Tribunal Criminal Tribunal for the Former Yugoslavia

Page 27

1 Friday, 5 April 2002

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 2.30 p.m.

5 JUDGE HUNT: Call the case, please.

6 THE REGISTRAR: Good afternoon, Your Honour. This is case number

7 IT-98-33-A, the Prosecutor versus Radislav Krstic.

8 [The appellant entered court]

9 JUDGE HUNT: Appearance for the Prosecution.

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

11 Mr. Mathias Marcussen and Wolfgang Sakulin for the Prosecution.

12 JUDGE HUNT: Thank you, Mr. Farrell.

13 For the appellant.

14 MR. PETRUSIC: [Interpretation] The Defence will be represented as

15 it has been the case so far, by myself, Nenad Petrusic, and my colleague

16 Mr. Tomislav Visnjic.

17 JUDGE HUNT: Thank you, Mr. Petrusic.

18 General Krstic, there is no need to stand up, but can you hear the

19 proceedings in a language which you can understand?

20 THE APPELLANT: [Interpretation] Yes, I can.

21 JUDGE HUNT: Thank you very much. Sit down, please. This is a

22 Status Conference held in accordance with the requirements of Rule 65 bis.

23 Before we get to the state of the pleadings and motions and

24 responses and replies, is there anything you wish to raise, Mr. Farrell?

25 MR. FARRELL: Nothing on behalf of the Prosecution, Your Honour.

Page 28

1 Thank you.

2 JUDGE HUNT: How about you, Mr. Petrusic?

3 MR. PETRUSIC: [Interpretation] Nothing on behalf of the Defence

4 either, Your Honour.

5 JUDGE HUNT: Thank you. Well, now, subject to the outstanding

6 matters for which there are some additional material to be filed by the

7 Prosecution, it seems the pleadings are closed in the appeal. Is that

8 right?

9 MR. FARRELL: In terms of the general pleadings, yes. In terms of

10 any evidence filed by the Defence in support of their, yes, other matters,

11 yes. Thank you.

12 JUDGE HUNT: Now, there's a particular motion that we want to

13 dispose of. That's the motion by the appellant for the disclosure of

14 ex parte communications. That was filed the 6th of March, and the

15 Prosecution response on the 22nd of March. Is there going to be a reply

16 filed?

17 MR. VISNJIC: [Interpretation] Your Honour, we're currently talking

18 to the Prosecution regarding just a small quantity of additional material

19 that we believe the Prosecutor can provide to us, and we will proceed in

20 two manners; either we will withdraw our request, our motion, or cut it

21 down to the contested quantity of the material.

22 The situation, as I see it now, without prior consultation with --

23 JUDGE HUNT: We want to make clear, Mr. Visnjic, what we're

24 speaking about. I'm not talking about Rule 68 material at the moment.

25 I'm talking about your motion for disclosure of all ex parte

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1 communications because of the disclosure by the Prosecution that they'd

2 had these two ex parte meetings with the Trial Chamber. Now, is there

3 going to be a reply filed by the appellant in relation to that motion?

4 MR. VISNJIC: [Interpretation] Your Honour, there is a possibility

5 for us to withdraw our request for disclosure if a minor detail can be

6 clarified with the Prosecutor.

7 JUDGE HUNT: In relation to the ex parte communications, with the

8 Prosecutor.

9 MR. VISNJIC: [Interpretation] Yes, in relation to the ex parte

10 communications.

11 JUDGE HUNT: Well, that will save some work.

12 Now, in relation -- thank you very much.

13 Now, in relation to the Rule 68 material, Mr. Farrell, the

14 response, if that's the correct terminology -- I think we've quite lost

15 the right terminology here. But the riposte by the appellant to your

16 explanation about the Rule 68 material has raised a number of issues. Are

17 you going to respond in some way to that, or are you going to deal with it

18 in a supplementary response brief?

19 MR. FARRELL: To be frank, we were actually discussing that

20 earlier today. There are some issues, as you've identified, which are not

21 the subject actually of the original response and motion. We were going

22 to address one or two issues. It --

23 JUDGE HUNT: It is -- if I may say so, some important issues have

24 been raised, and it may become necessary for us to have to consider them

25 in the appeal.

Page 30

1 MR. FARRELL: In relation to the final reply by my colleagues, my

2 learned colleagues the Defence, in relation to a couple of the matters, we

3 certainly would like to address them because they are, in our view,

4 somewhat new in that document. Some of the others we'll consider whether

5 it's appropriate to or not.

6 JUDGE HUNT: It may be that this will be an appeal on which we'll

7 have to give some thought to how Rule 68 should really be interpreted.

