Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7

1 Friday, 28 July 2000

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.30 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: [Interpretation] Case number IT-94-2-PT, the

8 Prosecutor versus Dragan Nikolic.

9 JUDGE HUNT: We're very grateful to the technical area and to the

10 court reporter for managing to redo whatever they have to do so that we

11 can start as soon as possible after the previous hearing.

12 Appearances, please.

13 MR. RYNEVELD: If it please the Court. Dirk Ryneveld and Daryl

14 Mundis for the Prosecution.

15 JUDGE HUNT: Thank you.

16 For the accused.

17 MR. O'SULLIVAN: Eugene O'Sullivan appearing on behalf of

18 Mr. Nikolic. Your Honour, with your leave, can we be allowed to have our

19 interpreter, Ms. Mirkavic, present in the courtroom, should the need

20 arise.

21 JUDGE HUNT: Yes, certainly.

22 This is a Status Conference in accordance with Rule 65 bis --

23 First of all, I should ask: Mr. Nikolic, are you able to hear the

24 proceedings in a language which you understand?

25 [The accused stands]

Page 8

1 THE ACCUSED: [Interpretation] Yes.

2 JUDGE HUNT: Thank you very much. You may sit down.

3 [The accused sits down]

4 JUDGE HUNT: Mr. O'Sullivan, are there any matters in accordance

5 with the terms of the Rule that you wish to raise at this stage, that is,

6 in relation to your client's well-being?

7 MR. O'SULLIVAN: In that regard, Your Honour, I met with my client

8 prior to this hearing and he is experiencing some dental problems which

9 are being attended to in the Detention Unit. However, he informs me that

10 the problems affect his lower jaw and teeth, and, in effect, when he tries

11 to eat, it causes him discomfort, and he is anxious to ensure that he

12 receives the proper dental attention.

13 JUDGE HUNT: But you say they are being attended to.

14 MR. O'SULLIVAN: It's being attended to by a nurse who relays her

15 findings to a dentist. He has yet not seen a dentist and he is hopeful

16 that if the problem persists that he will, in fact, be visited by a

17 dentist.

18 JUDGE HUNT: My suggestion, as the first step to be taken, is to

19 put in a report to the commander or the commandant out at the Detention

20 Unit. That usually has some effect. If there is no action taken, then

21 your client should contact the Registrar who refers those matters to the

22 President. But hopefully he will get the dental treatment that he needs,

23 and as soon as it is possible. I rather suspect that the inmates of the

24 Detention Unit get faster dental treatment than most citizens who live in

25 the Netherlands, from my own experience anyway. Thank you.

Page 9

1 Anything else?

2 MR. O'SULLIVAN: Nothing else, Your Honour.

3 JUDGE HUNT: Thank you.

4 Now, in relation to the documents that we seem to run into every

5 time, Mr. Ryneveld, what is happening with the compliance with Rule

6 66(A)(i)?

7 MR. RYNEVELD: Yes, Your Honour. With respect to 66(A)(i), we

8 have provided, by consent with Defence counsel, Mr. Morrison, the, shall

9 we say, pre-Brdjanin disclosure --

10 JUDGE HUNT: You mean everything's been redacted.

11 MR. RYNEVELD: It has. Unfortunately that is the situation we

12 find ourselves in. But rather than wait to provide him with materials

13 while we are making contact with some 38 or more witnesses to find whether

14 or not the specifics of the protective measures that we will eventually

15 have to make an application before the Court, we thought -- and at the

16 Defence's request, we have provided them redacted materials in their

17 entirety. We appreciate the fact that the Brdjanin decision requires us

18 to make specific requests for protective measures with details. We are

19 unable at this time to make such a request because each of those 38 people

20 have to be contacted and details formulated.

21 That is the situation we're in.

22 JUDGE HUNT: Mr. Ryneveld, that wasn't required by the Brdjanin

23 decision, that's required by the Rules.

24 MR. RYNEVELD: I appreciate that.

25 JUDGE HUNT: It was simply that the Prosecution turned a blind eye

Page 10

1 to what the Rules said and adopted its own protective measures scheme

2 which had not been approved by anybody.

