Tribunal Criminal Tribunal for the Former Yugoslavia

Page 143

1 Wednesday, 1 October 2003

2 [Status Conference]

3 [Open session]

4 [Accused not present]

5 --- Upon commencing at 3 p.m.

6 JUDGE KWON: Good afternoon, ladies and gentlemen. Would the

7 Registrar please call the case.

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

9 Sefer Halilovic.

10 JUDGE KWON: Will both parties make their appearances, please.

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

12 Counsel. For the Prosecution appear Mrs. Marie Tuma on my right-hand

13 side, Mr. Hasan Younis, trial support, on my left-hand side; and myself,

14 Ekkehard Withopf, acting senior trial attorney.

15 JUDGE KWON: Thank you, Mr. Withopf. And for the Defence, please.

16 MR. HODZIC: [Interpretation] Good afternoon. I am Ahmet Hodzic,

17 counsel representing Mr. Sefer Halilovic. Together with me is my

18 co-counsel, Guenael Mettraux, and Ms. Alisa Ploco, who is our interpreter,

19 assisting us in communication. Thank you, Your Honour.

20 JUDGE KWON: Thank you very much, Mr. Hodzic.

21 First of all, I would like to welcome the co-counsel of the

22 accused, Mr. Mettraux, a familiar face to the Tribunal.

23 I guess this is the sixth Status Conference. A Pre-Trial

24 Conference was held in accordance with Rule 73 bis on 15th of July, 2003.

25 However, as the necessity arose, I scheduled this subsequent Status

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1 Conference.

2 At the previous Pre-Trial Conference, the Pre-Trial Chamber

3 ordered all disclosure is to be completed within five months from the date

4 of the Pre-Trial Conference, i.e., by 15th of December, 2003, and that the

5 case is to be ready for trial in six months' time, that is, by January

6 2004.

7 I was informed that Mr. Hodzic had asked for clarification as to

8 whether the six months runs from the date of the Pre-Trial Conference or

9 from the date of appointment of co-counsel, Mr. Mettraux. But to my

10 recollection, the Trial Chamber's intention was clear; to make the case

11 ready for trial by January next year, that is within six months from the

12 date of the Pre-Trial Conference.

13 However, that is not the issue any more. Given recent

14 developments in this International Tribunal, the trial of this case should

15 start on or around 17th of November, 2003. This year.

16 Before I hear from the parties, let me give you some of my

17 observations as to the reason why this case may be commenced in November,

18 a little bit earlier than had been planned.

19 First and foremost, the indictment against the accused

20 Mr. Halilovic was confirmed over two years ago.

21 And both -- and secondly, both pre-trial briefs have been filed

22 already, Prosecution's brief on 17th of June last year, and Defence's on

23 the 26th of March this year, 2003.

24 And thirdly, the largest concern of the lead Defence counsel,

25 Mr. Hodzic, has been resolved. That is to say, a co-counsel who is very

Page 145

1 familiar with the Rules of this Tribunal has been assigned to this case.

2 And fourthly, Mr. Hodzic was appointed in February 2003, and it

3 has already been seven to eight months by now, which time frame cannot be

4 said to be too insufficient time to prepare for the case.

5 And fifth, even if there have been several changes in Defence

6 counsel, it is the accused who knows best as to this case, and the accused

7 has been provisionally released and thus able to communicate with his

8 counsel. And also, he must have been preparing the case himself.

9 And lastly, the commencement of trial in November means that

10 Prosecution would present its case and not the Defence. So the Defence

11 would be responding to the Prosecution's case while the presentation of

12 the Defence case would commence after Prosecution's case and after a Rule

13 73 ter conference.

