Tribunal Criminal Tribunal for the Former Yugoslavia

Page 423

1 Wednesday, 22 November 2000

2 [Open session]

3 [Status Conference]

4 [The accused entered court]

5 --- Upon commencing at 2.35 p.m.

6 JUDGE MAY: Yes, let the Registrar call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. Case number

8 IT-95-8-PT. The Prosecutor versus Dusko Sikirica, Dragan Kolundzija, and

9 Damir Dosen.

10 JUDGE MAY: Appearances, please.

11 MR. RYNEVELD: If it please the Court, Dirk Ryneveld, along with

12 my co-counsel Daryl Mundis, for the Prosecution. Prepared to proceed.

13 JUDGE MAY: For the Defence.

14 MR. LONDROVIC: [Interpretation] Your Honours, my name is Veselih

15 Londrovic and I am representing Dusko Sikirica in this case, together with

16 my learned colleague Mr. Michael Greaves, who is also representing Dusko

17 Sikirica in this case.

18 MR. PETROVIC: [Interpretation] Your Honours, my name is Vladimir

19 Petrovic, I am a lawyer from Belgrade, and I am representing the interests

20 of the accused Damir Dosen.

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

22 Kolundzija.

23 JUDGE MAY: Thank you. The first matter that I have to deal with

24 is this: The trial was listed for the 22nd of January. The Trial

25 Chamber, for organisational reasons, can no longer hear the case on that

Page 424

1 date. We cannot give you another date, but I hope it will be early in

2 March. That means this: That what had been listed as a pre-trial

3 conference inevitably cannot be one because another conference will be

4 required before the date of trial. The position is this, that we will fix

5 another date before the end of this hearing.

6 But there are matters which we can usefully deal with today to get

7 the trial as ready as can be before trial. We have received the various

8 briefs. We have also received the indictment. I mean the attachments to

9 the indictment and an amended draft to that. It may be convenient to

10 start with any matters connected with the indictment.

11 Mr. Ryneveld, you've produced your attachment, as I say, and we've

12 had today an amendment to it or an addition to it. As far as you're

13 concerned, is the matter ready for trial as far as the indictment goes?

14 MR. RYNEVELD: Subject to this Trial Chamber's ruling on my

15 friend's motion and our response and, as you know, we have just today

16 filed a document which sets out the, shall we say, the culmination of what

17 occurred on the 23rd of June when counsel orally indicated that there

18 would be a modification to the indictment. We have set all that out and I

19 have had discussions with my learned friend for Mr. Dosen and, as I

20 understand it, he is content with the proposed amendment that we have

21 proposed, or the amendment to the attachment.

22 So to indicate to Your Honours directly, the answer is yes but for

23 one issue. My friend has already raised with me that in paragraph 42 of

24 the indictment against all seven, i.e., the indictment upon which we

25 agreed last day that we would be proceeding, there is also reference in

Page 425

1 that paragraph 42 on page 12, reference to including the acts described in

2 paragraphs 43 to 50 below.

3 Now, you will note that in our response motion seeking leave to

4 amend the attachment today, we have referred to paragraph 45 only as it

5 relates to Mr. Dosen with regard to what is contained in paragraph 39 of

6 the indictment. We did not make an application to amend the attachment or

7 the indictment in regard to paragraph 42 because it charges all the other

8 accused that are listed there.

9 What we do want to indicate for the record, and I understand my

10 friend is content with this, we want to say for the record that as it

11 concerns Damir Dosen, the Prosecution is alleging only those acts under

12 paragraph 42 described in paragraph 45, not 43 to 50 below. With respect

13 to the others, i.e., Sikirica, Fustar, and Kolundzija, the paragraphs

14 43 to 50 apply.

15 JUDGE MAY: Very well. Anything the Defence want to say about

16 that, that matter having been clarified?

17 MR. PETROVIC: [Interpretation] Your Honours, I'm satisfied with

18 the submission that has been made by my learned colleague from the

19 Prosecution, and the problem which was raised some time ago in my motion

20 has been completely solved.