3 I noticed, by the way, in a note between counsel with which we've

4 been supplied that the Prosecution claims to have relied upon an earlier

5 protective order issued by the Trial Chamber which was a surprise to me.

6 Perhaps you could identify what protective measures order was issued by

7 the Trial Chamber upon which some reliance is purported to have been

8 placed.

9 MR. RYNEVELD: Perhaps Your Honour could indicate to me what

10 correspondence or the date of the correspondence.

11 JUDGE HUNT: Well, it's a letter from Dermot Groome, legal

12 officer, to Mr. Morrison --


14 JUDGE HUNT: -- recording terms of a conversation, and it says:

15 "I informed you that redactions were made to the discovery material

16 pursuant to an earlier protective order issued by the Trial Chamber, as

17 well as the general practice before Brdjanin."

18 That may have been an excess of enthusiasm on Mr. Groome's part, I

19 think.

20 MR. RYNEVELD: I'm unable to make an informed response to that.

21 I'm certainly not aware personally of any previous order. It may have

22 been that following our previous practice --

23 JUDGE HUNT: Well, that I can understand, and one hopes that it's

24 now been stopped, that previous practice.


Page 11

1 JUDGE HUNT: But nevertheless I was curious to know what the

2 earlier protective order was upon which Mr. Groome relied.

3 MR. RYNEVELD: I'm unable to assist you on that particular issue,

4 but I will certainly check our file and provide the Court with a copy if

5 one, indeed, is located.

6 JUDGE HUNT: There may be one.

7 MR. RYNEVELD: I'm not saying there isn't; I'm just not aware of

8 it.

9 JUDGE HUNT: Well, now, what sort of time frame are we talking

10 about for compliance with 66(A)(ii), the copies of the statements?

11 MR. RYNEVELD: I understand that it could take us, especially with

12 the August recess and matters of that nature, that we could probably

13 comply with that by the end of September.

14 JUDGE HUNT: Yes. I mean, this trial won't start this year.


16 JUDGE HUNT: So we're in plenty of time.


18 JUDGE HUNT: I'm just wondering whether somebody had given any

19 consideration to a time limit yet, because I think we should try and keep

20 it under some form of control.

21 MR. RYNEVELD: Absolutely. If I know my learned friend, he is as

22 anxious as we are to get together to make the necessary stipulations, to

23 shorten the matters. As you can see, the whole purpose of what we've done

24 so far is to provide him with as much information as possible, because

25 there were three volumes of material which they can start to look at while

Page 12

1 they're waiting for the redacted names.

2 My friends have been quite understanding that we want to have the

3 appropriate time to make the application for protective witnesses, because

4 to provide it in advance would render the whole process moot.

5 JUDGE HUNT: Yes. What should we do about the motion for

6 protective measures in pre-Brdjanin style which is presently in the file?


8 JUDGE HUNT: My suggestion is that we agree that it is suspended

9 or withdrawn until you seek to have it reinstated in, hopefully, some

10 amended form.

11 MR. RYNEVELD: Yes. Actually, I had interpreted the order, which

12 referred to a pending decision in Brdjanin, as actually relating to our

13 case, so I assumed that the Brdjanin-type order would also affect us. If

14 I recall correctly, we were given seven days within which to make a

15 further motion, which we have not had an opportunity to do.

16 JUDGE HUNT: Well, I'm happy to give you extra time to do so, but

17 I think we should -- I don't like motions just sitting in the list.

18 Somebody at some stage is going to go through these files and say, "This

19 Trial Chamber failed even to deal with a motion in accordance with the

20 Rules." I'm happy to extend it or to suspend it so that you can replace

21 it or something like that, but I think we should have some sort of time

22 limit.

23 MR. RYNEVELD: Thank you. Might I ask for an extension until the

24 end of September --


Page 13

1 MR. RYNEVELD: -- by way of a suspension, perhaps, and we fully

2 intend to bring on a replacement application with particulars.


