1 Thursday, 6 May 2004

2 [Status Conference]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 2.19 p.m.

6 JUDGE SCHOMBURG: Good afternoon, everybody. May I ask Madam

7 Registrar, please, to call the case.

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

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

10 JUDGE SCHOMBURG: Thank you. And may I have the appearances,

11 please. First the Prosecution.

12 MR. FARRELL: Good afternoon, Your Honour. Good afternoon,

13 counsel for Mr. Kordic and Mr. Cerkez. Appearing for the Prosecution is

14 Norman Farrell, and appearing with me is Ms. Helen Brady and Ms. Lourdes

15 Galicia. Thank you.

16 JUDGE SCHOMBURG: Thank you. And for the Defence.

17 MR. SAYERS: Good afternoon, Your Honour. For the accused Dario

18 Kordic, Stephen Sayers, and my colleague Mitko Naumovski.

19 MR. KOVACIC: [Interpretation] Good afternoon, Your Honour. The

20 Defence of Mario Cerkez in the person of Bozidar Kovacic, lead counsel,

21 and Mr. Goran Mikulicic, as co-counsel.

22 JUDGE SCHOMBURG: Thank you. In the Scheduling Order it reads

23 that it is now a Status Conference. In fact, it's both; it's a Status

24 Conference and a Pre-Appeal conference, meaning that in the sense of the

25 word, we have to find where we are, to find the status of the case and try

1 to do our very best to streamline the appellate hearings in this case.

2 But before I go into details, may I ask both accused, Mr. Kordic

3 and Mr. Cerkez, the following three questions: First, can you follow the

4 proceedings in a language you understand? Second, do you have any actual

5 health problems? And third, are there any problems related to the United

6 Nations Detention Unit?

7 THE APPELLANT KORDIC: [Interpretation] Mr. President, Your Honour,

8 thank you for asking. I feel well, I can follow in my own language, and

9 there are no problems.

10 JUDGE SCHOMBURG: Thank you.

11 THE APPELLANT CERKEZ: [Interpretation] Mr. President, I am well, I

12 have no problems, and I understand everything that is said to me.

13 JUDGE SCHOMBURG: Thank you very much.

14 For purposes of transparency, I have to inform in particular the

15 accused and the public that there has been held a 65 ter (I) meeting,

16 according to our Rules, this morning, in order to fill out the

17 nitty-gritty of this case and to discuss some procedural matters. And let

18 me start with the Scheduling Order.

19 We heard the submissions of all parties, and based on this, we

20 came to the conclusion that, first, none of the parties is prepared or

21 willing to call any witness or that any of the accused will give a formal

22 statement, according to Rule 84 bis, notwithstanding, of course, the

23 possibility of addressing the Chamber in the framework of the final word.

24 So it's therefore that in all likelihood we can limit the appeals

25 hearings to three days, and a Scheduling Order will be filed right now,

1 continuing -- or as a result of this morning's discussion. I mean that

2 the hearing will take place on Monday, the 17th of May, from 0900 to 1900

3 hours; Tuesday, 18 May, from 0900 to 1900 hours; Wednesday starting at

4 0900, in all likelihood ending on or about 1700 hours, with the caveat

5 that, if need may be, we have the Thursday as a reserve day.

6 I take it that there are no submissions by the parties on this

7 Scheduling Order.

8 Then let me come to some -- to the status of the case as such,

9 what is it the Chamber is still seized of. In a previous letter sent to

10 the parties in order to streamline some minor aspects of the case, we got

11 response by all three parties, in part in writing, in part orally, this

12 morning. Let me summarise this in the following way, and please correct

13 me if I'm wrong, taking into account that it's really a difficult issue to

14 find your path through this judgement of 26 February 2001.

15 Related to counts 7, 8, and 10 and 12, the Prosecution will submit

16 during the oral hearings on the merit of Kordic appeal that the Trial

17 Chamber made the necessary related factual findings.

18 In relation to counts 29, 30, 31, and 33, regarding Mr. Cerkez's

19 conviction under Article 7(3) of the Statute, for imprisonment, unlawful

20 confinement, inhumane treatment, and taking civilians as hostages, the

21 Prosecution does not dispute that the Trial Chamber made no factual

22 findings related to his involvement of forces on Mr. Cerkez's

23 responsibility in the commission of these offences in Stari Vitez and

24 Donja Veceriska, but stresses that Mr. Cerkez was not charged for it and

25 was accordingly found guilty for it.