8 MR. FARRELL: I think in fact the -- some of the issues we've

9 placed before you for that reason, Your Honour, especially the

10 determination of what constitutes Rule 68 evidence, as there is dispute

11 between the parties. Obviously at some point in time, guidance would

12 assist, both in relation to this appeal but in relation to the work we are

13 engaging on a regular basis. So if it would assist, I'd ask also to try

14 to put the Prosecution's best position forward. We will take, with the

15 leave of the Chamber, of course, the opportunity to respond to a few of

16 the matters that may be raised in there.

17 JUDGE HUNT: Well, I think it would be a very good idea if you

18 did.

19 MR. FARRELL: Thank you.

20 JUDGE HUNT: And while we're about it - it may not be in this

21 particular case - but we seem to have a terminology problem about

22 responses and respondent's briefs. Once we're into the -- once we're into

23 the appeal, you have to file briefs. And it seems to have become a habit

24 that you are asking for leave to file a further response, or even worse -

25 I suppose it comes from America if not Canada - a supplemental document.

Page 31

1 MR. FARRELL: That's fair enough. The -- I think, though - I am

2 certainly open to correction - that with respect to the appellant's brief

3 and the two filings by the Prosecution with respect to the respondent's

4 brief, we were -- they were called respondent's briefs because there was

5 our response brief and then our supplementary response brief.

6 On the responses to their motions, which include the motion for

7 production, we didn't put briefs because they were responses to motions in

8 fact. But I may be wrong in that regard. But that's the manner in which

9 I proceeded on the definitional terminological --

10 JUDGE HUNT: It may be it was -- in Kordic -- I'm not sure. I

11 signed an order this morning in which I drew attention to the difference

12 between a supplemental response and a supplementary respondent's brief.

13 MR. FARRELL: If I can, simply for the benefit of the Prosecution,

14 clarify the practice we have been following, or I must say I had been

15 following, was that when it dealt with under Rule 111, it was a brief;

16 when it dealt with all motions, it was a response to their motion. If

17 that has not been filed --

18 THE INTERPRETER: Could the counsel please slow down for the

19 interpretation. Thank you.

20 MR. FARRELL: My apologies to the interpreters.

21 If that practice has not been followed either in the Krstic case

22 or in the Kordic case, I'll ensure that we have some consistency.

23 JUDGE HUNT: It would certainly make it easier.

24 All right. Then, well, how long would you like in order for you

25 to reply to this material put forward by the appellant?

Page 32

1 MR. FARRELL: I don't think there's any problem with between seven

2 and ten days, the normal time period. Ten days is the normal time

3 period. We've had it for a while. We can do it within seven to ten days.

4 JUDGE HUNT: I think you've had it for more than seven days. It's

5 dated the 26th of March.

6 MR. FARRELL: That's true.

7 JUDGE HUNT: So anyway, if you can get it in by early next week.

8 Let's say Wednesday. What's Wednesday? That would be the 10th.

9 MR. FARRELL: Thank you, Your Honour.

10 JUDGE HUNT: The 10th of April.

11 And Mr. Visnjic, how long do you think you'll need in order to get

12 your reply to the ex parte communications if you were going to file one?

13 MR. VISNJIC: [Interpretation] Also about ten days, depending, of

14 course, on the response of the Prosecution. And I will discuss this

15 problem with Mr. Farrell today.

16 JUDGE HUNT: You've already had ten days. Do you want another ten

17 days? I don't mind. I just want to have in my diary when to expect the

18 document, that's all.

19 MR. VISNJIC: [Interpretation] Yes, Your Honour, another ten days,

20 if possible, please.

21 JUDGE HUNT: All right. The 15th of April for the appellant to

22 reply on the motion for disclosure of ex parte communications.

23 There has been a problem about ex parte communications. I've been

24 trying to persuade the Prosecution not to come along ex parte to get

25 documents signed. I have written about it in two decisions now at Trial

Page 33

1 Chamber level, and one day I'm going to make sure that I say the same

2 thing here because it's an unfortunate impression which is conveyed that

3 when parties come along trying to get things done, perhaps for matters of

4 speed but, nevertheless, they're not being done in public.

5 Now, anything else we can deal with? The hearing of this appeal

6 is sliding down slightly. There's been a problem, I gather, in relation

7 to a -- an appeal which has been heard, and they're trying to get the

8 judgement out. So you may be finding that we'll be about a month later

9 than originally expected. But it will be about the middle of the year

10 sometime by the look of it, or just shortly after the middle of the year.

11 That depends, of course, upon the Rule 115. And for that, we're waiting

12 until you've responded -- I'm sorry, you've sorted out between yourselves

13 the material that has been disclosed. And at that stage, I think somebody

14 better ask for the matter to be listed so we can sort out another

15 timetable. It may be you can do it between yourselves.

