1 Monday, 9 July 2001

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 10.10 a.m.

5 JUDGE WALD: Good morning, counsel. Excuse me, but I think we

6 have a problem with the translation. I'm on channel 4, and I'm getting

7 the Serbo-Croatian.

8 THE INTERPRETER: One, two, three. Is that all right now?

9 JUDGE WALD: Madam Registrar, will you call the case, please.

10 THE REGISTRAR: Case number IT-95-16-A, the Prosecutor versus

11 Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic,

12 Vladimir Santic.

13 JUDGE WALD: Thank you. As you know, we are here today to have a

14 short Status Conference in order to plan for the oral argument which will

15 take place on July 23rd, through July 25th. I hope that by our work

16 today, we will be able to make that hearing more expeditious and more

17 fruitful for all concerned.

18 I think for the record, we will have counsel identify themselves.

19 I'll begin with the Prosecution.

20 MR. YAPA: May it please Your Honour. Upawansa Yapa, appearing

21 for the Prosecution, with Ms. Sonja Boelaert-Suominen, and Ms. Norul

22 Rashid. I thank Your Honour.

23 JUDGE WALD: We'll begin with the Defence counsel. Mr. Radovic.

24 MR. RADOVIC: [Interpretation] [No translation]

25 JUDGE WALD: Thank you. Ms. Slokovic-Glumac.

1 MS. SLOKOVIC-GLUMAC: [Interpretation] [No interpretation]

2 JUDGE WALD: Mr. Abell.

3 MR. ABELL: Good morning, Your Honour. Anthony Abell appearing

4 again on behalf of Vlatko Kupreskic.

5 JUDGE WALD: Mr. Clegg.

6 MS. CHARBIT: Your Honour, I represent Mr. Drago Josipovic for

7 today's hearing. I'm working with Mr. Clegg.

8 JUDGE WALD: And you are Ms. --

9 MS. CHARBIT: Charbit, Your Honour.

10 JUDGE WALD: Okay.

11 MS. CHARBIT: Thank you.

12 MR. PAVKOVIC: [Interpretation] [No translation]

13 THE REPORTER: There is no English translation.

14 JUDGE WALD: There's a problem with the English interpretation,

15 apparently.

16 MR. ABELL: Your Honour, may I just say, I'm on channel 4, as Your

17 Honour was, and I'm not getting any English translation.

18 JUDGE WALD: Neither am I. I'm just listening to the voices.

19 Well, Madam Registrar, can you check on this and see if we can get

20 the English translation?

21 THE INTERPRETER: Can you hear the English booth now?

22 JUDGE WALD: Yes, I can. All right. Thank you. That was very

23 speedy.

24 I thought that we would do three things today, that one, we would

25 have a brief summary of where we are with respect to any outstanding

1 briefs or motions; two, we will make an oral ruling on the motion for

2 judicial notice under 94; and finally, we will discuss how the forthcoming

3 argument will be conducted.

4 Let me begin then by just bringing us up-to-date.

5 Mr. Radovic, do you have something? What is it?

6 MR. RADOVIC: [Interpretation] Your Honour, on behalf of my

7 colleague, Ms. Slokovic-Glumac and in my own name, I would like to say the

8 following to the Honourable Court: The submission of the Prosecutor that

9 was filed in response to our own motion we received only today. We could

10 not take it before because it was waiting for us at our locker here. Our

11 colleague Mr. Pavkovic was supposed to travel to The Hague, and during

12 that trip he was supposed to take the documents that were there. However,

13 the Registry did not allow him to travel.

14 Since we received this only today, we would have the right to look

15 into it for 15 days. However, we took a look at it today, and

16 however -- about 200 pages referred to our clients, in English. However,

17 since English is not our mother tongue, we have to have all of this

18 translated into Croat. We have to study it and then reply and then have

19 the reply translated into English, and we are not in a position to do that

20 within 15 days, as is the deadline set by Rule 113.

21 Also, with due respect to the Court, perhaps it was a bit

22 premature to schedule the appeals hearing, because according to Rule 114,

23 the appeals hearing is scheduled only when all time limits expire for

24 filing the briefs provided for in Rules 111, 112, and 113. However, we

25 don't want to turn this into an issue. Nevertheless, in view of the

1 quantity of pages in English concerned and the need to have it all

2 translated into Croatian and then have our own reply translated into

3 English, we would like the appeals hearing to be postponed and we would

4 like to be given at least 30 days in order to submit a proper reply;

5 otherwise this is impossible for us. Actually, the Prosecutor's reply

6 mainly deals with our clients, and that's what makes it so important.