14 Having said this, I'd like to hear from the parties.

15 Mr. Withopf.

16 MR. WITHOPF: Your Honour, if the Prosecution may go first. The

17 Prosecution was working on the basis that the trial would commence in

18 January. We were working on the basis that disclosure has to be done by

19 15th of December this year. However, as we already informed the senior

20 legal officer yesterday in the 65 ter meeting, disclosure issues, in

21 particular the Rule 66(A)(ii) disclosures are almost done. There are only

22 very few prior statements remaining. We have an internal deadline. We

23 currently have an internal deadline for the remaining Rule 68 searches by

24 end of November. We can, of course, speed up proceedings, if necessary.

25 So in sum, the Prosecution would be prepared to commence trial on

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1 the 17th of November or mid- or end November.

2 JUDGE KWON: Given that some disclosure obligation is an ongoing

3 one, for example the 68 disclosure in particular, do you think you can

4 complete, as far as you can, the disclosure by the end of October?

5 MR. WITHOPF: There are a number of issues involved. Of course we

6 are again emphasising the Catch-22 situation. In the event we will be

7 told today the trial will commence mid of November, we will be able to at

8 least accelerate our Rule 68 ISU searches. I got an overview recently

9 from ISU. Quite a number of Rule 68 search criteria are finally dealt

10 with, however, there are a few ones remaining which are likely to generate

11 vast amounts of materials. That means I'm not promising today that by mid

12 of November we will have fulfilled completely our Rule 68 obligation;

13 however, we are certainly in a position to, within a limited time after

14 the start of the trial in mid-November, to be able to complete such

15 searches and to be able to complete the relevant disclosure.

16 JUDGE KWON: Thank you, Mr. Withopf. I'll come back to the

17 specific issues relating to the disclosure.

18 Mr. Hodzic, can I hear from you.

19 MR. HODZIC: [Interpretation] I regrettably have to say, Your

20 Honour, that we are unable to commence trial in November as you have just

21 suggested. Our entire work so far has been organised and geared with that

22 six-month time period in mind, and we expected to begin in January.

23 Therefore, it is impossible for us to be prepared by November. We are

24 still working on gathering certain material. We will need quite a lot of

25 time to process that material and prepare it.

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1 I am fully aware of the consequences of what I am saying, and I'm

2 also fully aware of the schedule of this Tribunal, however, our situation

3 is what I have just described to you. Owing to the fact that Mr. Mettraux

4 has been appointed co-counsel, we are now in a situation where we can put

5 together our defence in accordance with the Rules of Procedure and based

6 on the material disclosed and delivered to us by the Prosecution.

7 Mr. Mettraux needs to get familiarised with this material provided by the

8 Prosecution. We need time to prepare ourselves properly in order to give

9 proper defence, to present a proper defence for Mr. Halilovic.

10 JUDGE KWON: Mr. Hodzic, anyway let me start from this: May I

11 take that the Defence can be ready by January next year to start the

12 trial? You are saying that the Defence is happy with the case starting

13 next year January?

14 MR. HODZIC: [Interpretation] When I spoke about January next year,

15 what I had in mind was that we would do everything within our powers to be

16 prepared to start the case by then. Now, as to whether anything new would

17 come up, I couldn't guarantee you that. However, we will do our best to

18 be ready by January.

19 JUDGE KWON: The reason I say that there would not be much

20 prejudice to the Defence with this trial commencing in November is this,

21 that commencing the trial in November does not necessarily mean that

22 Defence should be ready in all aspects at that time. In December, there

23 are Plenaries, and there will be a winter recess, and also the winter

24 recess may be a little bit extended, and those time periods can be used

25 also as a preparation time for the Defence.

Page 149

1 What do you think about this? So we can start the trial in

2 November and hear the Prosecution's case for three or four weeks, and then

3 we go on the Prosecution's case next January.

4 MR. HODZIC: [Interpretation] Your Honour, when I have just told

5 you about starting in January, I was referring only to the material in

6 possession of the Prosecution which has been disclosed to us. We have to

7 be prepared, and we have to go through that material by January, and we

8 will just manage to do that by January in order to properly defend our

9 client. Without taking into account material needed for Defence, what I

10 was saying pertained only to the material delivered to us by the

11 Prosecution which will be used for cross-examination. It does not pertain

12 to any other material.

