1 Thursday, 14 September 2000

2 [Motions Hearing]

3 [Open session]

4 --- Upon commencing at 3.36 p.m.

5 JUDGE MAY: Yes, call the case, please.

6 THE REGISTRAR: Yes, the case number IT-95-8-PT, the Prosecutor

7 versus Sikirica, Dosen, Kolundzija.

8 JUDGE MAY: Appearances.

9 MR. RYNEVELD: Thank you if it please the Court, Dirk Ryneveld

10 along with my co-counsel Daryl Mundis and Julia Baly.

11 MR. PETROVIC: [Interpretation] Your Honours, I am Vladimir

12 Petrovic appearing for Damir Dosen, thank you.

13 MR. VUCICEVIC: Your Honours, Dusan Vucicevic on behalf of Dragan

14 Kolundzija.

15 MR. LONDROVIC: [Interpretation] Your Honours, I am Veselih

16 Londrovic appearing on behalf of Mr. Dusko Sikirica. I should also like

17 you to grant the presence of my colleague, Mr. Greaves, who is to be

18 co-counsel in this case. For some technical reasons, the procedure has

19 not been finished for his appointment of the co-counsel, and our

20 interpreter, Mrs. Mirka Kovic [phoen], because I am one of the Defence

21 counsels who do not speak any of the languages of the Court so I should

22 like to ask your leave for our interpreter to be present here to help me.

23 [Trial Chamber confers]

24 JUDGE MAY: We can't see you, Mr. Londrovic. It's not a very

25 well-designed court. Is it going to be very inconvenient for you either

1 to go -- you can either go to the back or you can come in the front.

2 MR. LONDROVIC: [Interpretation] Yes, of course, Your Honours. We

3 shall move over there.

4 JUDGE MAY: Right. We can see you and your application is

5 granted, Mr. Londrovic.

6 MR. LONDROVIC: [Interpretation] Yes, Your Honour, excuse me.

7 JUDGE MAY: I was saying – if you are now on the air – that your

8 application is granted, and we'll begin with your motion on the form of

9 the indictment. We'll deal with that first, and then we'll deal with the

10 motion in relation to adjudicated facts. Again, we'll hear you on that

11 and also the motion on documentary evidence. So we'll deal with things in

12 that order.

13 We've seen your pleading and we've seen the response so we don't

14 need you to repeat any of that. If there's anything you'd like to say in

15 response to the Prosecution, we'll hear you now. I should say that we've

16 got until 5 o’clock for this hearing, and before we close, we must have a

17 Status Conference too. So if people would be brief, we'd be grateful.

18 MR. LONDROVIC: [Interpretation] Your Honours, I continue to stand

19 by the motion which Mr. Sikirica's counsel submitted on the 14th of

20 August, 2000. I have received the Prosecution's response to our motion

21 concerning the defects in the form of the indictment, and I have nothing

22 new to add. I stand by our motion and I believe that the Chamber will

23 rule on all those motions.

24 JUDGE MAY: So I take it you don't want to add anything on the

25 other two motions, of course you can do so. Do you want to say anything

1 about the documentary evidence or the adjudicated facts?

2 MR. LONDROVIC: [Interpretation] With regard to the adjudicated

3 facts, I have also submitted to the Court our motion in writing. It was

4 submitted on the 3rd of September this year.

5 JUDGE MAY: Yes. We've seen that.

6 MR. LONDROVIC: [Interpretation] But I have not yet received the

7 response of the Prosecution to this motion and I, again, stand by this

8 motion of the 3rd of September this year.

9 JUDGE MAY: May I see the Prosecution response? Mr. Ryneveld,

10 have you got a copy of it? No doubt you ...

11 MR. RYNEVELD: Yes, I'm sure we will be able to find one. I'm

12 sure that it was filed and, therefore, I assume that my learned friend

13 would have received a copy.

14 JUDGE MAY: Let me just see. It may be that I -- I'm in error

15 there. The original motion was, of course, yours and so the response was

16 Mr. Sikirica's and it may be that we've got no other filings.

17 MR. RYNEVELD: The only filing I have in the matter was filed on

18 the 7th of August, 2000, which was the Prosecution's motion. Similarly

19 for the documentary evidence, that was also filed on the 7th of August.

20 JUDGE MAY: And we've got the response from Mr. Sikirica of the

21 1st of September. Those are the filings. Well, we'll deal firstly -- it

22 may be better to deal with it in order. We'll go back to the motion in

23 relation to the indictment and we'll consider that for a moment.

24 [Trial Chamber confers]

25 JUDGE MAY: The Trial Chamber has had the opportunity of

1 considering this matter as it has been pleaded, and our decision is as

2 follows: In relation to the allegations of crimes that occurred outside

3 the Keraterm camp, this was a matter which we've already dealt with in

4 relation to the co-accused, and in the same way as we rejected those

5 motions, we reject this one.

6 It's alleged that the allegations, the indictment, is vague and

7 fails to meet the standards of sufficiency in relation to time and

8 location of the offences of the victims and coperpetrators. Article 18 of

9 the Statute and Rule 47(C) of the Rules require no more than a concise

10 statement of the facts and of the crimes charged, although it must be said

11 that this Trial Chamber has recognised there is a floor below which the

12 level of information must not fall if the indictment is to be valid as to

13 form.

14 Dealing with the decision on preliminary motions issued on the

15 10th of February in relation of the co-accused, the Trial Chamber required

16 the Prosecution to amend the Attachment A containing more specific

17 information in relation to the crimes charged, and order that it form part

18 of the indictment against those co-accused. For the same reasons, the

19 Trial Chamber now directs the Prosecution to amend Attachment A to specify

20 the time and place of the alleged offences, the identity of the victims

21 and coperpetrators in respect of the charges against Mr. Sikirica which

22 shall form part of the amended indictment against the accused.

