1 Thursday, 9 September 2004

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 3.04 p.m.

5 JUDGE KWON: Could the Registrar please call the case.

6 THE REGISTRAR: Thank you, Your Honour. Case number IT-01-48-PT,

7 the Prosecutor versus Sefer Halilovic.

8 JUDGE KWON: Thank you.

9 Will both parties make their appearances.

10 MR. TOCHILOVSKY: Good afternoon, Your Honour. My name is

11 Tochilovsky, and I'm with Sureta Chana, Marie Tuma, Manoj Sachdeva, and

12 Hasan Younis for the Prosecution.

13 JUDGE KWON: Thank you, Mr. Tochilovsky.

14 And for the Defence, please.

15 MR. MORRISSEY: May it please the Court. My name is

16 Mr. Morrissey, and I now appear for Mr. Sefer Halilovic, and with me

17 appears Mr. Mettraux as counsel, and also I seek leave for Mr. Amir Cengic

18 to appear to assist me as a legal assistant, who is on my far left.

19 JUDGE KWON: Thank you, Mr. Morrissey.

20 This is the eighth Status Conference, which is held in accordance

21 with Rule 65 bis of the Rules of Procedure and Evidence. The issue of

22 counsel again arose in this case. However, I see that it has been now

23 resolved with Mr. Peter Morrissey as the new lead counsel, and I welcome

24 you, Mr. Morrissey.

25 MR. MORRISSEY: Thank you, Your Honour.

1 JUDGE KWON: As we are all aware, this case was ready for trial,

2 and the trial was scheduled to take place in the middle of January this

3 year. However, due to the lack of availability of a Trial Chamber to hear

4 the case, this case was not to be. Thereafter, again due to the issue of

5 counsel, progress to move this case to the trial was delayed again, and

6 now that the issue of counsel has been resolved, can I take it that the

7 case should be back on track to commence trial at any moment from now?

8 May I first hear from the Defence on this issue.

9 MR. MORRISSEY: Yes, as the Court pleases. Your Honour, the

10 position as to the Defence is that we shall meet any deadlines that are

11 required by the Court. We propose to be ready for any trial date that is

12 set, and we shall met deadlines as required. May I indicate that there

13 are, of course, some preferences that the Defence has, so far as the Court

14 is concerned to hear those, that at all times our concern is to ensure

15 that Mr. Halilovic is properly represented and that we're in a position to

16 proceed quickly and efficiently when the trial begins. And as a result of

17 that, we would be prepared to meet such speculative deadlines as have been

18 set, but of course we would also be comfortable with an extended

19 preparation time, should that be available.

20 Now, therefore, the ideal from the Defence perspective, and it is

21 simply the Defence perspective, not that of the Court, of all the parties

22 necessarily, is that the trial commence at some time late in December or

23 in January of the following year. However, we will meet earlier deadlines

24 than that if called upon to do so.

25 JUDGE KWON: Thank you. Thank you, Mr. Morrissey. Indeed, I'm

1 very pleased to hear your responses and -- because this case is indeed on

2 the top of the list of the Tribunal cases, ready to commence trial.

3 I'm yet to be confirmed, but I was informed that there's a

4 possibility in the Tribunal that for this case to start in December of

5 this year or January next year, as you suggested, possibly after the case

6 of Blagojevic. So please bear this in mind and make your preparations

7 accordingly, please.

8 MR. MORRISSEY: Your Honour, that indication is very welcome and

9 we can comply.

10 JUDGE KWON: Thank you.

11 Then I will -- let's deal with some pending motions, unless

12 there's any observation from the Prosecution on the commencement of trial.

13 MR. TOCHILOVSKY: Nothing in addition to what was said at the

14 previous Status Conference.

15 JUDGE KWON: Thank you. There are several pending motions, I

16 guess, some of which are outstanding for a substantial period of time.

17 The first thing would be the Prosecution's Rule 92 bis motion, and in

18 relation to which we have Defence response and addendum. However, it is

19 my personal opinion that a final decision on this can be best made by the

20 Trial Chamber which will actually hear the case in the future. But this

21 is under review of this Chamber also, and parties will be informed in due

22 course, in due manner, on this issue.

23 We have another motion in relation regarding a subpoena from the

24 Defence, which case was remitted from the Appeals Chamber, and I think I

25 can inform you that decisions will be issued very shortly.

1 And there's another motion from the Defence requesting for access

2 to personnel files, and this is under consideration of the Trial Chamber

3 and their decision will be rendered in due course.

