1 Friday, 6 October 2000

2 [Status Conference]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 10.33 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: The Prosecutor versus Zejnil Delalic, Zdravko

8 Mucic, Hazim Delic, and Esad Landzo. Case number IT-96-21-A.

9 JUDGE HUNT: Appearances, please, for the Prosecution.

10 MR. YAPA: May it please Your Honour. I'm Upawansa Yapa,

11 appearing for the Prosecution. With me is Mr. Roeland Bos. Mr. George

12 Huber is the case manager.

13 JUDGE HUNT: Thank you very much. Obviously, nobody on behalf of

14 Mr. Delalic.

15 For Mucic, Mr. Morrison. For Delic, yes, Mr. Karabdic. And for

16 Landzo, Mr. Murphy.

17 MR. MURPHY: Yes, Your Honour.

18 JUDGE HUNT: Perhaps because we haven't been here for awhile I

19 should check whether each of the accused can hear the proceedings in a

20 language which they understand.

21 Mr. Mucic, are you able to hear the proceedings in a language

22 which you understand? Thank you.

23 Mr. Delic? Thank you.

24 And Mr. Landzo?

25 THE APPELLANT LANDZO: Yes.

1 JUDGE HUNT: Thank you very much.

2 Now, each of you have given us notice that you wish to attend. I

3 assume the Prosecution is here simply to answer things rather than to

4 raise something.

5 MR. YAPA: Yes, Your Honour.

6 JUDGE HUNT: Very well, then. Well, Mr. Morrison, you're here for

7 Mr. Mucic. You're the next one on the record.

8 MR. MORRISON: If it please Your Honour. I am acutely aware that

9 I suspect we are all here to some extent to wait to see what other people

10 are saying and to respond to it.

11 JUDGE HUNT: Well, that's very interesting. That's a long way to

12 come.

13 MR. MORRISON: Well, it wasn't for me but it was for some people,

14 I appreciate that. There are, however, two issues which arise in the case

15 of Mr. Mucic.

16 The first is this: Obviously, and I accept that the judgement

17 will be delivered as soon as practicable, but Zdravko Mucic wishes to make

18 it plain that given his current sentence under Dutch law, he's been

19 advised by Mr. McFadden that as matters would stand on his existing

20 sentence, he would be due to be released in early November.

21 I don't know what the position is going to be as to the date of

22 the delivery of judgement. It may be that the judgement would be

23 delivered prior to that actual release date; it may be that it will not.

24 JUDGE HUNT: Mr. Morrison, you have told us on a number of

25 occasions that you have judicial duties yourself to perform from time to

1 time, and you know that there's no way I can tell you when the judgement

2 will be given. It is well under way and will be given as soon as it can

3 possibly be given. I don't want to give you any hope that it will be

4 given on any particular day or by any particular time. It's simply a

5 matter of ensuring that five Judges can agree upon its terms, which is a

6 bit more difficult than I should think you have to worry about yourself.

7 MR. MORRISON: Your Honour, I have enough trouble agreeing with

8 myself on occasions. I'm fully cognisant of the problems of multiplying

9 that by five.

10 The second matter is --

11 JUDGE HUNT: In relation to his sentence, it was seven years,

12 wasn't it? And you're assuming that he's going to be kept in the

13 Netherlands, which is an assumption I don't think you're entitled to

14 make.

15 MR. MORRISON: Your Honour, with respect, not an assumption that

16 I've made but a matter of practical advice that has been tendered to

17 Mr. Mucic by Mr. McFadden at the prison.

18 JUDGE HUNT: Yes, that if he was being kept by the Dutch

19 authorities, then that's so. But he's being kept by the United Nations'

20 authorities at the moment in an area within the Netherlands, and he's not

21 kept pursuant to the Netherlands' release provisions. But there are

22 others that have got two-thirds, and I can see that it must run out --

23 seven years from, when was it, the 18th of March, 1996, so it must be

24 sometime in November, two-thirds. Of course, he may be sent to Spain, and

25 Spain has three-quarters.

1 MR. MORRISON: I can't say I'd object myself to having a hearing

2 in Spain --

3 JUDGE HUNT: No, no, not a hearing in Spain, but he may have to

4 serve his sentence in Spain. I shouldn't be light-hearted about it. It's

5 obviously a very important thing. I can only say that it's unfortunate

6 that this appeal took so long to get under way because of the parties'

7 manoeuvrings over a period of, I think, nearly 18 months before we got

8 under way. However, that's something that's gone by the by, and we will

9 keep in mind your client's rather precarious position.

