Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26

1 Wednesday, 20 November 2002

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE SCHOMBURG: Good afternoon. Please be seated.

7 May we hear the case number, please.

8 THE REGISTAR: Good afternoon. This is case number IT-02-59-PT,

9 the Prosecutor versus Mrdja.

10 JUDGE SCHOMBURG: And the appearances for the Prosecution, please.

11 MR. KOUMJIAN: Good day again, Your Honour. Nicholas Koumjian and

12 Sureta Chana for the Office of the Prosecutor. We are assisted today by

13 Skye Winner, who is here.

14 JUDGE SCHOMBURG: And for the Defence, please.

15 MR. DIMITRIJEVIC: [Interpretation] Your Honours --

16 THE INTERPRETER: Microphone, please.

17 JUDGE SCHOMBURG: Microphone.

18 MR. DIMITRIJEVIC: [Interpretation] Your Honours, my name is

19 Vojislav Dimitrijevic, Defence counsel for Mr. Darko Mrdja.

20 JUDGE SCHOMBURG: May I start this Status Conference addressing

21 immediately the accused himself, and first of all asking whether or not he

22 can follow the proceedings in a language he can understand.

23 Mr. Mrdja, you can hear me in a language you understand?

24 THE ACCUSED: [Interpretation] I understand everything, Your

25 Honour.

Page 27

1 JUDGE SCHOMBURG: Thank you. And may I immediately ask you

2 whether or not you have any health problems or there are any problems

3 connected to your imprisonment in the Detention Unit?

4 THE ACCUSED: [Interpretation] No, I haven't. Thank you for

5 asking.

6 JUDGE SCHOMBURG: Thank you. Please be seated again.

7 The Defence counsel, you want to add anything related to health or

8 Detention Unit?

9 MR. DIMITRIJEVIC: [Interpretation] Your Honours, I can only

10 confirm what my client has already said. At the Detention Unit, he is

11 being treated in keeping with the relevant rules, and there are no special

12 problems that I would like to draw the Court's attention to.

13 JUDGE SCHOMBURG: Thank you.

14 Fortunately, the problem related to the motion of the OTP has been

15 resolved. I hope the parties have received yesterday's decision granting

16 leave to withdraw the Prosecution's motion of 2nd October for an order to

17 compel the accused, Darko Mrdja, to provide a photograph of his upper and

18 lower teeth. This is no problem any longer.

19 Is it correct that there are no outstanding motions in this case?

20 MR. KOUMJIAN: There are no motions at the present time, although

21 I could inform the Court that we anticipate one or two. We have, in draft

22 form - it's not quite ready - a motion regarding protective measures for

23 witnesses, which will be filed shortly.

24 There's another issue which I wanted to bring up today - and if

25 required, we're prepared to file a written motion - and that is that we

Page 28

1 would like to arrange to have the accused participate in an identification

2 parade in January of this year. We're asking for, in particular, early

3 January because one witness will be in The Hague in any event. So to cut

4 down on the travel costs for the Tribunal, we propose to have two

5 witnesses attend that identification parade. I don't know if that's -- I

6 didn't get a chance just now to speak to counsel about it, but -- and I

7 don't know his position.

8 JUDGE SCHOMBURG: Thank you for this. We'll come back to this

9 later when we discuss the envisaged trial.

10 But first of all, as foreseen by the Rules, let me ask: Under

11 Rule 66(A)(i), we discussed already earlier that the support material was

12 disclosed in full to the Defence. There is no problem. That's my

13 understanding.

14 MR. DIMITRIJEVIC: [Interpretation] Your Honours, if you allow me,

15 I would like to say the following: Regarding the motion filed by the

16 Prosecutor's office which you allowed to be withdrawn, I would like to

17 emphasise that originally there was an attempt to photograph my client's

18 teeth without this motion, and then after my oral intervention at the

19 Detention Unit, the OTP filed their motion nevertheless, to which I

20 objected, and I hope this puts an end to it.

