International Criminal Tribunal for the Former Yugoslavia

Page 1381

1 Friday, 5 October 2001

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 4.05 p.m.

5 JUDGE RODRIGUES: [Interpretation] We have now finished with the

6 pleas of the accused, so I think that we should now have a very brief

7 Status Conference.

8 The first thing that I should say, for the benefit of Mr. Lukic,

9 is that the time limit of 15 days that you have requested starts as of

10 today. Thank you very much for this gift in terms of time limits.

11 Now let us see how we stand in terms of housekeeping matters and

12 practical issues. I don't know whether my colleagues wish to have a break

13 at this point? No. I think would can, therefore, continue.

14 Ms. Somers has informed the Chamber that discovery process has

15 been going on and that it has not been affected by the motion to amend the

16 indictment in any way. So I should perhaps give her the floor so that we

17 can see where we stand regarding the preparation of the case, and perhaps

18 optimistically - although I want a realistic answer - whether she can tell

19 us if we are able to finish this preparatory phase of the proceedings

20 before the 16th of November. So two questions: how we stand, and whether

21 the pre-trial phase is likely to be completed before the 16th of

22 November.

23 MS. SOMERS: Thank you, Your Honour. The Prosecution's

24 obligations pursuant to Rule 66(A) are complete. The Prosecution has

25 undertaken to provide in advance of any initiative by the Defence a number

Page 1382

1 of the documentary exhibits which it will seek to use in the course of the

2 Prosecution's case, and we are continuously, or continually, sending these

3 out as - well, of course, translations are not necessarily required now -

4 so as we have them ready.

5 The issue that may have some impact upon whether or not we could

6 meet the Chamber's hopeful deadline would include some matters such as

7 adjudicated facts. Mr. Lukic and I have spoken about this. We are hoping

8 to meet hopefully within the next two weeks, depending also on his

9 staffing situation - he has indicated to the Chamber he has some concerns,

10 and he has shared those with me - his staff and my staff, to iron out a

11 number of adjudicated facts of which this Chamber or its successor

12 Chamber, but hopefully this Chamber may take judicial notice to avoid

13 bringing back a parade of witnesses for both historical background facts

14 as well as perhaps even some of the other factual issues that have arisen

15 in the course of both the Kvocka-Omarska, and Sikirica-Keraterm cases, as

16 well as Tadic.

17 I am optimistic that although this is a political leadership case

18 and a heavy document case, that we can find agreement on a number of these

19 points as it is, in my view, in the interests of all parties not to have

20 to waste the Chamber's time with quite a bit of live testimony.

21 We have discussed numbers of witnesses more or less in the

22 preliminary phase, and we are moving ahead toward a 65 ter-type of

23 status. Both my learned friend opposite and I have sought at this point

24 to request - although he has a bit of time, I must make the initial

25 request - for a variance on page numbers for this pre-trial brief because

Page 1383

1 of the need to explain a number of the points which will come out in

2 documents which we believe is in the interests of the Chamber to have

3 right up front rather than have to seek additional or collateral

4 information. It would, I think, help to have it explained in the course

5 of our case.

6 So rather than both of us having asked, we will be asking

7 verbally, and if the Chamber wishes, we can do so in writing for an

8 additional maximum 50 pages, maximum total 100, exclusive of any annexes

9 which we may find helpful to the Chamber.

10 The processes leading to the dates -- I'm a little bit unable to

11 estimate time for, if -- if we knew, for example, approximate dates that

12 were in mind for a trial, I think we might be able to give a better

13 estimation. Both counsel and I have discussed our hope that this trial

14 may start after the first quarter of the year so that as many issues as

15 can be stipulated to or better identified are done so. Again, as a

16 document case, in my view, it probably would run more smoothly. Although

17 it seems that asking for more time might be an inconvenience

18 administratively, it is our belief in good faith in the long run it will

19 save time.

