1 Thursday, 20 March 2003

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.02 p.m.

6 JUDGE SCHOMBURG: Good afternoon. Please be seated.

7 May we please hear the case.

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

9 the Prosecutor versus Darko Mrdja.

10 JUDGE SCHOMBURG: Thank you.

11 And the appearances, please, for the Prosecution.

12 MR. KOUMJIAN: Good afternoon, Your Honour. Nicholas Koumjian,

13 Sureta Chana, and Skye Winner for the Prosecution.

14 JUDGE SCHOMBURG: And for the Defence?

15 MR. DIMITRIJEVIC: Good afternoon, Your Honour. Vojislav

16 Dimitrijevic for the Defence of Mr. Mrdja. I don't know if this

17 microphone is working properly, if somebody can fix it for me.

18 JUDGE SCHOMBURG: I'll see that you get immediate assistance.

19 Might I take the opportunity to ask the accused whether he

20 understands the proceedings in a language he understands.

21 THE ACCUSED: [Microphone not activated]

22 THE INTERPRETER: Microphone, please.

23 THE ACCUSED: [Interpretation] Your Honours, everything is fine.

24 Thank you.

25 JUDGE SCHOMBURG: You may stay seated. I can see you have a lot

1 of problems taking the microphone. So --

2 THE ACCUSED: [Interpretation] Thank you, Your Honour.

3 JUDGE SCHOMBURG: At the same time, may I ask, do you have at this

4 point in time any health problems or any complaint about the United

5 Nations Detention Unit?

6 THE ACCUSED: [Interpretation] No complaints, Your Honour.

7 Everything is fine. Thank you.

8 JUDGE SCHOMBURG: Thank you.

9 Then let's follow the agenda of today. Pending motions, first of

10 all. There was a motion filed by the Prosecution asking for the Judge's

11 assistance for an identification parade. I took it from an answer in a

12 separate motion that the Defence and the accused would be prepared to

13 voluntarily participate in such a identification parade. Is this correct?

14 MR. DIMITRIJEVIC: Yes, that's correct, Your Honour. But we make

15 some remarks in order to clarify -- clarify the procedure of that line of

16 procedure. Otherwise, we have no complaints, and the accused will

17 participate in such line of procedure.

18 JUDGE SCHOMBURG: Thank you. And the remaining question is really

19 whether or not it's for the Pre-Trial Judge or the permanent Judges of the

20 Chamber to respond to the request by the OTP. When you compare domestic

21 laws, you will find the absence of rules on identification parades. In

22 other countries you will -- for example, in the new Russian Code of

23 Criminal Procedure you will find another solution just lining out, for

24 example, that at least three if not five other persons of similar

25 expression have to take part in such a line-up or identification parade

1 that it has been video -- it has to be videoed and that the -- and this is

2 the main purpose, that the Judges later mandated to hear the case, that

3 they can follow these proceedings and that they can decide whether or not

4 this was a real identification, was it a fair identification parade or

5 not. But admittedly, I have never seen a rule saying that an

6 identification parade would be such a coercive measure that a Judge -- a

7 Judge's decision in advance would be necessary. So therefore, may I ask

8 for the submission of the Prosecution why the Prosecution believes that it

9 would be necessary to have the green light of the Pre-Trial Judge or the

10 permanent Trial Chamber.

11 MR. KOUMJIAN: Your Honour, part of our concern was simply

12 practical because we have to arrange with the Registry for the use of the

13 facility and with the Detention Unit for the presence of the accused, and

14 I think it would be extremely easier to do that with a court order than

15 with a phone call from the Prosecutor saying we would like to do this. I

16 really don't think the Detention Unit and Registry -- I'm sure their first

17 response would be, "Do you have an order from the Judge?" So if it's not

18 opposed, we would request it, and I would have some further remarks,

19 requests to make of the Defence if they're willing, and that is that the

20 accused have the appearance generally that the accused person did at the

21 time, which was without facial hair. Just for the record, I would note

22 that at the time of his arrest he did not have facial hair in his Initial

23 Appearance but today has a significant amount of facial hair, and we think

24 the probative value of the test of the identification parade would be

25 enhanced and the value of that to the Judges. I'm not saying this can be

1 compelled, but I'm requesting the cooperation of the Defence if the

2 accused did not have facial hair when appearing in the line-up.

