Tribunal Criminal Tribunal for the Former Yugoslavia

Page 37

1 Thursday, 29 April 2004

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.31 p.m.

6 JUDGE LIU: Mr. Court Deputy, call the case, please.

7 THE REGISTRAR: Good afternoon, Your Honour. This is Case Number

8 IT-95-12-PT, The Prosecutor versus Ivica Rajic.

9 JUDGE LIU: Thank you very much. May I have the appearances,

10 please. For the Prosecution.

11 MS. D'AOUST: Good afternoon, Your Honour. For the Prosecution,

12 my name is Josee D'Aoust. With me today is Mr. Roeland Bos, and our case

13 manager, Mrs. Lakshmie Walpita.

14 JUDGE LIU: Ms. D'Aoust.

15 MS. D'AOUST: Yes, Your Honour.

16 JUDGE LIU: Where is Mr. Scott?

17 MS. D'AOUST: I'm so sorry, Your Honour. Mr. Scott could not be

18 here today. He is out of the country. He apologises for his absence and

19 asked me to attend in his place. But he is out of the country and could

20 not attend the Status Conference today, unfortunately.

21 JUDGE LIU: You mean, you have been entrusted by Mr. Scott to

22 appear.

23 MS. D'AOUST: Yes, exactly, Your Honour.

24 JUDGE LIU: Thank you.

25 And for the Defence.

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1 MR. OLUJIC: [Interpretation] Good afternoon, Your Honour. I'm

2 Zeljko Olujic, attorney-at-law from Zagreb, Croatia. I'm counsel for

3 Mr. Ivica Rajic. Colleague Doris Kosta is on the Defence team with me.

4 However, she is not present today. So I'm appearing on behalf of my

5 client alone today. Thank you.

6 JUDGE LIU: Thank you very much. Mr. Rajic, can you hear the

7 proceedings in a language that you understand?

8 THE ACCUSED: [Interpretation] Thank you.

9 JUDGE LIU: Thank you. If you have any problems in following the

10 proceedings, please do not be hesitant to let me know. You may sit down,

11 please.

12 Following the filing of the amended indictment on the 14th

13 January, a second initial appearance of the accused was held on the 29th

14 January 2004. The Trial Chamber is required pursuant to Rule 65 bis to

15 hold a Status Conference within 120 days of the initial appearance of the

16 accused to organise the exchange between the parties to ensure expeditious

17 preparation for the trial and to allow the accused to raise any issues in

18 relation to the status of his case, including his mental and physical

19 conditions.

20 Mr. Rajic, would you please stand up. Do you have anything to

21 complain at this stage concerning your conditions in the Detention Unit?

22 THE ACCUSED: [Interpretation] I have no complaints.

23 JUDGE LIU: How about your health?

24 THE ACCUSED: [Interpretation] It is fine. Thank you.

25 JUDGE LIU: Thank you very much. You may sit down, please.

Page 39

1 The Defence filed a second motion challenging the form of

2 indictment on 23rd of February 2004 following the submission of the

3 amended indictment by the Prosecution on the 14th of January 2004. The

4 Prosecution responded on the 5th of March 2004, and the Trial Chamber

5 issued its decision on the 27th of April 2004.

6 In that decision, we request the Prosecution within 30 days of the

7 date of this decision to clarify the apparent inconsistencies on a number

8 of the victims as presented in the paragraphs 16 and 17. Now I turn to

9 the Prosecution. I want to know how much time and in what form do you

10 need to file something concerning the amendment in this aspect?

11 MS. D'AOUST: Yes, Your Honour. We -- the clarification can be

12 done very shortly. We don't need much delay to do that. And we can file

13 an amendment to those paragraphs indicating the reason, or we can file an

14 explanation with the Trial Chamber and counsel.

15 JUDGE LIU: Yes. Do you think you need another amended

16 indictment?

17 MS. D'AOUST: I think that the clarification can be -- maybe

18 expressed without the amending indictment because the facts are there. It

19 may, as the Court requests us to need to clarify, but I don't think it

20 needs an amended indictment. Maybe clarification can be filed with the

21 Court.

22 JUDGE LIU: Thank you very much.

23 The next issue is about disclosure. Pursuant to Rule 66(A)(i),

24 the Prosecution shall provide the accused with copies of the supporting

25 material and all prior statements obtained by the Prosecution from the

Page 40

1 accused within 30 days of the initial appearance of the accused. The

2 supporting materials submitted in support of the amended indictment was

3 provided to the Defence on the 15th of January 2004, except for the B/C/S

4 translation for four English documents which were provided on 29th January

5 following the initial appearance. As far as the Chamber knows, the Rule

6 66(A)(i) has therefore been complied with.