23 The Defence now submit that the Prosecution should amend the

24 indictment to provide a factual description of the accused's mens rea in

25 respect of the genocide count and his participation. It's to be noted

1 that Mr. Sikirica is the only accused in this indictment who is accused of

2 genocide and complicity to commit genocide. The indictment simply alleges

3 that he acted with the intent to destroy the Bosnian Muslims and Bosnian

4 Croats in part as, national, ethnic, or religious groups. The indictment

5 refers to a plan to expel those populations from the Prijedor

6 municipality, and it's alleged that it was ordered and implemented by the

7 Bosnian Serb authorities in the Prijedor municipality.

8 The Defence request that the Prosecution provide additional

9 details as to the relationship between the accused and the plan which I

10 have referred to. The Trial Chamber directs the Prosecution to provide

11 these additional details linking Mr. Sikirica as alleged to the plan of

12 the Bosnian Serb authorities.

13 It's next submitted that the Prosecution should provide greater

14 detail as to the identity of those authorities. The Trial Chamber is

15 satisfied that there is sufficient detail for the purposes of the

16 indictment.

17 It's submitted here, it's submitted next, that the Prosecution

18 shall provide more precise information about the accused's participation

19 in the acts underlying the charge against him, and whether his liability

20 is based on Article 7(1) or Article 7(3). The question then is whether

21 the accused is entitled to more detailed information regarding the basis

22 for his liability under these articles.

23 Paragraph 19 of the indictment alleges the accused was the

24 commander of Keraterm camp. As the commander he was in a position of

25 superior authority to everyone else present in the camp. In the Trial

1 Chamber's view, this allegation provides sufficient information as to the

2 basis for the accused's liability under Article 7(3).

3 The Defence next argues that Mr. Sikirica was, in fact, not the

4 commander of the camp. An objection to the form of the indictment is not

5 an appropriate place or proceeding for contesting the accuracy of the

6 facts pleaded, as was set out in our decision in this case of the 10th of

7 February. It is a matter which will have to be dealt with in trial.

8 In relation to Article 7(1), as the Trial Chamber held in its

9 decision of the 10th of February in this case, the form of the alleged

10 participation of the accused is a material averment which should clearly

11 be laid out in the indictment in order to clarify it and make plain the

12 Prosecution case. That being so, the Trial Chamber orders the Prosecution

13 to specify in Attachment A in respect of each incident where the victim,

14 or victims, place and date is identified; the capacity in which each

15 accused is alleged to have participated pursuant to Article 7(1); and

16 where possible, specifying the form of participation, such as planning or

17 instigating or ordering. That is the decision of the Trial Chamber on

18 that motion.

19 The next two motions are Prosecution motions for, first of all, a

20 notice for judicial notice of adjudicated facts against Mr. Sikirica, and

21 also a similar motion for the admission of documentary evidence. There

22 were similar motions, it's to be noted in the case, of the other

23 co-accused. We have the pleadings which I have already been through.

24 Does anybody want to add anything as to what's already pleaded?

25 As I say, we've read them. We've had a chance to consider them.

1 Mr. Ryneveld, these are your motions. Is there anything you want

2 to add?

3 MR. RYNEVELD: Nothing further at this time, thank you, Your

4 Honour.

5 JUDGE MAY: Yes. Mr. Londrovic.

6 MR. LONDROVIC: [Interpretation] No, Your Honours. Thank you.

7 JUDGE MAY: The Trial Chamber will consider those matters and

8 we'll give a ruling in due course.

9 This brings us to the motion on behalf of Mr. Kolundzija for the

10 production of the statements, the reports, summaries, articles, and books

11 which a witness in this case, Hanne Greve uses in her evidence, her expert

12 evidence. In this connection we have the original motion from

13 Mr. Vucicevic dated the 3rd of August. We have the Prosecution's response

14 of the 18th of August.

15 Mr. Vucicevic, is there anything you want to add, bearing in mind

16 that we've read what's already been said already? Is there anything you

17 want to add to your written pleadings?

18 MR. VUCICEVIC: Yes, thank you very much, Your Honour. Just

19 briefly, in the response, the Prosecution indicates that we have not

20 established relevance, and I believe the relevance is indeed obvious

21 because if the expert witness who has been characterised that is akin to a

22 historian but indeed not a historian but testifying for the facts that are

23 at issue here is using the statements of the eyewitnesses. Basically she

24 is just collating those witness statements through her testimony,

25 recycling them if you will.

1 I think you know that what is at issue is going to be her

2 interpretation of those statements and biases are also -- bias is a

3 subject matter to all the investigation of any witness. Therefore, if you

4 can get material, it would be the same thing if she were to testify from a

5 treaties, and we would certainly go to library and get the treaties. I do

6 not understand why any of those reasons would be at issue. That

7 confidentiality of the witnesses or what the witnesses have said. As a

8 matter of fact, you know, I --

9 THE INTERPRETER: Could the counsel slow down, please.

10 MR. VUCICEVIC: -- a lot of witnesses that are victims, that their

11 memory is waning, that some events are being, you know, interposed and

12 what would be a better help to this Trial Chamber in making decisions if

13 he were to review the witness statements that were so close to the

14 events. And yet those -- all those statements are five years old now and

15 even more.

16 So we would undertake that arduous work but we would help,

17 perhaps, if they are -- if there is nothing, you know, to cross-examine

18 based on those statements, we wouldn't raise any points. But I think it

19 would help the cause of justice here. Thank you.

20 JUDGE MAY: The Prosecution have pointed to the decision of the

21 Trial Chamber in Kovacevic, in a similar motion, involving the same

22 witness.

