Tribunal Criminal Tribunal for the Former Yugoslavia

Page 73

1 Tuesday, 23 March 2004

2 [Open session]

3 [Status Conference]

4 [The accused entered court]

5 --- Upon commencing at 3.01 p.m.

6 JUDGE KWON: Good afternoon. Would the Registrar call the case.

7 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honour.

8 This is Case Number IT-03-68-PT, the Prosecutor versus Naser Oric.

9 JUDGE KWON: Thank you.

10 Would both parties make their appearances. We have a lot today.

11 MR. WUBBEN: Thank you. Thank you, Your Honour. My name is

12 Jan Wubben for the Prosecution team, together with my co-counsels,

13 Patricia Sellers, Jayantha Jayasuriya, Kristina Carey, and our case

14 manager, Diane Boles.

15 JUDGE KWON: Thank you. And for the Defence.

16 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honour. I am

17 Vasvija Vidovic, together with Mr. John Jones. I represent

18 Mr. Naser Oric. And with us today we have Mr. Geoff Roberts, our case

19 manager. Thank you very much.

20 JUDGE KWON: Thank you, Ms. Vidovic.

21 As I remember it, this is the third conference, held in accordance

22 with Rule 65 bis. And I note that already a year has passed since the

23 indictment against this accused was filed, so I think this coming Sunday

24 is an anniversary. And to begin, I note that the Chamber received the

25 pre-trial briefs from both parties. They were timely filed, and I thank

Page 74

1 the parties for their complying with the deadlines.

2 Well, moving on to pending motions, I know that there is one,

3 which is the -- which is from the Prosecution, requesting leave to add

4 three witnesses to its list of witnesses. And I also note that the

5 Defence does not oppose the motion. So I would say they were so added in

6 its list, but however it is still for the Trial Chamber at the time of

7 Pre-trial Conference whether to limit the overall number of witnesses or

8 not. But as the pre-trial Judge, I like to confirm with the Defence that

9 they indeed received the added -- the statements of the witnesses which

10 were added recently, even in B/C/S.

11 MS. VIDOVIC: [Interpretation] Your Honours, we have received

12 summaries of the statements. We haven't received the statements

13 themselves. However, the Prosecution has informed us that they will be

14 available to us before the 10th of April, and we have agreed with that.

15 And this refers both to the English version and the B/C/S version of these

16 documents.

17 JUDGE KWON: So there's no problem for the Prosecution to disclose

18 them by 10th of April?

19 MR. WUBBEN: No, Your Honour.

20 JUDGE KWON: 10th of April being Saturday, so 9th of April is okay

21 or 12th of April, being Monday?

22 MR. WUBBEN: Please, if possible, Monday.

23 JUDGE KWON: It will be so ordered.

24 In terms of a disclosure pursuant to Rule 66(A)(i) and (A)(ii), is

25 there anything to raise for the Prosecution? Are they completed?

Page 75

1 Rule 66(A)(i) and (ii) disclosure?

2 MR. WUBBEN: Your Honour, they are completed; however, I would

3 like -- I requested Mr. Jayasuriya to address this issue. May I refer to

4 him?

5 JUDGE KWON: Yes, Mr. Jayasuriya.

6 MR. JAYASURIYA: Thank you, Your Honour. 66(A)(i) disclosure has

7 been completed, and 66(A)(ii), except for one item. All the other

8 statements have been disclosed to the Defence. The item that is

9 outstanding is the B/C/S version of the James Gow transcript, where we

10 were informed that unfortunately no B/C/S version was maintained at the

11 time of the Rule 61 hearing, therefore we have taken steps to obtain a

12 translation using the transcripts which is available to the Prosecution or

13 even top the registry, My Lord. So we have already disclosed, or provided

14 the Defence with the English transcript. And the B/C/S translation is

15 expected in mid-April, Your Honour.

16 JUDGE KWON: If you could remind me, again, of Mr. James Gow?

17 MR. JAYASURIYA: That's right, Your Honour.

18 JUDGE KWON: Transcript?


20 JUDGE KWON: So you think it can be completed by middle of April?

21 MR. JAYASURIYA: That's the indication that we have received from

22 the DVIU, which is handling the translations at the moment, Your Honour.