7 The Defence requested further information on the source of a

8 series of documents obtained by the Prosecution from the archives of the

9 secret service of the Republic of Croatia in order to be able to check

10 their authenticity. I believe that the Defence referred to about 10 to 20

11 million pages. The Defence was supposed to draw the least of those

12 documents for which it sought further information. I would like to know

13 whether the parties have already solved this issue or not. And this time,

14 I'll give the floor to the Defence first.

15 MR. OLUJIC: [Interpretation] Thank you, Your Honour. It is true,

16 as you have stated, that on the 15th of January 2004 we received

17 additional material. We have been working on it. We have studied it. It

18 is also true that the Defence raised an objection at the last Status

19 Conference where we stated that it would be fair on the part of the OTP

20 and in order to reach the truth if they could at least roughly give us an

21 indication how they gained access to certain material at the Croatian

22 State archives. It is true, as you have stated, Your Honour, that on that

23 occasion I said that that involved 10 million pages put in different

24 boxes. In the meantime, the archives service has started selectioning

25 that material, and we have already managed to carry out some

Page 41

1 authentication, however, not in its entirety. I will ask from my learned

2 friend Mr. Scott in accordance with your instructions to be given

3 information as to sources so that I can verify the authenticity of the

4 material.

5 What I can say is that I have managed to track down about 70 per

6 cent of the material because the archives has classified some of the

7 material, so the Defence was able to verify the authenticity. However,

8 for a small portion of material, we will need the additional information.

9 And in accordance with your instructions, I will request this additional

10 information from the Prosecution within the following month. Thank you.

11 JUDGE LIU: Could I turn to the Prosecution on this issue.

12 MS. D'AOUST: Regarding the request, Your Honour, as it was

13 mentioned at the last initial appearance, it's difficult for us to provide

14 specific information if we don't necessarily know which documents are

15 causing a problem. But if Defence counsel wants to be a little bit

16 precise and tell us which document in question he would like to have

17 information, if it's in -- if we're able, we will provide the information

18 to Defence counsel.

19 JUDGE LIU: Thank you very much. I'm surprised to hear that

20 there's so many documents involved in this case. I think as a principle,

21 we should reduce the paperwork as much as possible at this stage. And

22 the -- I believe that all those documents first of all should be related

23 to this very case, and there should be some probative value. Thirdly,

24 those documents could possibly be used during the trial proceedings. If

25 we spend a lot of energy on seeking those documents and at last we do not

Page 42

1 use it, what's the purpose to go into that amount of the documents?

2 Although the Defence counsel said that they have already finished about 70

3 per cent of those documents, the left documents will still amount to

4 thousands of pages. I hope the parties could meet together to have this

5 problem solved. And it is my belief that Defence counsel is waiting to

6 submit a list for those documents they want to know the source. But

7 Defence counsel have to remember at this stage or at any stage, the

8 Prosecution has the obligation to disclosure, but it's within the scope of

9 the Rules and Procedures. They could and they shouldn't be the

10 investigator and the detective for the Defence team.

11 As for the authenticity of some documents which might be a subject

12 matter in the trial stage, I hope the parties will bear in mind the

13 comments of the Pre-Trial Judge.

14 MS. D'AOUST: With the permission of the Court, maybe I shall

15 clarify something, Your Honour. As it was mentioned by the Defence

16 counsel in the initial appearance, the Defence counsel referred to

17 millions of documents. And we -- I believe that we indicated to the Court

18 that we were not aware of those millions of documents. We have submitted

19 documents which are relevant to that case, and I believe that there's

20 probably in all total about a hundred documents that we've submitted for

21 the supporting material. I would need to verify the precise amount,

22 especially for the material in support of the amended indictment. It was

23 one binder, and I think that it was about that. Maybe 75 or a hundred

24 documents. So I'm not aware as we also informed the Court at the initial

25 appearance about the tens of millions of documents. But of the material

Page 43

1 we submitted or transferred to the Defence, if the Defence within those

2 hundred or more documents have any question, then we of course will answer

3 his question.

4 JUDGE LIU: I hope the parties could meet after this sitting to

5 clarify this issue. But the principle is that the disclosure should be

6 within the scope of the Rules and Procedures.

7 Regarding the disclosure obligation under Rule 66(A)(ii), the

8 Prosecution indicated that at the Status Conference of the 3rd November

9 2003 that it fulfilled its obligation under this Rule except for 25 to 30

10 per cent of the documents which still needed to be translated from B/C/S

11 to English or from English to B/C/S. Has the translation been completed

12 by now and has it been provided to the Defence team? Yes.

13 MS. D'AOUST: Yes, Your Honour. On the issue of the disclosure,

14 we met with the Defence counsel prior to this hearing. And we informed

15 him that there was several documents and material that was ready for him.

16 He indicated to us how he would prefer us to transmit the documents. This

17 will be done. From the documents, I believe that there are two or three

18 still-outstanding translation to come. But as soon as we have, we will

19 transmit it to the Defence counsel.

