 48, and 49, those are for -- those witnesses are for general matters. I

21 think they could be considered for admission under Rule 92 bis, and you

22 can make your observation later.

23 And if I can add one thing more: You named among the Rule 92 bis

24 witnesses Witness number 44 and Witness number 37. They appear to me that

25 they have direct knowledge of the acts and conduct of the accused, and

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1 thus I think they should give evidence as viva voce witnesses.

2 If you can -- if you have any observations.

3 MR. WITHOPF: I certainly tend to agree in respect to the two 92

4 bis witnesses you just mentioned.

5 In respect to the witnesses from the live witness list, Your

6 Honours wish to move them from the live witness list to the Rule 92 bis

7 witness list. The Prosecution would appreciate if we could make our

8 submissions in written.

9 JUDGE KWON: So having said that, I have in mind that limiting the

10 total number of live witnesses to a maximum of 40. So you can when you

11 make your submissions also refer to that matter.

12 MR. WITHOPF: The Prosecution, in preparation of this Pre-Trial

13 Conference, already considered limiting the number of witnesses. We

14 considered at first instance between five to ten witnesses, what comes

15 somewhat close to your proposal. And I also notified that a number of

16 such witnesses are such ones you just proposed. However, we would like to

17 make our written submissions in that respect.

18 JUDGE KWON: Thank you.

19 [Trial Chamber confers]

20 JUDGE MAY: Mr. Withopf, we'll obviously need to consider these

21 matters. And it may be that we'll not be able to make an order today for

22 the number of witnesses. It may be appropriate for us to adjourn

23 consideration of that when we've dealt with the matters for the Defence.

24 Is there anything more you want to add at this stage?

25 MR. WITHOPF: Not in respect to witnesses, but I understand you

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1 wish also to cover the situation on the Rule 68 disclosure of exculpatory

2 materials.

3 JUDGE MAY: Yes, you're quite right. I'd overlooked that. What

4 is the position there?

5 MR. WITHOPF: Rule 68 exculpatory material, disclosure of such

6 material is obviously an ongoing obligation. Several volumes of such

7 materials have been disclosed in the past. Amongst such materials, the

8 obvious ones the trial team knows about.

9 Another Rule 68 disclosure has been done last Thursday, and today

10 we will disclose further Rule 68 materials, about 75 additional Rule 68

11 documents will be disclosed. However, Rule 68 ISU searches, using about

12 some 75 search criteria, have not yet been completed. More material

13 obviously will follow. Recent inquiries with ISU have revealed that a

14 completion of the Rule 68 searches using our search criteria can, in the

15 best-seen scenario, only be expected within the next four months, probably

16 four to five months. That's because of the fact that other cases which

17 are in trial or cases which have already a scheduled trial date are higher

18 in the priority. It, as always, comes down to a matter of resources.

19 The Prosecution, however, would like to use this occasion to again

20 invite the Defence to suggest search criteria for Rule 68 searches. Such

21 criteria could actually limit and accelerate the ISU searches.

22 JUDGE MAY: It would be necessary to expedite this process,

23 if -- if there's a date in the autumn, because it clearly should be ready

24 for trial. If you would convey to those who have charge of these matters

25 that there is the -- the position of this case and its necessary priority

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1 and the fact that the Trial Chamber has expressed the view that it should

2 be ready for trial in September, which would give you two months.

3 MR. WITHOPF: We are very well aware of the situation, and we will

4 do everything what can be done to accelerate proceedings.

5 JUDGE MAY: Very well.

6 Now, Mr. Hodzic, we know your position, that you've come into this

7 case very late in the day. You've had, we recognise, difficulties in

8 progressing the matter. We hope that your various applications to the

9 Registry for co-counsel and for further assistance can be met in order

10 that this case can be made ready for trial.

11 The Prosecution have virtually finished now their disclosure to

12 you, so that is not at the moment an outstanding problem or not a large

13 one. But we recognise that there are problems for time on your side.

14 Having heard about the position of the case, when do you think you might

15 be -- you could make it ready for trial, given that you get the resources

16 you've asked for and given that you have the assistance, which I

17 understand you should be getting, of a co-counsel? With a view to having

18 it -- may I say this: With a view to starting it in the autumn of this

19 year.

20 MR. HODZIC: [Interpretation] Your Honour, before this conference,

21 I submitted a motion in writing in which I set out all the problems that I

22 have encountered when I took over the defence of Mr. Sefer Halilovic.

