Tribunal Criminal Tribunal for the Former Yugoslavia

Page 39

1 Tuesday, 19 February 2002

2 [Status Conference]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 4.01 p.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Good afternoon, Your Honour. Case number

8 IT-95-14/2-A, the Prosecutor versus Dario Kordic and Mario Cerkez.

9 JUDGE HUNT: Appearances for the Prosecution. Mr. Farrell.

10 MR. FARRELL: Good afternoon, Your Honour. Norman Farrell for the

11 Prosecution, with Mr. Wolfgang Sakulin, our case manager.

12 JUDGE HUNT: Thank you. For General Kordic.

13 MR. NAUMOVSKI: [Interpretation] My name is Mitko Naumovski, a

14 lawyer from Zagreb, counsel for Dario Kordic.

15 JUDGE HUNT: Thank you, Mr. Naumovski. And for Mr. Cerkez.

16 MR. KOVACIC: For Mr. Cerkez, Your Honour, Bozidar Kovacic, an

17 attorney from Croatia; and for the first time here in post-judgement

18 phase, co-counsel, Mr. Mikulicic, Goran.

19 JUDGE HUNT: It's been some time since we've seen you,

20 Mr. Mikulicic. Welcome back to the case.

21 Now, this is a Status Conference called in accordance with Rule 65

22 bis. Before we turn to the state of readiness, is there anything that

23 either of the accused, through their counsel, wish to raise as to their

24 state of health or whatever?

25 Right. Well, now, we have now got the briefs filed. However,

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1 yesterday I signed an order directed to each of the appellants to file

2 amended grounds of appeal. I thought that I had actually made it

3 reasonably clear, in a decision given, oh dear, on the 11th of September

4 last year, that we expect some form of orderly presentation in these

5 pleadings and that we should not have to look in subsequent pleadings for

6 amendments, additions, variations, or embellishments of matters which

7 should have been in an appellant's brief.

8 That was the decision when, on behalf of Mr. Cerkez, his counsel

9 said, in complaining about the Prosecution getting extra time, that it was

10 an unjustified advantage because it gave the Prosecution an exceptional

11 opportunity to use its brief in the other current matter to answer the

12 arguments which he had filed and added: "Every counsel would do that and

13 every counsel would know how to use the opportunity," a statement which

14 drew a somewhat dusty reply, that: "Whilst it may be that some counsel

15 would take advantage of such an opportunity, the Tribunal does not

16 subscribe to his suggestion that every counsel would do so."

17 It had been made, I thought, fairly clear that we did not want

18 counsel to be adding things where we have to go looking for them in

19 footnotes and in responses, which - I'm sorry, in replies - which should

20 be in an appellant's brief.

21 Now, we want to make it absolutely, abundantly clear that we have

22 to have a document which identifies all of the grounds of appeal taken and

23 where we will find a reference to those grounds of appeal in the briefs.

24 Without that, I am certain that there will be a complaint later on that we

25 have overlooked something, and if we have, it can only be your fault.

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1 I want to know precisely how long this is going to take so that we

2 can then make an order when we've seen it and we’ve seen what the grounds of

3 appeal are and we've seen whether there's leave needed to add matters to

4 your appellant's brief. We can then set about giving you a date for the

5 hearing of your appeal.

6 Well, Mr. Naumovski, you're the one who is guilty of putting

7 things in footnotes, and Mr. Kovacic is guilty of putting things in

8 reply. How long will it take you to file a document which sets out your

9 grounds of appeal?

10 MR. NAUMOVSKI: [Interpretation] Your Honour, I have just read your

11 order of yesterday. I have not thought about the time, but I believe it

12 will take about two weeks. I'm not sure that's exactly how long it will

13 take, but I will start work on it right away, although we are looking

14 through the documents submitted by the Prosecution. However, we'll start

15 on it right away, and I don't think it should take more than two weeks.