20 As for the totality of the Rule 66(A)(ii) obligation, it is not

21 fully completed because there's some verification in -- concerning certain

22 matters that were raised that need to be fulfilled. But it is our

23 intention to fulfil it as soon as possible to respect Rule 66(A)(ii). And

24 part of the disclosure also is pursuant to 66(A)(ii) and 68.

25 JUDGE LIU: Thank you. Mr. Olujic, do you have any observations

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13 English transcripts.













Page 45

1 concerning Rule 66(A)(ii) obligations?

2 MR. OLUJIC: [Interpretation] Your Honour, I do not have any. As

3 my learned friend has said today, I had a meeting with my colleagues from

4 the OTP, and I was told that certain documents would be provided to us.

5 Since this involves a large quantity of material, I asked that this

6 material be delivered to me in Zagreb where I practice law. I don't think

7 that this would pose a problem to the Prosecution. They promised to

8 comply, and I expect to receive these documents within a short space of

9 time.

10 JUDGE LIU: Thank you.

11 The next issue is about Rule 68. Any observations from either

12 parties regarding the disclosure of the exculpatory material pursuant to

13 Rule 68? Yes, Ms. D'Aoust.

14 MS. D'AOUST: Like I informed the Court a little bit earlier, we

15 have started to verify for exculpatory material. We are going in that

16 disclosure to disclose those material. We understand that our obligation

17 is an ongoing one, and we're doing the effort to fully respect that

18 obligation also.

19 JUDGE LIU: Any comments from Defence counsel on that issue?

20 MR. OLUJIC: [Interpretation] No, I have no comment. We expect

21 this to be updated and to be carried out as soon as possible. Otherwise,

22 we have no complaints or any other comments regarding that.

23 JUDGE LIU: Yes. And another issue is the inspection of the

24 materials. The Defence requested to inspect the books, documents,

25 photographs or other objects in the Prosecutor's custody. Any issue to be

Page 46

1 raised in this regard?

2 MR. OLUJIC: [Interpretation] Your Honour, no. I have nothing to

3 raise. However, the strategy of our Defence is such that we are focussing

4 on the time relevant for the indictment. So all of the materials,

5 videotapes, and photographs, I will request them following the additional

6 material that I will receive. And I do not expect to encounter any

7 problems.

8 JUDGE LIU: Thank you.

9 Under Rule 65 ter (H), the Pre-Trial Judge shall record the points

10 of agreement and disagreement on matters of law and fact. In this

11 connection, the Pre-Trial Judge may order the parties to file written

12 submissions with either the Pre-Trial Judge or the Trial Chamber. Did the

13 parties already meet on this matter? Could they reach the agreement or

14 disagreement on certain matters? It is the intention of the Trial Chamber

15 to ask the parties in due course to file a document summarising those

16 points of agreement and disagreement they should reach. And you are,

17 therefore, encouraged to meet and consider this matter as soon as

18 possible.

19 Any progress in this aspect?

20 MS. D'AOUST: No, Your Honour. We haven't -- Defence counsel and

21 Prosecution haven't met yet to discuss such matter. It is something that

22 was briefly mentioned before, and I think that it is something that both

23 parties envisioned seriously. But it has not been at the present time

24 done.

25 JUDGE LIU: Yes. Well -- yes, Mr. Olujic.

Page 47

1 MR. OLUJIC: [Interpretation] I have nothing to add, Your Honour.

2 My learned friend has stated the facts as they are. I believe that very

3 soon we will be able to find an agreement on agreed facts in order to

4 facilitate the work of all of us, and especially our efforts aimed at

5 establishing the truth.

6 JUDGE LIU: Thank you very much. I appreciate the effort made by

7 the two parties in this aspect. We hope we could speed up the preparation

8 work in this case.

9 At this stage, are there any other matters that the parties would

10 like to raise? From the Prosecution.

11 MS. D'AOUST: Yes, Your Honour. There is one last issue that I

12 wanted to raise with the Court. As the Court may know, and I've raised it

13 prior this hearing with my colleague, Mr. Olujic is acting for Mr. Rajic

14 in this case. But in another case, Mr. Olujic also act for another

15 accused. And we believe that during the initial appearance on the other

16 accused, the possibility of a conflict of interest was raised. And since

17 this case is, of course, related to it, we believe that it was our duty

18 just to inform the Court that there may be a possibility of a conflict of

19 interest.

20 JUDGE LIU: Thank you for your information. What's your position

21 on this issue?

22 MS. D'AOUST: Of course we understand that the decision on the

23 fact that if there is or not a conflict of interest is not up at all to

24 the Prosecutor. But we would like to indicate that we have serious

25 concern that there may be a possible conflict of interest. And by saying

Page 48

1 this, it has nothing to do, and I wouldn't want the Defence counsel to

2 understand that I'm putting his professionalism in question, but I thought

3 that it was our duty to raise it and to express our concerns.