1 Count 33. This is Mr. Cerkez's conviction under Article 7(1) of

2 the Statute for taking civilians as hostages in relation to the Veterinary

3 Station, SDK offices, and Chess Club. The Prosecution will submit during

4 the oral hearings on the merit of Mr. Cerkez's appeal that the Trial

5 Chamber made some necessary related factual findings.

6 As regards count 35, related to Mr. Cerkez's conviction under

7 Article 7(1) for the use of Bosnian Muslims as human shields in the Vitez

8 Cinema Complex, the Veterinary Station, the SDK offices, and Chess Club,

9 the Prosecution will inform the other parties and the Appeals Chamber, as

10 soon as possible, as to its final position. The same goes with respect to

11 Mr. Cerkez's responsibility under Article 7(3) of the Statute for the same

12 crime in relation to Stari Vitez and Donja Veceriska.

13 As regards count 37, it is not disputed by the Prosecution that

14 Cerkez has been acquitted for the crime of destruction of property, not

15 justified by military necessity, although paragraph 808 of the judgement

16 concludes that the crime in question was made out in Merdani.

17 In relation to counts 39 and 42, the Prosecution concedes that the

18 Trial Chamber did not make the necessary factual findings with regard to

19 the crime of plunder in relation to Vitez and Donja Veceriska for the

20 period covered by the indictment - that's April 1993 - and that the

21 findings of guilt made against Kordic and Cerkez for plunder should be

22 reversed with respect to these locations.

23 In relation to count 41, the Prosecution will submit during the

24 oral hearings on the merit of Mr. Cerkez's appeal that the Trial Chamber

25 made the necessary related factual findings related to wanton destruction

1 in Vitez and Stari Vitez by troops under Mr. Cerkez's responsibility.

2 Count 43. The Prosecution concedes that no factual findings

3 support Kordic's conviction for destruction of institutions dedicated to

4 religion or education in Stari Vitez in April 1993.

5 Count 44. It's a little bit more difficult. Here the Prosecution

6 concedes that, based on the Trial Chamber's findings, Cerkez should not

7 have been found guilty under Article 7(3) of the Statute for destruction

8 of institutions dedicated to religion or education in Donja Veceriska.

9 The Prosecution points out, however, that the issue could be resurrected

10 depending on the outcome of the Prosecution's appeal.

11 May I ask the parties: Is this a correct resume of what has been

12 stated today?

13 MR. FARRELL: If you would just give me one moment. I just want

14 to check one thing, but generally, I think it's fine.

15 [Trial Chamber and legal officer confer]

16 MR. FARRELL: Thank you. We have nothing further. Thank you.

17 JUDGE SCHOMBURG: Mr. Sayers.

18 MR. SAYERS: With respect to the court's recitation of the

19 findings on count 37, Your Honour, I think the consensus this morning was

20 that there were no findings to support a finding -- that the finding of --

21 or the factual findings of guilt in paragraph 576, not 808, were made out

22 as to Kordic rather than Cerkez. You stated that count 37 affected Kordic

23 in paragraph 808 of the judgement. I think it was actually Kordic that

24 you meant rather than Cerkez and that the reference should have been to

25 paragraph 576 rather than 808 of the judgement.

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1 JUDGE SCHOMBURG: I think Mr. Sayers is right.

2 MR. FARRELL: I think that in relation to 576 that's correct.

3 JUDGE SCHOMBURG: Thank you for this clarification. Please,

4 Mr. Kovacic.

5 MR. KOVACIC: [Interpretation] I just wanted to join in what

6 Mr. Sayers has just said and point out what he said for count 37. So

7 you've already put that right. Thank you, Your Honour.