20 If the Chamber could assist both of us in perhaps knowing from the

21 time of receipt of the 72 motions, I believe we would have, if I'm

22 correct - I'll ask my colleague - seven days in which to respond, and

23 depending on -- I know this is a heavily burdened Chamber now, there are a

24 number of matters pending, but if this Chamber were able to resolve issues

25 raised by 72, and allow us to move quickly enough, bearing in mind its

Page 1384

1 heavy burdens and obligations, we would try then, with no interruption, to

2 move on to the next phase. The Chamber would designate to us its

3 timetable, as is permitted in the Rules. So we offer and we pledge our

4 full cooperation, mindful of the fact that we are trying to -- not to

5 start, if possible, any earlier than the end of the first quarter of next

6 year, if this is -- if this can be accommodated.

7 We have discussed, again, rough witness numbers. We have

8 discussed the desire, where appropriate, to use 92 bis, where

9 appropriate. We have discussed ruling out certain matters provided for in

10 the Rules, such as deposition. We do not find it particularly

11 advantageous on time. We think that perhaps the mechanism of the

12 judicially noticed facts will speed along. Those, of course, must be

13 looked at very carefully. Some of the matters which were perhaps easier

14 to address in a case such as the Omarska case may be more difficult in a

15 political leadership case; however, we are fully prepared to work on the

16 mutually-arrived-at, guided-by-the-Chamber timetable.

17 JUDGE RODRIGUES: [Interpretation] Yes. Thank you, Ms. Susan

18 Somers. I am going to hear Mr. Lukic and then put forward some of my own

19 ideas.

20 Mr. Lukic, let's hear how things stand, or do you have any

21 comments to make in response to what Ms. Somers has just said? And

22 perhaps we can take the second point first. If you don't want to respond,

23 that's fine. Are you going to make any preliminary motions and, if so,

24 which? But as I say, if you don't wish to respond, that's all right as

25 well.

Page 1385

1 MR. LUKIC: Your Honours, I can respond. We are making two

2 preliminary motions. One is a motion objecting to the form of the

3 indictment; and one more. And my learned colleague correctly explained to

4 this Chamber all aspects we discussed among each other, and I don't think

5 that it's necessary to explain anything more. Only I want to explain my

6 part, why I ask for this trial not to begin at least before the second

7 quarter of the next year.

8 I know that this is not the question which should be raised in

9 front of this Trial Chamber, but only two days ago, I had only one

10 investigator, and that's my team. So I have some problems with the

11 Registrar composing my Defence team, and I cannot promise that we can - if

12 we work in this pace - that we can be very efficient. So I think that I

13 need at least three or even four investigators and that I need a

14 co-counsel, even in this phase. So I think that from my stand, it's very

15 optimistic that this Defence team will be ready for trial before the

16 second quarter of next year.

17 JUDGE RODRIGUES: [Interpretation] Very well, Mr. Lukic. Thank

18 you. I think that the new rules of the Registry and Registrar with

19 respect to appointment of counsel will perhaps allow you to have your team

20 as soon as possible, because it is quite clear to us all that the

21 pre-trial stage must be got through as soon as possible.

22 I think we have a new philosophy now, not to prolong the pre-trial

23 phase. But with the ad litem Judges, we have changed our way of thinking;

24 that is, to get through the pre-trial proceedings as soon as possible and

25 not to go into it for days and days and months and months in preparation

Page 1386

1 of a case, in getting it trial-ready. We have to finish this -- these

2 pre-trial proceedings as soon as possible and become trial-ready as soon

3 as possible and to tap all the necessary human resources towards that

4 end. So I think that you might just be getting some good news very soon.

5 Another point that I wanted to make is the following: When I

6 talked to and asked whether it was optimistic to set the 16th of November

7 as a deadline date for the pre-trial matters, it was with a view to the

8 trial. But I'm asking you for a realistic date as well, optimistic and

9 realistic.

10 I wanted this date to be the end of the date for the pre-trial

11 phase, but according to this Chamber and its schedule, it should be

12 trial-ready towards February next.