23 Now, if we were minded to apply that decision, what would you say

24 about that?

25 MR. VUCICEVIC: Your Honour, I'm glad the Court noted that

1 objection; however, we have to know the timing because our request in

2 Kovacevic's case, indeed it was my request, at that time, and it was on

3 the eve of the trial. And there was no possible time to gather those

4 information and that was, you know, a week or two just before the trial.

5 Now, we have the trial is set, perhaps might be reset. We have

6 time to get those and we -- I couldn't phrase my request at that time

7 properly because I really didn't know because we had got those -- even

8 statement of the witness just a couple of days before I made that

9 statement. I think you know, we know her testimony. We know that she --

10 in Kovacevic trial indicated failure to her testimony subject to the --

11 witnesses --

12 THE INTERPRETER: Will the counsel slow down, please.

13 JUDGE MAY: You are being asked to slow down by the interpreters.

14 MR. VUCICEVIC: -- I believe the transcripts in the decision, in

15 the comments of the Court in Kovacevic's case are very pertinent on this

16 issue. And since decision has been rendered before, those comments the

17 Court made, I believe they are indeed very helpful answering and

18 supporting my answer to you, Your Honours.

19 JUDGE MAY: Thank you. Mr. Ryneveld, is there anything you want

20 to say?

21 MR. RYNEVELD: Just one factor, if I might, and that was with

22 respect to my friend's seemingly expanded request here for notes and

23 transcripts of conferences of other members of the Commission. It was the

24 relevance and probative value of that material that I particularly wanted

25 to bring the Court's attention to with respect to the fact that there

1 could possibly not have any relevance or probative value on the evidence

2 that my -- that she is likely to give. Those are my only comments.

3 JUDGE MAY: Thank you very much. The Trial Chamber will consider

4 these matters and give a ruling in due course.

5 [Status Conference]

6 We'll turn next to the Status Conference and consider,first of all,

7 the question of readiness for trial. The position is that the trial date

8 has been set, the 6th of November. We will not be minded to move that,

9 it's been set for sometime now. It's important that this trial gets on.

10 We would wish, first of all, to hear about the position in

11 relation to Mr. Sikirica who came much more recently to the Tribunal and

12 would say that, of course, if at all possible, his trial, since he's

13 accused jointly with the other two, his trial should take place at the

14 same time. But perhaps we can start with the Prosecution.

15 Mr. Ryneveld, are you ready for trial in all these matters?

16 MR. RYNEVELD: The issue of readiness for trial, Your Honour, is

17 such that we, of course, have been aware of the date of November 6th for

18 some time, and we would have to take the position that we would be

19 prepared to proceed with our case on the 6th of November. I must,

20 however, point out that if Mr. Sikirica were to join in at that time, and

21 that is another issue, there would have to be some issues with respect to

22 abridgment of time frames, especially in light of the Chamber's ruling

23 today about an amended indictment and matters of that nature.

24 Now, I think we still have some seven weeks prior to that trial

25 date but, for example, our witness list with respect to Mr. Sikirica, our

1 pre-trial brief and our Rule 65 ter with respect to those matters have not

2 yet been filed. You can appreciate too that it would require an

3 abridgment of some of the time limits in order for us to comply with those

4 matters in order to have a trial against all three accused commencing on

5 the 6th of November.

6 A short answer would have to be, the Prosecution is prepared to

7 proceed on the date suggested, but I do understand that there is a

8 concomitant interest, and to save judicial economy, all of those factors

9 have to be taken into account, that it would be preferable if we could

10 start the matter against all three accused. I mean, the witnesses would

11 be pretty much the same, although there would be an expanded witness list

12 if Mr. Sikirica were to, were to be joined in at trial.

13 Nevertheless, there is a balancing act that the Court would have

14 to perform in order to weigh the necessity to proceed on the 6th of

15 November, or to have a separate trial if he were not prepared to proceed.

16 I perhaps have overextended my response, but in a nutshell, if

17 we're proceeding on the 6th of November, the Prosecution will be prepared

18 to go.

19 JUDGE BENNOUNA: [Interpretation] Mr. Rynveld, the question that

20 was raised by Judge May implies that the trial must open, must start, on

21 the 6th of November for all three accused. There will be no trial for

22 only two accused and then, later on, the third one. So the answer that we

23 are expecting from you is whether you are able to proceed with all of

24 them.

25 You have just quoted Rule 65 ter, and its provisions have to be

1 complied with before the 6th of November, including the amendment which

2 was decided upon today, the amendment of the indictment. That's what we

3 are -- that's what we expect from you, to be ready on the 6th of

4 November.

5 Are you ready to proceed on the 6th of November in respect of all

6 three of the accused?

7 MR. RYNVELD: With the exception as I've indicated for the

8 necessity for abridgement of time for responses, I believe that we can

9 provide a 65 ter new witness list for witnesses against Sikirica, and a

10 new pre-trial brief. The only difficulties, as I have indicated, is that

11 there may have to be some abridgements of time sought in order to allow us

12 to be ready for trial.

13 But if the question is, can we prepare a list, file a pre-trial

14 brief, do an opening, and have witnesses ready to go on the 6th of

15 November against all three? If we're granted the time within that period,

16 it is, it is our every intention, God willing, that we're able to do that,

17 yes.

18 JUDGE MAY: So you will be ready.

19 MR. RYNVELD: Yes.

20 JUDGE MAY: Well, we'll hear from the Defence.

21 JUDGE MAY: Mr. Londrovic -- Mr. Greaves. Well, you know the

22 position: If you're ready on the 6th of November, then the trial can

23 commence; but otherwise, well, we would have to consider the position.