16 MR. FARRELL: If I may, Your Honour.


18 MR. FARRELL: Just for your information, if it may assist in any

19 way, as of yesterday, the -- there's -- as you know from the motion for

20 production and the agreement between the Defence and the Prosecution,

21 there are intercepts that were to be disclosed. As of yesterday, the

22 final four hard-copy versions of the handwritten notes of the intercepts,

23 the CDs, which are the searchable ones in relation to ones that we've

24 actually scanned and have in CD form, which are 106; then there's the

25 additional four hard-copy ones which we don't have in searchable form, so

Page 34

1 they weren't included in the CD; and the remainder of any statements were

2 provided to the Defence as of yesterday, when they arrived. We asked that

3 they be given to them when they appear because of the confidential nature

4 of some of the documents.

5 We have requested from the Defence that they return any documents

6 which are either of our concern because of their confidential nature or

7 because they're evidence in the case, that they be returned within 60

8 days. So in fairness to the Defence, that's the time frame we've asked if

9 they please consider it. I don't know if they'll be able to consider it

10 in that time frame, but that's the time frame we're looking at.

11 JUDGE HUNT: 106 CDs?

12 MR. FARRELL: I'm sorry, two CDs containing 106 handbooks or

13 handwritten notebooks of the intercepts. These are the intercepts that

14 the Bosnian army intercepted communications which were in -- some of them

15 introduced at trial. And the Defence had asked, and we agreed, that they

16 be permitted access to the notebooks of the intercepts from June until

17 November of 1995, and they were contained on, for the most part, two CDs.

18 Also in relation to the Serb interviews, we've indicated that both

19 in the declaration, as you're aware of, and in other filings. There have

20 been 51 disclosed. I informed counsel for the Defence today that there

21 are some more Serb interview statements which may have been available at

22 trial which they have asked for and we have agreed to provide them

23 pursuant to our agreement of some time ago.

24 THE INTERPRETER: Mr. Farrell, could you please slow down.

25 MR. FARRELL: I'm very sorry. That's a terrible habit I have,

Page 35

1 speaking too fast.

2 JUDGE HUNT: I am afraid I am linked with you in that. There's

3 always a complaint about the speed at which I speak.

4 MR. FARRELL: You're better at being slower than I am, Your

5 Honour.

6 In any event, I informed counsel for the Defence today that we

7 would get the remaining statements that were agreed to present to them

8 within four weeks. That will be within the time frame of the 60 days that

9 we've asked they respond. And of course, obviously, if there's any other

10 Rule 68 material, we're obviously obliged, but that's the time frame that

11 we've worked out between us. I don't know if the Defence --

12 JUDGE HUNT: Well, I'm very concerned that we keep some sort of a

13 watch on it because Rule 115 can take these things over, and it may take

14 quite a considerable period of time to deal with those documents when

15 they're presented under Rule 115. So if you've -- if you've said that

16 they can have the material for 60 days, may I suggest that we either get

17 an agreement between the parties as to what happens then or we list it

18 again. I don't want to wait 120 days for the next Status Conference to

19 find out what's going on.

20 MR. FARRELL: The Prosecution would be in agreement. I leave it

21 to the Defence to indicate how much time. We've asked for 60 days. We

22 haven't spoken with the Defence as to whether that's a reasonable period

23 of time to go through the two CDs. I obviously can't speak on their

24 behalf.

25 JUDGE HUNT: May I say that the degree of cooperation so far has

Page 36

1 been so good that I would rather that you try to negotiate it between

2 yourselves than ask me to arbitrate, as it were, in Court.

3 MR. FARRELL: That's absolutely fair. We'll deal with that

4 matter. What I would suggest then is when we're in position, as we have

5 done in the Kordic case, we'll file a notice of the status of

6 disclosure --


8 MR. FARRELL: -- and inform the Court.

9 JUDGE HUNT: Thank you. Is there anything else you want to add to

10 that, Mr. Visnjic?

11 MR. VISNJIC: [Interpretation] Just a very brief piece of

12 information, Your Honour. The Prosecution has so far disclosed 51

13 statements and approximately 25.000 pages of texts of intercepted

14 conversations. If we bear in mind the quantity of the material that we

15 received today and the material that is still outstanding that will be

16 given to us by the end of the month, as it has been promised, I think that

17 we will be able to narrow down the request that we submitted in December

18 for disclosure to a number of -- to several essential things that we would

19 like to address the Chamber in relation to. So that regards the

20 disclosure.

21 As for the time that we need to review the material, we will try

22 to assess the necessary amount of time for that purpose as soon as

23 possible, and we will inform the Chamber thereon as soon as possible, as

24 we have indicated in our brief of the 19th of March.

25 JUDGE HUNT: As long as we are informed about something at the end

Page 37

1 of the 60-day period as to how much longer is going to be needed and when

2 we can deal with any application under Rule 115. That's what I am very

3 anxious about. If we lose sight of that, the appeal itself keeps slipping

4 down, and you will lose any slot that you may have shortly after the

5 middle of the year.

6 All right, then. Is that all?

7 Thank you very much for attending. We will now adjourn.

8 --- Whereupon the Status Conference adjourned

9 at 2.48 p.m.