23 JUDGE KWON: So do you think I can set the date as by 16th of

24 April, Friday?

25 MR. JAYASURIYA: Very well, Your Honour.

Page 76

1 JUDGE KWON: Thank you, Mr. Jayasuriya.

2 MR. JAYASURIYA: Thank you.

3 JUDGE KWON: Yes, Mr. Wubben.

4 MR. WUBBEN: Yes, Your Honour, triggering -- triggered by you

5 addressing the date of the 16th, I see in my agenda at the same time that

6 Monday -- that Monday is a kind of UN holiday.

7 JUDGE KWON: Oh, yes. That's Easter Monday, yes.

8 MR. WUBBEN: So if it can be the 13th --

9 JUDGE KWON: 13th of April.

10 MR. WUBBEN: I'm sorry to --

11 JUDGE KWON: Thank you for reminding me. I don't expect somebody

12 to file a motion on Easter Monday.

13 Then my understanding is that the Defence has something to raise

14 in relation to Rule 68 disclosure.

15 MR JONES: Thank you, Your Honour. In terms of disclosure

16 generally, as Your Honour may know, we had a meeting with the Prosecutor

17 yesterday which was pretty fruitful and we discussed a number of

18 disclosure issues. So what I have to say is not necessarily confined to

19 Rule 68. But the chief problem is really the following: Over the last

20 few months we have addressed a number of requests to the Prosecution for

21 disclosure of various items. We have set out categories of material in

22 which we are interested. And it appears that the Prosecution has not been

23 able to conduct a number of those searches because our case doesn't have

24 the requisite priority within the system.

25 JUDGE KWON: That's a matter of priority inside the Prosecution.

Page 77

1 MR. JONES: Inside the Prosecution, or inside the Tribunal. I'm

2 not sure precisely how it works. But, I first -- the main point is that

3 since we don't at this moment have a trial date, it's very difficult for

4 those requests to be granted priority. So one thing I wanted to suggest

5 to Your Honour is given, as Your Honour noted, that it's been one year

6 since Mr. Oric was arrested and he's been in custody for a year, since

7 we're aiming to have this case, or the intent was to have this case

8 trial-ready, whether Your Honour would be able to set a trial date or give

9 some indication which would enable these requests to be treated as a

10 matter of priority, because there are a number of outstanding requests and

11 it's really extremely important that we have those documents.

12 There is another matter relating to UNHCR documents, but perhaps

13 I'll address Your Honour on that in a moment. That's a separate issue.

14 JUDGE KWON: Yes. I'm very pleased to hear that from the Defence.

15 I'm pleased to say that this case is moving steadfastly towards being

16 ready for the start of the trial. Although, I cannot give the parties an

17 estimate as to when the trial may actually begin, I can say this: The

18 pre-trial progress and its readiness for trial are being regularly

19 discussed among the Chambers. So we can give an estimate in one way or

20 another in due course. So the Chamber will bear in mind the necessity to

21 set a date as soon as possible. Having said that, is there any comment

22 from the Prosecution in relation to this?

23 MR. WUBBEN: Well, I can confirm what my learned colleague to you

24 revealed as a kind of cooperation in a constructive way, together with

25 Defence counsel. And indeed I can also confirm that when it comes to

Page 78

1 priorities, we don't have a trial date as such, and that means that

2 whenever other Trial Chambers schedule their trial, that it's a natural

3 way of speeding up trials to meet in advance the disclosure obligations.

4 So setting a date for trial is very productive by advocating our

5 priorities among the others in the queue for the disclosure searches. So

6 I will indeed be grateful if Chambers at some time in due course can set

7 or schedule some date on whatever condition it can be done. Thank you.

8 JUDGE KWON: Thank you, Mr. Wubben.

9 Can I take it then that both parties are ready to start the trial

10 at any moment from now? Mr. Jones.

