Tribunal Criminal Tribunal for the Former Yugoslavia

Page 49

1 Friday, 14 June 2002

2 [Open session]

3 [Status Conference]

4 [The appellants enter court]

5 --- Upon commencing at 3.00 p.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Good afternoon, Your Honour. This is Case Number

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

9 JUDGE HUNT: Appearances, Prosecution.

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

11 the Prosecution, with Wolfgang Sakulin, case manager.

12 JUDGE HUNT: Is Mr. Guarglia not with you today?

13 MR. FARRELL: It seems that events have overtaken Mr. Guarglia's

14 attendance and he won't be with me today.

15 JUDGE HUNT: Thank you, Mr. Farrell. For General Kordic?

16 MR. NAUMOVSKI: [Interpretation] Good day, Your Honour. My name is

17 Mitko Naumovski, attorney from Zagreb, and I speak on behalf of Mr. Dario

18 Kordic.

19 JUDGE HUNT: Thank you.

20 MR. KOVACIC: Good afternoon, Your Honour. My name is Bozidar

21 Kovacic and I am here for Mr. Mario Cerkez.

22 JUDGE HUNT: Thank you very much Mr. Kovacic. Mr. Naumovski, I

23 should tell you that I signed the order this morning in relation to time

24 that you sought in relation to your book of authorities.

25 Now, first of all, anything the Prosecution wishes to raise

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1 particularly?

2 MR. FARRELL: Your Honour, there are a few matters. I don't

3 know if -- they don't relate directly to the issues of detention or any of

4 those issues. They relate to the filing.

5 JUDGE HUNT: What I should say is we are hoping that we can give

6 you a hearing date, the parties a hearing date, in the last quarter of

7 this year. So we would have to know somehow how your disclosure problems

8 are going.

9 MR. FARRELL: Thank you for the information about the possible

10 hearing date. Regarding the disclosure issues we, at the last status

11 report, had indicated that all the material with respect to the ABiH

12 archives had been disclosed and all the Rule 68 material that we had known

13 about at the time. That needs to be corrected. On May 30th, we disclosed

14 to the Defence 18, approximately 20 logbooks or -- it's hard to describe

15 them. They are similar to war diaries or logbooks kept by certain units,

16 brigades, and others, from the ABiH collection. As you know, under the

17 order by the preappeal judge, yourself, the Prosecution was to have

18 disclosed a number of documents which, as set out in the order, had, I

19 think, eight or nine categories. Those documents were disclosed, with the

20 exception of these approximately 20 logbooks or war diaries, as they did

21 not come up when we searched them. They are all handwritten and therefore

22 were not electronically searchable. Therefore, we went through the whole

23 50.000 documents to check for all those which were not covered by an

24 electronic search. It's extremely onerous and also, to be frank,

25 frustrating to try and find these. I apologise to that. They are

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1 disclosed on CD form to the Defence at that time on May 30th, and one part

2 of one was given in hard copy as we didn't have it, we couldn't scan it in

3 electronically.

4 Secondly, with respect to disclosure, there was also disclosed on

5 May 30th a logbook, an HVO logbook. As a result of our search for

6 handwritten notebooks or logbooks or war diaries from the ABiH collection,

7 we went back and searched all the Croatian archive collection in our

8 possession for anything that was handwritten that may not have been

9 retrieved when we did our extensive electronic searches. As a result, we

10 found one operational zone of central Bosnia logbook during the relevant

11 time period, in 1993, which is approximately 400 pages. The Prosecution

12 doesn't contend that the total 400 pages of the logbook is necessary or at

13 all relevant, but we simply gave it to the Defence, as opposed to going

14 through it and trying to pull out those parts that may be relevant under

15 Rule 68. They can look at the complete HVO central Bosnia operative zone

16 logbook for February to August 1993.

17 The last issue, Your Honour, with respect to disclosure, and we've

18 informed the Defence in writing a few days ago, more than a few days ago.

19 But in any event, the last thing, the third thing, is that we are also

20 looking through the rest of our Croatian archive collection for any other

21 HVO logbooks which are handwritten and which would not have, possibly

22 would not have, been found through an electronic search. Without

23 explaining the whole details to you, as you're aware from the materials

24 that have been filed so far in this case, the searches are conducted

25 electronically by search words, and it is of all material that has been

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1 put into an electronic data collection. And in this case, some of the

2 material which is handwritten does not actually make it into the data

3 collection, the electronic collection, because it's handwritten and cannot

4 be searched electronically. We have found at the moment between five and

5 eight further handwritten notebooks from the HVO, and we are looking to

6 see the time frame and the relevance. They are now being retrieved. I've

7 informed both counsel for Mr. Kordic and Mr. Cerkez of those issues and

8 they have received two of the three categories of reference. I have

9 other comments to make on other issues, but that's what I have to say on

10 the disclose issue, Your Honour.