7 MS. SLOKOVIC-GLUMAC: [Interpretation] Your Honour, by your leave,

8 I would just like to add the following: Together with this brief, there

9 is also a book of authorities which has 400 pages. So in addition to

10 analysing everything from the brief, we also have to look into the

11 documents that were attached to it. We don't know who made this mistake

12 and we don't know why this happened. However, we are in a position to

13 have to carry out such a voluminous task within eight days, and as my

14 colleague said, it is virtually impossible.

15 JUDGE WALD: I've heard what you say. I would answer you this

16 way: I certainly will relay your thoughts and your request to my

17 colleagues, who are not here today, but basically, we have scheduled this

18 oral argument for months in advance. We also made it very clear that the

19 Prosecution's brief was due on the date that it was in actually filed,

20 which I believe was June 28th. I understand that because of its

21 voluminous nature, it was not able to be, I believe, faxed - is that true,

22 Madam Registrar? - and it was put in the mailboxes here. Some of the

23 counsel did get it, in fact; others did not. Some of the counsel made

24 that fact that they had not gotten it known to the chief legal officer on

25 the case, Mr. von Hebel. In answer to that, an understanding that there

1 had been this delay of some sorts and that counsel who did not get the

2 brief had made that known to Mr. von Hebel, the Appeals Chamber agreed

3 that the defendants' replies to that Prosecution's brief would not be due

4 until July 18th, which is about ten days from now.

5 As of now, I'm going to proceed with the rest of this hearing on

6 the assumption that -- and I think you should too - that July 18th will be

7 the date. I point out to you that all the Defence counsel have filed

8 their own appellant's brief months ago. They've also filed a

9 supplementary brief. What is due now are the reply briefs to the

10 Prosecution's briefs. Those are by their nature much more brief and

11 they're also by their nature purely responsive to the Prosecution's

12 briefs. They are not the original case made out by the appellant.

13 Although I certainly will relay this request of yours, I myself

14 would not grant it, and I will proceed for the rest of this time on the

15 assumption that by July 18th the Defence counsel would be able to file a

16 response brief to the Prosecution's filing. Many of the Defence counsel

17 did, in fact, get their briefs from the box, and many of them who had some

18 question about -- not many of them, but some who had questions about it

19 called Mr. von Hebel and found out what the adjustment that we made in the

20 time span is.

21 I think it's fair to say that nobody wishes to postpone the

22 argument here and the completion of the trial schedule. I will, however,

23 Mr. Radovic, Ms. Slokovic-Glumac, relay your request. If my colleagues do

24 not agree with me, you will be promptly notified, but I do not think that

25 you should count on that.

1 MR. ABELL: Just before we move from that topic, could I just

2 check one thing?

3 JUDGE WALD: Yes.

4 MR. ABELL: On the 18th of July, to make sure we're quite clear,

5 the deadline is 4.00 p.m., as I understand it.

6 JUDGE WALD: That would be true, would it not, Madam Registrar?

7 THE REGISTRAR: Yes, Your Honour.

8 MR. ABELL: I'm grateful. I'm sorry to interrupt, Your Honour.

9 JUDGE WALD: That's all right.

10 I will now go back to the schedule that we had and that I will

11 assume will continue unless the Appeals Chamber decides otherwise, and

12 that would say that we wish to point out to Mr. Josipovic's counsel that

13 we did receive his reply to the Prosecution's amended brief on the 8th. I

14 think the 8th. Anyway, it was Friday, whatever it was. And there was

15 some minor confusion there, but the Appeals Chamber will accept this brief

16 even though there was some delay from the original date that it was due.

17 MS. CHARBIT: Your Honour, that's right. It was received by

18 Mr. Clegg on Thursday when he was here.

19 JUDGE WALD: Right.

20 MS. CHARBIT: And he was -- he passed it to me on Friday.

21 JUDGE WALD: Okay. Well, we will receive that and take it into

22 consideration.

23 I also wish to point to you July 17th as being the date in one of

24 our orders when copies of the public brief would be due so that anything

25 confidential would be separated out and filed separately. That's, I

1 think, necessary so that both counsel in oral argument may refer -- know

2 what they can refer to freely without asking for any special private

3 sessions, and also so that the Court has an easy reference point when it

4 comes time to read the judgement, to know what's in the public brief and

5 what's not. In that respect, I would ask the Prosecution whether they

6 plan to file a public brief within approximately the same time.

7 MR. YAPA: Yes, Your Honour.

8 JUDGE WALD: Thank you.

9 MR. ABELL: Your Honour, again, just before we move from that

10 topic, could I make the suggestion - I hope it's a helpful one -

11 JUDGE WALD: Go ahead.

12 MR. ABELL: Bearing in mind that the dates for the response to the

13 Prosecution's reply to our amended appellant's brief is 18th of July --

14 JUDGE WALD: Right.

15 MR. ABELL: -- it might be easier for us, all of whom are now

16 working to a tight timetable, if the date for the service of the public

17 appellant's brief were that same date, the 18th. It would mean a day --

18 JUDGE WALD: Yes. I understand. I understand. I think that's a

19 very reasonable suggestion, and I will grant that on the spot here.

