Tribunal Criminal Tribunal for the Former Yugoslavia

Page 310

1 Monday, 25th January, 1999

2 (Status Conference)

3 (Open session)

4 JUDGE SHAHABUDDEEN: Then we may regard the

5 appeal as ripe for hearing, and notwithstanding that we

6 are all still robed, we will proceed immediately to

7 regard ourselves as sitting in a Status Conference to

8 consider matters pertinent to the holding of a hearing

9 on the merits of the appeal.

10 I would suggest that there are two branches

11 of the matter to be considered: (1) the likely

12 duration of the appeal hearing; (2) the number of

13 rounds to be allocated to each side; (3) the duration

14 of each round; and (4) I think there is another point

15 about establishing the time period in the calendar for

16 the holding of the hearing. So I have passed beyond my

17 initial mention of two points. I think I have covered

18 four points.

19 Would counsel for the appellant like to speak

20 first?

21 MR. CLEGG: I would think that one week would

22 be more than sufficient to be able to dispose of the

23 appeal. It may well be that one wouldn't require a

24 fifth day, but I think, to be on the safe side, if a

25 week were set aside, it would be very comfortable.

Page 311

1 JUDGE SHAHABUDDEEN: We understand that some

2 of you gentlemen may have commitments, and I hasten to

3 emphasise, in case there is any doubt, that to the

4 extent possible, the Court would be glad to take

5 account of any commitments counsel at the bar may

6 have. There should be no question of that. On the

7 other hand, I do hope that counsel will appreciate that

8 the time constraints on the Court are enormous.

9 Now, we had in mind the week beginning 19th

10 of April. How does that respond to your situation?

11 MR. CLEGG: That would be a week that would

12 be convenient for me professionally.

13 JUDGE SHAHABUDDEEN: Convenient to you?

14 MR. CLEGG: Yes.

15 JUDGE SHAHABUDDEEN: What about the

16 Prosecution?

17 MR. KEEGAN: Yes, Your Honour. As far as I

18 know, Your Honour, I would be the only one who might

19 have a conflict with a trial, but certainly my other

20 colleagues would be more than able to carry on if I do

21 have a trial that week, but right now we have no firm

22 schedule in that case, so as far as we know, the dates

23 are fine.

24 JUDGE SHAHABUDDEEN: May I assume that you,

25 not being in a position to urge anything to the

Page 312

1 contrary, find the suggestion acceptable?

2 MR. KEEGAN: Yes, Your Honour.

3 JUDGE SHAHABUDDEEN: We will hold the hearing

4 during the week commencing the 19th of April.

5 What about the configuration of the hearing?

6 Should there be two rounds, three rounds, four rounds?

7 MR. CLEGG: I would have suggested

8 tentatively that the appeal would perhaps best be

9 heard, as it were, in two parts, and that the

10 appellant's appeal should be heard first, responded to,

11 and then with me having the right of reply; and then

12 beginning again with the respondent's appeal, my

13 submissions, and then a right of reply for the

14 respondent. So tentatively, I would suggest if we keep

15 the submissions in two discrete parts, it will avoid

16 confusion.

17 JUDGE SHAHABUDDEEN: I see that. That's very

18 attractive, Mr. Clegg. Do you think that there is a

19 risk of duplication in that methodology?

20 MR. CLEGG: Not if we do it that way, I don't

21 think there are. I don't think there is any risk.

22 JUDGE SHAHABUDDEEN: Counsel will bear in

23 mind things which have been said previously.

24 MR. CLEGG: We will bear in mind that the

25 Court only needs to hear something once.

Page 313

1 JUDGE SHAHABUDDEEN: The Prosecution nods in

2 agreement?

3 MR. KEEGAN: Yes, Your Honour. We were going

4 to suggest the same thing. Of course, there would be

5 three parts, the appeal on sentencing being the last

6 part. So we could deal with the appellant's appeal,

7 the cross appeal, and then sentencing as the final

8 matter.

9 JUDGE SHAHABUDDEEN: Why don't we try to

10 combine it this way: We hold one hearing in relation

11 to the appellant's appeal from conviction and the

12 Prosecution appeal from conviction; is that right?

13 Partly from?

14 MR. KEEGAN: Yes, Your Honour. Let me make

15 sure that I'm not confused.

16 JUDGE SHAHABUDDEEN: So I understand --

17 MR. KEEGAN: Deal with the appellant's appeal

18 in the first instance, their submissions, then our

19 submissions -- our response to their appeal.

20 JUDGE SHAHABUDDEEN: So we will hear those

21 two appeals together?