13 JUDGE KWON: So the difficulty the Defence is currently raising is

14 that only related to the materials. You have more materials to read or

15 you haven't completed your reading of the materials disclosed by the --

16 from the Prosecution. Am I right?

17 MR. HODZIC: [Interpretation] The main counsel, the lead counsel,

18 is almost finished with that job, with that part of the job; however, we

19 have to have in mind that the new co-counsel has just recently been

20 appointed and is not prepared to begin the trial yet.

21 JUDGE KWON: Could you help me with this: If the lead counsel is

22 ready, what else do we need to prepare for the case to start?

23 Yes, Mr. Mettraux.

24 MR. METTRAUX: If I may, Your Honour. As far as the Defence is

25 concerned, we are aware of our obligation to be ready as soon as possible

Page 150

1 for trial. We are also aware of the tight time limit which was sent upon

2 us at the last Pre-Trial Conference. But the Defence is also aware of the

3 right of the accused to have adequate time to prepare for trial. Our

4 client, Mr. Halilovic, has a right to a fair and to a speedy trial, and if

5 those two rights oppose each other, the rights of a fair trial should have

6 pre-eminence. And the Defence is, I believe, in no position, absolutely

7 no position whatsoever to start the trial in November. And let me make it

8 clear, if I may, that I'm talking about the preparation to meet and

9 prepare for the Prosecution case. We are not yet talking about the

10 preparation of the Defence case for which we will need many more months to

11 prepare.

12 There are an enormous number of documents which we need to read,

13 review, analyse and prepare for. As you may know, I have been to Sarajevo

14 last week to meet with our client. We have discussed about the state of

15 the case. We have made a general assessment as to the time which we need

16 to prepare for trial and I believe that we would be sacrificing every

17 possible right that our client has to be given a fair trial if we were to

18 agree and not object very, very strongly to the idea of starting a trial

19 in mid-November.

20 I personally and the Defence are in no position to start the trial

21 on the 17th of November, and I would very kindly ask the Court to

22 reconsider this suggestion. And if it pleases the Court, I could also

23 suggest that we make further written submissions on that issue if it were

24 agreeable to Your Honour.

25 JUDGE KWON: Yes. Yes. Thank you. Since the matter is to be

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1 deliberated and discussed - the decision should be rendered by the Chamber

2 - written submissions would be helpful to us. The Chamber will take into

3 account what has been raised today and render a decision in due course.

4 In the meanwhile, let us deal with some pending motions and some

5 pre-trial preparations. I think we have three outstanding motions. One

6 is August 8, 2003 filing. The Prosecution filed that motion in response

7 to the Trial Chamber's recommendation during the pre-trial brief -- I'm

8 sorry, Pre-Trial Conference, that the number of witnesses for the

9 Prosecution's case be limited. The Prosecution responded by heeding to

10 some of the Chamber's recommendations and limiting the number of live

11 witnesses to 40 and 60 in case of Rule 92 bis witnesses.

12 This being said, I think the Prosecution filing -- this filing is

13 resolved then. Do we need any more leave -- do I have to give a leave on

14 this? I don't think so.

15 MR. WITHOPF: It's the understanding of the Prosecution that the

16 Prosecution fully complied with the order as rendered verbally in the

17 course of the Pre-Trial Conference on the 15th of July this year.

18 However, for pure technical -- legal, technical reasons, the Prosecution

19 would suggest that either the Pre-Trial Judge or the Trial Chamber grants

20 leave.

21 JUDGE KWON: Be it leave or resolution, it is -- I think the issue

22 is resolved.

23 And the other two motions, the 8th of September motion and 19th of

24 September motion regarding the addition of two 92 bis witnesses and 34

25 exhibits. I also have a response from the Defence, though belated, and I

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Page 153

1 hereby give leave for that. And having read those motions and responses,

2 I would like to hear from the Prosecution, especially in relation to the

3 Defence response.

4 In paragraph 10 of its response, the Defence said that the

5 Prosecution should not be permitted by reason of its ongoing investigation

6 and ongoing analysis of its material to constantly seek to amend these

7 lists unless exceptional circumstances are shown which should justify such

8 extraordinary courses.

