Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 25 September 2009

 2                           [Status Conference]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.24 p.m.

 5             JUDGE LIU:  Good afternoon, ladies and gentlemen.

 6             Madam Registrar, would you please call the case.

 7             THE REGISTRAR:  Good afternoon, Your Honour.

 8             Good afternoon, everyone in and around the courtroom.

 9             This is case number IT-05-87-A, the Prosecutor versus

10     Sainovic et al.

11             JUDGE LIU:  Thank you very much.

12             Could I now please have the appearances of the parties.

13             For the Prosecution.

14             MR. KREMER:  Yes, Your Honour, Peter Kremer and Laurel Baig

15     appearing for the Prosecution; assisted by our case manager,

16     Lourdes Galicia.

17             JUDGE LIU:  Thank you very much.

18             And for the Defence.

19             MR. PETROVIC:  Good afternoon, Your Honour.  My name is

20     Vladimir Petrovic.  I'm a lawyer, and I'm Defence counsel for

21     Nikola Sainovic.

22             MR. VISNJIC:  Your Honour, Tomislav Visnjic and Peter Robinson on

23     behalf of General Dragoljub Ojdanic.

24             MR. ALEKSIC: [Interpretation] Good afternoon, Your Honour.  I am

25     Aleksandar Aleksic, co-counsel for General Pavkovic.  And we have

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 1     Cathy MacDaid, our legal assistant, in the courtroom with us.  Thank you.

 2             MR. BAKRAC:  Good afternoon, Your Honour.  Counsel Mihajlo Bakrac

 3     and Djuro Cepic for General Lazarevic.

 4             MR. LUKIC: [Interpretation] Branko Lukic and Dan Ivetic for

 5     Mr. Lukic.

 6             JUDGE LIU:  Thank you.

 7             Before I commence, I would like to know whether all the

 8     appellants can follow the proceedings in a language they could

 9     understand.

10             So, Mr. Sainovic, can you follow the proceedings in a language

11     that you can understand?

12             THE ACCUSED SAINOVIC: [Interpretation] Yes, Your Honour.

13             JUDGE LIU:  Thank you very much.

14             Mr. Ojdanic?

15             THE ACCUSED OJDANIC: [Interpretation] Yes.

16             JUDGE LIU:  Mr. Pavkovic?

17             THE ACCUSED PAVKOVIC: [Interpretation] Yes, Your Honour.

18             JUDGE LIU:  Thank you very much.

19             Mr. Lazarevic?

20             THE ACCUSED LAZAREVIC: [Interpretation] Yes.

21             JUDGE LIU:  Mr. Lukic?

22             THE ACCUSED LUKIC: [Interpretation] Yes, Your Honour.

23             JUDGE LIU:  Thank you.  Thank you very much.

24             This status conference is called in accordance with Rule 65 bis

25     of the Rules of Procedure and Evidence.

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 1             Rule 65 bis (B) requires a status conference to be convened

 2     within 120 days after the filing of a notice of appeal, and thereafter

 3     within 120 days after the last status conference to allow any person in

 4     custody pending appeal the opportunity to raise issues in relation

 5     thereto, including the mental and the physical condition of that person.

 6             In the present case, the notice of appeal was filed on the

 7     27th May 2009, and at the parties' request this status conference was

 8     scheduled a day after the expiration of the 120-day period.  Today's

 9     status conference was scheduled by an order issued on the 11th of

10     September, 2009.

11             First, I would like to inquire into the status of the detention

12     conditions and the health situation of all the appellants.  If you have

13     any concerns in relation to the detention conditions or your state of

14     health, I would invite you to raise them now.  If you wish, this

15     discussion can take place in private session.

16             Yes, Mr. Aleksic.

17             MR. ALEKSIC: [Interpretation] Your Honour, my client,

18     General Pavkovic, would like to address the Court and tell you of his

19     health conditions, so I agree that we move into private session for that.

20     Thank you.

21             MR. BAKRAC: [Interpretation] Your Honour --

22             JUDGE LIU:  Yes.

23             MR. BAKRAC: [Interpretation] Your Honour, with your permission,

24     General Lazarevic, my client, would also like to address the Court with

25     respect to his state of health, so we can use the private session for him

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 1     to do that too.