10 MR. MORRISON: That's all I ask, Your Honour.

11 The second point is one which I fully appreciate is not

12 necessarily within the bailiwick of your normal powers or

13 responsibilities, but Mr. Mucic is anxious that it be raised, and that's

14 this: He has, during his time in custody, had very few visits. He has a

15 son and a daughter in Austria who have visited him on two or three

16 occasions over his period of custody, but no one else. There is, in fact,

17 a couple who are not related to him, Mrs. Bloemkoelk-Turk and

18 Mr. Colakovic, who have made repeated requests through Tom Kuzmanovic to

19 be allowed to have a visit, and it's not met with favourable response from

20 the administration. The reality of the position is that if those people

21 would be allowed to visit, it can do no harm.

22 JUDGE HUNT: Are they resident here in the Netherlands?

23 MR. MORRISON: They are.

24 JUDGE HUNT: Yes. As you have foreseen, it has really nothing to

25 do with the Tribunal or the Appeals Chamber. It's a matter which if you

1 don't get satisfaction from the superintendent, from memory, you go

2 through the Registrar to the President. And may I suggest that that's

3 what should be done. I don't know what the regulations are about how

4 closely people have to be related before they're allowed to visit. It

5 seems to me that that's a matter, though, that could well be ventilated --

6 I don't think there's an appeal, but I think there's some sort of

7 administrative procedure that you have to follow.

8 MR. MORRISON: Your Honour will understand that it's a matter of

9 importance for the client to have the matter raised in court, and of

10 course the suggestion which Your Honour has made is one that can be

11 pursued, and I'm grateful.

12 JUDGE HUNT: Thank you very much.

13 Mr. Karabdic, what do you want to raise on behalf of your client?

14 THE INTERPRETER: Could counsel please be advised to turn on

15 the microphone.

16 JUDGE HUNT: Microphone.

17 MR. KARABDIC: [Interpretation] The issue which I was about to

18 raise with you, in fact, has been answered now, which is that my client

19 has been in detention for a long period of time, since the sentence has

20 been passed, the judgement has been passed, about two years ago, and he is

21 living in uncertainty. He would like to know when this final judgement is

22 going to come down. He is aware that the Appeals Chamber is working and

23 that it will do its best to issue the judgement as soon as it is

24 practicable. However, he is trying to deal with this uncertainty, but I

25 believe now we have heard an answer coming from you and we'll have to

1 wait.

2 He also has problems with visits, but we believe that we can solve

3 these problems with the management of the Detention Unit. He is not able

4 to get all the visits that he wants, but I believe that we can solve these

5 problems.

6 JUDGE HUNT: Thank you very much, indeed.

7 Mr. Murphy.

8 MR. MURPHY: Your Honour, yes. Your Honour, Mr. Landzo has one

9 problem which he has tried to resolve with the administration of the

10 Detention Unit without success, and which I have also made some

11 representations on his behalf, and that is this: He suffers very badly

12 from asthma. Your Honour, he has had during his time in detention quite a

13 number of visits with the medical advisor, the doctor, to the Detention

14 Unit, and also with representatives of the Red Cross, and he's made a

15 number of requests through administrative channels that the Detention Unit

16 take some steps to provide a segregated area for those who do not smoke.

17 Apparently, Your Honour, the presence of cigarette smoke is very prevalent

18 in the Detention Unit and his condition is worsening because of that.

19 Your Honour, I've had the opportunity to talk to Mr. McFadden

20 myself on that subject, and the issue seems to be this: Obviously, there

21 are some instances in which Mr. McFadden has to segregate certain

22 detainees from others; some of these, of course, by personal animosities

23 and some by ethnic divisions. And he tells me that quite a high

24 percentage of the inmates do smoke.