4 JUDGE LIU: Yes. Your concern is registered here in the

5 transcript.

6 Could I hear from the Defence, Mr. Olujic, on this issue. Frankly

7 speaking, I myself am not familiar with the situation.

8 MR. OLUJIC: [Interpretation] Your Honour, my learned friend is

9 right when she says that just prior to entering the courtroom we discussed

10 this issue; namely, there is proceedings going before this trial against

11 Mr. Jadranko Prlic and Mr. Bruno Stojic and others. And Mr. Stojic has

12 entrusted me with his Defence. Before I agreed to act as Defence counsel

13 for Mr. Stojic, I have naturally studied and checked all the allegations

14 to determine whether there is a conflict of interest. This is my

15 professional responsibility. The code of ethics, both here before this

16 Tribunal and in the country where I come from, mandates that I do this. I

17 spoke about this with both of my clients, both with Mr. Rajic and with

18 Mr. Stojic. Both of them expressed no reservations, and they insisted

19 that I defend them here at this Tribunal.

20 I work together with my co-counsel, Doris Kosta, who is an

21 attorney-at-law in Split. We work together in this case. Why do I bring

22 this up? I bring this up because should a conflict of interest arise, I

23 would be the first one to step down, or rather I would choose which client

24 I would defend. Since this is first and foremost the right of the

25 accused, meaning not the right of the Prosecutor or Defence counsel or the

Page 49

1 Chamber, but rather the right of the accused that is enshrined and

2 protected by main documents of this Tribunal, I believe that it is the

3 decision of the accused that should be taken into account.

4 However, the other case that I'm appearing in is also the case

5 heard by Trial Chamber I, meaning the same Chamber. Therefore, should the

6 Chamber question the moral dignity and professionalism of the Defence,

7 then the Chamber would make certain decisions in order to protect the

8 interests of the accused. Therefore, I am in contact with the officials

9 from the Registry and I turned over to them written statements of both of

10 my clients. And together with that, I provided a broad interpretation of

11 the conflict of interest as a concept and also attached some information

12 showing that there is no conflict of interest in this case or in these two

13 cases. However, we never know what can emerge, and should the conflict of

14 interest arise, then I'm sure we would undertake all steps in order to

15 safeguard the principles of justice, especially since there are several

16 Defence counsel in each case. We have the lead counsel and the

17 co-counsel, and each of them can take over should there be a need.

18 Your Honour, this is in brief my position. I believed that the

19 Chamber was aware of this situation; however, I see that I might have been

20 wrong because so far I have not received a decision on my appointment,

21 neither I nor the rest of my team. Therefore, I hope that we will receive

22 a decision from the Registry on that issue, although we know that the

23 final word rests with the Chamber. Thank you.

24 JUDGE LIU: Thank you very much. As I said before, this is the

25 first time for me as a Pre-Trial Judge in this case to hear there might be

Page 50

1 a conflict of interest concerning the counsel. I have to say, first of

2 all, this matter is within the jurisdiction of the Registrar at this

3 stage. If we came to the trial stage and this matter greatly affects the

4 interests of the accused, the Trial Chamber may interfere in this issue.

5 But generally speaking, generally speaking, it's within the mandate of the

6 Registrar. So any filings should go to the Registrar.

7 Secondly, we have no doubt about the professional responsibility

8 and the code of ethics on the part of the Defence counsel at this stage.

9 And it's very difficult at this stage to predict how the trial proceedings

10 will go. For instance, if one of the accused plead guilty or for his own

11 interests he will blame the other witness -- the other accused. So there

12 might be a potential, potential conflict of interest in the future.

13 Lastly, I believe the free will of the accused should be taken into due

14 account because it is, after all, the accuseds who retain the counsel.

15 And what is important in this aspect whether the accused is informed, well

16 informed, about legal consequences of the conflict of interest of the

17 counsels in this matter. It is a very technical issue concerning the

18 conflict of interest of the counsels, and nobody could predict what will

19 happen in the future, in the middle of the trial, or even after the trial.

20 So I will consult with the Registrar on this issue to see whether they

21 could get in touch with the accused himself to make sure the accused,

22 Mr. Rajic, has made a decision free, out of his free will and well

23 informed about all the consequences of that potential issue. I think

24 that's all I could say at this stage.

25 Are there any other matters that the parties would like to raise?

Page 51

1 MS. D'AOUST: No, Your Honour.

2 JUDGE LIU: Thank you.

3 Mr. Olujic.

4 MR. OLUJIC: [Interpretation] No, Your Honour.

5 JUDGE LIU: Thank you.

6 So the hearing is adjourned.

7 --- Whereupon the Status Conference adjourned at

8 3.06 p.m.