 2             JUDGE LIU:  Well, let me make sure, you know, about your

 3     requests.  You want a private session rather than an ex parte hearing?

 4             MR. ALEKSIC: [Interpretation] Yes, yes, a private session, yes.

 5             JUDGE LIU:  Mr. Bakrac?

 6             MR. BAKRAC: [Interpretation] Private session, too, yes.

 7             JUDGE LIU:  Thank you.

 8             Now we'll go to the private session, please.

 9                           [Private session]

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25                           [Open session]

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 1             THE REGISTRAR:  Your Honour, we are back in open session.

 2             JUDGE LIU:  Thank you.

 3             Before reaching into any issues that parties may wish to raise, I

 4     would like to recount briefly the recent procedural history of this case.

 5             In compliance with my decision of 23rd March 2009, all parties to

 6     this case filed their notice of appeal on the 27th May 2009.

 7             On 29th July 2009, counsel for Mr. Ojdanic filed a motion to

 8     amend the seventh ground of his notice of appeal.  The motion was granted

 9     on the 2nd September 2009.

10             Two motions have been filed to amend Mr. Pavkovic's notice of

11     appeal.  With respect to his first motion filed on 28th August 2009, the

12     Appeals Chamber found that Mr. Pavkovic demonstrated good cause for the

13     proposed amendments and duly granted the motion on the 9th September

14     2009.

15             A further motion to adopt and join the seventh ground of

16     Mr. Ojdanic's notice of appeal filed on the 15th of November, 2009, was

17     granted on the 22nd September 2009.  In this regard, the Appeals Chamber

18     ordered Pavkovic to:  First, file his appellant brief no later than

19     23rd September 2009, in compliance with my previous decision on extension

20     of time and word limits; secondly, file a newly-amended notice of appeal

21     no later than the 30th of September, 2009; and, thirdly, in full

22     compliance with the word limit imposed by the decision on the extension

23     of the word limit, amended appellant brief by the same date, clearly

24     identifying the changes which must be limited solely to the incorporation

25     of new ground of appeal.

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 1             On 10th August 2009, the Prosecution filed their appeal brief

 2     confidentially.  A public version of the Prosecution's appeal brief was

 3     filed on 21st August 2009.  The Prosecution filed a corrigendum to his

 4     appeal brief on the 24th August 2009.

 5             Pursuant to the decision of the 29th June 2009 and the 7th August

 6     2009, counsels for Mr. Sainovic, Mr. Ojdanic, Mr. Pavkovic,

 7     Mr. Lazarevic, and Mr. Lukic filed their respective appeals brief on the

 8     23rd September 2009.  The Appeals Chamber is currently assessing those

 9     filings in terms of their compliance with the said decision and

10     applicable provisions of the Rules and the Practice Directions.  All

11     outstanding matters will be dealt with in due course.

12             That said, I would observe that on the 23rd September 2009, the

13     same day the appeals brief were due to be filed, counsel for

14     Mr. Lazarevic requested to file an appeal brief in excess of the word

15     limit imposed by the decision of the 8th of September, 2009.  It is to

16     this request that I now turn to determine in my capacity as pre-appeal

17     Judge.

18             In his request to exceed the word limit for the appeal brief,

19     counsel for Mr. Lazarevic requested a further extension of the word limit

20     of an additional 3.900 words.  The Prosecution filed its response on the

21     same day opposing the motion.  Lazarevic filed his reply on 24th

22     September 2009, seeking leave to reply to the response.

23             I recall, as a preliminary matter, that on appeal the moving

24     party is not required to seek leave to file a reply pursuant to the

25     Practice Direction on Procedures for the filing of the written

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 1     submissions in appeals proceedings before the International Tribunal,

 2     dated 16th of September, 2005.

 3             On the 8th September 2009, I granted, in part, the Defence motion

 4     for the extension of the word limit and ordered Lazarevic to file an

 5     appellant brief of no more than 45.000 words.  As you'll hear, I have to

 6     refer to this as the decision of the 8th of September, 2009.