25 Your Honour, my position on behalf of Mr. Landzo is simply this:

1 Given what one knows these days about the effects of secondhand smoke, it

2 is unreasonable for Mr. Landzo to be detained in an environment where he

3 cannot escape from that. Several different floors are available at the

4 Detention Unit, and it is my submission that it would be a reasonably

5 simple matter to provide a floor, or part of a floor, for those prisoners

6 who do not smoke, or particularly those who cannot tolerate cigarette

7 smoke.

8 Your Honour, given the length of time Mr. Landzo has been there,

9 and of course we don't know how much longer he may be there, this is a

10 matter which is, perhaps, deserving of the Court's attention. I would ask

11 Your Honour to consider asking the Registry to have some dialogue with

12 Mr. McFadden about creating this kind of environment for Mr. Landzo. Your

13 Honour, it is an important medical concern; he's been advised that this is

14 causing damage to his health.

15 JUDGE HUNT: This is a matter which was raised, I remember, at the

16 first of the Status Conferences under the amended Rule --

17 MR. MURPHY: Yes.

18 JUDGE HUNT: -- and I said at the time to your lead counsel that

19 it's a matter that if you don't get satisfaction from Mr. McFadden, you

20 have to take it up through the Registry to the President.

21 If there's one thing that any court must understand is that they

22 do not have the expertise to run a gaol. It has to be done by experts.

23 And I think you've probably referred to the real problems that do arise.

24 I have had a little experience from being part of an inquiry into

25 a gaol system once, and the problems are manifold. They're not as easy as

1 even you put them. And I certainly am not in any position to say anything

2 except to say you should take it up through the Registry or the Registrar

3 with the President, and it may be that there can be something done.

4 One thing that I have noticed since I've come to live in

5 Europe is that the prevalence of smoking here is very much higher than

6 anywhere else I've ever come across in my life, but that's general in the

7 community; and to a non-smoker, I agree, it's not pleasant. But I can't

8 say anything, I can't do anything, I can't give any direction, I can't

9 give any advice. Mr. McFadden, I hope, has discussed it, but you may be

10 able to persuade the President, perhaps, that something more can be looked

11 at. But I can't really put the Appeals Chamber into the fight, if I may

12 put it that way.

13 MR. MURPHY: No, Your Honour, of course, and I wouldn't ask Your

14 Honour to make any positive indication beyond, perhaps, indicating on the

15 record that it would be an appropriate matter for the Registry to discuss

16 with Mr. McFadden.

17 JUDGE HUNT: I'm sorry. I really cannot buy into what I've

18 described, perhaps wrongly in an international tribunal, but as a domestic

19 issue. It really has nothing to do with us. And other than to advise

20 you, or your client through you, that he has an avenue of review, I

21 suppose is the best way of putting it, through the President, I can't

22 really buy into it and put the weight of my authority into any part of

23 this equation.

24 I understand the problem, I sympathise with your client, but to

25 tell the superintendent of the gaol, who has, I think, still only three

1 floors, although I think they may have another area now, that he must

2 segregate it so that there should be a non-smoker's area is just not part

3 of my expertise.

4 But it's now on the record, and you can probably use the

5 transcript as part of your appeal to the President.

6 MR. MURPHY: Yes, indeed, Your Honour.

7 JUDGE HUNT: There's nothing more I can say, really.

8 MR. MURPHY: Your Honour, there are other matters, but those are

9 other matters which we can take up directly with Mr. McFadden.

10 JUDGE HUNT: Thank you very much.

11 MR. MURPHY: Thank you very much, Your Honour.

12 JUDGE HUNT: Mr. Yapa, is there anything you want to say about any

13 of the matters that have been raised?

14 MR. YAPA: Thank you, Your Honour. I do not think there are any

15 matters on which we have a say, and we have no submissions.

16 JUDGE HUNT: We're very grateful to you all for coming such a long

17 way. I'm sorry that you don't get any particular comfort out of what's

18 happened, but I think you may have foreseen that that must be the result.

19 A Status Conference is not really for these issues.

20 I will adjourn.

21 --- Whereupon the Status Conference adjourned at

22 10.49 a.m.

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