8 JUDGE SCHOMBURG: I thank you. Then we received in the past,

9 based on the same letter, the following motions: The 16th of April, 2004,

10 the Office of the Prosecutor withdrew the ground of appeal number 1, to

11 that extent that proof of discriminatory policy is not required for

12 persecutions under 5(H). In a letter dated the 31st of March, 2004,

13 Mr. Kordic withdrew the amended grounds of appeal 3D, 3E, and 3G. The 6th

14 of April, 2004, Mr. Kordic informed the parties that due to change of the

15 jurisprudence, or clarification of the jurisprudence of this Tribunal, the

16 amended ground of appeal 3F is withdrawn, notwithstanding that he, of

17 course, will come back with arguments related to the entire question of

18 joint criminal enterprise and the heads or modes of criminal liability

19 under Statute's Article 7(1).

20 Do the parties agree? Is there anything to add? I see nodding by

21 the parties, so this is also clarified.

22 Then let me come back to a letter filed today. A courtesy copy

23 was given to the parties already this morning, a letter of today,

24 indicating on which issues the Bench is interested in particular to

25 receive some submissions by the parties. In this context, I took the

1 liberty to add to this letter pages 9 through 13 of the Kunarac appeal

2 judgement, and already today, in order to abbreviate the appeals hearing,

3 that the first and foremost purpose is to hear arguments by the parties on

4 legal issues, and the appeal hearing should be not abused as an

5 opportunity to re-argue the respective cases. The standard of review is

6 repeated, but I really want to ask you, and this facilitates the

7 understanding, and therefore also maybe the outcome of the decision as

8 such, that in paragraph 44 of the aforementioned decision, the Appeals

9 Chamber demands that reference be given to paragraphs in judgements,

10 transcript pages, exhibits, or other authorities indicating precisely the

11 date and exhibit page or paragraph number of the text to which reference

12 is made.

13 So I won't repeat this in the beginning of the hearing. I think

14 it's clear and it's helpful for all participants here in this case.

15 It is intended to provide the parties with a map and have a map

16 available in order to facilitate the description, whether the indictment

17 includes certain areas or not, and what about the distances between towns,

18 where there are main roads between the towns mentioned and villages

19 mentioned in the indictment. For this purpose, a map will be distributed

20 as soon as possible to the parties, and a more general map will be

21 available for the presentation of the parties on the ELMO. This will be

22 seen as a document. I don't recall that it was ever admitted into

23 evidence. This will be seen as a Bench exhibit.

24 In one of my previous letters to the parties, I invited the

25 parties to address the issue of the family situation of Mr. Kordic and

1 Mr. Cerkez, and we are in a slight dilemma because this issue is not with

2 all the necessary clarity addressed in the judgement. However, in the

3 meantime, the jurisprudence of this Tribunal has slightly changed and is

4 demanding a little bit more. For these purposes, the invitation by the

5 Chamber to address this issue in order, if need may be, and if we come to

6 this stage, if we have to discuss a question of sentencing, it's of utmost

7 importance to have contributions on the aspect of rehabilitation, and we

8 already received a document by the Defence, Mr. Cerkez, and reference was

9 made to previous statements in the Appeal Brief of the Defence of Mr.

10 Kordic. However, it's open also for the Defence of Mr. Kordic to

11 contribute on the development since the last judgement because when we --

12 in case we have to find an appropriate sentence, it's very important to

13 know whether there is still an existing and functioning link to the

14 family, relatives, friends, and the entire social situation of both

15 accused. We have to take this into account.

16 This will be accepted. In case the Prosecution does not object,

17 under Rule 98, sentence 1 of the Rules of Procedure and Evidence, where it

18 is possible that the Chamber orders the parties to produce evidence. This

19 has been done. I ask the Prosecutor: Are there any objections on this?

20 MR. FARRELL: In light of your determination and your request for

21 the admission of evidence under Rule 98, the Prosecution doesn't object to

22 this evidence being admitted on that basis that the request has been made.

23 I would note one thing, Your Honour: I have now had the chance to

24 read the submissions by counsel on behalf of Mr. Cerkez, and this can be

25 the subject of the argument if you wish, but it will be the Prosecution's

1 submission that from paragraph 12 onwards, the material before you does

2 not address the question you've asked, which is the family circumstance,

3 and constitutes additional evidence and additional submissions on

4 sentence, which we object to. But in terms of paragraphs up to and

5 including paragraph 11, the Prosecution doesn't object, in light of your

6 request under Rule 98.