11 JUDGE HUNT: But I recall the last status report referred to some

12 area of disagreement between the parties about some Rule 68 material, or

13 am I confusing it with one of the other cases that we're hearing at the

14 moment.

15 MR. FARRELL: I know that that's in Krstic, yes sir.

16 JUDGE HUNT: You understand it's sometimes difficulty to keep all

17 these separate.

18 MR. FARRELL: Same problem, Your Honour. If I could go then to

19 the other issues.


21 MR. FARRELL: The second issue I wanted to bring to your attention

22 was that the Prosecution has reviewed, in a cursory fashion, the Kordic

23 reply, which was filed on the 12th of June. It's their reply to the

24 Prosecution's supplementary respondent's brief. Just want to put the

25 Court and counsel for Mr. Kordic on notice that the Prosecution, as a

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1 result of its initial review, at least initially, is of the view that the

2 material filed in the reply is not directly responsive to the court order

3 of May 22nd and is outside the scope of what was requested in the order,

4 and is not related to the Prosecution's filing either.

5 I will --

6 JUDGE HUNT: Are there some new grounds of appeal there?

7 MR. FARRELL: It Depends on how you read your order, but your

8 order was they were to determine whether or not there was a miscarriage of

9 justice as a result of the denial of the motion for acquittal. The reply

10 brief and the Prosecution's submission actually sets out all the arguments

11 why a motion for acquittal should have been given and what the proper

12 tests should be under Rule 98 bis. In my respectful submission, that was

13 not what was argued by the Prosecution, nor is it what was required by the

14 order.

15 JUDGE HUNT: Do you mean that they have gone beyond what was in

16 the original appellants' brief on this question of motion for acquittal?

17 MR. FARRELL: Yes.

18 JUDGE HUNT: Some new test that's stated? I haven't read it

19 frankly.

20 MR. FARRELL: It says that the Trial Chamber should apply the test

21 at the 98 bis stage beyond a reasonable doubt and it argues why the Trial

22 Chamber was wrong in the application of the standard to be applied under

23 98 bis, and then argues why he should have been acquitted on the motion

24 for acquittal.

25 JUDGE HUNT: I'm sorry. Are you saying that their argument is the

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1 Trial Chamber itself should have been satisfied of the guilt beyond

2 reasonable doubt, on the evidence up to that stage?

3 MR. FARRELL: Up to that stage. It's the same test that was

4 applied in Jelisic, as you recall, at the 98 bis stage they said, at the

5 stage where you bring a motion for acquittal, the Trial Chamber must

6 decide that on the basis of all the evidence before them, applying a test

7 beyond a reasonable doubt, that they could convict.

8 JUDGE HUNT: Yes, that's what almost every other Trial Chamber has

9 done. Is there evidence upon which a reasonable Trial Chamber could be

10 satisfied beyond reasonable doubt? That is the test that has been applied

11 by all except Jelisic, as I understand it.

12 MR. FARRELL: That's correct, yes. I'm sorry, the other way

13 around, yes.

14 JUDGE HUNT: So, are they seeking to depart from that? There was

15 an argument before the Trial Chamber here that they should have been

16 satisfied themselves beyond reasonable doubt that he was guilty; in other

17 words, they accepted the evidence at the stage when the motion for

18 acquittal was refused. And the Trial Chamber rejected that argument, and

19 I think every other Trial Chamber has rejected it.

20 MR. FARRELL: I may be wrong in this, and I have only read it

21 quickly this morning, and I wanted to raise it. So I'll take a look at it

22 again. But, yes, I accept your reading --

23 JUDGE HUNT: If they are seeking to resurrect that argument that

24 was rejected by the Trial Chamber, you won't have very much difficulty in

25 responding to it.

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1 MR. FARRELL: No. We may not have to file anything in response.

2 The issue relates also, or more so, to whether or not they have addressed

3 what was in the order of May 22nd, which is how the failure of the

4 decision --

5 JUDGE HUNT: If they have presented nothing, then they will

6 probably find a rather dismal result for them on the issue in the

7 appeal. They have been given clear instructions on what to do. If they

8 haven't done it, then that's the end of it.

9 MR. FARRELL: Then we will limit our determination to whether they

10 have addressed the scope of the issue assigned to them in the 22nd May.

11 If it's outside of that, then we won't seek to file anything.

12 JUDGE HUNT: If there is something -- If there is yet another

13 attempt to put on a new ground of appeal, then you can come along and seek

14 leave to respond to it. I hope there isn't. But if there is, you must

15 have the right to reply to it. But that particular issue, I would have

16 thought would not get anybody very far in this day and age.