23 Unfortunately, I have to say that at this point I am not in a situation to

24 continue with the defence of Mr. Sefer Halilovic because too little time

25 is left for me to understand the case, analyse it, and provide

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1 Mr. Halilovic with a proper and fair defence. I have been working on this

2 case for only four months. I have used most of those four months for

3 writing submissions because there were a number of omissions in the

4 previous proceedings. And this has had a negative effect on the gathering

5 of materials for the defence of Mr. Sefer Halilovic.

6 In no case can I be ready, not because I don't want to but because

7 objectively I am not able to be ready for trial before six to eight months

8 have elapsed. I beg the Chamber to bear in mind that I have not had the

9 benefit of co-counsel, and when I discussed undertaking the defence of

10 Mr. Sefer Halilovic I said very clearly that I would be able to take up

11 his defence provided I had co-counsel to assist me in the proceedings

12 because I did not know what the procedure was before this Tribunal. I

13 have many years of experience, but in a completely different legal system.

14 In view of the volume of material collected, both by the Defence

15 and presented by the Prosecution, I have not yet managed even to read it

16 all, let alone study it, analyse it, find what the important points are in

17 order to provide a competent defence.

18 JUDGE ROBINSON: Mr. Hodzic, may I interrupt you. If you were to

19 be assigned co-counsel within the very near future, say within the next

20 two or three weeks, what would your estimate be as to when you would be

21 ready? You earlier said six to eight months. Would it be the same

22 estimate?

23 MR. HODZIC: [Interpretation] That is what I said in my written

24 submission, and I repeat it now. This is the time I estimate it would

25 take me, provided I was given co-counsel. Without co-counsel, I cannot

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1 proceed at all. I regret to have to say this, Your Honours, but that's

2 what the circumstances are. I can say that I have now been abandoned by

3 my assistant, so that simply I have to deal with all this on my own. I am

4 the only person on this team competent to prepare a defence.

5 JUDGE MAY: Well, we'll have to consider the position.

6 Is there anything else you want to raise with us, Mr. Hodzic? Any

7 other matters?

8 MR. HODZIC: [Interpretation] A very important issue is the

9 financial issue, which I expect will be resolved, because the team depends

10 on this.

11 Also, I would ask the Trial Chamber and the Prosecution to receive

12 these submissions in the Bosnian language sooner, so that we can prepare

13 for particular witnesses and documents on time. Otherwise, I have no

14 other issues to raise.

15 JUDGE MAY: Thank you.

16 MR. HODZIC: [Interpretation] Thank you.

17 [Trial Chamber confers]

18 JUDGE MAY: I speak for myself. It's no reflection what I'm going

19 to say on Mr. Hodzic. He's been brought into this case late. But the

20 fact that cases are not ready for trial is a matter of real concern to the

21 Tribunal. It's wrong that accused are not brought to trial promptly, and

22 it's equally wrong if it is the Defence who are not ready. And it should

23 be understood that the Defence have an obligation to be ready on time for

24 trials.

25 Nonetheless, in the particular circumstances of this case, having

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1 regard to the difficulties which Mr. Hodzic personally has faced, through

2 no fault of his, we are prepared to accede to his motion that he has more

3 time to this extent, that we say that this case is not to be listed for

4 trial for another six months. This Pre-Trial Conference will be adjourned

5 to a date to be fixed. The Prosecution have leave to call two additional

6 witnesses, to complete disclosure of all matters within five months, and

7 to make submissions within 28 days on the number of witnesses who they

8 wish to call.

9 Mr. Withopf, is that enough time for you?

10 MR. WITHOPF: Your Honours, that's certainly enough time for us.

11 JUDGE MAY: Yes. Thank you. And we'll consider the matter in due

12 course.

13 Now, Mr. Hodzic, you can have another six months. But, of course,

14 as you understand, you must be ready then. The matter of co-counsel is

15 one which I understand can be resolved fairly rapidly. And, of course,

16 it's subject to that and also subject to the matter of more funds being

17 made available. But provided those matters are resolved, we shall expect

18 you to be ready in six months' time.

19 Yes. Unless there are any other matters -- senior legal officer,

20 are there any other matters to be raised? No.

21 Very well. The hearing is adjourned.

22 MR. HODZIC: [Interpretation] Thank you very much, Your Honours.

23 --- Whereupon the Pre-Trial Conference adjourned at

24 3.17 p.m.