3 But to directly answer your initial questions, because we're

4 asking for the order in order to facilitate the cooperation of the

5 Detention Unit and the Registry.

6 JUDGE SCHOMBURG: I think based on this the Trial Chamber will

7 leave it first for the Prosecution to do that what they feel appropriate

8 in preparation, and I think we shouldn't interfere when there is no such

9 special regulation providing for a judicial consent in advance. But maybe

10 it's helpful for the Prosecution that as we did it in the past, I think we

11 have to do everything what brings us closer to the truth, and of course in

12 all legal systems such a line-up and identification parade is an

13 appropriate way to come closer to the truth. And therefore, this attempt

14 has the full support of this Trial Chamber, and I think we should only

15 rule if any of the persons mentioned by you would not be prepared to

16 cooperate. So therefore, we would leave it for the moment to the

17 Prosecution to continue, and only if there are special obstacles, then it

18 would be the time to rule on it. But for the moment I think we can't do

19 more than that has been done already.

20 As regards the question of the length or absence of hair, at that

21 point or this point, I think this has to be discussed between the parties.

22 In the moment I can't see any legal basis to compel Mr. Mrdja to do

23 anything in this direction. But I had the impression that there is --

24 there could be a spirit of cooperation and this could be resolved in this

25 way.

1 I know it's not absolutely satisfactory for both parties, but in

2 the absence of concrete rules and it has to be deplored that we don't have

3 rules on these issues, in the moment I can see no legal basis for any such

4 ruling.

5 Any other comments on this issue? Please.

6 MR. DIMITRIJEVIC: Your Honour, as you, I'm sure, remember from

7 the last Status Conference, I said that we want the clear procedure

8 regarding this line-up procedure, prescribed procedure what the Prosecutor

9 will do during that line-up procedure, and the Defence was provided with a

10 draft of procedure and it is for me very strange that you have no copy of

11 that piece of paper. We agreed with that -- with that kind of procedure,

12 and the Prosecutor said that there will be six persons. And I will not

13 describe any more procedure what was suggested by the Prosecutor. We had

14 some comments on that but not substantial ones. So I will appreciate if

15 the Prosecutor gets that paper about procedure of -- that line-up

16 procedure to the Court as well. Thank you.

17 MR. KOUMJIAN: We seem to be reading each other's minds, because

18 about two minutes ago I asked Ms. Winner to have someone bring down a copy

19 of that letter. So it's on its way. Thank you.

20 JUDGE SCHOMBURG: I think I am in a totally different world. Now,

21 normally the parties prefer not to have the Bench any kind of knowledge of

22 what is happening amongst parties, but okay. But nevertheless, as I

23 indicated beforehand, I can't see any legal basis for any kind of ruling

24 and I have to invite the parties to come to an agreement on the procedure,

25 and I would only feel honoured to rule as an arbiter in this case if there

1 is no such an agreement. So please try to find out the appropriate

2 solution, but I don't want to interfere now. If you need an arbiter,

3 please contact me.

4 Then the more honorary issues of such a Status Conference. I

5 think there is no doubt that under Rule 66(A)(i) the disclosure was

6 already completed before the last Status Conference to the satisfaction of

7 the Defence. And then under Rule 66(A)(ii), the Defence was submitted

8 with some material. Are there any problems emanating from Rule 66(A)(ii)?

9 The Defence, please.

10 MR. DIMITRIJEVIC: Your Honour, unfortunately we have the problems

11 regarding Rule 66. Before the last Status Conference, the Prosecutor's

12 Office just in that moment gets to us disclosure materials, but I didn't

13 see it before and I must say that in supporting material with the

14 indictment there is 17 statements of potential witnesses of the

15 Prosecutor; among them 16 are with redacted names, surnames, and other

16 data. Only one - and that one is judge of municipal court of Banja Luka,

17 who is not witness who -- which appeared in supported material as a

18 witness -- with his name, with full name.