24 MR. GREAVES: Your Honour, may I open by saying this, that my

25 learned friend didn't, if I may say so, sound to be brimming with

1 confidence, exactly, that he could be ready as against Mr. Sikirica by the

2 6th of November.

3 Your Honour, our position is this: Mr. Sikirica's case is not

4 ready for trial, and it is not considered that there is any realistic

5 prospect that we could be ready by the date of 6th of November. Your

6 Honour, I'm sure, doesn't need me to lecture the Trial Chamber about the

7 difficulties that are posed by tracing of witnesses in particular, which

8 is one of the big bugbears that any Defence team faces in a case of this

9 kind.

10 In this case, we need to trace witnesses who are located

11 particularly in the Prijedor area, but, in fact, throughout the Republika

12 Srpska entity. We are looking for witnesses in what is known as the

13 federation; in other words, the main part of Bosnia-Herzegovina. That

14 proposes particularly problems for any lawyer from Republika Srpska

15 because of obvious difficulties, which I needn't go into, that are faced

16 by someone of that kind.

17 We've also got a situation where we are seeking witnesses outside

18 the area of the former Yugoslavia. That, again, takes some time because

19 lawyers have to get visas and so on and so forth. That's just a general

20 reminder which I hope Your Honours don't mind me making of the problems

21 that are faced in a case of this kind.

22 As far as the material which we've been served with, can I just go

23 through quickly our situation. We received the supporting material. That

24 contained a number of transcripts from former trials and four witness

25 statements. In relation to those matters, we have traced some, but not

1 all, of the witnesses that we would wish to consider as potential Defence

2 witnesses.

3 We have received a first batch of 50 witness statements. That was

4 sometime ago. Again, we have traced some, but not all, potential Defence

5 witnesses arising from those witness statements.

6 My learned friend Mr. Londrovic arrived from Republika Srpska last

7 night and has found in his box a further 38 witness statements in addition

8 to the initial 50. Some of those have yet to be translated into B/C/S,

9 the language with which the accused is familiar and with which my learned

10 friend Mr. Londrovic is familiar. He doesn't speak either English or

11 French.

12 Again, in relation to those new witness statements, of course,

13 because he's only just received them, no investigation has taken place in

14 connection with them. And this afternoon a further three have been

15 served.

16 JUDGE MAY: Just a moment.

17 [Trial Chamber confers]

18 JUDGE BENNOUNA: [Interpretation] Mr. Greaves, I should like to ask

19 you if you are aware of the provisions of Rule 65 ter (G) which provides

20 as follows; I will read it in English: [English]

21 "... and before the commencement of the defence case, the

22 pre-trial Judge shall order the defence to file the

23 following:

24 (i) a list of witnesses the defence intends to call with:"

25 Et cetera.

1 That means that you are not obliged to give your own list of

2 witnesses before the starting of the trial. You have to be in a position

3 to give your own list after the close of the Prosecutor case, which we

4 have not discussed this yet, but the Prosecutor’s case will take some time.

5 So are you aware of that? Does it change your mind about the

6 possibility of starting on the 6th November, even if your own list is not

7 complete at this date?

8 MR. GREAVES: Sadly not, and for this reason, Your Honour, if I

9 can explain.

10 The Prosecution calls its witnesses, and it may well be that the

11 Defence in the ordinary course of events has its own witnesses who

12 contradict that which the Prosecution witnesses say. And it is for that

13 purpose that the Defence seeks out witnesses of its own, so that it may

14 put to a particular Prosecution witness either that there is some mistake

15 on the witness's part or that the witness is not telling the truth.

16 Until we have interviewed an individual witness about an

17 individual incident related by the Prosecution witness, the Defence is not

18 in a position properly to put its case to that witness, and it is for that

19 reason that we respectfully submit that the Defence is entitled to

20 conclude its investigation before being forced into the situation of

21 having to cross-examine witnesses.

22 [Trial Chamber confers]

23 JUDGE MAY: Well, we hear about the difficulties; now let's hear

24 about when you will be ready, Mr. Greaves.

25 THE INTERPRETER: Microphone for the counsel, please.

1 MR. GREAVES: Your Honour, just allow me a moment to complete what

2 I had intended to say. I'll be as brief as I can. I take Your Honour's

3 nod as a "yes." Thank you very much.

4 Your Honour, there is likely to be, in relation to some dates, an

5 alibi notice filed in this case. Again, we found some, but not all,

6 witnesses, and we are not in a position to file a proper full alibi notice

7 at this time.

8 No decision has been taken as to the issue of seeking discovery

9 from the Prosecution under Rule 66(B), and we will not take such a

10 decision until all witness statements, as far as possible, that the

11 Prosecution intend to rely upon are served. It's not a decision that we

12 feel we should take until we have a complete overview of the Prosecution

13 case. We have no idea at the present time what is involved and precisely

14 how much material the Prosecution has in its possession that would be

15 required to be looked at.

16 Your Honour has raised -- or sorry, my learned friend has raised

17 the issue of the amended indictment. That, of course, may pose yet -- may

18 produce yet further requirement to make inquiries, and at the present

19 time, we don't know when the amendments will be forthcoming. It may be

20 that Your Honour is going to order a time by which such amendments must be

21 made.

22 Plainly, the Prosecution is still engaged in the process of

23 investigation. As I was saying when the learned Judge, I'm not going to

24 say "interrupt," "intervened" I think it probably the politer word. We've

25 received three statements today taken in the middle of August. Again,

1 it's plain that investigations are still continuing, and we anticipate

2 there will be yet further statements forthcoming as against Mr. Sikirica.