21 As for the Prosecutor's motion, I've heard of it today for the

22 first time. It took me aback slightly, and I would have to discuss it

23 with the OTP. All I know for the moment is that it is about some sort of

24 identification parade, but I would have to find out more from the

25 Prosecution.

Page 29

1 As for discovery, just before the Status Conference, I received

2 certain materials from the OTP, and I hope that thereby they fulfilled

3 their obligations regarding discovery, but I still have to look through

4 the material and ascertain that. Thank you.

5 JUDGE SCHOMBURG: May I ask, then, on Rule 68, the ongoing

6 obligation to disclose exculpatory material, comments by the Prosecution.

7 MR. KOUMJIAN: Your Honour, perhaps Ms. Chana will want to add to

8 what I have to say, because she is handling this, but among the documents

9 disclosed today were some documents felt to be Rule 68. The Prosecutor's

10 office has also initiated a computer search, using a systematic criteria,

11 to look for material that would be Rule 68 on this case. We hope that

12 this will be a much simpler exercise than in many cases, because this is

13 an indictment limited to a specific date, a specific place, and the role

14 of the accused is quite clear. The accusation as to the role of the

15 accused is quite clear. So we are conducting a systematic search through

16 our computer -- our information systems people, and we have already

17 identified a few documents which have been turned over as potentially Rule

18 68.

19 JUDGE SCHOMBURG: Thank you.

20 Any complaints from your side as regards 68?

21 MR. DIMITRIJEVIC: [Interpretation] This is precisely the issue I

22 wanted to raise today, that is, disclosure of the complete material by the

23 Prosecution. I'm extremely glad the Prosecution have done so today, but

24 I'm sorry that they did not do so earlier, because I don't see any reason

25 why they couldn't have.

Page 30












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 31

1 As for disclosure under Rule 68, we are not in a position to say

2 anything for the moment, because we don't know what the volume of this

3 material is, and we expect the Prosecution to comply with the obligations

4 they have assumed today.

5 JUDGE SCHOMBURG: This seems to be self-evident and under Rule

6 68.

7 The core issue of today is the planning for trial. You know that

8 we intended earlier to have heard this case in a break of another case.

9 For other reasons we discussed earlier, it was not possible to do so. In

10 addition, there had been reasons now that this decision not to try to hear

11 this case in between have arisen; especially, one Judge had to leave The

12 Hague for health reasons and was replaced by another Judge in this case.

13 Nevertheless, within Trial Chamber II we came to the agreement that we

14 will hear two, three, or even four short cases as soon as possible in a

15 row, and therefore it's mandatory to have all the cases ready for trial as

16 soon as possible. There shouldn't be any delay, because from our point of

17 view, this row of three or four cases would be heard following immediately

18 the end of the second or third next case. This would mean that the

19 parties should be ready for trial no later than, in any event, May or June

20 next year. We succeeded already in another case, and this case, another

21 short case, is ready for trial.

22 I'm interested first of all to know whether the Office of the

23 Prosecutor still intends to call only about 15 witnesses live and some 92

24 bis statements and their case would last for one month or less. Is this

25 expectation still realistic?

Page 32


2 JUDGE SCHOMBURG: During the last Status Conference and 65 ter (I)

3 meeting, we also discussed the question: What about agreed facts? And it

4 was only reasonable that the Defence stated: First of all, we have to do

5 our own investigations. That will take us some three months. And I think

6 they have expired now. Can you give us any news whether or not the

7 Defence is prepared to come to agreed facts in this case?

8 MR. DIMITRIJEVIC: [Interpretation] Your Honour, by decision of the

9 Registry, we got the names of the legal assistant on the 11th of October,

10 and full discovery was complied with only today. I can say that the

11 Defence will be ready, certainly, by the deadline you envisaged, that is,

12 May or June 2003. However, as far as agreed facts are concerned, I

13 believe we could be ready within a month or 45 days to start serious

14 discussions with the OTP to identify such facts.

15 JUDGE SCHOMBURG: The Trial Chamber would appreciate very much if

16 it would be possible to come to agreed facts, that this case, in fact, can

17 be limited to that what it is, a case on the individual responsibility for

18 the crimes alleged in the indictment and related to Mr. Mrdja only. It

19 can be extremely helpful and it's in the interests of a fair trial,

20 including a trial that is expeditious. Therefore, it's also in the

21 interest of the Defence and the accused himself to concentrate on the core

22 issues on the alleged individual crimes in this case. So therefore, I

23 would be grateful if the parties could report to the Trial Chamber as soon

24 as they have reached some agreed facts, especially the chapeau elements of

25 crime of the alleged offences in this indictment.