20 MR. ABELL: I'm very grateful to Your Honour.

21 JUDGE WALD: So it will be the same date, July 18th, when both of

22 these sets of the public briefs and the replies will be due.

23 MR. ABELL: Your Honour, thank you very much. I'm grateful.

24 JUDGE WALD: Now, I have one other date here, and that was for the

25 Prosecution's reply to Mr. Josipovic and Mr. Santic's response to their

1 amended brief, and that I have down as July 19th.

2 MS. CHARBIT: Your Honour, may I say on behalf of Mr. Josipovic --

3 JUDGE WALD: Right.

4 MS. CHARBIT: -- that we would be grateful if that would be filed

5 by the Prosecution by 2.00 p.m. on July 19th. It's a time table that we

6 have discussed.

7 JUDGE WALD: Is that possible, Mr. Yapa?

8 MR. YAPA: Yes, it is possible.

9 JUDGE WALD: All right. Then it shall be done.

10 MS. CHARBIT: I'm grateful, Your Honour. Thank you.

11 JUDGE WALD: Those are the deadlines, barring any change. I don't

12 think anybody should rely on there being any change, but Mr. Radovic and

13 Ms. Slokovic-Glumac's requests will certainly be relayed.

14 Let me go over very briefly the status of all outstanding motions

15 in the case. There is one pending Rule 115 motion of Zoran and Mirjan

16 Kupreskic for the admission of a document which was filed some few weeks

17 ago. It's been replied to by the Prosecution. You will receive a written

18 decision on that motion. It will be filed either today or possibly

19 tomorrow, but that motion will be taken care of.

20 We also have some motions of Mr. Josipovic and Vlatko Kupreskic

21 for access to transcripts in the Kordic case, and there may be one in the

22 Blaskic case.

23 What I want to relate to you is that those motions, procedurally,

24 are in the President's office. We are working with them to get an answer

25 from the President, who must make that decision, and as far as any

1 adjustment of schedule afterwards, if those motions are granted, we will

2 take that up as it comes to us, but we are working with the President's

3 office to get those out as soon as we can.

4 Now, I am told but have not yet received that there were two Rule

5 115 motions which were filed on Thursday or Friday, but anyway within, but

6 just within the deadline of 15 days before the hearing. I have not

7 received those motions yet. When I do, we will try to take care of those

8 as quickly as possible, especially to have them decided before the oral

9 argument.

10 I solicit the Prosecution's cooperation in that respect. I don't

11 know what they are yet, maybe the Prosecution doesn't either, but to the

12 extent that it would be able to reply ahead of the normal deadline, that

13 would be most helpful so that all of those motions can be decided before

14 the oral argument.

15 Now, I would like to take up -- Zoran and Mirjan Kupreskic have

16 filed a motion, that the Prosecution has replied to, for judicial notice

17 under Rule 94(A) for a meteorological report from an official Sarajevo

18 weather station about the time at which the sun rose in Sarajevo and Vitez

19 on the morning of April 16th.

20 With the assent of my colleagues, I am going to rule on that

21 motion at this time. So the oral ruling will be the definitive ruling.

22 After consultation and after receiving the reply of the

23 Prosecution, the Appellate Chamber declines to take judicial notice of the

24 report for the following reasons:

25 The report is a piece of additional evidence on a much disputed

1 issue that was litigated at trial, that is, the conditions of visibility

2 in the morning of April 16, 1993. The Trial Court heard much evidence and

3 much testimony on this particular issue. The Appellate Chamber also made

4 a decisions declining several petitioners' requests to admit additional

5 evidence on this topic in the form of videos, because it ruled that such

6 evidence was not unavailable at the trial and so did not meet the first

7 prong of Rule 115.

8 Now, although we are well aware that Rule 94(A) provides for

9 judicial notice of a common fact of knowledge that does not require proof

10 and it indeed may be argued that the fact of there being a meteorological

11 report about the time that the sun arose in those two towns on that

12 particular day is not -- does not require proof, yet the report itself is

13 evidence that goes toward a fact that was litigated at trial, and in view

14 of the Appellate Chamber, that evidence, the report, should have been

15 submitted and could have been submitted to the trial Court at that time.

16 Were we to allow Rule 94(A) to permit evidence to come in even

17 though it is not necessary to provide further proof of that piece of

18 evidence but evidence that was available at the time of trial, it would

19 provide a way around 115 for pieces of evidence which although they

20 themselves don't require proof, they are themselves evidence of a disputed

21 fact. So the motion for judicial notice is rejected.