19 In this disclosure material we received statements from six

20 witnesses with names and surnames, so the Prosecutor didn't comply with

21 Rule 66, and I kindly ask the Court the set up a deadline for the

22 Prosecutor to do so. We need names of witnesses, survivors and witnesses,

23 with the victims and witnesses, because there are some survivors who are

24 not witnesses in the Prosecutor case. We need to find -- at least to try

25 to find those people. So I think that the Prosecutor didn't comply with

1 Rule 66 at all. We -- I know that the Prosecutor last time said that

2 there are circumstances which make to those witnesses and victims

3 situation very dangerous if their names are on the record. I think that

4 the Prosecutor -- the burden of proof is on the Prosecutor to give the

5 evidence with which we shall see that such danger exists. We think that

6 such danger doesn't exist under Rule 69. That Rule asks for exceptional

7 circumstances, which doesn't exist in this matter.

8 About Rule 68, I will talk after. Thank you.

9 JUDGE SCHOMBURG: May I hear observations by the Prosecution to

10 this point.

11 MS. CHANA: Yes, Your Honour. The Prosecution was going to submit

12 a motion for protective measures for the witnesses. At this moment we've

13 not done so because we still tried to discern which witnesses need not

14 protection, but a lot of them asked for delayed disclosure, Your Honour,

15 of their names. They have talked to our investigators and they have

16 expressed concerns for their safety and their family's safety, and they do

17 not wish their names to be disclosed at this stage.

18 JUDGE SCHOMBURG: All right. This is my usual procedure, and we

19 are looking forward to your motion, and only based on this and based on

20 the reasons given there, no doubt we can decide on this. But to be quite

21 clear beforehand, I take it that the line-up has to take place before the

22 names are disclosed.

23 And I have to tell the Defence at the same time that in some cases

24 where the Chamber comes to the conclusion that a real danger for life or

25 limb of a witness exists, that then the disclosure of the personal data of

1 these persons should be disclosed only prior, of course in a time prior

2 that you have time to do your work, prior to the hearing. We are in the

3 unfortunate situation that -- I think it was already the second-last

4 Status Conference there was a slight chance that there would be a time we

5 know to hear this case. Unfortunately, it was not made possible. Later

6 on it showed that it wouldn't have been possible to the -- for reasons of

7 the health of one Judge. Then later on there was and to a certain extent

8 there is still the idea to hear some smaller cases in a row; and

9 therefore, it could be - but only it could be - that these cases could be

10 heard somewhere later this year. But when I say "later this year," this

11 means that the Defence can't expect that at the end of the day all the

12 personal data of all the witnesses will be disclosed immediately. So we

13 are looking forward for the motion by the Prosecution, and then witness by

14 witness we will rule whether there are good reasons. But I would

15 anticipate that one good reason is that these persons will participate in

16 the line-up. Correct?

17 MR. KOUMJIAN: Well, in fact, Your Honour, one of the witnesses

18 who will participate, I believe, would not object to his name being

19 disclosed, and already his name has been disclosed.

20 The other witnesses, they do ask that they not be visible to -- we

21 do now have a letter. But the procedure we propose to the Defence is that

22 the persons viewing the line-up not be visible to the accused. I know

23 that particularly one of them has very deep concerns for his safety.

24 JUDGE SCHOMBURG: This would be absolutely in line with

25 international practice, that an accused can't see the persons. And I

1 think this is already one good reason.

2 But as you have heard, the Prosecution is aware that something has

3 to be done, that they have to demonstrate whether or not we can apply

4 Rule -- especially Rule 69 in this case, and we will rule on this as soon

5 as possible and as soon as practicable.

6 Any other comments to this?

7 MR. DIMITRIJEVIC: It's all right, Your Honour. We agree with

8 that. Our main comment on line-up procedure was not in terms that accused

9 can see witness, but we think that Defence counsel must be at the same

10 side of the wall with the Prosecutor to see the witness.

11 About explanation of --

12 JUDGE SCHOMBURG: Step by step. Agreement with the OTP?

13 MR. KOUMJIAN: I'm sure about two of the three witnesses, and the

14 last one I would just like to check with the witness, but I certainly

15 understand counsel's position.