7 JUDGE SCHOMBURG: Mr. Kovacic.

8 MR. KOVACIC: [Interpretation] It appears to me, Your Honour, if I

9 understood correctly, that a written submission by the Prosecution will

10 follow, and in that case, of course, I reserve the right to a response.

11 However, on the other hand, it seems to me that this submission does not

12 contain any arguments. It is a simple listing of facts, facts of life,

13 you might say, and many references are made to things that are in

14 evidence, while others are indisputable, general facts that need not be

15 proven. If there is any dispute, we can argue, of course.

16 If I understood the Prosecution correctly, their objection is to

17 paragraphs from 12 onwards. I've looked through it quickly. Every

18 assertion made here is corroborated by statements in the judgement or by

19 material already in evidence. I have informed the Tribunal this morning,

20 but maybe I'll repeat it here: In the meantime, I have requested from the

21 administration of the Detention Unit that they should also give a report

22 on the conduct of the accused -- of the appellant Mario Cerkez after the

23 judgement, because we have already had a report on his conduct which

24 covered only the period from his surrender to the Tribunal to the

25 conviction, and this new report will be provided and added to the

1 evidence.

2 Based on the order or the invitation of the Appeals Chamber to

3 provide such information, we wrote this submission with one main idea in

4 mind: That it should not be an argument on facts, but rather a

5 description of the family situation of the appellant Cerkez and the

6 character of the appellant, facts that every court, including this one,

7 needs to have before meting out the sentence. I believe this is the

8 practice in every jurisdiction, and every jurisdiction, regardless of the

9 mechanism applied, accepts that care and attention need to be given to the

10 personal characteristics and traits of the appellants, and especially

11 relationships inside of their families, including their upbringing. This

12 is one of the principal factors taken into account in sentencing. And I

13 believe there is no reason to go into lengthy discussions on form under

14 Rule 115. This material can be admitted under Rule 98.

15 This is simply a technical matter, and in this system, we will

16 apply a different mechanism than in national jurisdictions, which would

17 use technical services to ask for this material. This is the purpose of

18 my submission. Thank you.

19 JUDGE SCHOMBURG: Thank you. You want to reply?

20 MR. FARRELL: Just two things. One, there may have been some

21 confusion. I didn't mean to indicate to Mr. Kovacic that we would file

22 written submissions. I was simply stating that if it was admitted, we

23 would, of course, make submissions later on on the content if the whole

24 letter went in. And just in reply, our position is that some of the

25 material, after paragraph 12, does not relate to private or family

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1 background, and some of the material in there may even be disputed by the

2 Prosecution. But that's the material from paragraph 12 onwards. Other

3 than that, I of course leave it in your hands, Your Honour.

4 JUDGE SCHOMBURG: But the Prosecution is aware of the fact that no

5 doubt reference was made in part already during the trial stage to some of

6 the aspects, and this was highlighted by the Defence of Mr. Cerkez, and

7 therefore, it's already on the record and I think we shouldn't go into

8 further details. I think it's for the parties to argue, based on that

9 what is on the record right now.

10 Thank you. And I don't hesitate to repeat: It would no doubt be

11 of assistance for the Chamber if also the Defence of Mr. Kordic would add

12 something to that what has been said, in particular, the development since

13 2001.

14 MR. SAYERS: We will do that, Your Honour.

15 JUDGE SCHOMBURG: Mr. Kovacic.

16 MR. KOVACIC: [Interpretation] With your leave, Your Honour. I

17 really do not want to take up too much time, but maybe two minutes now

18 will save us an hour later. To the latest comment by my learned friend,

19 from paragraph 12 onwards, let's take one first example, paragraph 20 of

20 my submission. The principal message, the basic assertion, is --

21 concerning the character of the appellant, is that he is not an aggressive

22 person. This is supported by a footnote referring us to a body of

23 evidence, and specifically, the affidavit of one person telling a human

24 story, an officer of the enemy army, injured in a traffic accident, whose

25 life Mr. Cerkez saved. This is an assertion which is not beyond the scope

1 of the evidence or beyond the scope of describing his character. So much,

2 Your Honour.

3 JUDGE SCHOMBURG: Let's hear your arguments finally at the end of

4 the appeals hearings.