3 I can now come to the question that Your Honour was posing a

4 moment or two ago. Your Honour will know that I've only just come into

5 the case in the very recent past, but I've discussed the matter of when my

6 learned friend considers that his investigations would be complete and we

7 can file all the appropriate documentation. We were looking at a date

8 rather more in the light of March of next year.

9 Your Honour, we say that -- we are, of course, fully conscious of

10 the difficulties that are faced by witnesses who have to come and give

11 evidence twice and all the logistical difficulties that that might create

12 if there was a to be a separation of Sikirica from the other two, for

13 example. We're also conscious of the fact that if we remain with the

14 other two defendants, then that would cause a delay in their trial. But

15 the fact of the matter is, the defendant was arrested barely four months

16 ago. He has had considerably less time than either the Prosecution or the

17 two co-defendants to prepare their case. That puts him at a significant

18 potential disadvantage vis-à-vis this trial, which is a serious matter in

19 which he is charged with the most serious offence which is contained

20 within the Statute, namely, genocide.

21 Your Honour, that is our position. It is with regret, of course,

22 that we say that we are not in a position to be ready, but in our

23 respectful submission, there are proper reasons why we are not ready. The

24 case is not ready to present to the Court at this time.

25 [Trial Chamber confers]

1 JUDGE ROBINSON: Mr. Greaves.

2 MR. GREAVES: Your Honour, yes, how may I help you?

3 JUDGE ROBINSON: You mentioned March as the earliest date. I was

4 wondering whether it wouldn't be feasible for you to be ready in January.

5 MR. GREAVES: The date I have proposed is the one that my learned

6 friend who leads me is the one that he has proposed. He is better

7 acquainted with his preparations in the case, and I take it from him that

8 that is his position.

9 JUDGE ROBINSON: Perhaps you could give some reconsideration to

10 it.

11 MR. GREAVES: Might I just briefly in sotto voce speak with my

12 learned friend through our interpreter and see what his attitude to that

13 is. Would Your Honours permit me to do that?

14 JUDGE ROBINSON: Yes, certainly.

15 MR. GREAVES: Your Honour, I'm going to cede to my learned friend

16 Mr. Londrovic who, as I have indicated, is much more aware of the state of

17 his preparations than I am.

18 JUDGE ROBINSON: Yes.

19 MR. LONDROVIC: [Interpretation] Your Honours, when we said that

20 the Defence of the accused Sikirica could be ready for the month of March,

21 this was, believe me, really the time framework which was the best that we

22 could offer, and, of course, to the detriment of Mr. Sikirica.

23 Let me give you the reasons for that decision. Bearing in mind

24 all other cases that are pending before the trial, the experience has

25 shown that all Defence teams had between 10 and 12 months to prepare their

1 case from the moment of the arrest of the accused until the beginning of

2 the trial.

3 JUDGE MAY: Mr. Londrovic, I'm sorry to interrupt you. That may

4 be the case, may have been the case in the past, but it is a matter which

5 has really got to be remedied in this Tribunal. We must start getting

6 these cases on. And although there have been delays, that year is not to

7 be taken as a norm of some sort, and in that, Defence counsel have to play

8 their part. But I interrupted you, yes.

9 MR. LONDROVIC: [Interpretation] Your Honours, anything earlier

10 than March, in our respectful submission, would lead to the violation of

11 Article 21 of the Statute, subparagraph 4(B), where a minimum of rights is

12 guaranteed to the accused, one such right being to have adequate time and

13 facilities for the preparation of the defence. We believe that the month

14 of March is the best possible framework that we can suggest and that would

15 be acceptable for us.

16 We are, of course, perfectly aware of the situation in which the

17 other two accused find themselves. I think that Mr. Kolundzija will have

18 been over one year in detention if the trial should begin in November; but

19 if the trial should start in November, we would have had only four months

20 for our preparation. If we decide to start in March, then it means that

21 we will have eight months to prepare for our defence which is an adequate

22 amount of time, in our submission.

23 [Trial Chamber confers]

24 JUDGE MAY: Yes, thank you very much. Well, the Trial Chamber

25 will have to consider the position. Quite clearly, if the three accused

1 can be tried together, that would be, in many ways, more satisfactory; but

2 we do have in mind very much the length of time which the other two

3 co-accused have been in custody. So since we are going to have to

4 consider this question of time, we'll hear from anybody else who would

5 like to make submissions. It may be convenient if we hear from the

6 Defence first, and then we'll hear from the Prosecution.

7 Mr. Petrovic, would you like to begin? You've heard what counsel

8 for the co-accused has said, that they won't be ready, it's said, until

9 March. No doubt that might be brought forward to some extent, but it does

10 mean the new year.

11 Now, were we to consider postponing the trial, that would be the

12 trial of your client too. What would your submissions be?

13 MR. PETROVIC: [Interpretation] Thank you, Your Honour, for giving

14 me the floor. There are several things that I should like to mention in

15 respect to this problem. First of all as regards our position, we are

16 ready, as far as the accused Dosen is concerned, to proceed with trial on

17 the 6th of November.

18 Second, I think that it is very important to state that it is in

19 the interests of my client that this trial be held for all three of the

20 accused; that is, that they all be tried together.

21 Third, if a postponing of the trial is going to be discussed,

22 bearing in mind all the reasons and arguments relating to the judicial

23 economy, and also bearing in mind the submissions made by my learned

24 colleagues representing Mr. Sikirica, so if the Chamber should consider

25 the postponing of the date of the 6th of November, we believe that that

1 postponement should be within a reasonable amount of time which would not

2 lead to the accused sitting in detention almost two years or one year

3 respectively.

4 So if there should be a postponement, I should like to appeal to

5 the Chamber to consider a reasonable postponement of time, one to perhaps

6 two months, not more than that. Thank you.