22 Now, I wish to emphasise again, before we move on to the oral

23 argument and the arrangements thereof, that under Rule 115, Friday, I

24 believe, was the last day under the Rule that such motions could be

25 filed. I am aware of the pending motions in the President's office and --

1 for access. I don't know what will come out of those, but I do wish to

2 emphasise that barring extraordinary circumstances - whether or not that

3 qualifies as an extraordinary circumstance, we will decide if it becomes

4 necessary to decide - but apart from that, the Appeals Chamber will not

5 entertain Rule 115 motions from this point onward. We have had,

6 incidentally, over 30 of them so far, and I feel that closure -- we all

7 feel that closure is coming due.

8 With those out of the way, I would now like to discuss the

9 forthcoming argument. Let me make a few preliminary remarks and then ask

10 for the reactions of both the Prosecution and Defence counsel as to how we

11 can make this a more expeditious process.

12 We have three days, July 23rd through the 25th. We have,

13 according to the maximum which we're able to squeeze out of those three

14 days, a maximum of 18 hours for oral argument. That takes into account

15 the necessary breaks for the translators and lunch.

16 We have basically six separate appeals. We have the five appeals

17 of the Prosecution, of the five -- I'm sorry, the five appeals of the five

18 defendants and we have the Prosecution's one separate appeal.

19 After today's discussion, and we'll go into that, the Appeals

20 Chamber will, hopefully on Friday and certainly by Monday, issue a time

21 schedule for the argument so that you'll all be clear, as you come into

22 argument, whose going to argue at what time and about what.

23 What I am hoping we can accomplish today is to agree on some

24 practices that will make best use of both the Judges' and the counsels'

25 time. Our legal officer, Mr. von Hebel, has written all of you a letter

1 asking you to come today hopefully to propose some common issues on which

2 one counsel could argue for more than one defendant. This is with a view

3 to not having several Defence counsel arguing exactly the same argument.

4 As you all know from reading the briefs, and I believe the

5 Prosecution's brief specifically notes what it considers to be common

6 arguments, but other defendants will quickly recognise that they have

7 other common arguments with still other defendants, that it would be a

8 waste of your time and a waste of our time for people to get up on the

9 same side to give precisely the same league argument. And there so appear

10 to be many such common arguments in these appeals.

11 I myself have a list of some of the issues which appear to me to

12 lend themselves to one argument on behalf of more than one defendant.

13 However, I do stress I cannot force you to do that. I mean, there's no

14 such thing as compulsory labour in this Tribunal. I can only urge you, on

15 behalf of your own self, your own clients, and on behalf of the Judges'

16 attention, that you try to, if you have not done so already, confer and to

17 come up with some common issues that one of you can argue on behalf of

18 more than one. And I would assure you that if you can agree on a joint

19 presentation for some issues - "joint" doesn't mean one Defence counsel

20 for all the other defendants but even one for two defendants or one for

21 three defendants - we will be very careful to adjust the time accordingly

22 so you will not suffer in any way by loss of time to agreeing to some such

23 joint attention.

24 Now, Mr. von Hebel asked you to come today prepared to see if

25 there were any such common issues that you immediately identified, and I

1 will at this time ask you, all of you, if that's so. After that,

2 depending partially on what the answers are, I do have a list of issues I

3 think that perhaps further consideration could be given to having a joint

4 presentation, and I'm asking all of the counsel, but it's primarily

5 Defence counsel here, obviously, to be in touch with Mr. von Hebel by the

6 close of business on Wednesday, on Wednesday the 11th.

7 Close of business is what time, Mr. von Hebel, for your office?

8 6.00 basically.

9 In touch with him by fax or, if absolutely necessary by phone

10 call, but fax is already better or a note, if you're here in The Hague, a

11 letter. These do not have to be formal filings with the Registry. They

12 are direct filings with Mr. von Hebel's office, in which you would apprise

13 us of topics on which you and some, one, of the other counsels have agreed

14 to present a joint argument, which counsel would argue on behalf of which

15 defendants, and for you to make a suggested time limit for that joint

16 argument.

17 I'm aware that -- or you should be aware the Appeals Chamber will

18 not necessarily be able to accommodate all of your requests, but we

19 certainly will take them into consideration. So we hope that after this

20 Status Conference is over, if there are any among the common issues which

21 I will list which you can confer and come up with some joint presentations

22 that you will be in touch with Mr. von Hebel by the end of Wednesday, and

23 we'll get that into the schedule that we issue at the end of the week.

24 All right. Let me -- there's no use in asking the Prosecutor,

25 because the Prosecutor is unilateral in this sense as to whether or not

1 there are any joint issues. The Prosecutor's brief identified issues that

2 it considers to be common issue.