Page 33

1 Mr. Koumjian.

2 MR. KOUMJIAN: Your Honour just stated much of what I wanted to

3 state. The only facts that we believe will shorten the trial would be

4 those allegations in the indictment that are the necessary chapeau

5 elements, that is, that this crime took place in the context of an armed

6 conflict and a widespread and systematic attack upon a civilian

7 population, with a stipulation: All evidence related to crimes outside of

8 this incident on August 21st at Koricanski Stijene would not be

9 necessary. Without the stipulation, it would be necessary by way of -- we

10 would proceed by way of 92 bis on as much as possible, or ask the Court to

11 take judicial notice. But those are the facts, to make it clear to

12 counsel, that we're requesting a stipulation on, so that the evidence

13 simply concentrates on the 21st of August at Koricanski Stijene.

14 JUDGE SCHOMBURG: Now that this would proceed, would accelerate

15 the proceedings in this case, and also it would not be necessary to cover

16 all the historic environment, not to have an expert on history and other

17 issues. So therefore, please try to come together as soon as possible and

18 discuss these issues, and that we then can concentrate on the concrete

19 allegations only.

20 In preparation of this case, I know that sometimes there is the

21 impression that there is a kind of imbalance, this huge unit of the

22 Prosecution versus one Defence counsel. And already during the last

23 Status Conference we touched upon this issue, asking whether or not it

24 would be necessary to immediately assign a co-counsel.

25 Did you discuss this issue already with the Registry?

Page 34

1 MR. DIMITRIJEVIC: [Interpretation] Your Honour, I haven't

2 discussed this issue with the Registry. I believe a co-counsel is

3 important in this case, and we will certainly appoint one well in advance

4 of the beginning of the trial. We are negotiating with several people who

5 could take on this role, and we are looking among our colleagues from the

6 common-law system.

7 JUDGE SCHOMBURG: Thank you. May I ask, are there any other

8 procedural questions we should or could resolve today? For the

9 Prosecution?

10 MR. KOUMJIAN: Not at this time. We do look forward to counsel's,

11 once he's had a chance to consider this and consult his client, his

12 position on the identification parade so that it could be arranged in

13 January when the witness is here, if possible.

14 JUDGE SCHOMBURG: In fact, the Trial Chamber would appreciate that

15 the parties come to an agreement as regards this line-up or -- because

16 this is the law, I think, in all main jurisdictions, that this never can

17 be regarded as a kind of self-incrimination to participate in such an

18 identification parade. And without anticipating, maybe request a decision

19 by the Trial Chamber, I can tell you that the outcome would be quite

20 clear. We proceeded this way already in another case, and so this is no

21 legal problem, opposed to the other question you raised when it was to

22 compel your client to actively participate in such an identification

23 parade has nothing to do with any kind of self-incrimination.

24 Therefore, I would ask you to ask your client to be prepared in

25 January to participate in such an identification parade.

Page 35

1 Can you agree with this?

2 MR. DIMITRIJEVIC: [Interpretation] Your Honour, as I have already

3 said, I only wish to receive a written motion from the Prosecution to this

4 effect before I state my position.

5 I must say things are a bit clearer now. Maybe it is a question

6 of interpreting, because the first word I heard in my language was

7 "parade," and now I understand that this is an identification line-up, a

8 procedure which is common in all systems, including the one I come from.

9 In any parade, any identification line-up that might take place, I

10 insist on attending as Defence counsel.

11 JUDGE SCHOMBURG: I have to emphasise also in this case that this

12 Trial Chamber prefers to avoid unnecessary filings and unnecessary

13 motions, and things can be and should be settled in the framework of

14 Status Conferences, 65 ter (I) meetings, and so on. Therefore, I think it

15 would not be necessary to file a concrete motion. If there still should

16 be a dispute, please ask the Trial Chamber for a 65 ter (I) meeting, and

17 we will resolve not only this problem, maybe also other problems arising

18 in the future.