16 JUDGE HUNT: Thank you.

17 And what about you, Mr. Kovacic?

18 MR. KOVACIC: [Interpretation] Your Honour, I would not like to put

19 myself in a situation where I make promises I'm not sure I will be able to

20 keep. It seems to me that my learned friend Mr. Naumovski has been a

21 little optimistic. I would be very grateful if I could be granted three

22 or four weeks, although I am still not certain exactly how much work I

23 have to put into it. But in view of what I can see now, I believe that

24 three or four weeks would be a reasonable time, bearing in mind the

25 strength of our team, the numbers of our team, and the materials being

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1 discovered, because we have only just now received the last batch of

2 materials we have to look through. However, I will, of course, abide by

3 Your Honour's decision.

4 JUDGE HUNT: It shouldn't take you four weeks to list your grounds

5 of appeal with references to them. I can understand that you need more

6 time perhaps in order to consider the material which the Prosecution is

7 disclosing to you, but I would like to get something a little earlier than

8 that.

9 I've written down here, just as a date, the 10th of March, which

10 may be somewhere in between the two of you, but that would be nearly three

11 weeks. I think that I'll make that order that that document which was

12 ordered yesterday needs to be filed by the 10th of March.

13 Now, I can see the problem you have in relation to the material,

14 and you will want to, I assume, make an application under Rule 115 in

15 relation to certain of the matters or you perhaps will. So we better

16 start thinking of a cutoff period for that.

17 You sit down, sir.

18 Have you now complied with everything in that order of -- what was

19 it? 15th of November, wasn't it?

20 MR. FARRELL: That's correct. The order with respect to -- yes,

21 we have, Your Honour.

22 JUDGE HUNT: And when did you finally give them all the

23 documents? I know you have a schedule, but --

24 MR. FARRELL: Yes. The final disclosure of the last CD with the

25 documents was given when the two counsel arrived yesterday.

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1 JUDGE HUNT: What sort of material is involved in it? Your

2 schedule is a helpful one, but I'm not quite sure I can understand how

3 much material there is in it.

4 MR. FARRELL: That's understandable, Your Honour. The last

5 disclosure, if I can find it, is a CD with --

6 JUDGE HUNT: It says just on one CD.

7 MR. FARRELL: Yes, it was on one CD. The total disclosure was

8 somewhere around 40.000 pages, and this was the last of eventually four

9 CDs, as I understand.

10 JUDGE HUNT: Oh, I see. Nine hundred and seventy-seven

11 documents. Yes. Well, you, I suppose, have had to look through it at

12 some stage. How long do you think it's going to take for them to finish

13 off looking at this material?

14 MR. FARRELL: The material has been reviewed solely for the

15 purposes of disclosure, obviously just to search for the correct

16 categories. We haven't reviewed it specifically. We certainly can. I

17 think our intention, if permitted, was to wait and see what was filed by

18 the appellants as Rule 115 material and from that stage review it and not

19 review material which may not subsequently be filed.

20 JUDGE HUNT: All right. Well, doing your best on what you've got,

21 how long do you think you're going to need in order to review the material

22 for the purposes of Rule 115?

23 How about you, Mr. Naumovski?

24 MR. NAUMOVSKI: [Interpretation] Your Honour, to be quite truthful,

25 there is really a lot of material, and I'm sorry that during our case we

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1 were not able to use these materials, because it would have made things

2 much easier for the Court. However, I am doing my best to review these

3 documents. There are about 40.000 pages, as my learned friend has just

4 said, and I have to admit I haven't finished the material that was

5 disclosed earlier. If we are now to have a three-week period to fulfil

6 our obligations, according to your order, then I think that the 10th of

7 March -- well, I'm not sure that we can complete this within a month. I

8 am referring to the CD that is still remaining plus the new one that has

9 just been disclosed.

10 JUDGE HUNT: I understand that fully. All I'm asking you is how

11 long do you think it will take you to go through the material so that you

12 can then give an estimate on when you'll be able to make your final

13 Rule 115 application? I'm happy to give you longer than the three weeks

14 it takes to put your ground of appeal on.

15 MR. NAUMOVSKI: [Interpretation] As I have just said, I will

16 immediately put all my energy into this brief, and if I do so, then I

17 think by the 10th of March I will know where I stand under Rule 115. So I

18 believe that it's the 10th of April of this year.

19 JUDGE HUNT: So you say by the middle of April you'll be able to

20 tell us when you will be ready to file your Rule 115 application. Is that

21 what you're saying?

22 MR. NAUMOVSKI: [Interpretation] Precisely so, Your Honour.

23 JUDGE HUNT: You see, this is really the next appeal to be heard,

24 and we don't want to leave it any longer than is necessary. That's why I

25 wanted to, at some stage, impose a time limit on your 115 application.