11 MR. JONES: Well, Your Honour, it's something of a chicken-and-egg

12 problem, in that we would be trial-ready when we have the documents which

13 we require, in particular many of the categories of documents which we're

14 seeking disclosure of. The problem really, which I was bringing to

15 Your Honour's attention, is that until we have a trial date a few months

16 in the future, we're not going to have those disclosure requests. We're

17 not -- I certainly wouldn't suggest that we're ready to go to trial at any

18 moment precisely because we don't have these main documents that we need.

19 What would be helpful is if a tentative date was set, let's say, in August

20 or September, then we could proceed. Having said that, we're not far off

21 being trial-ready, I don't know if it's worth giving an estimate, but

22 certainly in a month or so we would certainly be ready.

23 JUDGE KWON: That is helpful. Thank you.

24 Let's go back to the number of witnesses. So the number of

25 witnesses which was originally planned by the Prosecution is 57, I guess,

Page 79

1 and seven of which are 92 bis witnesses. So that -- my understanding is

2 that the Prosecution wishes to call the 50 witnesses live. Is that

3 correct, including the three which were added recently?

4 MR. WUBBEN: I will give the floor to Mr. Jayantha Jayasuriya for

5 that.

6 JUDGE KWON: Yes, Mr. Jayasuriya.

7 MR. JAYASURIYA: Yes, Your Honour, about the 92 bis statements, as

8 the Chamber has already been informed, I believe the Defence has indicated

9 their concern to admit one of those witnesses as 92 bis witnesses. So

10 therefore, at a future date there will have to be an addition by the

11 Trial Chamber whether it permits the Prosecution to admit the rest of the

12 witnesses as 92 bis witnesses. Subject to that, Your Honour, the

13 Prosecution wishes to leave all other witnesses as live witnesses who are

14 currently listed in the 65 ter filings. But the Prosecution is trying its

15 best to adopt the 89(F) procedure with regard to at least a few of the

16 witnesses and shorten the time that the Prosecution would require for the

17 examination-in-chief of those witnesses and thereby trying to maintain the

18 time frame that it had indicated to the Trial Chamber.

19 So this estimate is currently based on the number that these

20 included in the 65 ter filings, as we left the three witnesses whom

21 Your Honour permitted us to add to the list of witnesses today. But to

22 indicate that the Prosecution is still conducting its investigation then,

23 gathering some more witness statements, and we intend filing the necessary

24 motions in the near future, seeking permission to add those witnesses.

25 But in the Prosecution's estimate, these witnesses would not substantially

Page 80












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

13 English transcripts.













Page 81

1 change the length that is anticipated by the Prosecution. Maybe it might

2 be exceeded, or if may have to increase the time period by about another

3 20 working hours or so, which comes to about maybe one and a half weeks'

4 time, you know.

5 JUDGE KWON: Thank you.

6 The issue of 89(F), utilising the regime of Rule 89(F) was the

7 topic I was about to raise. Of course the Defence should have a say in

8 relation to this. But speaking from my personal experience, it will help

9 the parties to save time and concentrate on more important issues during

10 the trial. I would like to very much encourage you to utilise that regime

11 as much as possible. So it's better if you could clarify the issues and

12 itemise the issues in relation to this.

13 Does the Defence wish to make a comment on this. Yes,

14 Ms. Vidovic.

15 MS. VIDOVIC: [Interpretation] Your Honours, I would just like to

16 say that the Defence has accepted a -- one 92 bis statement, and that it

17 has asked to be able to cross-examine all the other witnesses, in keeping

18 with Rule 92 bis. I believe that my learned friend Jayasuriya has said

19 something else. But this is by way of clarification. We accept one

20 witness in keeping with Rule 92 bis. And for the others, we want to

21 cross-examine them, in keeping with the submission that we have sent to

22 the Chamber.

23 JUDGE KWON: Thank you, Ms. Vidovic. The regime I mentioned,

24 i.e., Rule 89(F) is the system in which some background facts are adduced

25 in written form and with this witness being subject to the

Page 82

1 cross-examination. So of course the Defence will be given an opportunity

2 to consent or not, and also given the opportunity to cross-examine. So

3 it's too early to say, but there will -- I think there will be no great

4 harm to the Defence.

5 And then, if Mr. Jones can comment on the issue proposed earlier,

6 which is an organisation, UN organisation.