4 And the final motion, pending motion, will be the motion in

5 relation to the disclosure of 66(A)(ii) materials and opposition from the

6 Defence, which is also under review of the Trial Chamber. However, it

7 involves some difficult issue, or some tricky issue, as to whether a Trial

8 Chamber has the power to order the Prosecution to cease or to stop the

9 investigation, and then the issue number two, possible sanction we can

10 think of when Prosecution did not comply would be disallowing the material

11 to be disclosed, but which may be to the contrary -- prejudicial to the

12 Defence on the contrary.

13 So the Chamber is reviewing this matter. However, I'm of the view

14 that, also the Chamber, there should come a time for the Prosecution to

15 complete their investigation if the case is ready to start. So having

16 said that, with that in mind, can I turn to the Prosecution to ask the

17 following two things: First, if Prosecution could elaborate reasons for

18 the delayed disclosure for the last submission in relation to five

19 witnesses, and then whether it is still going to re-investigate the case,

20 or re-interview the witnesses, and going to disclose those materials.

21 MR. TOCHILOVSKY: Just a few thoughts on issues which was just --

22 has been just raised. As to the right of the Prosecution to continue the

23 investigation and whether the Prosecution should be -- or could be stopped

24 from conducting it, I think one of the issues here is what is the

25 investigation, what it means when Defence raised this issue. For

1 instance, during trial some question may arise which would require the

2 Prosecution to revisit a witness, to interview the witness or to interview

3 new witness. Is it investigation during trial or, for instance, when you

4 contact witness as we are supposed to do on a regular basis to keep

5 contact with them, so when we have the order for trial we know where

6 witnesses are and how they are prepared to go -- to come here. When you

7 contact the witness and they provide you with some information which is

8 relevant to the case, is it a new investigation? I think it should be

9 made clear. The case is ready for trial, which means the major

10 investigation, if I may say that, is completed. But I don't see how

11 Prosecution can be prevented from -- I see only one situation where the

12 Prosecution is prevented to speak to witnesses. It's when the witness

13 takes the stand, started his testimony to the courtroom. This is the OTP

14 practice. It's ICTY practice that neither party should contact witnesses.

15 This is the only example I can see where Prosecution can be barred from

16 contacting witnesses since speaking to them.

17 JUDGE KWON: Mr. Tochilovsky, I'm not minded going into some

18 detailed discussion today. The first question was asked because of this:

19 The Prosecution said it interviewed the witnesses, those five witnesses,

20 again, for clarification.

21 MR. TOCHILOVSKY: Yes.

22 JUDGE KWON: Would you elaborate on that. What points were

23 elaborated by these new five witness statements.

24 MR. TOCHILOVSKY: I don't have the statements before me, but --

25 [Trial Chamber and legal officer confer]

1 JUDGE KWON: Yes, please.

2 MR. TOCHILOVSKY: For those five witnesses or any other --

3 JUDGE KWON: I was reminded that -- I'm sorry to interrupt. I was

4 reminded by the Senior Legal Officer if necessary, we may go into private

5 session.

6 MR. TOCHILOVSKY: As you can see from Defence numerous

7 submissions, the Defence is of course - it is natural - they prepared

8 their case, they approach our witnesses, and some of our witnesses would

9 say, you know, when we talk to them, they say, you know, we decided to

10 testify for the Defence and we actually changed our statement. Of course,

11 we would like to clarify. When we see, for instance, such a notice from

12 the Defence, of course it's natural to contact the witness and clarify the

13 matter. It's just one of the reasons why you would like to clarify the

14 issue.

15 Secondly, as you find or come across a witness, and he would

16 provide you with information relevant to the case, it may prompt you to

17 re-approach your witness you already interviewed if you obtained new

18 information. Or the third -- anyway, there are various circumstances

19 under which you would be prompted, you would have to approach your

20 witnesses to clarify matters relevant to the case.

21 JUDGE KWON: Yes. Prosecution did make general submissions in

22 your filing.

23 MR. TOCHILOVSKY: Usually it can be -- it's -- I would say it is a

24 case by case issue. For instance, when you read the statement, additional

25 statement, it's always can be seen from the statement itself why it was

1 taken. It usually short statement from the question asked the witness is

2 immediately clear what was the purpose of this interview and what was the

3 purpose of this clarification.