9 Do you have any say to this?

10 MR. WITHOPF: Yes, I have. There are two applications; one is

11 seeking approval to add two witnesses to the Rule 92 bis witness list, and

12 the other one is seeking leave to add 34 additional exhibits to the

13 exhibit list.

14 In respect to the witnesses, one has to emphasise that factually

15 the witnesses have only been interviewed recently, namely mid- or end of

16 July 2003. They are added to the Rule 92 bis witness list, not to the

17 live witness list, meaning that the witnesses will provide corroborating

18 evidence, corroborating evidence only in respect to the Grabovica crime

19 base incident.

20 Legally, one must emphasise that the starting point for the

21 assessment is the adequate trial preparation of the Defence. The Rules of

22 Procedure and Evidence actually provide an estimate, what is considered

23 being adequate. If one reads Rule 65 ter (E), it says the pre-trial brief

24 must be filed six weeks prior to the Pre-Trial Conference, and the

25 Pre-Trial Conference is supposed to be very close, supposed to be only a

Page 154

1 few weeks prior to the commencement of the trial. That gives a clear

2 indication that between the filing of such materials and the commencement

3 of the trial, only a few weeks or a few months are considered being

4 adequate for the Defence preparation. So we certainly do have a situation

5 that matches the criteria as set out in the Rules.

6 In respect to the application adding 34 additional exhibits to the

7 Prosecution's exhibit list, contrary to what the Defence is saying, the

8 Prosecution wishes to stress the following: Most of the added materials

9 we only got in the course of 2002 or 2003 only. Most of the materials

10 were part of a huge document collection. We are talking of -- we are

11 talking about a document collection comprised of 11.000 pages, and all

12 such documents, without any exception, were in B/C/S language. That means

13 the Prosecution, of course, needs some time to identify relevant

14 documents, to get such documents translated, and to finally analyse such

15 documents. Again, the Defence has plenty of time to adequately prepare

16 its Defence.

17 And what are the additional exhibits about? These are crime scene

18 photographs, these are intercepts, these are military documents --

19 JUDGE KWON: Intercepts between whom?

20 MR. WITHOPF: Between the accused and third persons.

21 JUDGE KWON: Thank you.

22 MR. WITHOPF: The accused actually knows -- the accused actually

23 knows what it is about.

24 All such added exhibits do not appear to require a lot of Defence

25 preparation. It's basically nothing new to the Defence. So the

Page 155

1 Prosecution is of the very strong view that there is no impediment to not

2 add such exhibits to the current exhibit list.

3 JUDGE KWON: A query which may be important at this moment may be

4 this: Will there be another change in the future?

5 MR. WITHOPF: In the event there would be a change, and the

6 Prosecution will continue to analyse material it has got in recent times,

7 the change will certainly be not very dramatic.

8 JUDGE KWON: I would encourage the Prosecution to finalise its

9 list as much as you can in terms of the -- that is important because, in

10 terms of Defence, if there is so radical or there are several changes

11 which took place, the Defence has great difficulty in preparing their --

12 its case.

13 MR. WITHOPF: The Prosecution, of course, has its own interest to

14 finalise its exhibit list. One also has to consider that talking about --

15 about 160 exhibits, in comparison to many other trials before the ICTY,

16 the exhibit list is a very small one.

17 JUDGE KWON: In terms of exhibits, if my memory is correct that

18 the Prosecution once mentioned a more -- larger number of exhibits than

19 166, if granted. Am I correct?

20 MR. WITHOPF: You are correct, Your Honour. That was at the time

21 we actually received the huge amounts of materials, and we're not entirely

22 sure whether such materials would contain additional relevant documents or

23 other exhibits that could be of use for the Prosecution.