3 Mr. Abell again.

4 MR. ABELL: I'm so sorry to interrupt. I was only going to say

5 that to some extent the exercise that Your Honour has mentioned, to some

6 extent, at least, it has been done.

7 JUDGE WALD: Good.

8 MR. ABELL: Obviously Your Honour, from the sound of it, is going

9 to give us a list of --

10 JUDGE WALD: Well, no.

11 MR. ABELL: -- Which Your Honour has identified --

12 JUDGE WALD: I'm going to listen to yours first.

13 MR. ABELL: Certainly.

14 JUDGE WALD: And if that's satisfactory, I may never have to get

15 to mine, Mr. Abell.

16 MR. ABELL: Thus far --

17 JUDGE WALD: You're not speaking -- let me just clarify. You're

18 now speaking on behalf of some of the other Defence counsel.

19 MR. ABELL: I am indeed for the moment.

20 JUDGE WALD: Okay.

21 MR. ABELL: I'm -- obviously if anyone wants to add anything to --

22 JUDGE WALD: We'll find out.

23 MR. ABELL: -- about to say, they must have that opportunity.

24 JUDGE WALD: Right. Indeed.

25 MR. ABELL: But perhaps the main common issue is what has, I

1 think, been referred to I think as the standard review.

2 JUDGE WALD: Yes.

3 MR. ABELL: In other words, as we would put it, where does the

4 evidential burden lie and the standard of proof to be applied. That

5 appears --

6 JUDGE WALD: That appears first on my list as well.

7 MR. ABELL: And ours. It is absolutely, we will submit,

8 fundamental to the way that this appeal is approached.

9 It has been agreed between the Defence, as I understand it that

10 that argument will be taken on behalf of all of us --

11 JUDGE WALD: Good.

12 MR. ABELL: -- by Mr. William Clegg.

13 JUDGE WALD: That's wonderful. That's good news indeed. Do you

14 have a suggested time or -- you can do that to Mr. von Hebel later,

15 because we'll have to balance, obviously, all the different time limits.

16 MR. ABELL: Of course, we will put it in writing --

17 JUDGE WALD: Okay. Good.

18 MR. ABELL: -- the way Your Honour suggested, but I know that from

19 discussions with Mr. Clegg, he was going to ask for two and a half hours

20 in order to present that argument, but that would be on behalf of all of

21 us.

22 JUDGE WALD: I understand. Okay. Do you have other joint

23 issues?

24 MR. ABELL: Would Your Honour just bear with me for one moment.

25 JUDGE WALD: Yes.

1 MR. ABELL: In relation to sentence, there is a joint issue

2 perhaps, which is the impact of domestic sentencing law --

3 JUDGE WALD: Right.

4 MR. ABELL: -- in the former Yugoslavia, as to tariff sentences,

5 as it were. The effect that that -- the impact that that may have on the

6 sentence appeals. And although it hasn't been decided who will deal with

7 that yet, it is envisaged that that could be dealt with by one or

8 perhaps -- perhaps two counsel on behalf of all of us.

9 JUDGE WALD: Good.

10 MR. ABELL: That will save a little time. The other joint or

11 common matter doesn't affect my client, Vlatko Kupreskic, but as I'm on my

12 feet, I'll deal with it. It's the cumulative conviction points. I'm

13 aware of the recent ruling in the case of Jelisic. It's no part of my

14 case, this, so perhaps --

15 JUDGE WALD: I understand. I understand.

16 MR. ABELL: -- I better not say too much more. One

17 person - again, it's not been decided who - but one person will be

18 pursuing that argument.

19 JUDGE WALD: That's good news. All of those three issues were

20 certainly on my list. I hope that perhaps by Wednesday close of business

21 counsel would be able to decide, in the case of the latter two, who would

22 do the arguing.

23 All right, Mr. Abell. Does that complete your -- that's a good

24 report.

25 How about other counsel? Mr. Radovic, there are many issues that

1 you and Ms. Slokovic-Glumac have in common, and others. Do you have any

2 suggestion for joint presentations? Either one of you is fine to speak.

3 MS. SLOKOVIC-GLUMAC: [Interpretation] Thank you, Mrs. President.

4 As we had joint Defence for the most part of the proceedings, we shall

5 also treat these joint issues by splitting them between us. Mr. Radovic

6 will take one part and I will take the other part. That is, the evidence

7 that was produced and that we are challenging in our appeal will be

8 analysed so that each one of us will take up one part of them and there

9 will be no repetition. Of course, if there are some specific details

10 relative to only one or the other accused, they will be tackled

11 separately. We think that we shall need -- that each of us shall need

12 about one hour and a half for the appeal.