4 For instance, just another example. There are two potential

5 witnesses who are not on our witness list but known to the Defence. We

6 disclosed everything to the Defence relevant to those witnesses. Those

7 who committed crimes within this indictment who are under investigation

8 and prosecution are even convicted in Bosnia-Herzegovina and who are now,

9 after they have been convicted or charged, willing to cooperate with us.

10 Of course we will approach those witnesses. And I don't see that there's

11 a new -- a re-investigation of the case. Both the Defence would benefit

12 from them because it clarified the case not only for the Prosecution. It

13 clarified the case for the Defence, it clarified the case for the Chamber.

14 JUDGE KWON: Let's come into a specific question. At this moment,

15 does the Prosecution have a specific plan to have more interviews and have

16 more witness statements?

17 MR. TOCHILOVSKY: I would say there are issues which are, to put

18 it simply, protected under 66(C), which is -- if we have obligation to

19 disclose, we would approach Trial Chamber if the facts are investigation

20 [sic]. For instance, in other cases but relevant to this case. But in

21 general terms, we are not envisaging for the interviews except for maybe

22 one which may happen within a month or even shorter period of time.

23 Again, I cannot name the potential witness. I cannot name the person,

24 because it is a pending investigation. All I can say, that just refer to

25 example I provided before. When person is arrested, like Sakrak or others

1 in Bosnia and is willing to speak to the Prosecution, the Prosecution

2 would approach such person. If Bosnian authorities, let's say, arrest

3 someone in two weeks time, in a month time and that person is available

4 for us and willing to cooperate with us, we will file the motion and we

5 will interview the witness, and we will ask the Chamber for leave to

6 disclose this statement to the Defence. But other than that, we are not

7 planning for the time being for the interviews.

8 JUDGE KWON: Thank you, Mr. Tochilovsky. Apart from what was

9 submitted in written filing, is there anything to add on the part of the

10 Defence?

11 MR. MORRISSEY: I would seek to make a very brief observation

12 arising from the questions that Your Honour asked from the Prosecutor, if

13 I may. It may be that the answer to Your Honour's question was yes.

14 JUDGE KWON: Yes. Yes, please. Go on.

15 MR. MORRISSEY: Your Honour, it looks as if there will be further

16 investigation. If looks as if there will be some more work done by the

17 Prosecution. The impact that has on the Defence is unknown to us at this

18 stage. It has a potential impact upon readiness for trial, upon

19 resources, and upon other matters. We don't know what the impact is. I

20 should indicate very keen not to delay matters and we are not looking to

21 do so. If there are to be changes, it's very desirable that we be told of

22 those immediately and as soon as possible and in a form that we can deal

23 with. That applies both to new witness statements and to revisiting of

24 previous witness statements. And I observe too, and finally, that there

25 is a cumulative weight of such matters, that what may look like the

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1 occasional interview of a witness may be added to a weight of others.

2 That concludes the remarks I wish to make about that. And I'm

3 sorry, Your Honour. Did I understand you to seek whether there are any

4 other matters that needed to be raised.

5 JUDGE KWON: Yes, please.

6 MR. MORRISSEY: Generally speaking? Thank you. Very well.

7 Could I just place on record a couple of matters that are of

8 relevance. Should we find - this is really a concession from the Defence

9 or an offer, that should we find that our estimates as to trial length or

10 any other matters are affected by rulings of the Chamber, we'll indicate

11 that as soon as we can. We don't anticipate that that will be the case,

12 but we wish to have the ability to be heard if that proves to be so.

13 Your Honour, I mentioned that we've been provided with a great

14 deal of assistance by the Prosecutor in terms of the witness statements

15 and also exhibits, in electronic form, which has made our job much easier

16 and made it much more likely that we would be ready, as we've indicated we

17 are, and we wish to express our gratitude for that.

18 An electronic disclosure suite has been made available to us as

19 well. This would contain somewhere in the order of 11.000 documents.

20 There is an order in place that the Prosecution provide an index in

21 relation to it. That index is of great importance. It turns what is

22 otherwise a massive, monstrous ignorance on our behalf into something that

23 we can in fact use. We say that -- we submit that an index ought to

24 consist of certain minimal requirements, and we say that those are that

25 the document itself ought to be identified, firstly; secondly, the author

1 of the document and any recipient of the document be identified; and

2 finally, that some brief summary, even if it be a single line summary, be

3 provided.