7 JUDGE MAY: Thank you, Mr. Petrovic.

8 Mr. Vucicevic.

9 MR. VUCICEVIC: I have two very diametrically opposed

10 consideration here. First, I do sympathise deeply with my colleague

11 Londrovic because I have been in a case of the same magnitude before; but

12 at the same time, March 1st would be a 21-month that my client,

13 Mr. Kolundzija, is incarcerated, and we would be ready to proceed to trial

14 on November 6th as scheduled now. And I believe that Judge Robinson's

15 suggestion would be a wise middle of the road to approach. Perhaps there

16 would be some way to accommodate all of these opposing considerations. I

17 would appreciate this greatly.

18 One small remark. I would not be opposed to separating the trial

19 only to a degree where the -- what had happened in Keraterm on my client's

20 shift while he was a shift commander, I wouldn't oppose that to proceed as

21 early as possible, as I indicated before. In that fashion, maybe we could

22 accommodate all of these new contravening considerations.

23 Thank you, Your Honours.

24 MR. RYNEVELD: Just a few points, if I may.

25 Addressing Mr. Vucicevic's last comments first. With the greatest

1 of respect, although I can understand him saying that from his client's

2 point of view, he wouldn't mind if that evidence went separate; however,

3 if we were -- that evidence, that whatever happened on either of the other

4 two shift commanders' shifts, is part of the case against Mr. Sikirica, so

5 it couldn't be done in the absence of Mr. Sikirica. So that is not, with

6 the greatest of respect, a practical solution.

7 The second point I wanted to make was that although I completely

8 understand my learned friend Mr. Londrovic's position, nevertheless, it is

9 not in my understanding correct to say that in all other cases, they have

10 had this length of time. In the Foca trial, for example, Mr. Vukovic

11 joined the case fairly late, and the Trial Chamber was faced with the

12 identical situation, and there was a short adjournment, but he joined, I

13 believe, after about four months. The other example I believe happened in

14 March of this year when the Omarska case started, and there was a late

15 arrestee who also joined the proceedings even after it commenced.

16 I don't say that to argue for or against his motion, I simply

17 wanted to set the record straight in terms of the amount of time that I

18 understand some Defence counsel have had in order to prepare their case.

19 I accept at the outset that this accused is charged with genocide.

20 JUDGE MAY: Could you remind us, please, when he was arrested;

21 when he made his initial appearance?

22 MR. RYNEVELD: He was arrested on -- Mr. Mundis reminds me he was

23 arrested on June 24th of this year, and his initial appearance was I

24 believe in August.

25 JUDGE MAY: No, it wasn't that --

1 MR. RYNEVELD: July, sorry.

2 JUDGE MAY: And the other two accused, can you remind us, please?

3 MR. RYNEVELD: Perhaps my learned friends can be of assistance. I

4 don't have that at my fingertips. It's in the --

5 JUDGE MAY: I'm being handed it by the legal officer helpfully.

6 In the case of Mr. Kolundzija, he made an appearance in June of

7 1999; and the case of Mr. Dosen, November of last year. Yes.

8 MR. RYNEVELD: The final comment, I think, is perhaps a

9 reiteration of what I said earlier, and that is that I appreciate that the

10 Court has a very difficult balancing to perform in terms of the interest

11 of proceeding as quickly as possible in this matter, and the also obvious

12 judicial public interest in having this case proceed against all three so

13 that the number of witnesses don't have to come yet another time.

14 Some of these witnesses, because of the -- because of the fact

15 that there is -- some of these witnesses also have testified in Omarska.

16 Some of these witnesses -- in other words, to keep bringing these people

17 back because they have evidence on similar matters is very difficult. One

18 might say, well, perhaps, use of affidavits or statements or written

19 testimony may be a solution. In some cases, even that won't be, because

20 the questions that have been asked of them have been limited to their

21 evidence with respect to that particular case, and there is evidence yet

22 to be called from them in respect to Keraterm.

23 So we've looked at all these possibilities, and I must tell you

24 that I'm not asking for an adjournment. We're prepared, with the

25 restrictions that I said before about we're already outside our 60 days

1 that we have to provide certain things --

2 JUDGE MAY: If we were minded to vacate the 6th of November in

3 light of the arguments which have been raised on behalf of Mr. Sikirica,

4 when would you invite us to list the case?

5 MR. RYNEVELD: I would have to indicate as soon as possible, that

6 is, in compliance with the ability of other counsel to already be ready.

7 If the Court were to consider January or mid-January, I would hope that my

8 learned friend could -- and we would do everything we can in order to

9 facilitate in getting all the documents as soon as possible. But, of

10 course, that depends on Mr. Londrovic's ability to get ready for trial.

11 JUDGE MAY: We'll consider the matter. Perhaps the legal officer

12 could come up.

13 [Trial Chamber and legal officer confer]

14 JUDGE MAY: Well, as counsel have rightly indicated, the recent

15 addition to this indictment, or rather, the recent arrest of Mr. Sikirica

16 and, therefore, his appearance to stand his trial on this indictment, of

17 course, which he was already joined in, presents the difficulty that the

18 trial date of the 6th of November had been set, and the case was ready for

19 trial.

20 If I may say, it is a problem peculiar to this Tribunal, I think,

21 but a pressing one for the Tribunal when accused are arrested at different

22 times and appear on the same indictment. It does mean that Trial Chambers

23 have to consider whether it's possible, whether it's right, to go on with

24 the trial as listed. That is particularly pressing when one or more of

25 the accused has been in custody for a long time.

1 In the case of Mr. Kolundzija, he has been in custody since June

2 of 1999; as I said, Mr. Dosen since November of 1999. That is a long

3 time, and their trials should be brought forward as rapidly as possible.