 7     Mr. Lazarevic submits that this case involves a judgement of

 8     unprecedented events and a voluminous trial record, and raises issues of

 9     significant complexity.  Lazarevic further submits that full quality and

10     effectiveness of Lazarevic's appeal brief will not be accomplished if the

11     Defence were to have to omit some parts of the appeal brief as it is

12     constructed at present, and that granting leave to exceed the word limit

13     by an additional 3.900 words is in the interests of justice and would not

14     prejudice the Prosecution in any way.

15             In response, the Prosecution submits that Lazarevic has failed to

16     show that the reconsideration of the word limit imposed by the decision

17     of the 8th September 2009 is warranted because it simply reiterates the

18     general assertions already made in his first motion, and that he has not

19     shown any clear error of reasoning in such decision.

20             In his reply, Lazarevic claims that he had to reduce his

21     appellant's brief considerably in order to comply with the decision of

22     the 8th September 2009, and that a current version of the brief is the

23     product of his team's best efforts in this regard.  Lazarevic also

24     insists that the sought extension is rather minor in relation to the

25     complexity of the case and the need to have a meaningful appellant brief.

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 1             Considering that Lazarevic's request of a further extension of

 2     the word limit effectively amounts to a request for reconsideration, I

 3     recall that a Chamber or a pre-appeal Judge has the inherent discretion

 4     and power to reconsider a previous decision in exceptional cases if the

 5     requesting party has demonstrated a clear error of reasoning or that the

 6     reconsideration is warranted to prevent an injustice.

 7             The decision of the 8th September 2009 granted to Lazarevic is a

 8     considerable extension of the word limit as compared to the word limit

 9     provided in the relevant Practice Direction.  Furthermore, from the

10     moment when the Defence team had started working on Mr. Lazarevic's

11     brief, they should have aimed to draft a more concise brief, since they

12     had no reason to expect that an extension of words would be granted to

13     them.  I consider that, in his motion, Lazarevic has merely reiterated

14     the arguments and the general assertions contained in his first motion,

15     and I find, therefore, that Lazarevic has failed to identify the

16     existence of a clear error in the reasoning or the existence of

17     particular circumstances justifying reconsideration in order to prevent

18     an injustice.

19             For the foregoing reasons, I dismiss Lazarevic's motion and order

20     Lazarevic to re-file his appellant brief, consisting of no more than

21     45.000 words, no later than 2nd October 2009.  Given that Lazarevic's

22     appeal brief, in its current form, was filed on time, this decision does

23     not affect the dead-line set for the Prosecution's respective brief in

24     response.

25             I further note that appellant's brief filed by the counsel for

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 1     Mr. Lukic also exceeds the word limit.  A request to exceed the word

 2     limit was included in his appeal brief which was filed on the

 3     22nd September 2009, seeking an extension of 5.956 words.  In this

 4     request, Lukic submits that although his Defence team have endeavoured to

 5     comply with the word limit, they have been unable to reduce the word

 6     limit in order to fulfill their professional duties to set out his

 7     grounds of appeal.

 8             I'm further seized of the Prosecution's motion for an order to

 9     Lukic to file a brief in accordance with the Appeals Chamber's decision

10     which was filed today, 25th September 2009.  The Prosecution submits that

11     Lukic has violated two Appeals Chamber's orders by filing an appellant

12     brief of 65.956 words, and requests that the Appeals Chamber order Lukic

13     comply with these orders and file a brief of no more than 40.000 words.

14     The Prosecution emphasizes that Lukic has already been granted an

15     extension of twice of the word limit mandated by the Practice Direction

16     and that twice -- the 15.000 words extension granted to other appellants

17     in this case.  The Prosecution further submits that Lukic's attempts to

18     justify his excess by making general assertions and repeating arguments

19     from his previous motions, and that he has failed to demonstrate that a

20     reconsideration of the Appeals Chamber decision is warranted.  Finally,

21     the Prosecution claimed that Lukic makes an additional argument in

22     Annexes B and D in his brief which he fails to include in his word

23     account.