13 JUDGE WALD: All right. Thank you very much,

14 Ms. Slokovic-Glumac. Do you think you will be in a position by Wednesday

15 close of business to identify which issues each one of you will cover, or

16 not? In your case, because your two arguments are so closely connected, I

17 don't know that that's absolutely necessary, but it would be helpful if

18 you did know.

19 MS. SLOKOVIC-GLUMAC: [Interpretation] We shall do our best, but as

20 I have said, we have not yet seen the Prosecutor's response, so that we

21 simply do not know which are parts which are questionable, and that

22 depends on that, how we shall react.

23 JUDGE WALD: All right. Thank you.

24 Mr. Pavkovic.

25 MR. PAVKOVIC: [Interpretation] Your Honours, this is not only so

1 that you have an opportunity to hear my voice, but I should also like to

2 add a few sentences to contribute to this discussion, that is, to see how

3 to best use the 18 hours envisaged for the closing arguments.

4 At the outset, the position of the accused Santic and Josipovic

5 was, insofar as the indictment and the charges were concerned, was

6 practically the same. In other words, there are very many common issues

7 and it is natural that one of us will address them all together. However,

8 meanwhile, as you know, some changes took place, and our joint issues now

9 boil down to legal issues, that is, the joinder of charges. Therefore, my

10 colleague, who is speaking on behalf of -- who is here on behalf of

11 Mr. Clegg, has already mentioned these cumulative charges and I suppose

12 that we shall meet today to discuss which one of us will speak on the

13 question of cumulation of charges.

14 Now just one more thing. I should like to inform you how long I

15 shall need for my presentation. I believe it will not go beyond one hour,

16 even including the points on the cumulative charges.

17 JUDGE WALD: Thank you very much, Mr. Pavkovic.

18 MR. PAVKOVIC: [Interpretation] Thank you.

19 JUDGE WALD: Do you have anything to add to this, Ms. Charbit?

20 MS. CHARBIT: Your Honour, only this: The merits of the appeal,

21 Mr. Clegg has asked for one and a half hours to present his argument, and

22 that's distinct from the two and a half hours for the argument already

23 mentioned that may well be cumulative for other defendants. I can only

24 indicate to the Court that in addition, he's asked for approximately 40

25 minutes for the rejoinder argument.

1 JUDGE WALD: The rejoinder argument? In what sense?

2 MS. CHARBIT: Following the Prosecution response, he's asked for

3 approximately 40 minutes for the reply to the Prosecution's argument.

4 JUDGE WALD: I understand. All right. We have all those

5 notations. Probably it would be useful if as many of you can put them in

6 writing and just get them by note or fax to Mr. Clegg's office, but we do

7 have them on the transcript even if you're not able to do that. We will

8 get out a Scheduling Order, as I say, by the end of the week/beginning of

9 next week.

10 Now, you have been able to allay some of my apprehensions and

11 encourage me by the progress you have made to joint presentations.

12 However, if you will indulge me for just a few minutes, I am just going to

13 list some of the other issues which I at least considered to be

14 susceptible to joint presentation. In case any of you wish to think upon

15 it some more, as I say, you have until Wednesday close of business to

16 inform Mr. von Hebel. So I will just run down the list. I will not

17 mention the ones that you've already agreed upon, but some of the other

18 ones I've attempted, after reading the briefs, to indicate the particular

19 defendants that would be raising the same issue.

20 One of them is whether reliance for convictions may be had by the

21 Trial Court on the basis of factual allegations that were not raised in

22 the indictment. I'm putting the question not with any desire to indicate

23 whether or not the Appellate Court at this time thinks that that's the

24 proper formulation, but more in the terms of the way the appellants have

25 formulated it. That was an issue raised by both Zoran and Mirjan

1 Kupreskic and, I believe, by Mr. Josipovic as well.

2 The failure to adequately define the charge of Prosecution. Now,

3 that is raised by both Zoran and Mirjan, and I'm sure you've worked that

4 out probably between yourself as to who will handle that.

5 The same is true of the question raised by both Zoran and Mirjan

6 dealing with the credibility of Witness H and the failure to call Witness

7 SA, so I'll assume that you've worked that out between you.

8 The credibility of Witness EE is an issue again which

9 Mr. Josipovic and Mr. Santic had in common, and you've already alluded to

10 the fact that you are working between yourselves on the allocation of

11 issues.

12 Which units were involved in the -- which military units were

13 involved in the 16th of April attack on Ahmici is a question which is

14 raised by both Zoran and Mirjan Kupreskic and Mr. Josipovic.

15 Now, on the sentencing issues, you've already mentioned one

16 dealing with the practice of the former Federal Republic of Yugoslavia.