4 The resources of the Defence are such that anything less is going

5 to stretch our ability to use that material effectively, and although it's

6 outside of the Court's ability to make any such order at this stage, we

7 nevertheless want it to be made clear that that's what we think ought to

8 exist.

9 Your Honour's questions earlier have anticipated questions that we

10 had and we have nothing to add to those. Those are the matters I would

11 wish to raise at this stage.

12 JUDGE KWON: I didn't follow the first issue. You were asking

13 about the trial length or --

14 MR. MORRISSEY: I was making the observation -- I'm sorry, Your

15 Honour. As to the first observations I made, do you mean responding to

16 what the -- to the Prosecutor's comments?

17 JUDGE KWON: Mm-hmm.

18 MR. MORRISSEY: I make the comment that continued disclosure can

19 disturb our plans and our estimates.

20 JUDGE KWON: Okay. Thank you.

21 Can I hear from the Prosecution.

22 MR. TOCHILOVSKY: Just one issue with regard to this electronic

23 disclosure suite. I hear the Defence says that the minimum requirement

24 should be summary of which document, the name of the author of each

25 document, and the name of those to whom document is addressed to. I read

1 the Rule 66(B), I read Rule 66(A)(ii). I don't see this requirements in

2 any rules in ICTY Rules of Procedure that require the Prosecution to not

3 only disclose the document but also provide summary of those documents. I

4 don't see this requirement. I don't see this obligation on the side of

5 the Prosecution. Our obligation under 66(B) and 66 -- 68(ii), which is

6 actually electronic form of 66(B), is that we're supposed to give the

7 Defence access to the documents in our possession and control, not to

8 provide a summary of each document, not to provide the names and other

9 information about document but to provide access to the documents.

10 Thank you.

11 JUDGE KWON: Well, Mr. Tochilovsky, you are saying is that it is

12 almost impossible on the part of the Prosecution.

13 MR. TOCHILOVSKY: Yeah. If we had, let's say, 10, 20, a few

14 dozens of documents it wouldn't be the issue. And we always, whenever we

15 have opportunity, we meet the request from the Defence when we can do

16 that, even if it goes beyond the Rules. For instance, just today we

17 provided the Defence, as it was reported, the proper list of evidence,

18 when you see the list of the exhibit, you click on the name of the exhibit

19 and the exhibit appears on your screen. We provided that even we are not

20 required to do that. But to do the same with thousands and thousands of

21 documents in the electronic database, to provide summaries for all these

22 documents, I don't see even any unit in ICTY which can do this job for the

23 Defence.

24 JUDGE KWON: We are hearing this debate in every case. So Defence

25 must have heard that too. Thank you.

1 Is there any matter to be dealt with right away?

2 MR. MORRISSEY: No, Your Honour.

3 JUDGE KWON: How about Prosecutors? Is there any matter? Yes.

4 MR. TOCHILOVSKY: Just one matter again.

5 JUDGE KWON: Microphone.

6 MR. TOCHILOVSKY: One matter again. It may be just technical. We

7 discussed that with the Defence. We will discuss that with the Defence

8 later again. We have the practice in other Trial Chambers and, for

9 instance, I have decision in Krajisnik case in front of me about the

10 pre-trial brief where Judge of the Trial Chamber which received the case

11 from pre-trial Chamber after almost two years. They issued the order,

12 Scheduling Order for the filing of supplement to the pre-trial briefs.

13 And in that order, the Trial Chamber with the Presiding Judge Orie they

14 mentioned that given the length of time elapsed since the filing of the

15 pre-trial briefs and the change of the Defence counsel, it is in the

16 interest of justice to allow the parties to file a supplement to the

17 pre-trial brief if they so wish. And of course in our case it is even

18 more than two years. It's -- we filed our pre-trial brief and Defence

19 filed their pre-trial brief in middle 2002, which now, for instance,

20 speaking for the Prosecution, we are going through our pre-trial brief and

21 check the ICTY's jurisprudence developed for this two and a half years,

22 and there were changes in the jurisprudence. There were changes in

23 application of some rules -- of some Articles of the ICTY cited. We now

24 going through our pre-trial brief and to see whether there is any

25 necessity to fine-tune the pre-trial brief and adjust it to current

1 jurisprudence of the ICTY.

2 At this time, again, we may be prompted like it happened in

3 Krajisnik, by the Trial Chamber to submit, to refresh pre-trial brief. We

4 may come to that conclusion after we review our pre-trial brief again in

5 terms as I explained, and we may initiate also. But at this time what I

6 want to do is just to notify the Defence, although we have already

7 discussed that, that we may revisit this issue.