7 MR. JONES: Yes, I'm obliged, Your Honour.

8 JUDGE KWON: And it can be dealt with in open session, of course.

9 MR. JONES: Yes, Your Honour. It's really a matter of the UNHCR

10 documents, and it's a matter we highlighted, in fact, in our pre-trial

11 brief at paragraph 17. And essentially the point is this: That these are

12 extremely important documents from our point of view, because the UNHCR

13 documented the situation in the enclave in the relevant period, in detail,

14 and we are seeking to obtain documents from UNHCR. It's a matter which

15 we've been pursuing ourselves with UNHCR and also with the Prosecution,

16 and it's a matter which we discussed with the Prosecution yesterday. And

17 it appears that essentially due to the policy of UNHCR which might be

18 described as somewhat intransigent or inflexible, I don't wish to be

19 unkind to the UNHCR, but certainly it's not easy to obtain documents from

20 them. It's really a matter which we have raised in our pre-trial brief,

21 but I want to reiterate again in the Status Conference, because it may

22 become critical if we're not able to obtain those documents. And one

23 thought which I had was that UNHCR is, after all, a United Nations body,

24 this is a United Nations Tribunal, and perhaps if there's a sufficient

25 groundswell of discontent of obtaining disclosure from UNHCR, perhaps it's

Page 83

1 a matter that might be addressed by, for example, the President of this

2 Tribunal in a letter to the Secretary-General. I'm not sure. It's

3 something which I just draw to Your Honour's attention at this point in

4 time, because there may be a motion from us on this subject. It may be

5 something which we take up with the President of the Tribunal. But it's

6 of sufficient importance that I thought it should be mentioned today. So

7 it's really simply to put it on the record. It is a problem. We're

8 working with the Prosecution to solve it, and we'll keep Your Honour

9 informed of developments.

10 JUDGE KWON: Let's see what can be done in relation to this. But

11 it's a long tradition or policy for the institution to maintain such

12 policy.

13 One comment in relation to agreed facts. The Prosecution filed in

14 its annex some agreed facts, but I wonder if there's any possibility to

15 develop further -- i.e., to find more facts which can be agreed upon

16 between the parties. That can be said from the Defence, I guess.

17 MR. JONES: Well, Your Honour, this is something which we also

18 discussed with the Prosecution yesterday, also in terms of stipulations

19 which the Prosecution might make. Our position is that at the present

20 time we're not asking the Prosecution to make any stipulations. The

21 Prosecution has indicated their willingness to stipulate possibly to some

22 of the matters mentioned in our pre-trial brief. But, really, for us it

23 comes to the question, at the moment, of disclosure, because until we have

24 the documents which we require, we won't be in a position really to know

25 whether the stipulations are correct or not. So to give Your Honour an

Page 84

1 example, the Prosecution might say: "Well, we're willing to stipulate

2 that there was a brigade in this town or a tank on this hill." Until we

3 have the documents, we don't know if that's true. And so for us,

4 stipulations can't substitute for facts, and until we're in a position of

5 having more than the documents that we require, we can't enter into

6 stipulations or accept stipulations from the Prosecution. I don't say

7 that's for all time, but currently, as things stand, we don't seek to make

8 any further admissions and we're not seeking any stipulations from the

9 Prosecution.

10 JUDGE KWON: Thank you, Mr. Jones.

11 Let me ask some more specific questions, having heard that. If we

12 see the -- like take this one: If we see the suggestion for stipulated

13 facts in the matter, the Prosecution versus Naser Oric, that's the annex

14 of the pre-trial of the Prosecution. And take the first page, the Defence

15 agreed in -- it's A, biographical data, the Defence agreed number 1 to 10,

16 but not 11 and 12. So if we see paragraph 11 and 12, it says: "On 17th

17 of April, 1992, the Potocari Territorial Defence was established. On 17th

18 of April, Mr. Naser Oric became the commander of the TO Potocari."

19 So it is evident that Defence does not agree on these facts, but

20 can I ask why or if you could give some more specific detailed

21 explanation. Of course it is not a compulsory duty on the part of the

22 Defence. So my question is whether you can develop more on agreed facts

23 in the future.