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1 Well, if you can tell us by the 10th of April, then certainly

2 we'll be able to impose a time limit and deal with that one as it comes.

3 How about you Mr. Kovacic? Would you be able to tell us by the

4 10th of April what your intentions are in relation to Rule 115?

5 MR. KOVACIC: [Interpretation] Your Honour, I believe that the

6 estimate made by my friend Mr. Naumovski is realistic, and I am certain

7 that by that date we will be able to tell you precisely how much time we

8 would reasonably need to complete our application under Rule 115. Of

9 course, we are already working on it. We already have an outline and

10 general submissions, but for the most part I'm referring to the time we

11 need to expend. We have to put in order the documents so that we can make

12 use of them in a reasonable way. So I believe that by mid-April we will

13 certainly be able to tell you how much time we reasonably need to complete

14 our applications.

15 JUDGE HUNT: All right. Well, Mr. Farrell, have you got any

16 suggestion about that? It seems to me fairly reasonable if they've got

17 that much to read.

18 MR. FARRELL: I think that's quite reasonable under the

19 circumstances.

20 JUDGE HUNT: And at that stage it may be necessary to have a

21 hearing to determine whether the Rule 115 will be determined prior to the

22 hearing of the appeal or as in my view would be the more appropriate

23 process, to have it heard at the hearing of the appeal.

24 MR. FARRELL: The only thing I may caution on is that the

25 Prosecution has been looking through this material for the purpose of any

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1 rebuttal evidence. I know that the procedure in Kupreskic attempted to

2 address that issue, and it may be useful that it be addressed again here

3 if necessary, but I want to forewarn Your Honour that depending on what's

4 filed, we can be in a position shortly after they indicate what's to be

5 filed if we feel it appropriate to at least seek leave to respond with our

6 own material.

7 JUDGE HUNT: Certainly that's part of the equation, but the

8 Kupreskic appeal, if I may say so, with all due respect to those who took

9 part in it, demonstrated one of the problems with Rule 115 that you can't

10 deal in piecemeal. What may be unimpressive by itself may become

11 impressive when it comes from several different sources. And it also

12 makes it very difficult for the Judges, in effect, to have to get ready

13 twice to consider the same material.

14 As somebody who spent many years in a court of criminal appeal

15 where new evidence or fresh evidence came up regularly, it was always

16 thought better to hear it during the appeal itself, that and any rebuttal

17 evidence. But we shall consider the matter, and my colleagues may have

18 different views, but at least at sometime in April we'll know what the

19 situation is, what's likely to come. You, of course, will have to wait

20 until you see what the application is before you decide upon your rebuttal

21 evidence. But I think we have to keep a bit of a hold on it so the matter

22 just doesn't escape. I'd hate it to lose its place.

23 MR. FARRELL: The Prosecution agrees, Your Honour. Thank you.

24 JUDGE HUNT: All right. Now, is there anything that -- yes,

25 Mr. Naumovski. You wanted to add something.

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1 MR. NAUMOVSKI: [Interpretation] I apologise, Your Honour, but if

2 this is the end of today's session, I would like to put forward a

3 technical application. When we read the submissions made on behalf of

4 Mr. Kordic, we noticed a lot of typographical errors, so we would like to

5 ask for permission to submit a corrected copy, where these errors have

6 been corrected, and also to draw up a table indicating the errors that

7 have been corrected.

8 JUDGE HUNT: Yes. If you can have a corrected version, it would

9 be certainly of some assistance, but I hope that you will not think it

10 unfair of me to suggest that we don't want additional material, just

11 corrected material. If you want to add something, you have to make an

12 application to add it, as I have pointed out in the decision yesterday.

13 MR. NAUMOVSKI: [Interpretation] Of course, of course. Thank you,

14 Your Honour.

15 JUDGE HUNT: It will be much easier to read. The small amount of

16 it that I've seen, I wasn't having too much difficulty, but typographical

17 sometimes do produce problems.

18 Now, there's nothing else anybody wants to add? Thank you very

19 much for coming along, and we'll see you sometime after the 10th of

20 April.

21 --- Whereupon the Status Conference adjourned at

22 4.19 p.m.