24             Now I would like to invite counsel for Mr. Lukic, if he's in a

25     position to do it right now, to respond orally to the Prosecution's

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 1     motion, to which the Prosecution may then reply.

 2             Yes, you have the floor, Mr. Lukic.

 3             MR. LUKIC:  Thank you, Your Honour.  I will try two address this

 4     issue as short as possible, and I have to stress that we really worked

 5     tirelessly and diligently to reduce the brief to comply with the word

 6     limit imposed on us by the Appeals Chamber, but we simply couldn't do it

 7     within the time granted and still present the essence of all the grounds

 8     and arguments and thus preserve our client's rights.

 9             We wish to point out that already, one month before the due date,

10     we had asked for the enlargement of a word count because of the

11     complexity of the issues involved, and at that time we began to re-write

12     portions to get it down to 120.000 words, because at that moment we had

13     160.000 words.

14             We must stress again that this is a one-of-a-kind judgement,

15     without precedent, four volumes, 1.700 pages, 600.000 words.

16             I'm sorry that we did not address the word limit earlier than

17     25th of August, 2009, but we did not have any opportunity to explain that

18     issue in any status conference until now.

19             I'd like to stress that much smaller cases, as the case of

20     Naser Oric, was granted with 40.000 words, and that judgement and case

21     cannot be compared with this judgement and this case.

22             As I said, we started from 160.000 words and we cut it to

23     65.900 words, which is not a small feat.  We had to work day and night to

24     get this done and still preserve the essence of the arguments on the

25     appeal.  We, I would say, kicked out four of our grounds from the appeal

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 1     because we didn't have enough words to deal with them, and those grounds

 2     we tried to disperse to other parts of the appeal and still we were able

 3     to maintain at least the essence of those grounds.

 4             We saw today that you rejected the motion filed by Mr. Lazarevic,

 5     but still maintain our request, and we ask you to grant our appeal as it

 6     is filed because we really couldn't cut it down further as we did.  So we

 7     think that we are less than 10 per cent -- we exceeded less than

 8     10 per cent the original word limit, so less than 6.000, and we think

 9     that in this case it should be -- Your Honour should grant our motion to

10     accept the appeal as it was filed.

11             We want to stress that we were the only police officer in this

12     trial, and we have to cover much more grounds than, for example, military

13     accused from this case.  So we had to cover almost from the first until

14     the last page.  We even -- as you might have the opportunity to see, we

15     might -- we had to cover even the Book 4, which was dealing with the

16     municipalities and various places of alleged crimes, so it also took a

17     big amount of words, and we had to do it.

18             Regarding the Prosecution's objection that we have some

19     additional arguments in our annexes, I have to tell you that in Annex B

20     we have the same in our appeal; we just repeated some grounds in Annex B,

21     so -- some words -- words -- and some words are included in Annex B.

22             In Annex C -- or Annex D.  I just read the motion, so I'm a

23     bit -- yeah, in Annex D, it is true that we didn't include three

24     paragraphs in our word count.  We just checked it.  We didn't have time.

25     So that's true, but those are only three paragraphs, and there were

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 1     arguments in our Annex D that were not included in our original appeal.

 2     So, once again, we beg you to accept our appeal as it was filed.

 3             JUDGE LIU:  Thank you.

 4             MR. LUKIC:  Thank you.

 5             MR. LIU:  Any reply from Prosecution?  Mr. Kremer.

 6             MR. KREMER:  I don't think I can add anything to the submissions

 7     that are made in our motion.  I do point out, though, that the Lukic

 8     appeal has had nearly three weeks to come to grips with your order of

 9     September the 8th.  They sought a reconsideration, which was dismissed,

10     and I would have thought that over the past week they would have been

11     able to comply with the initial order of September the 8th limiting their

12     appeal brief to 60.000.

13             I find it, also in passing, strange that at the time of their

14     application asking for 120.000 words, they had already prepared 160.000

15     words when the word limit was only 30.000.  It shows some sort of lack of

16     logic on the part of the Defence team, that they waited so late and now

17     they're attempting to, at this last moment by filing something in excess

18     of the word limit, ignore an order that this Chamber has made twice,

19     directing them to comply with a word limit that is, quite frankly, very

20     reasonable.