17 Let me mention a few others which seem to have been raised by more than

18 one defendant and might also adapt themselves to joint presentation:

19 The basic question of the standard of review in an appeal of

20 sentence. I don't know whether that was intended to be included in the

21 global issue on sentencing or not. Under what circumstances can new facts

22 or mitigating circumstances be raised on appeal which were not put before

23 the Trial Chamber? What is the standard of review of the Appellate

24 Chamber for any new material which has come into the record with regard to

25 sentencing? Did the Trial Court err in assessing the role of the various

1 accused in the military or other hierarchies?

2 Those are basically the issues which I saw. Some, or a few of

3 them, might come within the orbit of those issues you've already

4 identified as joint presentation. Others you might give further

5 consideration to. But basically, if you'll give Mr. von Hebel by

6 Wednesday night any other thoughts you have along these lines on joint

7 presentation, then we will get the schedule out to you.

8 You have already told me basically the time that you would

9 like - it may not be possible to accommodate everybody - but the time that

10 you would like. Now, do any of the Defence counsel who haven't already

11 told me the amount of time that they think is necessary for them to

12 present their case, are there any further thoughts on that from any of

13 you?

14 MR. ABELL: I'm not sure I actually -- when I rose to deal with

15 the common issues, I'm not sure I dealt with what I was going to suggest.

16 JUDGE WALD: So go ahead and deal with it now.

17 MR. ABELL: In terms of presenting the merits of Vlatko

18 Kupreskic's appeal, I would ask for 90 minutes for that, one and a half

19 hours.

20 JUDGE WALD: All right.

21 MR. ABELL: In terms of the sentence aspects --

22 JUDGE WALD: I think that I might make clear here that except for

23 those issues that have been pulled out for joint sentencing presentation,

24 we would expect the Defence counsel to cover the sentencing within their

25 main presentation.

1 MR. ABELL: We weren't sure whether Your Honour was going to say

2 separately or --

3 JUDGE WALD: Well, I think we have so much division of time now

4 that it's going to make more sense for the sentencing arguments to be made

5 within the framework of the main appeal.

6 MR. ABELL: Very well. Well, in which case I would revise my

7 estimate. I was going to ask for 20 minutes for the sentencing.

8 JUDGE WALD: So you get up to 110.

9 MR. ABELL: Yes. I'm sure Your Honour's math is much sharper than

10 mine. Yes, quite.

11 JUDGE WALD: All right. Thank you.

12 Anybody else have anything further to say on this? I do have

13 one -- oh, the Prosecution.

14 MR. YAPA: I thank Your Honour. There were one or two matters

15 that I wanted to raise when my learned friends were mentioning about the

16 time that they will spend on presenting their arguments -- actually, the

17 joint issues. On the standard of review, it was mentioned that it would

18 be done by Mr. Clegg and two and a half hours would be taken on that.

19 JUDGE WALD: Well, he has asked for two and a half hours.

20 MR. YAPA: Yes. It may be that it is the outer limit that he is

21 asking for. What I want to mention is that this -- just a clarification,

22 whether the standard of review that has been mentioned here is the

23 standard review that is applicable to the main appeal, the substantive

24 appeal, or whether it is together with the standard of review that will be

25 in respect to the additional evidence that has been admitted, so it will

1 have to be done jointly.

2 JUDGE WALD: I understand your question, and perhaps we can get

3 that clarified by one of the Defence counsel now who participated in the

4 agreement.

5 MR. ABELL: Your Honour, I believe -- I certainly discussed it

6 briefly with Mr. Clegg. It may be Ms. Charbit can help more, but I

7 believe the intention was to deal with the issue globally within that

8 two-and-a-half-hour framework.

9 JUDGE WALD: So we would have, actually, three topics there: the

10 standard of review for the evidence on the main appeal, anything

11 additional that Mr. Clegg would like to present on standard of review for

12 sentencing, and standard of review for additional material on 115. Thank

13 you, Mr. Abell.

14 Now, having gotten that somewhat clarified, what is the

15 Prosecution's --

16 MR. YAPA: I have one other matter to mention.

17 JUDGE WALD: Well, do you have -- okay. And then you will give us

18 some estimate of the time you think you need.

19 MR. YAPA: Yes, Your Honour. I will come to that.

20 JUDGE WALD: Okay.

21 MR. YAPA: If I may, with Your Honour's permission, mention:

22 There was the other matter of cumulative convictions that was mentioned.

23 Now, that is a ground that we have taken in our appeal as well.

24 JUDGE WALD: Right. There are actually two areas of cumulative

25 conviction, in my understanding. One is the Prosecution's main appeal.

1 That will be separated out in the oral argument. The Prosecution will

2 have its appeal, the same way that the Defence counsel have their various

3 appeals. Now, cumulative convictions that the Prosecution has not raised,

4 cumulative conviction arguments that the Prosecution has not raised, have

5 come up in the course of the appeals of several of the defendants. Those

6 will be treated as part of the regular appellate arguments of those

7 defendants.