16 JUDGE SCHOMBURG: Yes. And this -- also, this would be in line

17 with international practice. If not, exceptional circumstances prevail.

18 MR. DIMITRIJEVIC: There are two groups, Your Honour, of

19 witnesses. One is victims which survived that massacre; one group is

20 witnesses who proceed to Travnik.

21 Group of victims were publicly announced, names and surnames of

22 those people in 1992 and in 1999. So we don't see any danger for those

23 people to be announced which -- they missing only two persons, if I am

24 correct. We agree with you that protective measures maybe are needed for

25 some cases, but it is up to the Court, not to Prosecutor, to judge is the

1 possibility to danger those victims or not. Now is March, the month of

2 year, 2003. The first material was in June, year 2002. So I think that

3 it is proper to set up the deadline for the Prosecutor's Office to

4 disclose those materials, and if there is a motion for protective measures

5 and if that motion is granted, it's all right with Defence that those

6 witnesses will not be -- will not be disclosed to us. But not as a

7 general rule, to have all witnesses without names and surnames. Thank

8 you, Your Honour.

9 JUDGE SCHOMBURG: Absolutely. We decide case by case.

10 Would it be possible for the Prosecution to present the motion on

11 this issue no later than the 17th of April? This is immediately before

12 Easter.

13 MS. CHANA: Yes, you Your Honour.

14 JUDGE SCHOMBURG: Thank you. Then Rule 68, any observations by

15 the Prosecution?

16 MR. KOUMJIAN: Your Honour, we requested a Rule 68 search of our

17 computer database with certain criteria, and having checked this week

18 apparently we were told we're at the -- still in a very long queue. We

19 haven't gotten that back. I believe we have -- you know, as if any Rule

20 68 material becomes known to us, coming across or without the computer

21 search, we will turn that over. But I can't off the top of my head think

22 of any that has come across my -- that I've seen. And once we have -- if

23 we do have a date from the Court, I know that then we could get some

24 priority in that queue. But at the moment it's pending, it's in process,

25 but the computer search has not been done.

1 JUDGE SCHOMBURG: We know these problems from nearly all cases,

2 and you're absolutely right, priority will be given to those cases that

3 are heard or even the cases close to the end of the hearing. And the

4 criterion, the most important criterion, is no doubt when can this case be

5 heard. As I don't want another time to give any estimate or to create any

6 hopes on both sides, especially for Mr. Mrdja, who has a right to have --

7 and to be heard as promptly as possible. But for the calculation within

8 the framework of the bureau, what has priority, which cases can be heard

9 in the near future, I would ask once again the Prosecution. What is, from

10 your point of view, as it stands now, the estimated length of the

11 Prosecution case? Once we heard you would call 15 to 17 witnesses, some

12 92 bis statements, and the Prosecution's case would be about four to six

13 weeks. Is it still correct?

14 MR. KOUMJIAN: I think that was a very conservative estimate. I

15 think it will be that or shorter. I think realistically we could put it

16 on within four weeks, our case.

17 We have -- this is a slightly different subject, but we have asked

18 the Defence to consider an agreed facts regarding the prerequisites under

19 Articles 3 and 5, that there was an armed conflict and widespread and

20 systematic attack. If we do get that, those agreed facts, then even the

21 number of 92 bis statements will become minimal, and we will just proceed

22 to evidence regarding what happened on the 21st of August. If we do not

23 get that, it will only mean that we'll present a lot of evidence by way of

24 92 bis. We do not anticipate calling live witnesses to establish those

25 facts.

1 JUDGE SCHOMBURG: This brings me already to the next point in

2 line. And I recall that at the last Status Conference the Defence told us

3 that you would need about another 45 days before negotiations on agreed

4 facts could be started with the Prosecution. May I ask what is the

5 development? Is it the Defence case that this chapeau element of crime be

6 contested, or is it possible to come to agreed facts at least as regards

7 the question of armed conflict coming to the other elements later?

8 MR. DIMITRIJEVIC: Your Honour, first of all, I want to apologise.

9 And maybe on the end, if you allow, to discuss -- to maybe get

10 back on previous point on 66(B). Maybe I forgot. If you allow me.