21 [Trial Chamber confers]

22 JUDGE MAY: Turning to the pre-trial briefs which have been

23 submitted and the Defence of Mr. Sikirica, there is a reference to a

24 notice of alibi to be produced by Mr. Sikirica. Is that still relied on

25 and, if so, when is the notice to be produced? We may have to make a

Page 426

1 ruling as far as that's concerned.

2 MR. GREAVES: The answer to Your Honour's first question is yes,

3 and as soon as possible, although at the present time I don't know

4 precisely when we can produce such a document. I'm sorry to be a bit

5 vague at this stage.

6 JUDGE MAY: Yes. 1st of February we have in mind.

7 MR. GREAVES: Your Honour, yes.

8 JUDGE MAY: To concentrate minds. And the Prosecution should have

9 the information in time to make inquiries, if they want, before trial.

10 MR. GREAVES: Thank you very much, Your Honour.

11 JUDGE MAY: As far as the brief for Mr. Kolundzija is concerned,

12 there's reference at one stage to diminished responsibility under notice.

13 Mr. Vucicevic, is diminished responsibility still to be relied on

14 or not? If it is, we'll have to have a notice in relation to it.

15 MR. VUCICEVIC: Yes, Your Honour. It will be relied on.

16 JUDGE MAY: All right. Any reason why we shouldn't have a notice

17 in relation to it?

18 MR. VUCICEVIC: Your Honour, I believe I have given the notice of

19 the alibi -- of the diminished mental capacity of the accused shortly

20 after he was examined by a psychiatrist.

21 JUDGE MAY: Very well.

22 MR. VUCICEVIC: I believe that was filed with the Registry.

23 JUDGE MAY: I'm told it has been, so there's no difficulty about

24 that. Thank you.

25 Turning to the witnesses. Mr. Ryneveld, have we got a definitive

Page 427

1 list of witnesses now on whom you're going to rely?

2 MR. RYNEVELD: Yes. It's our position that we do. Both contained

3 in our 65 ter witness list and in our subsequent motion for additional

4 protected measures we have listed, that is the box, as it were, containing

5 the entire list of witnesses of which we are aware at the moment, and that

6 is the list that has been suggested and that is the list that we'll be

7 proceeding with.

8 JUDGE MAY: And as far as timing is concerned, we would encourage

9 you not to call a great deal of oral evidence about background events and

10 try to deal with those as much as possible by way of written documents and

11 other statements, any other form of evidence, at least to be considered as

12 a way of producing the background, and concentrate on the core issues,

13 which is, of course, the culpability of the accused.

14 MR. RYNEVELD: That is our intention, yes, Your Honour. Leading

15 to another issue about admissions, hopefully, we have been trying to

16 attend to some of those matters with my friends. Unfortunately, to date

17 we have not been particularly successful in hammering out any additional

18 admissions. Part of the difficulty is it takes three counsel and the

19 Prosecution to agree on all matters, otherwise, we still have to lead

20 evidence where one of the counsel do not agree. So --

21 JUDGE MAY: You are all here today.

22 MR. RYNEVELD: We met yesterday.

23 JUDGE MAY: You met yesterday.

24 MR. RYNEVELD: We've had correspondence. We've had previous

25 meetings. It is not for a lack of attempt.

Page 428

1 JUDGE MAY: No, I'm sure that's right, but there is the

2 opportunity which these conferences provide.

3 MR. RYNEVELD: Absolutely.

4 JUDGE MAY: Is it proposed that you should meet again to try to

5 agree on some facts?

6 MR. RYNEVELD: I would encourage my friends to meet with us yet

7 again to see whether perhaps once we are able to distill what is contained

8 in those pre-trial briefs, for example, that there may be some common

9 ground.

10 JUDGE MAY: Well, of course, we would say to the Defence that we

11 encourage you to meet with the Prosecution and secure common ground. It

12 is pointless to have a trial which is going to be over matters which, in

13 the event, turn out not to be in dispute. And it's really the duty of

14 counsel to try to achieve areas of common ground before the trial begins.