5 Unfortunately, I have to come back to two minor issues, the

6 judgement as such is written in English. In paragraph 806, you will find

7 the sentence that "The village of Kiseljak was plundered and 131 of its

8 159 houses were destroyed, along with the mekteb and the turbe." These

9 are, of course, no English terms, and no translation has been prepared.

10 Can I take it as an agreed fact that a mekteb is an Islamic primary

11 school?

12 MR. NAUMOVSKI: [Interpretation] Excuse me. I believe you are

13 right. I think it is a primary religious school. I agree with you, I

14 only wanted to add this word, religious.

15 JUDGE SCHOMBURG: And in particular, Islamic?

16 MR. NAUMOVSKI: [Interpretation] Yes.

17 JUDGE SCHOMBURG: Mr. Cerkez, you want to say something on this?

18 No. Can we take it as an agreed fact?

19 MR. FARRELL: Yes, thank you.

20 JUDGE SCHOMBURG: And turbe. Please correct me if I'm wrong, it's

21 a kind of religious tomb, or tombstone, but in any event, a -- in legal

22 terms, a building dedicated to religion. Is this also your reading of the

23 word turbe? We have asked for the assistance of the translation section,

24 and this was what we got as a reply. But I think it's for the parties

25 first to accept this interpretation of the word turbe.

1 MR. NAUMOVSKI: [Interpretation] If you allow me, Your Honour. I

2 would like to consult with Mr. Kordic and Mr. Cerkez for just one minute.

3 They lived in the area, and perhaps they know best. I just want to check

4 what you just contemplated.

5 [Defence counsel and appellant confer]

6 JUDGE SCHOMBURG: Mr. Naumovski.

7 MR. NAUMOVSKI: [Interpretation] Mr. Kordic reminded me, I saw it

8 when I was in Bosnia and Herzegovina. I don't know if it was translated

9 quite exactly by the CLSS, but it is some sort of religious facility which

10 does not serve for rites. It is something like the equivalent of a chapel

11 in the Catholic religion. It is a separate sort of temple where people

12 come in to give their contributions for charity. That is the explanation

13 I got. In any case, it is a certain sort of religious building, but of a

14 small size.

15 JUDGE SCHOMBURG: But in the legal sense, you would agree that

16 it's a building dedicated to religion?

17 MR. NAUMOVSKI: [Interpretation] Yes.

18 JUDGE SCHOMBURG: Mr. Kovacic, you want to add something?

19 MR. KOVACIC: [Interpretation] Your Honour, as for my client, such

20 structures are not mentioned in that part in para 44, where Cerkez is

21 concerned. There is only reference to minarets, and there is no problem

22 with that. Purely for the record, my client warned me that Kiseljak is

23 not a village; it is a town at least as large as Vitez. And perhaps we

24 should correct that, because that location is not unimportant.

25 JUDGE SCHOMBURG: Accepted.

1 Prosecution, please.

2 MR. FARRELL: The Prosecution accepts the word for the purpose of

3 it being a building dedicated to religion, yes.

4 JUDGE SCHOMBURG: Thank you. Then one other clarification we

5 found this morning when discussing the meaning of paragraph 809, and we

6 came to the conclusion for a better reading of 809, paragraph 809 should

7 be split up in two parts, and the second part should start with the last

8 sentence starting with the words "With regard to the participation..." and

9 so on. Only then the sense of this paragraph becomes clear.

10 Any other arguments in relation to the judgement as such or in

11 preparation of the appeals hearings? May I hear your comments.

12 MR. FARRELL: No. Thank you.

13 JUDGE SCHOMBURG: Defence.

14 MR. SAYERS: The only request that we would have of the Appeals

15 Chamber is in the Kordic presentation. Would it be agreeable to the Court

16 to split our presentation into three, with me handling one part, my

17 colleague Mr. Smith handling the second part, and Mr. Naumovski handling

18 the third part?