11 But regarding this particular question, I can say that yesterday

12 we received a paper from -- a document from the Prosecutor's Office, and

13 their proposal what facts can be agreed. I didn't have an opportunity to

14 discuss that issue with my client, but I am pretty much sure that some

15 kind of agreement will be reached at this point.

16 If you can allow me to discuss about 68. I didn't have an

17 opportunity to talk about that.

18 JUDGE SCHOMBURG: I'll come to this -- to this later.

19 MR. DIMITRIJEVIC: Okay. Thank you.

20 JUDGE SCHOMBURG: But in fact, the core problem is would the

21 Defence, of course with the -- the consent of Mr. Mrdja in person, would

22 you accept following the long line of decisions handed down by this

23 Tribunal, would you accept that at that period of time there was an armed

24 conflict and there was a widespread and systematic attack?

25 MR. DIMITRIJEVIC: Your Honour, as I said to you a few minutes

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1 before, I received that letter from the Prosecutor yesterday, and I had no

2 opportunity to discuss that issue with my client. As a matter of fact, we

3 tried to discuss that with the Prosecutor's Office in my visit in

4 December, but I didn't find anybody -- or Mr. Koumjian, I didn't find at

5 the office at that time. And we are eager to cooperate with the

6 Prosecutor on that issue, and I'm sure that we shall reach agreement on

7 those facts but, please, I cannot today make any statements about those

8 facts. Thank you.

9 JUDGE SCHOMBURG: May I ask the parties to notify the Trial

10 Chamber no later, once again, than the 17th of April whether or not it was

11 possible for you to come to agreed facts, especially related to the

12 question of an armed conflict and the question of a widespread and

13 systematic attack. This would facilitate our work and it might open - I

14 don't want to propose anything - but it might open a time window for this

15 case.

16 You wanted to raise another issue related to 66 -- 66(B). Please.

17 MR. DIMITRIJEVIC: [Microphone not activated]

18 THE INTERPRETER: Microphone, please.

19 JUDGE SCHOMBURG: Microphone.

20 MR. DIMITRIJEVIC: Excuse me. Thank you, Your Honour. We didn't

21 receive any item which will be as evidence or, if any, from the Prosecutor

22 through paragraph -- Rule 66(B). We are interested, especially in

23 photographs, which maybe the Prosecutor possess and other -- other items

24 if they have it. But we didn't receive anything. Thank you.

25 JUDGE SCHOMBURG: The Prosecution, please.

1 MR. KOUMJIAN: That's a reasonable request, and I'll try to review

2 the -- all the evidence that we've planned to present. And any

3 photographs that we have of the site will be handed over to

4 Mr. Dimitrijevic. We have photographs taken years after the event. But

5 as Your Honour is aware, from seeing some of them in the Stakic case, we

6 do have photographs of the site.

7 JUDGE SCHOMBURG: Thank you. You can accept this, that it -- I

8 think it will be done in due time. So this shouldn't be a problem at all.

9 As regards the question of the trial date, I mentioned already the

10 problems we are facing in the moment. And it really depends on the

11 question whether it can be done in a very short period of time. "Very

12 short" here in this Tribunal would mean four weeks for the Prosecution,

13 and I don't know what would be the time the Defence would need. But then

14 taking into account that also a judgment has to be written, Ad Litem

15 Judges have to be assigned to the case, the overall -- the shortest

16 possibility would be about three months. But prerequisite would be as

17 soon as possible - really as soon as possible - we get the information

18 from the parties that they are proceeding -- prepared to proceed in this

19 way and maybe even come to other agreed facts going beyond the question of

20 widespread and systematic attack and beyond the question of an armed

21 conflict. Maybe in this case really the evidence provided by the

22 Prosecution might convince the Defence that a certain approach is more

23 appropriate than the other, to put it very carefully.

24 We have to come to the question of counsel. And there was a

25 request during the last Status Conference on the appointment of

1 co-counsel. As to the fact that we have to come back to some exchange of

2 letters between the Registry and counsel, I think it would be appropriate

3 to discuss this issue in private session.