15 In this case, there will be an extra six weeks or so in which to do it.

16 Mr. Ryneveld, as far as the witnesses are concerned, it's been

17 noted that at least two of them, Mr. Vulliamy and a Mr. Selak have given

18 evidence in other cases. Is there any reason why transcripts should not

19 be served in their case and used?

20 MR. RYNEVELD: In fact, Your Honour, we are contemplating doing

21 that with respect to as many witnesses as possible and not necessarily

22 only Mr. Vulliamy or Osman Selak. Witness Greve is, perhaps, also a

23 candidate, having testified before.

24 JUDGE MAY: Yes.

25 MR. RYNEVELD: There are perhaps others. There are other

Page 429

1 witnesses who have testified in other proceedings, transcripts have been

2 provided, and those are among those areas where I'm hoping to find some

3 fertile ground for shortening the proceedings in consultation with my

4 learned friends.

5 JUDGE MAY: Well, that matter should be expedited for this reason,

6 that if the transcripts cannot be agreed and there are issues to be

7 decided, then the Trial Chamber should decide them, if necessary, and if

8 possible, before the trial so that it's known whether it's necessary to

9 call the witnesses or not.

10 There's no reason why the Trial Chamber shouldn't, at an

11 appropriate time, decide on the admissibility of the transcripts. We now

12 have experience, of course, of dealing with that and it's been dealt with

13 in a number of cases. While you are on your feet, the issue of experts

14 arises to deal with exhumations and the like. Are you proposing to call

15 experts of that sort?

16 MR. RYNEVELD: We do have some experts on our list with respect to

17 exhumations and, again, that is another area which we have tried to seek

18 some unanimity. Again, I'm not ruling out the possibility that that might

19 not be dealt with by agreement.

20 JUDGE MAY: Isn't that a matter for agreement? Presumably the

21 issue is it may well be the numbers involved in these various graves. I

22 don't know whether identity could possibly be an issue or not but it would

23 seem to be an area where much evidence is not necessary, particularly

24 repetitious evidence.

25 Turning to the Defence, first of all, the issue of transcripts is

Page 430

1 one which, if possible, you should look at to see if it's possible to have

2 transcripts read. If it's not, we will rule on whether the transcripts

3 should be admitted or not. I can tell you now that what we look at is to

4 see what the issues raised are, that is, whether cross-examination in this

5 particular case of the witness is necessary for any reason as opposed to

6 the cross-examination which occurred in the earlier case which may well

7 have covered all the relevant issues.

8 In particular, if there is evidence about one of the accused which

9 it's proposed to give by way of transcript, we would look at that very

10 closely to see whether cross-examination is necessary or not. But if it's

11 dealing with background issues, matters of that sort, why, then we may

12 well be inclined to admit a transcript. So it would be very much, if you

13 are considering this, it would be very much the nature of the evidence as

14 opposed to whether there is some general principle of giving evidence

15 orally or not.

16 Likewise, as far as the exhumation evidence is concerned and the

17 evidence of any experts, that would appear to be a matter which is really

18 susceptible of agreement between the parties without a great deal of

19 evidence being given about it. I hope it will be possible to reach

20 agreement.

21 We have to consider the question of time. It's a matter which has

22 been discussed and the Prosecution, I think, have indicated a preference

23 for a limitation by way of time as opposed to a limitation by way of a

24 number of witnesses. That is something which we, at the moment, wouldn't

25 decide on, but given the pressures that there are on the Tribunal in terms

Page 431

1 of time in which cases are taking, we would be keen to be looking at that

2 possibility and maybe setting a time limit.

3 Could I turn next -- we can return to any other matters anybody

4 wants to raise, but I am dealing with some matters generally. The

5 question of exhibits. As far as I understand the position, the

6 Prosecution have not yet filed a list of the exhibits, or am I wrong about

7 that?