19 So therefore, if I don't hear anything else from the parties, I

20 take it that the line-up will take place in January and in the presence of

21 Defence counsel.

22 MR. KOUMJIAN: Yes. Just to -- for everyone's scheduling, if

23 possible, the Prosecution was going to request to have the line-up on the

24 14th of January. The current schedule for that witness's travel would

25 have him here on the 13th and available on the 14th. We would be asking

Page 36












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 37

1 the Court to arrange a procedure similar to what was done in Stakic, with

2 the exception that, if possible, we would like the witnesses to not be

3 visible. So we can discuss the logistics later, but perhaps they could be

4 in one of the booths, unlit, where they can see the accused but where

5 their identity, for the moment, remains anonymous.

6 JUDGE SCHOMBURG: If this should be a problem, this Trial Chamber

7 and the Pre-Trial Judge will always be of assistance. Only ask for a

8 meeting if necessary. But I think as regards this concrete line-up, there

9 shouldn't be any problem.

10 Would this date be appropriate for you?

11 MR. DIMITRIJEVIC: [Interpretation] Your Honour, this date would

12 not be convenient for the Defence or the client, I believe, because the

13 14th of January is the New Year under the Julian calendar celebrated by

14 all Orthodox believers. And generally speaking, January is full of

15 Orthodox holidays, and I would very much appreciate understanding on

16 behalf of the Prosecution, if they could refrain from setting such dates

17 in January.

18 As for the identification line-up itself, I hope that the rules

19 governing such a line-up would be made available to us well in advance so

20 that we can understand with considerable notice how it is going to take

21 place.

22 JUDGE SCHOMBURG: My recommendation would be that the Office of

23 the Prosecutor informs the Defence of what happened in the Stakic case,

24 how it was conducted, and what you especially want in this case, that the

25 witnesses appear in the booth or somewhere else in a way that they are not

Page 38

1 seen by the accused and the other persons lining up. Also, this is the

2 usual practice in nearly all jurisdictions of the world, so therefore, I

3 can't see any problem. And I want to invite the parties to come together

4 and to find a common date for this line-up as soon as possible.

5 From that what I just said, you can hear that I take it serious

6 that any obstacles or impediments to starting the case as soon as possible

7 and to have it ready for trial, that is of utmost importance that we can

8 have this envisaged row of three or four cases together starting May or

9 June next year. And you know that Rules provide for certain time limits

10 as regards the pre-trial brief and other preparations. So therefore, it

11 seems to be a long time, another six months, but in fact it isn't. And

12 taking into account that, if I recall correctly, Mr. Mrdja, you have been

13 arrested already in June of this year, this would then be already after

14 one year of detention.

15 So therefore, I ask the parties to do the necessary -- to fulfil

16 their obligation under the Rules as soon as possible and to come together

17 and to speak together. If it should not be possible, please request an

18 additional 65 ter (I) meeting. Otherwise, we would hear the next Status

19 Conference from now on within 120 days, maybe already then combined with a

20 kind of Pre-Trial Conference.

21 Are there any other issues to be discussed today? By the Defence,

22 please.

23 MR. DIMITRIJEVIC: [Interpretation] Your Honour, I only wish, since

24 I had no opportunity to do this before and the Prosecution stated their

25 own intentions regarding motions, I only wish to advise the Honourable

Page 39

1 Court and all interested parties that the Government of Republika Srpska

2 provided guarantees for the provisional release of Mr. Mrdja. I did not

3 receive these guarantees in writing yet, but when I do, I will file a

4 motion requesting the provisional release of Mr. Mrdja.

5 That is all I have to say for the moment. Thank you.

6 JUDGE SCHOMBURG: Thank you. Anything else by the Prosecution?

7 MR. KOUMJIAN: No, Your Honour. We will file the pre-trial brief

8 before the next conference.

9 JUDGE SCHOMBURG: Thank you. This concludes today's Status

10 Conference.

11 --- Whereupon the Status Conference adjourned

12 at 3.00 p.m.