13 So what I can tell you here and now is that we're going to wait

14 for the preliminary motions to be filed by the Defence and then we can

15 make up an agenda, calendar, for our work, to work towards the deadlines.

16 And I'm telling the Prosecution and the Defence now that the Chamber,

17 Trial Chamber, is ready for a fixed date for the trial to go ahead.

18 I think that the Prosecution should make an effort to stabilise

19 the indictment. And when I use this term, what I want to say is that the

20 accused -- that the indictment must be our instrument of work. That is my

21 personal opinion, and I'm speaking in my own name. Otherwise, we won't be

22 able to programme Status Conferences.

23 So the Tribunal must enter into a stage when our work will have to

24 be programmed with Status Conferences, and we can't do that unless we keep

25 having amendments and corrigendums and so on and so forth. So I think we

Page 1387

1 must focus on that point and organise our work accordingly.

2 As you know, the Tribunal is going to go ahead with six trials a

3 day simultaneously, so we cannot make mistakes in programming and

4 organisation. We have to programme and we have an organise. And having

5 said this, we have to fix a calendar as soon as we see the preliminary

6 motions filed by the Defence. And as the Pre-Trial Judge, I will set the

7 a calendar, working calendar together with you. But the calendar is an

8 instrument, a tool for working, a tool to reach a certain target. Which

9 target? Let me give you two or three ideas which can facilitate your

10 ideas and which you should take note of when you're organising your work.

11 If we look at Article 65 bis, Rule 65 bis, you will see that there

12 is a plan of work contained in that Rule, in Rule 65 bis, and the first

13 thing that the parties must do in accordance with that Rule is to discuss

14 between themselves, to organise exchanges between the parties so as to see

15 whether they are in agreement as to facts and law. And in keeping with

16 everything that Ms. Susan Somers said a moment ago, we must also take that

17 into account, the possibility of having agreement, accord, and judicial

18 notice of facts which have already been adjudicated.

19 So that is why I say "law" as well, because it is only after

20 having gone through this process of agreement and accord and seeing what

21 we disagree on will you have identified the object of the process in trial

22 itself. And with that stage in mind, you will be able to know what

23 evidence and proof you require in order to prove your case, that is to

24 say, to achieve the object of the trial, which witnesses you need, the

25 witnesses that are coming to come to the courtroom to testify, the

Page 1388












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13 English transcripts.













Page 1389

1 witnesses who will have -- deposition witness following Rule 71 and

2 92 bis, and, finally, expert witnesses as well. But I'm going to discuss

3 those under another category.

4 And when we bring up the subject of witnesses, you must know which

5 witnesses for which counts, which charges that are made, and how much time

6 you estimate, how much time these will also take.

7 When you do that, you come to another category of evidence and

8 proof, and that is documents. And I would like to include into that

9 category expert witnesses, because we're dealing with their reports as

10 part of those documents. So whether it be Mr. Lukic or Mrs. Susan

11 Somers - and I know they have had experience with this - we can present a

12 report compiled by an expert witness. But if the other side, opposite

13 party, does not accept that report, then they can call a second expert

14 witness and a second -- that is to say, a second expert report. You know

15 that these people, these professionals have schedules and are very often

16 occupied elsewhere, so the reports are a good idea.

17 Once you have the evidence and proof at this stage of the

18 proceedings, what you have to do is to organise and plan for the opening

19 of trial, and the Defence will be ready to state what the nature of its

20 defence will, in fact, be and where the disagreements lie, where they do

21 not agree with respect to law and facts.

22 Therefore, the whole process has been sketched out, and then we

23 can say that the trial go ahead on date "X" and it will end on date "Y,"

24 and it will be possible to envisage a calendar for the presentation of

25 evidence and proof on the counts, and we will have an idea of how long the

Page 1390

1 entire process will last, the Defence case and the Prosecution case. And

2 we will be able to do that once we enter the stage -- and we'll have to do

3 this with the Tribunal entering a phase where it will have six trials a

4 day. So we will have to take into account the programme not as an

5 objective but as an instrument, a tool for our work. But in order to do

6 so, we shall have to respect it as much as possible.