4 Have you any problem with that, Mr. O'Sullivan?

5 MR. O'SULLIVAN: Not at all, Your Honour.

6 JUDGE HUNT: Thank you very much.

7 The consequence of this, of course, is that you haven't yet

8 complied with 66(A)(i), so that if we can have an informal agreement that

9 time, under Rule 72, for preliminary motions doesn't start to run until

10 you have.

11 MR. RYNEVELD: Counsel have, in fact, discussed that very issue,

12 and I think my friend wanted to ensure that that issue got on the record;

13 that until such time as we have filed some notice of compliance in

14 accordance, then time doesn't start to run.

15 JUDGE HUNT: There's always trouble here because some counsel for

16 the accused, if they come from the former Yugoslavia particularly, want to

17 have a suspension of the time running under Rule 72 until they get all the

18 material in B/C/S. But that doesn't seem to be the situation here because

19 we have either Mr. Morrison or Mr. O'Sullivan who can read the material in

20 the state it is now. But there will be a time, I suppose, when the

21 Defence will say the accused has to be able to read this material as

22 well. From the point of view of Rule 72, we'll wait and see what happens

23 in relation to your compliance with Rule 66 first.

24 MR. RYNEVELD: Yes. I believe I've just been assured that all the

25 materials have, in fact, been translated into B/C/S, so that is not a

Page 14

1 problem for us in this instance.

2 JUDGE HUNT: It seems to be a continuing one, but I'm glad to see

3 that it doesn't arise here.

4 I raise, only because I always raise, the question of Rule 68 and

5 exculpatory material.

6 MR. RYNEVELD: I can assure the Court that we are aware of our

7 ongoing obligations --


9 MR. RYNEVELD: -- and that we are, as we are going through these

10 materials, disclosing Rule 68 material as and when it's discovered. So --

11 JUDGE HUNT: You do understand that it was not a personal matter

12 in the previous case with Krnojelac, but there have been so many

13 complaints that we thought that something had to be done, and perhaps it's

14 had some salutary effect.

15 MR. RYNEVELD: One might hope. I can only say that as far as I

16 know in the Kunarac case, which Your Honour has been conducting, we

17 haven't had any of those difficulties arising. So hopefully --

18 JUDGE HUNT: It's been remarkable and very good.

19 Now, is there anything else you want to raise at this stage?

20 MR. RYNEVELD: Not that I can think of at the moment. Thank you,

21 Your Honour.

22 JUDGE HUNT: Mr. O'Sullivan, it may have been resolved informally,

23 but we have had a number of problems raising your lead counsel,

24 Mr. Morrison. He has committed the fatal sin, so far as we can find out,

25 of not only telling his secretary where he is, but he has failed to tell

Page 15

1 his clerk where he is. And for a barrister not to tell his clerk where he

2 may be would probably be the worst possible thing he could do. We were

3 told he is somewhere in Africa but they didn't know where.

4 He's made a complaint, and perhaps it is a justifiable one, that

5 he only got 14 days' notice of the hearing today. If we can contact him

6 to find out when it would be convenient for him to be here, we would be in

7 a better position. But it seemed that anything that we sent to his

8 Chambers would not get to him because they didn't know when he was going

9 to get back.

10 So I understand he has disclosed his e-mail address; I hope it's

11 one that he can access from places other than the United Kingdom. That

12 may be the answer. But we want to be in a position to be able to contact

13 him rather than just leave things for him to read when he finally gets

14 back to the UK. So would you emphasise to him when you're speaking to him

15 that we really do want to obtain from him his availability before we fix

16 dates but we were unable to do so?

17 MR. O'SULLIVAN: I'll ensure that he's made aware of that, Your

18 Honour.

19 JUDGE HUNT: Thank you very much. Is there anything else that you

20 want to raise at this stage?

21 MR. O'SULLIVAN: Nothing, Your Honour.

22 JUDGE HUNT: Thank you very much for standing in, Mr. O'Sullivan.

23 That is all. We shall adjourn.

24 --- Whereupon the Status Conference adjourned

25 at 10.45 a.m.