22 MR. KEEGAN: No, Your Honour, not our appeal,

23 just our response to their appeal issues.

24 JUDGE SHAHABUDDEEN: Then you will have to

25 have three appeals, three hearings.

Page 314

1 MR. CLEGG: Yes.

2 MR. KEEGAN: Well, three segments. We

3 believe they can all be dealt with in the same hearing,

4 that is, the same set of days that are structured, but

5 for logical purposes, we think that to deal with the

6 appellant's submissions, our response to that, then,

7 second, deal with our appeals issues as to --

8 JUDGE SHAHABUDDEEN: What does the note-taker

9 write on his record? Which case does he write on his

10 record?

11 MR. KEEGAN: It would be the same case and

12 the briefs are labelled as appellant's notice of

13 appeal, we are cross appellant, and it could be

14 referred to that way. So we would deal with

15 appellant's notice of appeal and our response to that,

16 similar to what we're dealing with today; then we would

17 deal with the cross appellant's notice --

18 JUDGE SHAHABUDDEEN: Then, finally, the

19 sentence appeal.

20 MR. KEEGAN: Then, finally, the sentencing

21 appeal.

22 JUDGE SHAHABUDDEEN: The document kept by the

23 recorder would state each appeal separately at

24 different stages; is that your vision of it,

25 Mr. Clegg?

Page 315

1 MR. CLEGG: Yes.

2 JUDGE SHAHABUDDEEN: We accept that format in

3 principle. I imagine we will all recognise a need to

4 refine it as we come to the batting crease; is that

5 right?

6 MR. KEEGAN: Yes, Your Honour. One point, if

7 I may, so that we can be sure: Is it now the case,

8 based on the ruling today, that the sole grounds of

9 appeal by the appellant are grounds 1 and 3 as stated

10 in the amended notice? That's all we're addressing

11 now?


13 MR. KEEGAN: Okay. Thank you, Your Honour.

14 JUDGE SHAHABUDDEEN: That is what is meant by

15 supersession, which I think was the root word used by

16 the appellant in the chapeau of his amended notice of

17 appeal; is that right, Mr. Clegg?

18 MR. CLEGG: It is.

19 JUDGE SHAHABUDDEEN: That what went before

20 goes through the window.

21 MR. KEEGAN: Yes, Your Honour. I just want

22 to make sure there's been some practice here --

23 JUDGE SHAHABUDDEEN: That helps you with your

24 problems about alleged defects?

25 MR. KEEGAN: Yes.

Page 316

1 MR. CLEGG: The window has had a fair bit

2 thrown through it already, but we were hoping to add to

3 that. There was originally drafted an appellant's

4 response to the respondent's appeal; in other words, it

5 was what the appellant was saying in relation to their

6 appeal against his acquittal in relation to a number of

7 charges. Again, I have refined, produced a new

8 document, which I know has been filed, and we would

9 seek to substitute that in preference to the rather

10 longer document that superseded it. I don't know if

11 Mr. Keegan has any objection to that.

12 MR. KEEGAN: Yes, Your Honour. We have

13 filed, of course, an objection to the submission of a

14 new pleading at this point again on the same basis, and

15 we are not in a position to say whether that, in

16 keeping with your decision of today, could merely be

17 supplanted for the prior submission, because, again,

18 without having an opportunity to look at the substance,

19 we don't know if we would, in fact, desire the right to

20 respond as is normally given. The time for filing of

21 appeal brief has long run, and absent a showing of the

22 necessity, we don't believe it should be accepted at

23 this late stage.

24 JUDGE SHAHABUDDEEN: On that matter, you are

25 referring here to the documents filed by the appellant

Page 317

1 I think on the 21st?

2 MR. KEEGAN: 19th of January, Your Honour.

3 JUDGE SHAHABUDDEEN: 19th of January, to

4 which you have made objection.

5 MR. KEEGAN: Correct, Your Honour.

6 JUDGE SHAHABUDDEEN: Well, the Chamber will

7 consider that, and if it has a decision to make, it

8 will make it in the usual way between now and the 19th

9 of April, in good time for anybody who is interested in

10 taking consequential measures.

11 MR. KEEGAN: Thank you, Your Honour.

12 JUDGE SHAHABUDDEEN: Have I overlooked some

13 matter which is of relevance and importance to the

14 proceedings?

15 I turn to my colleagues.

16 The bench is content, the bar is content, and

17 the proceedings are adjourned.

18 --- Whereupon proceedings adjourned at

19 1.15 p.m., to be reconvened on Monday,

20 the 19th day of April, 1999, at

21 10.00 a.m.