7 Although I know that programmes can always be modified and will

8 have to be here and there, but if the parties work on the basis of those

9 guidelines, I think we will achieve our target.

10 So these are guidelines on my part, but I do think that you ought

11 to focus on your agreements and your disagreements, on where you agree to

12 the facts and the law and where you do not agree and the witnesses you

13 need to prove your points. I think that is logical.

14 And another guideline that I wish to put forward -- perhaps that

15 more for Mr. Lukic's benefit, but I think that you must be aware of this:

16 As you know, in the civil law system, the instruction phase, pre-trial

17 phase is investigation, the Prosecution case and the Defence case. We,

18 too, have different stages, but parties are quite autonomous as to how

19 they build their case. That is to say, the Prosecutor will present their

20 evidence, and that evidence will be cross-examined by the Defence. Then

21 we open a second stage where the Defence presents its case with its

22 evidence and the Prosecution has the right to cross-examine.

23 I'm saying this because very often, I do understand, that the

24 Defence is very anxious when the Prosecution case is being presented

25 because it wishes to step into the Defence stage straight away. So I

Page 1391

1 wanted to clarify this. And to do so, let me repeat once again, because

2 this is an important point for to you understand, the first thing that you

3 must do, your first preoccupation, your priority in your exchanges now, is

4 not the number of witnesses or how many witnesses you're going to have,

5 but you should focus on agreement on facts and law, in order to find - and

6 I insist upon this - agreement on your points of disagreement, so as to

7 define the object and target of the entire proceedings.

8 Those, then, are some guidelines for you for the Status Conference

9 and pre-trial stage. So once we have the preliminary motions filed, we

10 will hold a Status Conference to operationalise what we have been talking

11 about. We all know each other, I think, and the floor is always open for

12 discussion. You have your legal officers who can act as liaison officers,

13 and I'm always ready to receive you in my own offices, in chambers, to

14 discuss any points you need to discuss.

15 So please don't go into the stage of evidence and proof before you

16 have gone into agreement and accord on your disagreements and disaccords,

17 and I think that follows on from the logic of Rule 65 bis. So a plan of

18 work is easy to devise and compile on the basis of Rule 65 bis.

19 So I will leave you now, having given you those guidelines. But

20 before we do so, I'm going to give you the opportunity to take the floor

21 once more before I adjourn the meeting, to see if there are any practical

22 matters which you wish to attend to.

23 Ms. Susan Somers, what about you?

24 MS. SOMERS: Thank you, Your Honour. I would like to inform the

25 Chamber that Mr. Lukic and I are working now on a draft

Page 1392

1 protective-measures motion. I think I may have alluded to it earlier.

2 That will be important because it will allow us to then remove or go past

3 some of the typical redactions that I have spoken of earlier, and it will

4 make it easier, I think, for preparation. Again, just as a reminder for

5 the record, there is no new supporting material, so anything that comes

6 out now will be toward the core of the case.

7 And other than that, no. I very much appreciate the guidance the

8 Chamber has given us.

9 I do ask for clarification on the expert issue. When the Chamber

10 said if there is a desire to cross-examine or we don't accept an expert,

11 we can call another, is this in the same spirit as was done in Omarska

12 where there was an expert, Kecmanovic, and rather than cross-examining, we

13 presented a refutation, we refuted through our own expert? Is this the

14 same type of scenario which the Chamber is envisioning? Thank you.

15 JUDGE RODRIGUES: [Interpretation] Yes. That was -- that is what I

16 was thinking of precisely. In Omarska, I think we had a mixture. We had

17 expert witnesses and you had 20 minutes to cross-examine, because you

18 didn't accept some of the reasons. But I think in other cases, at least

19 we had instances where the party that did not accept the -- a report made,

20 a counter-report, a report by another expert to counterbalance the first

21 one. And the Trial Chamber and the Judges are experts above experts, so

22 it is up to the Chamber to decide and to see what weight they hold.