8 MR. RYNEVELD: My recollection, Your Honour, is that we have had

9 three binders --

10 JUDGE MAY: Yes.

11 MR. RYNEVELD: -- of documents already admitted on a previous

12 motion.

13 JUDGE MAY: Yes.

14 MR. RYNEVELD: And we have outstanding before you an application

15 for admission of two more binders under additional requests for admission

16 of documentary evidence, which we filed on the 13th.

17 JUDGE MAY: And that's it.

18 MR. RYNEVELD: That's it. My understanding is that my learned

19 friends, and I think -- at least, I'm not sure whether all of them, but we

20 did have a discussion about this and my understanding was that they took

21 no objection to those additional matters also being filed on the same

22 basis as the others were; that if -- that they wouldn't contest the issue

23 of authenticity or admissibility, but if there was a particular challenge

24 to a document, it would be dealt with during -- during the course of the

25 trial.

Page 432

1 JUDGE MAY: Yes.

2 MR. RYNEVELD: But I don't think -- I know that my learned friends

3 Londrovic and Mr. Petrovic had that discussion with us. Mr. Vucicevic was

4 ill at the time so this is something I haven't been able to address with

5 him.

6 JUDGE MAY: Perhaps the convenient way is, rather than discussing

7 it here, is if Mr. Vucicevic and yourself could meet to discuss that

8 matter.

9 MR. RYNEVELD: Yes. That's it with respect to exhibits. This is

10 not the kind of case where, other than the documents that we've now in, a

11 complete set of five binders, three already in and two pending. We don't

12 anticipate any further exhibits.

13 JUDGE MAY: Well, the final matter I want to raise is the matter

14 of outstanding motions, and we have a motion from Mr. Vucicevic in

15 relation to the disclosure of materials by the United Nations. You ask

16 for a subpoena directed to them.

17 Have you, Mr. Vucicevic, approached the United Nations to see if

18 they would give you the documents?

19 MR. VUCICEVIC: Your Honour, I thought that would be a futile step

20 because in June of 1998, when I cross-examined Witness Greve, that I

21 included the transcript of that colloquy, she had difficulties, having

22 been an expert that suggested establishment, empowerment of this Court,

23 she had extreme difficulty in obtaining the names of the officers in their

24 location. With that in mind, Your Honour, I thought the only purview

25 would be to get a subpoena from this body to pursue this matter.

Page 433

1 I understand it was your directions to Defence counsel when we

2 faced the decision on the similar motion in May of 1998, prior -- in

3 Kovacevic's pre-trial, but I believe that was cleared up by Witness

4 Greve's detailed explanation on how she couldn't get those documents, how

5 she couldn't get the names of the officers, how she couldn't get any

6 cooperation from the military -- office of the military observers.

7 JUDGE MAY: Mr. Vucicevic, we have other experience, not in this

8 case but in other cases, and in any event, the procedure is to ask the

9 body that you want the documents from to see what sort of a response you

10 get.

11 Now, our order is then that you ask -- make a request of the

12 United Nations for the documents, specifying what documents you want. If

13 the response is not satisfactory to you, then you could raise the matter

14 with us again and at least we'll know what the response of the United

15 Nations is and we can take the matter forward.

16 MR. VUCICEVIC: I do thank you for your recommendation and

17 basically the essence of the order, Your Honour, but the time constraints

18 that we are facing might preclude any meaningful result on this one. And

19 I have been dealing with the United Nations subsequently to the trial that

20 I mentioned already, on some other issues, and I have found an extremely

21 difficult time to get any responses or information from the body. So, you

22 know, it would be quite difficult even were to drag those questions

23 because that the office of the military observers in Bosnia has been

24 defunct now for four or five years. I thought that some recommendations

25 from the Court or directions from the Court would expedite the matter.

Page 434

1 JUDGE MAY: See how you get on and you can report back.

2 JUDGE BENNOUNA: [Interpretation] Mr. Ryneveld, I have a question

3 for you concerning the attachment that the Trial Chamber requested you to

4 submit with the indictment, the amended indictment.