4 On the other hand, we have to balance against that the desirability of

5 trying people on the same -- accused on the same indictment at the same

6 time. And in particular, again, peculiar to this Tribunal, we have

7 witnesses who come from a long way, who, it may be, have to give very

8 distressing evidence, and to force them through that ordeal more than

9 necessary is one of the matters which have to be taken into account. The

10 date of the 6th of November having been fixed for the trial of two of the

11 accused, the arrival of the third accused means that the matter must be

12 reconsidered.

13 We've heard what counsel says for Mr. Sikirica about the

14 difficulties which they are having in preparing his case. We take account

15 of those difficulties and we balance that against the delays which have

16 occurred in trying the other two accused. We think, first of all, for the

17 reasons I have mentioned, that all three should be tried together. We

18 notice that Mr. Petrovic is of that view, as are the Prosecution.

19 We then have to consider how that is to be dealt with. In the

20 light of the difficulties which Mr. Sikirica's Defence are having, and the

21 fact that they are not ready for trial, the date of the 6th of November

22 will be vacated. We then have to consider what an appropriate date for

23 trial would be. Well, the balancing act I've already -- the balancing act

24 which has to be performed is to decide what is fair between all parties in

25 the case having regard to the time which the other accused have been

1 waiting, the fact that the others will be ready for trial, the fact the

2 Prosecution will be ready for trial, and the difficulties which have been

3 outlined in the case of Mr. Sikirica.

4 Balancing all those matters in mind, we agree with the submissions

5 of Mr. Petrovic and indeed supported by the Prosecution that January would

6 be a reasonable time. We heard mid-January suggested. In fact, what we

7 have in mind is to fix the date for this trial as the 22nd of January.

8 That should enable, in our view, Mr. Sikirica to be ready for trial. He

9 will have had more than six months to be ready for trial, and I hope that

10 given the circumstances of this case and the problems which are faced by

11 the two co-accused and the time that they have been in custody, counsel

12 will ensure that they are ready – which they must be – for the 22nd.

13 So the date will be refixed for that date. The 6th of November is

14 vacated. There are a series of other dates which have to be fitted in but

15 it may be more convenient rather than trying to do that on the bench, if

16 we spend little time considering it and we will fix the dates for the

17 attachment to the indictment, the pre-trial brief, and any other

18 consequent matters in a time table which we will announce or we will let

19 you have in as short a time as possible.

20 Mr. Ryneveld, we ought to give you the opportunity of saying how

21 long do you want for the attachment and the pre-trial brief?

22 MR. RYNEVELD: Yes, I think we could probably get the attachment

23 done within two weeks. The new pre-trial brief, I would need a little bit

24 longer than that, of course.

25 JUDGE MAY: We'll have to -- two weeks, we'll say that now for the

1 attachment. Pre-trial brief, give us some idea of what you're asking for.

2 MR. RYNEVELD: I wonder if I could have an additional two weeks

3 after that, because we have to work all of these things into the pre-trial

4 brief, give a factual basis.

5 JUDGE MAY: Yes. An additional two weeks for that. And any

6 additional matters we'll give a ruling, we'll make a scheduling order for.

7 MR. RYNEVELD: Yes, I understand that Your Honour has indicated

8 that you will be providing a scheduling order for the other matters.

9 There is just one other issue which I don't know whether the Court would

10 be taking into consideration and that is -- excuse me one moment. As

11 intimated in the existing 65 ter witnesses and indeed in our pre-trial

12 brief, we have indicated that we will be filing a different list of

13 witnesses in a combined trial. This is not an additional list, I should

14 hasten to add. There will be -- in other words, just because we have a

15 list of witnesses that we would have called for the two accused, if we

16 were calling different witnesses for Sikirica, we might, in fact, replace

17 some of the different witnesses. It's important that we delete some. So

18 perhaps the Court might also give us an indication of timing for the

19 filing of the new 65 ter witness list as well.

20 We are, as my friends have already indicated, in the middle of the

21 investigation process of those additional witnesses. As you may be aware,

22 the present trial team inherited this case from the previous trial team

23 about the 8th of July, and simply by inheriting a file doesn't mean that

24 the process of osmosis gives us the institutional knowledge of the

25 previous trial team. So we have been finding out the history of the trial

1 and interviewing new witnesses with respect to Mr. Sikirica's arrival, and

2 we would need an adequate amount of time in order to prepare the

3 appropriate 65 ter list.

4 JUDGE MAY: Yes. How long are you asking for?

5 MR. RYNEVELD: I would ask that you have already granted us the

6 extent of basically two weeks followed by another two weeks with the

7 filing of the pre-trial brief. Perhaps we could file the 65 ter list and

8 the pre-trial brief at about the same time which would give us a month in

9 total because the two will have to be intermeshed. I'm not asking for

10 additional time. I'm just trying to get a date set.

11 JUDGE MAY: All right thank you. Yes, we'll agree to that.

12 JUDGE BENNOUNA: That means, Mr. Ryneveld, that with the list of

13 witnesses, you will also provide the list of exhibits at the same time.

14 MR. RYNEVELD: Yes.

15 JUDGE BENNOUNA: Yes? Okay.

16 JUDGE MAY: It would seem one way or another to do precisely what

17 I said we wouldn't, provide the dates. Let me see if there are any others

18 which we should be dealing with.

19 MR. RYNEVELD: Might I also just add that we will be filing one

20 pre-trial brief for all three as opposed to one separate one for Sikirica

21 because it's going to be a blended one.

22 JUDGE MAY: Yes, we would encourage you to do that. We would

23 encourage you to specify precisely how it is you say that each accused is

24 guilty of the offences. I have known pre-trial briefs which do not

25 address the absolutely fundamental issue of what the case is against each

1 accused.