24 JUDGE KWON: Thank you. Having heard from the Prosecution, I

25 would give the floor to the Defence on these issues, the outstanding

Page 156

1 motions.

2 MR. METTRAUX: Yes, Your Honour. A number of points which I

3 believe we have raised in our response already, but I would like to

4 underline some of them again in view of the submissions made by the

5 Prosecution.

6 We are being informed that the evidence is essentially

7 corroborating evidence, which confirms our submission that most of the

8 material is completely redundant, and I believe that the Prosecution has

9 not explained the reasons why this additional evidence which we see as

10 redundant needs to be admitted let alone be admitted -- sorry, put forth

11 by the Prosecution and searched at a later stage. We do not question the

12 fact that some of those interviews, or in fact both of them, may have been

13 taken recently or that much of the exhibit has been obtained recently.

14 Our question is why? Why hasn't it been done before? As we said I think

15 quite clearly in our response, they have had ten years to prepare this

16 case, and we are being given a few months to do so.

17 In relation to Rule 65 ter and the suggested relationship between

18 the pre-trial brief -- the submission of the pre-trial brief and the start

19 of the trial, that may be so, but the fact is that in this case there will

20 be a greater time frame between the submissions of the pre-trial briefs

21 and the start of the trial. And as we said, again I think quite clearly

22 in our response, this postponement of the date of the trial was due to one

23 fact and one fact only, which was the inability of the Defence to be ready

24 for this date.

25 Finally, concerning the Prosecution's submission that it would

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1 entail only a very modest extra work for the Defence, I suggest that this

2 assessment should be left to the Defence and not to the Prosecutor. We

3 are not in a position at the time to take on additional work. I think we

4 have made it very clear that we are in a very, very difficult situation

5 right now, that we need all the time we have in our hand to prepare for

6 what we believe to be the Prosecution case, for what we believe to be the

7 exhibits, for what we believe to be the witnesses. If now we are expected

8 to prepare for an even earlier date, I have to say that whether or not

9 this evidence is of great or of minor importance makes our life very, very

10 difficult.

11 JUDGE KWON: Taking into consideration what was raised by the

12 parties, the Chamber will render a decision in due course.

13 Let me deal with some preparatory matters and first disclosure

14 things. I don't think there is much to add to the disclosure of 66(A)(i)

15 and (A)(ii). And we mentioned we dealt with 68. And an expert. The

16 Prosecution is going to call one expert.

17 MR. WITHOPF: That's correct, Your Honour. It will be a military

18 expert, and the report has been disclosed some months ago.

19 JUDGE KWON: That is General Ridgway.

20 MR. WITHOPF: General Ridgway, correct.

21 JUDGE KWON: According to the Rule 94 bis, which provides for the

22 Defence to indicate within 30 days of disclosure whether the expert is to

23 be called for cross-examination or not, is the Defence ready to give that

24 indication or not?

25 MR. HODZIC: [Interpretation] The Defence will certainly

Page 159

1 cross-examine the expert witness, and that is our motion.

2 JUDGE KWON: Very well.

3 MR. WITHOPF: Your Honour.


5 MR. WITHOPF: Your Honour, if the Prosecution may make an

6 observation on this issue. The expert report has been disclosed on the

7 10th of July this year. So I assume there is a problem with the 30 days'

8 time limit for the Defence to make or to -- to make any observations on

9 the military expert's report.

10 JUDGE KWON: If the Defence is going to file a -- their response

11 in writing, I think that can be dealt with by the Chamber in due course.

12 MR. METTRAUX: Yes, Your Honour. If that were to be the position

13 of the Prosecution, we would file -- we will make written submissions and

14 seek leave for an extension of time if indeed the Prosecution is of the

15 view that we have missed the deadline.