5 As regards Mr. Sikirica, I should like to know the following: The

6 genocide charge against Mr. Sikirica, does it not have an impact onto

7 other accused in this case? You allege that their acts would constitute

8 genocide, for which Mr. Sikirica would be responsible in accordance with

9 the provision regarding the individual responsibility, Article 7(3) of the

10 Statute.

11 So I would like to know whether in the attachment that you have

12 submitted upon the request of the Chamber the fact of mentioning Mr. Dosen

13 and Mr. Kolundzija as co-perpetrators or accomplices, does that fact not

14 have an implication on the other accused regarding these particular

15 charges?

16 [Prosecution counsel confer]

17 MR. RYNEVELD: Sorry for the delay. I was just discussing with my

18 colleague.

19 As I understand Your Honour's question does it not impact, the

20 difficulty, as I understand it, is it is only Mr. Sikirica that is charged

21 with genocide and not the other two. You can have, as I understand it,

22 circumstances whereby his 7(3) responsibility includes the acts of others

23 who may not be necessarily charged with that conduct but he is being

24 charged with that conduct.

25 We have not, through our attachment, attempted to expand upon the

Page 435

1 charges against Dosen or Sikirica or others because it's Sikirica only

2 that stands charged with genocide.

3 I don't know whether I've answered your question how does it

4 impact. It is part of the overall narrative to explain how it is we say

5 that Mr. Sikirica's 7(3) responsibility for genocide is accomplished

6 through the means of others under his command but -- and although I

7 suppose in an academic or technical way had we chosen, we could have

8 chosen to charge others with genocide, but in this particular case it was

9 only Mr. Sikirica that is charged.

10 So the impact must be restricted by the charge itself and not the

11 evidentiary basis upon which others might be found connected.

12 That's my attempt at answering Your Honour's question.

13 JUDGE BENNOUNA: [Interpretation] Thank you, Mr. Ryneveld.

14 JUDGE MAY: I'm reminded that there is an outstanding motion for

15 protective measures filed by the Prosecution on the 10th of November to

16 which the Defence are due to reply by the 24th of November. At the

17 moment, I don't think there's any objection been raised.

18 Perhaps the Defence can assist us. If there is no objection to

19 this most, then it will be granted. Can you assist?

20 MR. GREAVES: Your Honour, we discussed this yesterday at the

21 meeting with the Prosecution. My learned friend Mr. Londrovic indicated

22 then that we had no objection to the order being made.

23 MR. PETROVIC: [Interpretation] Your Honours, I don't have anything

24 to add. This is our position as well. So we do not have any objection to

25 these motions.

Page 436

1 JUDGE MAY: Mr. Vucicevic?

2 MR. VUCICEVIC: No objection on behalf of Mr. Kolundzija, please.

3 JUDGE MAY: Thank you. Very well. Granted.

4 One final matter remains on this before we go into closed session,

5 unless the parties want to raise anything, but the question arises about

6 fixing another date for another conference.

7 Yes, Mr. Ryneveld.

8 MR. RYNEVELD: If this is our opportunity to raise other matters,

9 and I don't mean to be presumptuous, but we did have some discussions

10 about perhaps procedural matters which counsel had thought perhaps asking

11 for the Court's direction about concerning conduct of the trial itself.

12 One of those issues is -- has to do with the issue of witnesses who have

13 testified in other proceedings and the provision of that information to

14 Defence counsel for these accused in the most economical way rather than

15 send all these transcripts for translation purposes, we wondered whether

16 perhaps the Court might agree that a provision of a videotape in B/C/S or

17 an audiotape, as Mr. Londrovic would prefer, could be provided to them in

18 addition to the transcript, which is in English.