8 JUDGE KWON: May I take that as the Prosecution's case may be

9 reformulated in one way or another by new pre-trial brief?

10 MR. TOCHILOVSKY: As to the material facts, the charges, it's not

11 going to change at all. It's based on the indictment and whatever

12 pre-trial brief is - it's again, it is a rather fine-tuning rather than

13 change of material facts. We are not going to change that. Change of the

14 charges, we are not going to change that. The whole Prosecution theory,

15 what is 7(3), what is command responsibility, failure to prevent, we are

16 not going to change that. So there is nothing -- if, again, if we raise

17 the issue on re-submission of the pre-trial brief because of the lapse of

18 the time, it's not going to be any changes which would make the Defence

19 impossible to meet the Prosecution case. It would be again fine-tuning

20 rather than substantial changes in the material facts and charges.

21 JUDGE KWON: First of all, you will seek a leave from the Chamber

22 to resubmit the pre-trial brief?

23 MR. TOCHILOVSKY: Yes, of course. If we decide there is a need

24 for that, of course we will seek the leave from the Chamber. But again,

25 it's not the issue today.

1 JUDGE KWON: I have to hear from the Defence on this issue.

2 MR. MORRISSEY: Thank you, Your Honour. Again, the answer to Your

3 Honour's question, Your Honour's question being that the Prosecution case

4 may be reformulated in one way or another by a new pre-trial brief. It

5 appears the answer is yes. Can I indicate now that since we don't know in

6 what terms that's going to be done, it would be mere words to respond, but

7 I will indicate in advance that we would oppose that being done. It is

8 appropriate for the Prosecutor to seek leave to do so, and we would seek

9 leave to respond. Again, it's plain that such a reformulation may have

10 consequences for the future of the trial. Whilst resources are a topic

11 that the Trial Chamber is generally apt to avoid, and correctly so, it is

12 an issue that weighs upon our minds in terms of how we prepare and whether

13 we're able to prepare properly, whether we have equality of arms, whether

14 we have appropriate time, whether we have been led by the state of the

15 Prosecution case as it currently is to investigate particular areas which

16 now no longer need to be investigated and upon which we have squandered

17 our time and resources.

18 What we submit is, therefore, that it is appropriate that leave be

19 sought in writing, that we, the Defence, be entitled to respond in

20 writing, that that be done in such a way as not to interfere with the

21 potential starting time of the trial, and that whether or not those

22 applications -- the Prosecution application focuses upon changes in the

23 law or whether it involves what we - I put on record now - suspect is the

24 case, that there will be some developments of a factual kind, those ought

25 to be specified and pleaded with particularity so that we can respond in

1 an informed and appropriate way at the relevant time.

2 We make the final comment in response that the indictment is

3 currently phrased, we submit, broadly, notwithstanding our failure to

4 establish that in a previous motion that it was illicitly broad. It

5 remains our submission that it still is broad. And that is also a context

6 against which we have to prepare this case. We have to meet many

7 allegations. And if the ground changes, it has the potential to prejudice

8 the fair trial of the Defence. And for those reasons, we make the

9 submissions that I've mentioned in anticipation of what we think is a

10 certainty that the Prosecution will in fact seek that leave in the future.

11 JUDGE KWON: Thank you, Mr. Morrissey.

12 Yes, Mr. Tochilovsky.

13 MR. TOCHILOVSKY: First of all, just read transcript because I

14 couldn't believe that Defence said that, that I stated that the whole case

15 will be reformulated. I never said that. I don't know why it's in the

16 transcript and why Defence alleged this. I never said that case will be

17 reformulated, just opposite. I just said that if --

18 JUDGE KWON: We will see after the --

19 MR. TOCHILOVSKY: Just fine-tuning, first of all. Secondly, I

20 agree that it remains to be seen because it looks like Defence object to

21 what it exist yet. Maybe we will never submit even or if we submit there

22 will be no issues to challenge. So I think it's the objection, first of

23 all, objection to what is not submitted is premature and secondly, again,

24 I never said that the case will be reformulated.

25 JUDGE KWON: Yes, it is premature at this moment, and once it is

1 to be submitted, I would like to recommend to submit it as soon as

2 possible.

3 And if there's anything -- nothing further raised by the parties,

4 hearing is adjourned.

5 --- Whereupon the Status Conference adjourned at

6 3.38 p.m.

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