23 Mr. Lukic, how about you? Would you like to take the floor?

24 MR. LUKIC: Your Honours, I know that I should organise my

25 witnesses, my number of witnesses, my documents, but as I told you, I

Page 1393

1 really don't know yet how many witnesses, I don't know yet how many

2 documents, because I was working by myself on legal issues and I had only

3 one investigator to go around, search, investigate. So I really hope that

4 I will get a chance to get more investigators and to get one co-counsel.

5 So when I know exactly how many documents and how many witnesses, I will

6 be able to organise them, and that's why I really don't want to delay. I

7 just want to organise. And that's why I estimated that I cannot begin

8 before the second quarter of the next year. That's all really as

9 explanation or as excuse, but that's how things stand now. Thanks.

10 JUDGE RODRIGUES: [Interpretation] Mr. Lukic, I have to tell you

11 that you're going to have to anticipate a date like this kind because

12 according to our work plan, we will have to complete the preliminary stage

13 and be trial-ready towards February. But in any case, I think that the

14 Registrar will take note of what you have said so that you will be given

15 the human resources that you are in need of.

16 And, Mr. Lukic, following from what I have said, I think it is

17 quite possible as of now, and before you are assigned a co-counsel and a

18 complete team, that you can sit down in pleasant surroundings with

19 Ms. Susan Somers, for example, to look at the practical exercise of

20 reading the indictment itself and to be able to see, "Well, I agree here

21 and don't agree there. I reject this completely," and so on, or, "That

22 paragraph is acceptable but not the other one," things like that.

23 Bearing in mind that the important thing is, for you especially -

24 and of course it's up to you to do your work - but to see your client's

25 liability and responsibility with respect to the facts that are already

Page 1394

1 known by the Tribunal and decisions that have been taken and in concrete

2 terms, I think that it would be a good idea if you sit down to the

3 negotiating table with the Prosecution and go into this exercise, which I

4 think is a very useful one, to go through the indictment, to read it

5 together, and to see how you stand, whether you agree or, at least to

6 disagree -- or to agree on what you disagree on. It's too early - it's

7 early days yet, Mr. Lukic - to be thinking of the number of witnesses.

8 Let's take first things first. First of all, see what you do not

9 agree with and then turn your mind to witnesses. But as I say, this is

10 just a suggestion on my part as a Pre-Trial Judge, for me to structurise

11 your meetings, to meet. To have something to drink is one thing, but to

12 have a working meeting is another, and if you're going to have a working

13 meeting, you must have an objective, a goal, and the goal that I'm giving

14 you is to know first and foremost what the areas of law and fact are upon

15 which you can agree. If you come to the conclusion that you don't have an

16 agreement, then that also tells us where we stand and what we have to

17 discuss.

18 Very well. Having said that, thank you.

19 I now turn to Dr. Stakic. Dr. Stakic, please stand.

20 [The accused stands up]

21 JUDGE RODRIGUES: [Interpretation] I would like to give you an

22 opportunity of giving you the floor. Would you like to say anything with

23 respect to your conditions of detention and health? Is everything all

24 right? Or do you have any questions you wish to raise, or problems?

25 THE ACCUSED: [Interpretation] Thank you, Your Honour, for

Page 1395

1 inquiring. I can say that I feel fairly well at the moment, and that I do

2 not have anything special to bring up.

3 JUDGE RODRIGUES: [Interpretation] Very well. Please sit,

4 Dr. Stakic. As you can see, we are doing our utmost to get the

5 proceedings trial-ready as soon as possible and go ahead with your trial.

6 The Prosecution, the Defence, and everybody else concerned will do their

7 best to ensure that that happens.

8 I don't think we have any other matters to attend to today. I

9 wish you a pleasant evening and every success in your work, and I adjourn

10 the meeting.

11 --- Whereupon the Status Conference adjourned

12 at 4.40 p.m.