19 JUDGE SCHOMBURG: Absolutely no problem.

20 MR. SAYERS: Thank you.

21 JUDGE SCHOMBURG: In the framework, of course, of the Scheduling

22 Order, as discussed this morning.

23 Mr. Cerkez.

24 MR. KOVACIC: [Interpretation] I have nothing to add, but we will

25 equally divide our presentation among us.

1 JUDGE SCHOMBURG: Thank you. Then we have two final issues, and

2 the first one is: There was a motion related to one transcript and a lot

3 of documents to be admitted for the purpose of the Defence of Mr. Cerkez

4 under Rule 115. In order that Mr. Cerkez and his Defence knows as soon as

5 possible where they are, what they have in evidence, we decided to first

6 to hand down our decision in rejecting this motion, and the question

7 remains from this morning whether or not both parties waive the right to

8 give a reasoned decision on this, taking into account that it wouldn't

9 assist both parties having a reasoned decision on this; to the contrary,

10 it could, to a certain extent, give a wrong impression that the Chamber

11 already now discusses the merits of the case. If I understood the

12 contributions of both parties in this case, the Cerkez Defence and the

13 Prosecution, both parties waive their right to get a reasoned decision.

14 You have already the decision, but you would not need any reasons for this

15 decision for the preparation of this case. Is this correct?

16 MR. FARRELL: That's correct. Thank you.

17 JUDGE SCHOMBURG: Mr. Cerkez?

18 I think your answer was that fast that it's not reflected on the

19 transcript.

20 MR. KOVACIC: [Interpretation] I apologise. Yes. You interpreted

21 our discussion of this morning correctly.

22 JUDGE SCHOMBURG: Thank you. And then finally, we are seized of a

23 motion to strike by the Prosecution. The matter is now settled and ripe

24 for a decision. The question was whether or not the Prosecution insists

25 to have a decision on these points or whether this maybe could be split

1 up. On that part where the Defence of Mr. Kordic has specified in the

2 response the concrete points and those points where allegedly, from the

3 point of view of the Prosecution, the submissions by the Defence of

4 Mr. Kordic go beyond the scope of that what was allowed in the Appeals

5 Chamber's decision, may I have your comments on this, please.

6 [Trial Chamber and registrar confer]

7 MR. FARRELL: Thank you, Your Honour.

8 JUDGE SCHOMBURG: Sorry.

9 MR. FARRELL: I had the chance to review the filing, and though I

10 recognise that there may be some on which you may conclude contrary to the

11 Prosecution's submission, the Prosecution would benefit from a decision if

12 it doesn't create too much inconvenience for the Court.

13 JUDGE SCHOMBURG: Okay. No doubt you have the right to get a

14 reasoned decision, and also the Defence may benefit from the reasoning of

15 this decision.

16 MR. FARRELL: If it would benefit in terms of the scope of their

17 reasoned decision, if it's simply an identification of what has been

18 within the scope of the argument, without setting out in great detail,

19 that would be convenient. Thank you.

20 JUDGE SCHOMBURG: Thank you. I believe we have covered all issues

21 to be discussed in preparation of the case. If the one or other party

22 comes across a point where the party believes it's not necessary for the

23 Bench to decide on certain grounds of appeal, please don't hesitate. It's

24 never too late. I have to recall the ongoing duty of the Prosecution,

25 under Rule 68, until the end of the case.

1 And finally, please be aware that in the Scheduling Order there

2 will be, at the end of the last day, the opportunity given to both

3 Mr. Kordic and Mr. Cerkez, only if you so want, to address the Chamber in

4 the framework of a final word, whatever you want to tell the Bench.

5 So if there is no other intervention from the one or other party,

6 we could conclude. I see nobody wants to take the floor. This concludes

7 this Pre-Appeal session, and the case stays adjourned until Monday - let's

8 be precise - Monday, the 17th of May, 2004, 9.00 sharp, when we start the

9 appeals hearing. Thank you for this.

10 --- Whereupon the Status Conference adjourned

11 at 3.09 p.m.

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