24 MR. JONES: Yes, Your Honour. I'd take the example you're giving

25 as just a general example. You're not inviting us --

Page 85


2 MR. JONES: -- to enter into a detailed discussion of exactly what

3 we agree and disagree with, which is what we've done in our pre-trial

4 brief. And I should also say, I regret I don't have the Prosecution

5 pre-trial brief in front of me, so I've noted what Your Honour has said

6 about paragraph 11. But just looking at that paragraph, the allegation

7 concerns the defendant being the commander of a TO unit. This case is

8 based on command responsibility in Article 7(3) of the Statute, as well as

9 Article 7(1). There are issues of what it precisely means to be a

10 commander, the superior-subordinate position. In other words, that may

11 appear a bland phrase which I take it Your Honour is suggesting we

12 shouldn't have that much difficulty in saying whether or not it's true and

13 perhaps agreeing to it. But in fact that's a matter which contains a

14 great deal -- a great deal of baggage comes with the whole notion of being

15 a commander which is central to this case. For that reason, among others,

16 we didn't admit that paragraph. All I can really say, Your Honour, is

17 that we've considered the matter very seriously and every allegation we

18 didn't agree, we had a good reason for doing so. Of course, we don't wish

19 to appear close-minded. We will consider on what Your Honour has said and

20 have a further look.

21 Would Your Honour mind if I just confer with my colleague?


23 [Defence counsel confer]

24 MR. JONES: Yes, I am reminded by my learned friends that also

25 there are issues which we have raised on a numerous occasions of

Page 86

1 authenticity of documents. And a number of these allegations or

2 assertions are based on documentary evidence which we have challenged, and

3 which we have grave doubts about the authenticity of. So that's also

4 behind a lot of the -- I should say, that's a factor which plays heavily

5 in deciding what facts we can admit and which we cannot. I hope that

6 answers Your Honour's question.

7 JUDGE KWON: Thank you. And give thought to my example.

8 MR. JONES: Yes.

9 JUDGE KWON: Thank you for your comments.

10 MR. JONES: Obliged, Your Honour.

11 JUDGE KWON: Are there any issues to raise for the parties?

12 MR. WUBBEN: Well, Your Honour, when you raised the issue of the

13 annex to our pre-trial brief with the proposals for adjudicated facts,

14 agreed facts, to be specific, it means indeed agreements, so it depends on

15 both parties to settle this agreement. We offered it in our pre-trial

16 brief, and the response was very limited. So this is an opportunity for

17 us to show, whenever Defence counsel offer from their side an opportunity

18 to be open for any raising of issues, again, and topics. We would like to

19 offer those issues and topics, including such an issue as an international

20 armed conflict. This will help us to focus on a trial to speed up and

21 also, of course, to be very effective. And it's good for all parties.

22 JUDGE KWON: Thank you.

23 Nothing from the Defence.

24 Now I would like to ask Mr. Naser Oric directly regarding his

25 health condition and detainment at the Detention Unit. Do you have

Page 87

1 anything to say, Mr. Oric?

2 THE ACCUSED: [Interpretation] Mr. President, Your Honour, I have

3 nothing to report. Everything is in order; everything is fine. The

4 medicine I receive I use on a regular basis. Everything is in order.

5 JUDGE KWON: Very well. Thank you.

6 Then the next Status Conference will be -- should be held before

7 21st of July, in my calculation. And then we'll consider whether we'll

8 have a pre-trial conference at that time or not, but it remains to be

9 seen. And unless there's anything to be raised --

10 MR. JONES: Your Honour, just a matter of whether you would be

11 able to set a trial date or how precisely we would proceed.

12 JUDGE KWON: That's for the Trial Chamber to consider. So we will

13 let you know.

14 MR. JONES: Okay. I'm obliged.

15 JUDGE KWON: Yes, Mr. Wubben.

16 MR. WUBBEN: And from our side, the issue still remains that we

17 offer any opportunity that we are available to raise those issues upon

18 agreed facts, so that might be also an opportunity for the Senior Legal

19 Officer at the 65 ter conference.


21 Then this hearing is adjourned.

22 ---Whereupon the Status Conference

23 adjourned at 3.32 p.m.