8 MR. YAPA: Those are the two matters I wished to raise.

9 JUDGE WALD: So I'm still waiting, Mr. Yapa, some notion of what

10 kind of time frame you would envision for your separate Prosecution appeal

11 and what kind of time frame you would envision. Plus, the question I had

12 for you is: In terms of the five separate appeals raised by the five

13 Defence counsel, does the Prosecution prefer to, at the end of each one of

14 those appeals, have its time and then the Defence counsel have their time

15 to come back, or would you rather have one big chunk of time at the end?

16 MR. YAPA: If Your Honour will bear with me.

17 JUDGE WALD: Sure.

18 [Prosecution counsel confer]

19 MR. YAPA: I thank Your Honour. Our preference would be for the

20 appellants to conclude their submissions and then we will make the

21 response. It will be a response to arguments that what they place in

22 their appeals.

23 JUDGE WALD: That would include the common issues as well?

24 MR. YAPA: As well. As well, Your Honour.

25 JUDGE WALD: Okay. So you want -- just to clarify this: When

1 your appeal comes up, you are obviously the appellant, you want a time for

2 that, and you will tell me what your preference would be.

3 MR. YAPA: Yes.

4 JUDGE WALD: And then all of the appellants will present their

5 arguments, you will present your global reply, and they will all have time

6 to respond to your reply.

7 MR. YAPA: Yes, Your Honour.

8 JUDGE WALD: So if you'll give me two recommended preferred time

9 slots for that.

10 MR. YAPA: One thing which I can say straight away in respect of

11 the response that we have to make to the appeal: We will work

12 accordingly, because the time that they will take, it will be definitely

13 lesser than the time that we will take.

14 JUDGE WALD: Yes. We would be here until Sunday if we -- an exact

15 proportion of that amount.

16 MR. YAPA: So what I can say is that it will be lesser than the

17 time that they will take. But in respect of the appeal, the Prosecution

18 appeal -- for the Prosecution appeal, what has been indicated to me, the

19 person who has been entrusted to deal with it, is just 15 minutes.

20 JUDGE WALD: That's good news indeed.

21 MR. YAPA: And for the response, the reply to the response of the

22 Defence, it will be -- if at all, it will be ten minutes.

23 JUDGE WALD: All right. Okay. That's useful.

24 I have been asked by my colleagues to make one general comment,

25 which probably may not apply to any of you, but their experience with some

1 other appeals is to advise counsel: Please do not read your argument.

2 When you read your argument -- I know you're all experienced counsel and

3 it's perhaps what we call preaching to the converted, but nonetheless, it

4 not only, I think, detracts from the efficiency of the counsel; it makes

5 it very hard for the Judges sitting for 18 almost straight hours if

6 somebody is reading something. So we sincerely hope and urge that you

7 will have a dialogue with us and not read from your appeal.

8 Let me ask at this point: Apart from the outstanding motions and

9 apart from the fact I will relay and show the transcript to my colleagues

10 at Mr. Radovic's request, are there any other matters that you think need

11 to be taken up?

12 MR. ABELL: I'm not sure that when I was last on my feet I

13 indicated a time for what has been called -- using the terminology of the

14 letter we received from Mr. von Hebel, it's been called rejoinder, our

15 reply to the Prosecution's response. I would ask for 20 minutes to deal

16 with that. Just a detail. We'll put it in the letter to Mr. von Hebel on

17 Wednesday.

18 JUDGE WALD: All right.

19 MR. ABELL: No other matters that I can think of at the moment,

20 Your Honour will be pleased to hear.

21 JUDGE WALD: Thank you.

22 In that case, then, we will adjourn this Status Conference. I

23 advise you all, because of the difficulties that various people have

24 encountered in getting filings on time, to be aware, there will be

25 decisions coming out on the 115 motions which are outstanding, decisions

1 coming out on the access by the President, decisions by the President so

2 that you can decide what to do with those decisions, and a schedule,

3 either at the end of this week or Monday of next week, which will give you

4 the -- so that if you don't receive them, you may want to make a phone

5 call and make sure that they aren't sitting someplace where they are

6 accessible.

7 All right. Thank you very much. I appreciate especially the

8 cooperative stance the Defence counsel have taken in trying to identify

9 and move ahead on these joint submissions, and I look forward to seeing

10 you again.

11 I might add that at the end of the oral argument, we will have a

12 very short regular Rule 65 bis Status Conference in order to accommodate

13 the 120-day requirement when the accused defendants are here, and we'll do

14 that at the very end of the argument. It shouldn't take more than a few

15 minutes. Thank you.

16 --- Whereupon the Status Conference adjourned

17 at 11.02 a.m.

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