17 MR. FARRELL: Thank you. The third issue which is really simply

18 just to -- it's more of a notice to the Defence counsel. I was going to

19 attempt to speak to them this morning, before the hearing, but I came a

20 little late. I just wanted to bring to their attention to one of their

21 grounds of appeal relates specifically to whether Article 5 requires a

22 state policy or state plan, and they were permitted --

23 JUDGE HUNT: It has just been disposed of in Kunarac.

24 MR. FARRELL: That's correct. Paragraph 98 of that judgement

25 deals with that issue. I just wanted to bring it to their attention. It

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1 may be something they wish to address. Of course, they can reargue it, if

2 they wish.

3 JUDGE HUNT: No they can't. They would have to demonstrate some

4 reason why they would want to reargue something that has been determined

5 so recently. That's another matter.

6 MR. FARRELL: Thank you. Those were the three issues, the

7 disclosure, the scope, the reply --

8 THE INTERPRETER: Could you please slow down, because it's quite

9 difficult to follow this.

10 MR. FARRELL: My apologies.

11 JUDGE HUNT: I'm afraid we're all at fault, Mr. Farrell.

12 Are you able to give us any idea at all when you think that this

13 business of the documents will be completed, because we then will give a

14 direction as to when the Rule 115 applications must be made.

15 MR. FARRELL: At this point, I'm sorry, but I will undertake to

16 file something within a week or so, indicating to you how long I think it

17 will take once we've had a chance to have a look at the logbooks and see

18 how big they are and what reviews are required, if that's satisfactory.

19 JUDGE HUNT: Yes. I think you've been calling them status

20 reports, which is fair enough. If you can put another one on when you are

21 in a position to do so.

22 MR. FARRELL: Yes, thank you.

23 JUDGE HUNT: Mr. Naumovski, any matters you want to raise?

24 MR. NAUMOVSKI: [Interpretation] Your Honour, I have no issues to

25 raise. As for what my learned friend has said, I do not wish to respond

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1 to it. The Defence has made attempts to fulfill your instructions of the

2 22nd of May. So I will not enter into an argument on this question now.

3 I can only confirm, Your Honour, that what my learned friend, Mr. Farrell

4 has said is true. The OTP has supplied us with some documents, and we

5 received the last CD-ROM I believe about two weeks ago. As for documents,

6 we are now waiting for Registry to deliver to us the documents from the

7 Blaskic appeal case, according to your order, and we hope to receive this

8 in due course so that we can define our position in relation to the motion

9 under Rule 115.

10 JUDGE HUNT: There are so many of Blaskic motions. Your

11 application for access has been dealt with finally, has it?

12 MR. NAUMOVSKI: [Interpretation] No, no, we have already received

13 permission.

14 JUDGE HUNT: I thought there had been an order, but I was

15 wondering whether one of those which still remains to be dealt with also

16 deals with this case. Well, then, have you got any estimate of when you

17 think that this inspection of documents will be completed?

18 MR. NAUMOVSKI: [Interpretation] I don't know, Your Honour. We

19 have already said we don't know how much there is. We don't know how many

20 documents we will receive from the Blaskic case and how much the OTP will

21 deliver. We have all worked very hard on the motions we submitted on the

22 12th of this month so that I have not had time look at the latest CD-ROM

23 received from the Prosecution which contains hundreds and hundreds, maybe

24 a thousand pages of documents. So it is impossible at this point to

25 estimate how much time I will still need. But as soon as the OTP delivers

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1 the final list of documents under Rule 68, we will know. Then we will

2 know where we stand.

3 I apologise. I still feel that Your Honour could give us some six

4 weeks after discovery from the Blaskic case is completed so that we can

5 then draw up our motion under Article 115 -- under Rule 115.

6 JUDGE HUNT: My recollection was we said we would give you

7 60 days, but we would be prepared to hear what you want to say about it.

8 I think we can't make any final decision as to how long until we know what

9 you're facing, but your description of already being a thousand pages from

10 one source rather dismays me. You did understand, however, we are anxious

11 for this appeal to be heard this year. And on our present timetable, we

12 will have time in the last quarter of the year. So that's when we are

13 hoping to get the appeal on.

14 Rule 115 in itself takes a little time. It's a very daunting

15 prospect in the present case when I hear the number of documents that you

16 may be seeking to tender. But as long as you keep that in mind so that

17 when the documents are presented to you, you're working on them, and we

18 can finally get down to fixing some dates.