21             Those are my submissions.

22             JUDGE LIU:  Thank you very much.

23             Well, I will take into consideration of the submissions by both

24     parties, and I believe that a written decision will be issued in due

25     course, after taking into consideration the submissions by the parties,

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 1     probably during the next week.

 2             Turning back to the status of this case, let me recall that in

 3     accordance with the decision of the 27th July and the 7th August 2009,

 4     the Defence respondents' brief was due no later than 2nd November 2009,

 5     which means that the Prosecution will have to file their reply brief by

 6     the 17th November 2009.  The Prosecution respondent's brief are also due

 7     no later than 2nd November 2009.  And the respective Defence reply brief

 8     should be filed by the 17th November 2009.  Consequently, 17th November

 9     2009 should be the date when the briefing will be complete with respect

10     to all the appeals.

11             While the Appeals Chamber appreciates the considerable scope of

12     this case, I would impress upon all parties the importance of adhering to

13     the timetable prescribed and the word limits imposed.  Although a degree

14     of flexibility with respect to both those matters has been demonstrated

15     so far, this should not be misconstrued by the parties as a

16     carte blanche.  The consistent failure to comply with the Appeals Chamber

17     ruling may result in the imposition of sanctions.

18             Finally, there have been a few decisions rendered by the

19     Appeals Chamber in relation to Mr. Lazarevic's and Mr. Pavkovic's

20     requests for provisional release.  While there is no need to elaborate on

21     this matter at the present hearing, I simply note that we have received a

22     satisfactory status report regarding Mr. Lazarevic's provisional release,

23     and as concerning Mr. Pavkovic, it should be filed in the course of next

24     week.  Other than that, there are at present no outstanding issues in

25     this regard.

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 1             At this point, I would like to ask the parties whether they have

 2     any other issues that they would like to raise at this stage.

 3             Mr. Kremer?

 4             MR. KREMER:  Yes, Your Honour.  In light of your last comment in

 5     respect of the provision of the response or responses to the appeal

 6     briefs of the appellants, I can inform Your Honour that we will be filing

 7     a motion on Monday for an extension of time to respond, given the volume

 8     of materials that were filed this week and the time that it will take to

 9     make sure that we deal with all of the issues properly, having regard to

10     the fact that we're responding, in part, to five appeals, but also have

11     to deal with ensuring that there is a consistency of approach to each of

12     the appeals to the extent that the issues overlap, and that is a question

13     or a problem that the individual accused did not have to concern

14     themselves with.  We're currently considering what amount of time would

15     be reasonable, and a decision will be taken on Monday, and we will file

16     our motion with the Chamber on Monday morning.

17             JUDGE LIU:  Thank you very much for informing me about this

18     information.

19             Anything else?

20             MR. KREMER:  No, Your Honour.

21             JUDGE LIU:  Thank you.

22             Now I turn to the Defence counsel.

23             And counsel for Mr. Sainovic, please.

24             MR. PETROVIC: [Interpretation] Your Honour, we have no issues

25     that we'd like to raise.  Thank you.

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 1             JUDGE LIU:  Thank you very much.

 2             The counsel for Ojdanic, please.

 3             MR. VISNJIC: [Interpretation] Your Honour, no special issues

 4     either.  Thank you.

 5             JUDGE LIU:  Thank you very much.

 6             The counsel for Pavkovic.

 7             MR. ALEKSIC: [Interpretation] Nothing to raise, Your Honour.

 8     Thank you.

 9             JUDGE LIU:  The counsel for Lazarevic, please.

10             MR. BAKRAC: [Interpretation] Thank you, Your Honour.  No

11     additional questions.

12             JUDGE LIU:  The counsel for Mr. Lukic, please.

13             MR. LUKIC:  Your Honour, we don't have anything new to raise.

14     Thank you.

15             JUDGE LIU:  Well, I believe that that's all for today's status

16     conference.

17             I thank the parties for their attention, and I adjourn these

18     proceedings.

19                           --- Whereupon the Status Conference adjourned

20                           at 3.23 p.m.