4 Do the parties agree?

5 MR. DIMITRIJEVIC: Yes, Your Honour, I agree with that.

6 MR. KOUMJIAN: Yes, Your Honour.

7 JUDGE SCHOMBURG: Then let's please go into private session.

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16 [Open session]

17 JUDGE SCHOMBURG: It may be surprising but -- to raise this issue

18 right now, but it was part of your request during the last Status

19 Conference that you raised a question of a co-counsel in your case. Did

20 you come closer to a maybe solution or suggestion?

21 MR. DIMITRIJEVIC: Your Honour, from time being I think that in

22 this phase of pre-trial procedure Mr. Mrdja don't need co-counsel. If

23 co-counsel will be needed a few months or two before the trial, so in that

24 stage we shall ask the Registry to appoint co-counsel.

25 JUDGE SCHOMBURG: Thank you for this clear and fair answer.

1 Any other issues? We learned the pre-trial brief could be handed

2 down as soon as possible in case parties come to agreed facts. Any other

3 issues to be raised from the side of the Prosecution?

4 MR. KOUMJIAN: No, Your Honour.

5 JUDGE SCHOMBURG: From the side of the Defence or the accused in

6 person?

7 MR. DIMITRIJEVIC: Thank you, Your Honour. The Defence filed the

8 motion for provisional release of Mr. Mrdja. I don't know if you received

9 that. And we want to know what is scheduled about discussing and making

10 decisions in that matter. Thank you.

11 JUDGE SCHOMBURG: Before I give the floor to the Prosecution, you

12 mentioned guarantees given by Bosnia-Herzegovina, in this case the entity

13 of Republika Srpska. They arrived a long, long time ago, and we were

14 surprised to receive the guarantees first and then only a long time later

15 your request. You gave reasons why you didn't file a motion on

16 provisional release.

17 I haven't discussed this issue yet with my colleagues. We'll do

18 as soon as possible. And I can tell you already that if there are not

19 urgent reasons demonstrated by the Defence, this would not be a case where

20 a hearing on this motion should be necessary, because we have all the

21 facts before us and not much can be added. We have the guarantees. The

22 question may be whether they have to be updated or renewed because they

23 are already -- they stem from a period sometime ago. This would be a

24 separate matter, but this could be resolved without any hearing.

25 But may I ask the Prosecution, has the Prosecution already a clear

1 view on the response to this motion? Because you know that my policy is

2 to avoid unnecessary filings. And if you could comment on this issue

3 already today, this would be of great assistance.

4 MS. CHANA: Thank you, Your Honour. The position of the

5 Prosecution is that we will be opposing this motion for provisional

6 release and we'll be filing our response before the due date.

7 JUDGE SCHOMBURG: And you share the view that no oral hearing will

8 be necessary?

9 MS. CHANA: We are of the view that no oral should be necessary in

10 this, Your Honour.

11 JUDGE SCHOMBURG: May I then take the opportunity at the same

12 time, if the Defence agrees, to ask Mr. Mrdja in person whether or not he

13 wants to add some personal remarks to the question of provisional release,

14 because I believe it's the right whenever an accused wants to address on

15 this issue of deprivation or liberty the Chamber in person.

16 Mr. Mrdja, do you want to make any additional statements? You may

17 stay seated. It's too problematic for you.

18 THE ACCUSED: [Interpretation] Thank you, Your Honour.

19 JUDGE SCHOMBURG: I think we need new microphones here in the

20 courtroom.

21 THE ACCUSED: [Interpretation] I have nothing. Your Honour, I have

22 nothing to add. I just have one problem, and that is that my child is

23 very sick.

24 JUDGE SCHOMBURG: This is reflected in the motion filed by the

25 Defence and --

1 THE ACCUSED: [Interpretation] I think that everything has been

2 filed, but my attorney will contact you. Thank you very much.

3 JUDGE SCHOMBURG: Thank you. Any other issues?

4 MR. DIMITRIJEVIC: Thank you. No, Your Honour.

5 JUDGE SCHOMBURG: Then I have to thank you. And I'm looking

6 forward to all the motions. We learnt that they would arrive in the near

7 future.

8 And this concludes today's Status Conference in this case.

9 --- Whereupon the Status Conference

10 adjourned at 4.15 p.m.

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