19 Is there anything else you want to raise?

20 MR. NAUMOVSKI: [Interpretation] Only perhaps two underlying -- one

21 thing: The Defence really wishes to have this case completed as soon as

22 possible. It has been going on for a long time. But sometimes we are

23 faced with insurmountable difficulties. I think that Your Honour is aware

24 of the fact that after we submitted our appeal in August of last year, and

25 then we received about 41.000 pages of new documents from the Prosecution

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1 alone. Perhaps even more, because no one has counted. And then there are

2 other documents we have received, and finally the documents we have asked

3 for from the Blaskic case. So this is an enormous volume of documents to

4 look through, but I hope we will be able to do this as soon as possible.

5 JUDGE HUNT: Yes. So do I. But thank you very much.

6 MR. NAUMOVSKI: [In English] Thank you, Your Honour.

7 JUDGE HUNT: Mr. Kovacic, do you want to say anything?

8 MR. KOVACIC: [Interpretation] Your Honour, I think I have nothing

9 to add to this. I agree with what Mr. Naumovski has said. We have been

10 looking at all the disclosed documents, disclosed from two sources: On

11 the one hand, from the OTP under Article 68; on the other hand, from the

12 Registry on the basis of several orders issued by this Trial Chamber, and

13 also from other cases. When earlier you asked us to tell you when we

14 might be ready to submit our brief under Rule 115, we said that 60 days

15 was quite realistic. I can say that, as far as my Defence is concerned, I

16 can file within the next four or five weeks, as far as the documents I

17 have already looked through are concerned. However, as soon as we get

18 some new documents, then new things crop up, and things change. And you

19 know, of course, what this process looks like.

20 So in any case, I wish to confirm what my colleague has said. It

21 is not in the interests of the Defence to slow down these proceedings.

22 I'm convinced that nothing we have done from the beginning of the appeal

23 has been done, either on purpose or by accident, to cause a delay. On the

24 other hand, we understand and respect the circumstances that are what they

25 are. No one can influence these. It's true that the OTP has acquired new

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1 documents, that the archives of Bosnia and Herzegovina, which are very

2 important to us, are enormous. It is true that some of these documents

3 are written by hand and cannot be searched through electronically. It is

4 also true that sometimes the Registry needs a lot of time to process the

5 materials falling under the order issued by Your Honour for the provision

6 of these materials. Unfortunately, we still do not have the confidential

7 material from the Blaskic appeal case. You issued an order under which we

8 are to be provided with these documents, but there are still some

9 technical problems in relation to Rule 70(C), and we will receive these

10 materials sooner or later.

11 For us, it is the time we receive the documents that is relevant,

12 rather than the time when Your Honours' order was issued. As soon as we

13 receive them, we will work with all possible speed. And I do not believe

14 that these materials will be so voluminous that we will not be able to

15 complete our briefs under Rule 115 within 60 days. We will be very glad

16 to explain anything further Your Honour may wish to ask.

17 JUDGE HUNT: In relation to applications for Rule 115, admission

18 of documents, the Appeals Chamber can only consider the documents all at

19 the one time. It's no good, as it was attempted, for example, in

20 Kupreskic, to deal with them piecemeal. Because what may have little

21 worth when you see it amongst one bundle of documents may become very much

22 more important when you see another bundle of documents.

23 So the final decision under Rule 115 can only be made after all

24 the documents are in. That doesn't prevent you from starting to prepare

25 your applications, as you would understand. But obviously, we cannot make

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1 any final decision until all of the Rule 115 documents have been tendered.

2 Now, my statement that we are hoping to list this appeal in the

3 last quarter of this year was intended only to explain to you that is the

4 best time from our point of view. But we are certainly not going to

5 foreshorten any time you have to prepare documents or prepare applications

6 in relation to documents, if the sheer magnitude of the documents causes

7 problems. My only concern in saying that we would hope that we can list

8 this towards the end of the year is that that would be the best time for

9 everybody, if it's possible from your point of view. So don't think that

10 I'm trying to suggest that you have been delaying the matter in any way.

11 It's just that would be the best time. If it can't be then, well then it

12 can't be then. We'll have to come back to it later.

13 Now, is there anything further you want to say?

14 MR. KOVACIC: [Interpretation] I only wished, if I may, in response

15 to your explanation, to add that I have an opportunity -- I would like to

16 ask the Court to have a single bundle rather than several because I think

17 it is better for us to submit to the Chamber everything that is new in a

18 single package, and we certainly agree with this method because we feel

19 it's useful.

20 JUDGE HUNT: Yes. Thank you.

21 Anything in reply, Mr. Farrell?

22 MR. FARRELL: No, thank you.

23 JUDGE HUNT: Thank you very much for attending today. We'll now

24 adjourn.

25 --- Whereupon the status conference

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1 adjourned at 3.25 p.m.