19 JUDGE MAY: Yes, we've done that in other cases.

20 MR. RYNEVELD: So on their behalf, I'm making that request. Thank

21 you. There are some other matters, procedural issues at trial. My

22 understanding of the jurisprudence in this particular jurisdiction is that

23 there is a practice that there will be no contact with the witness by any

24 counsel once they have basically taken the solemn declaration. There are,

25 from time to time, exceptions, urgent situations where counsel ask leave

Page 437

1 of the Court for permission for counsel to make that communication, and

2 usually that is done in the presence of other counsel. So in some exigent

3 circumstances, we wondered whether perhaps the Court might entertain the

4 possibility, or by agreement of counsel, for example, over a weekend. So

5 if all counsel agreed --

6 JUDGE MAY: Yes.

7 MR. RYNEVELD: These are just some things we were trying to iron

8 out in advance.

9 JUDGE MAY: Yes. The rule is there should be no contact.

10 Obviously, things arise which means that there has to be contact. If that

11 is the position, then the leave of the Trial Chamber which made the order

12 should be sought. In an extraordinary case where the Trial Chamber wasn't

13 sitting, then the matter -- and there was contact, the matter would have

14 to be brought to the attention of the Trial Chamber immediately.

15 MR. RYNEVELD: The final issue, I think, may have now been

16 rendered moot by virtue of the fact that you are discussing a different

17 trial date, but one of the issues that we did want to raise was perhaps a

18 sitting schedule so that we would be in contact with victim witness people

19 in preparation for January 22nd. But that has been rendered moot and

20 those are the issues I wanted to raise.

21 JUDGE MAY: As soon as there is a date, there would be a schedule

22 of the sitting and, in fact, what I would anticipate is that we would,

23 during the pre-trial conference, announce what the schedule will be.

24 Is there anything that Defence counsel want to raise?

25 MR. GREAVES: Yes. I confirm we had a conversation yesterday

Page 438

1 about contact with witnesses. Your Honour will know that in my

2 jurisdiction, as in Your Honour's jurisdiction, sometimes these matters

3 can be dealt with by agreement of counsel without reference to the Trial

4 Chamber or to the Trial Judge. I don't know whether Your Honour would

5 feel that it's appropriate to trust us to sort matters out as between

6 counsel if something arises. For example, the witness wants to do

7 something in particular which doesn't need to trouble the Trial Chamber, a

8 matter of -- that has to be dealt with between counsel but doesn't need to

9 be dealt with on the basis of assembling a full Trial Chamber.

10 JUDGE MAY: We are no longer in the jurisdiction with which we are

11 familiar.

12 MR. GREAVES: No, of course. But I'm just wondering whether -- it

13 may be that we can frame an order that gives us certain latitude that

14 doesn't necessarily have to involve Your Honours. That's what I'm trying

15 to do.

16 JUDGE MAY: If a formulation can be made which is satisfactory,

17 but remember that we are three, we are sitting as a Trial Chamber, and

18 therefore normally anything should come to us but, of course, we'll

19 consider a formulation before the trial begins.

20 MR. GREAVES: May I suggest then that, between Defence and

21 Prosecution, we can sit down and try to work out a sensible form of words

22 for presentation to the Trial Chamber and, if the Trial Chamber likes it,

23 it can adopt it or adapt it as it so chooses.

24 JUDGE MAY: Yes. If there are no other matters to be dealt with

25 in open court, it leaves the question of a date, and I'm going to ask for

Page 439

1 a calendar, please. Unless there are any submissions. Do counsel have

2 any submissions about a suitable date? As I say, we are looking to a

3 start date for the trial but it's not a matter that is within our hands at

4 the moment. But we are looking for one or anticipating one in early

5 March, if that's possible.

6 [Trial Chamber and legal officer confer]

7 JUDGE MAY: The convenient time which is suggested is Monday, the

8 5th of February at 9.30.

9 MR. RYNEVELD: For the pre-trial conference? I'm sorry, the 5th

10 of February --

11 JUDGE MAY: That is Monday, the 5th of February for the next

12 conference. Whether it's the pre-trial conference or not will depend

13 whether or not we can start the trial. Very well, we'll go into closed

14 session to deal with any other matters.

15 [Private session]

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2 --- Whereupon the Status Conference was adjourned

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