2 MR. RYNEVELD: That is our challenge, yes.

3 [Trial Chamber and legal officer confer]

4 JUDGE MAY: There is, at the moment, a requirement that

5 Messrs. Kolundzija and Dosen produce a pre-trial brief on the 2nd of

6 October. That date clearly will be vacated until you have had a chance of

7 seeing the standard pre-trial brief from the Prosecution.

8 Now, unless there are any other matters relating to trial -- yes.

9 MR. RYNEVELD: I'm sorry, just one other matter that should come

10 up for clarification, and that is which indictment are we actually dealing

11 with all along? Because as you may have noticed in some of the pleadings,

12 my friends have, of course, referred to section numbers or paragraph

13 numbers in what we call the "extracted indictments". There was originally

14 an indictment naming seven indictees and then an extracted one for

15 Kolundzija and Dosen, we've got the extracted one with different paragraph

16 numbers. And for ease of reference we are assuming that the indictment

17 that we will be dealing with from now on will, in fact, be the original

18 indictment which is the seven indictees. I think that needs to be

19 clarified.

20 JUDGE MAY: That must clearly be the case.

21 MR. RYNEVELD: Thank you.

22 JUDGE MAY: But in order that there is no difficulty about this,

23 it may be sensible for you to serve that indictment again, redacted as

24 necessary, if any redaction is necessary, for the other four. In fact, it

25 is, thinking aloud for a moment.

1 What we want is an indictment, the original indictment with those

2 parts which relate to these three accused in it. It would be helpful if

3 you would serve such a document so that we are all in a position to

4 proceed from the same indictment.

5 MR. RYNEVELD: Yes, as Mr. Mundis has informed me that the

6 Confirming Judge has in fact lifted the confidentiality of that seven

7 indictee indictment. So it is now the -- it was the original document,

8 and the reason for the extractions was because it had been deemed, by

9 virtue of an order, to be confidential. We couldn't use it. That's why

10 we had to create extractions for service upon various people.

11 If I understand Your Honour now, what you are asking for is for us

12 to further redact the seven indictee indictment and to eliminate the other

13 four so that we've got an indictment against three and serve that afresh

14 upon the Defence counsel for all three.

15 JUDGE MAY: Yes, it seems to me the simplest or the clearest way

16 to do it.

17 [Trial Chamber confers]

18 JUDGE MAY: Now, does anybody want to raise anything about that?

19 I mean, it seems sensible to have an indictment on which only these three

20 appear for the purposes of the trial. It's just an easier document to

21 handle for everybody, but it would be the original indictment with the

22 other four accused redacted from it.

23 MR. PETROVIC: [Interpretation] Your Honour, I was about to fully

24 endorse what you have just said, but I should like to draw attention to

25 something we discussed this morning with our learned friends from the

1 Prosecution, and that is that between the indictment which so far was the

2 indictment of my client and the indictment of the seven accused, there is

3 some differences, and they go beyond purely formal differences. They go

4 beyond the fact that on this indictment, there is one person, and on that,

5 seven.

6 I may have mentioned that there are quite a number of divergencies

7 between them, that is, my client is related to -- is associated with quite

8 a number of crimes, for instance.

9 In this indictment of seven indictees, for the first time we see

10 the name of the victim against whom my client has allegedly committed

11 crimes, but this is the first time that we see this. And this is the

12 first time that we have to deal with that. That is, there are differences

13 and divergencies as to the substance rather than form only. So we hope

14 that in the new indictment, all these matters will be clarified, clearly

15 defined, so that we really can know what indictment is the basis of the

16 charges and on the basis of what our clients are being tried. I think

17 this is really of paramount importance for all of us. Thank you.

18 MR. VUCICEVIC: Your Honours, it seems to me that if the

19 Confirming Judge has removed the confidentiality requirement of the

20 indictment, of the original indictment which is confirmed, that was the

21 jurisdiction of the Confirming Judge. And if such a document is

22 available, then it wouldn't serve a purpose to compare and contrast and

23 have the witnesses identify real perpetrators of what had happened in

24 Keraterm.

25 Your Honours have addressed a piecemeal arrest in this case. The

1 Prosecutor has had five years to arrest all seven, and for whatever reason

2 -- I'm not suggesting a lack of due diligence -- but for whatever reason,

3 that didn't occur. And justice would be served, perhaps, if my client or

4 the witnesses that would testify against him would get the chance to

5 pinpoint perhaps if the Prosecutor is mistaken of charging him for certain

6 acts, to assign those acts to the others.

7 JUDGE MAY: So you're saying that all seven names should remain

8 on.

9 MR. VUCICEVIC: Absolutely, Your Honour, because the time has

10 passed for confidentiality, and with due respect, it would be a little

11 overextending jurisdiction of the Trial Judge upon this Chamber of the

12 Confirming Judge. Thank you.

13 JUDGE MAY: We'll consider that.

14 Mr. Greaves, did you want to say something?

15 MR. GREAVES: Your Honour, at one stage I had an urge to say

16 something, but I am now repented of it, and I'm sure everybody is grateful

17 for that.

18 JUDGE MAY: Well, the suggestion is we have all seven names on so

19 anybody can identify any other accused. If that's the wish of counsel, it

20 seems to me unobjectionable, and we'll go on going on with the original

21 indictment, then.

22 I think now that really does conclude all matters which we have to

23 deal with in open session except for this, that I make this announcement

24 now so that it's plain, that Judge Bennouna will be presiding over the

25 trial.

1 Now, that leaves some matters which it may be better that are

2 dealt with in private session. If we could go into private session.

3 [Private session]

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 --- Whereupon the Status Conference

24 adjourned at 5 p.m.

25