16 MR. WITHOPF: Your Honour?

17 JUDGE KWON: Yes, Mr. Withopf.

18 MR. WITHOPF: Your Honour, just to clarify this point, for the

19 first time, the military expert report has been disclosed the 31st of

20 March, 2003, and then for the second time in B/C/S translation it has been

21 disclosed on the 10th of July, 2003. There was plenty of time for the

22 Defence to react.

23 And if I may make a further observation, the assignment of

24 co-counsel in this case aimed at the purpose to actually accelerate

25 proceedings. What we are hearing today is exactly the opposite. Today

Page 160

1 the fact that co-counsel has been assigned is used as an argument to delay

2 proceedings. The Prosecution is very concerned about such an approach.

3 JUDGE KWON: Yes. Thank you. I'm not sure whether that issue

4 should be resolved by this Pre-Trial Chamber or by the Chamber which will

5 hear the case actually, but if the filing is -- the response is filed,

6 we'll deliberate on that.

7 Is there anything to make any comments on the 92 bis application

8 and response thereof?

9 MR. WITHOPF: The Prosecution will have a further 92 bis mission

10 to obtain declarations pursuant to Rule 92 bis end of October, beginning

11 of November. Defence yesterday has indicated that they will actually

12 accept some 30 Rule 92 bis witnesses. There will be a meeting between the

13 parties to finally determine on this issue.

14 JUDGE KWON: So whether this can be confirmed by the Defence?

15 MR. METTRAUX: Not really. We haven't stated, as Mr. Withopf

16 suggests, that the Defence has indicated that they will actually accept

17 some 30 92 bis witnesses. We haven't indicated such a thing. What we

18 said was that we are reviewing the 92 bis statements and at this stage we

19 thought that that could be one estimate. But we are in the process of

20 reviewing those statements, so the quotes from Mr. Withopf, with all due

21 respect, is inaccurate in that sense, that we wouldn't like to be

22 committed to any number at that stage.

23 And if I may react to the suggestion that the appointment of

24 counsel creates further delay for the trial, I think I have to respond to

25 that personally. It is not the intention of the Defence, and certainly

Page 161

1 not mine, to postpone this trial. Quite the contrary. I'm willing,

2 ready, and hopeful that my assistance in this case will speed up the start

3 of the trial and that I found the remark of Mr. Withopf a bit

4 inappropriate, the fact that certain matters haven't been dealt with in

5 the past and the fact --

6 JUDGE KWON: Yes. Thank you, Mr. Mettraux. I have the point.

7 And may I go back to the written submission from the Defence which

8 is going to deal with the start date of the trial. Could you do that as

9 fast as possible.

10 MR. METTRAUX: Certainly. Certainly.

11 JUDGE KWON: Within a week.


13 JUDGE KWON: And if I can hear from the parties on the issue of

14 agreed facts. Is there any progress on that?

15 MR. WITHOPF: Your Honour, unfortunately, I have to inform you

16 that there is no progress. The Prosecution has done everything what it

17 thought would be right to do. It has been discussed to some length

18 yesterday.

19 The Defence indicated that they are ready to meet the Prosecution

20 on the previously -- on the list of previously agreed facts. This meeting

21 is supposed to take place tomorrow, and the Prosecution hopes that there

22 will be some progress.

23 JUDGE KWON: Yes. I expect there would be some progress on that.

24 Is there anything the parties wish to raise apart from those

25 raised already? No?

Page 162

1 MR. WITHOPF: Not from the side of the Prosecution. Thank you.

2 JUDGE KWON: I think it's better to come to an agreement as to the

3 starting date of the trial, but if both parties can't agree on that, it is

4 -- I think it's for the Chamber to finally decide on that, and we'll look

5 -- we will take into consideration what has been raised today and also

6 what will be included in the Defence submission, and the Trial Chamber

7 will make a decision, as well as the -- as to those two outstanding

8 motions.

9 And the next Status Conference or other meetings will be scheduled

10 according to the date of the trial.

11 This hearing is adjourned now.

12 --- Whereupon the Status Conference adjourned

13 at 3.43 p.m.