1 Friday, 7 February 2003
2 [Status Conference]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 2:15 p.m.
6 JUDGE HUNT: Call the case, please.
7 THE REGISTRAR: Good afternoon, Your Honour, case number
8 IT-95-14/2-A, the Prosecutor versus Dario Kordic and Mario Cerkez.
9 JUDGE HUNT: Appearances, please.
10 MR. FARRELL: Good afternoon, Your Honour, appearing for the
11 Prosecution is Norman Farrell, Ms. Michelle Jarvis and Ms. Nicky Bonfield.
12 Thank you.
13 JUDGE HUNT: Thank you.
14 For the accused.
15 MR. NAUMOVSKI: [Interpretation] Good afternoon, Your Honour,
16 appearing for Mr. Dario Kordic, attorney at law, Mitko Naumovski from
18 JUDGE HUNT: Thank you, Mr. Naumovski.
19 For Mr. Cerkez.
20 MR. KOVACIC: Good afternoon, Your Honour, appearing for Mario
21 Cerkez, Bozidar Kovacic and Goran Mikulicic.
22 JUDGE HUNT: Thank you.
23 Are the two appellants able to hear the proceedings in a language
24 which they can understand? General Kordic?
25 THE APPELLANT KORDIC: [Interpretation] Thank you, Your Honour, I
2 JUDGE HUNT: Mr. Cerkez.
3 THE APPELLANT CERKEZ: [Interpretation] Yes, Your Honour, I can.
4 JUDGE HUNT: Thank you. Sit down, please.
5 This is a Status Conference being held in accordance with Rule 65
6 bis and in order to comply with it it had to be held this week.
7 Mr. Farrell, are there any matters which the Prosecution want to
9 MR. FARRELL: No, Your Honour, I think matters that the
10 Prosecution can advise the court of were in the status report filed, I
11 guess, a couple of days ago other than that there's nothing additional,
12 thank you.
13 JUDGE HUNT: We've just been handed as we came into court some
14 motion of yours.
15 MR. FARRELL: It's technically in this case is that regarding the
16 Hadzihasanovic access to the Kordic material.
17 JUDGE HUNT: Well, it's a -- as I understand, you are seeking
18 protective measures and that is -- I haven't even seen it myself yet.
19 I've just been told that it's there. The usual gremlin got into the works
20 and the judges got theirs -- well, I still haven't got mine.
21 MR. FARRELL: I apologise for that I mean it's -- yeah, it was
22 filed yesterday.
23 JUDGE HUNT: It was filed yesterday but I think we've been through
24 this before. It's best to do it two days before because for some reason
25 it's always the judges who are picked on.
1 MR. FARRELL: My apologies. The actual document that I think you
2 have been deprived of is a motion for clarification regarding
3 Hadzihasanovic's access to and for protective measures.
4 JUDGE HUNT: Is there something that is not clear in the order?
5 What needs to be clarified.
6 MR. FARRELL: Well, there's two issues if you'd like me to
7 indicate what they are. The request itself appears -- may have misread
8 the request by the applicant Hadzihasanovic for -- what appear to be from
9 the request exhibits and transcripts, it appears they want basically
10 evidence. There's one or two what I would consider to be rather general
11 or vague references to non-public material.
12 JUDGE HUNT: I'm concerned about your application for what you
13 call clarification. It's seems to me what you are really asking for, if
14 you are prepared to face up to it, is a reconsideration of something.
15 MR. FARRELL: Well, I'll allow you to read it in full, but the two
16 issues of clarification are the scope of the order which is simply: Are
17 you requiring us to file and disclose ex parte material because that's not
18 addressed in their request but it is within the scope of all non-public
19 material. That's the clarification issue.
20 The second clarification issue -- sorry. The first clarification
21 issue is whether it applies to filings, pleadings, not evidence. My
22 reading of their request is for evidence, not pleadings, but the order
23 says all non-public documents. So the first clarification, does it apply
24 to pleadings? Second clarification, does it apply to ex parte documents
25 that even the Defence in Kordic and Cerkez didn't have. That's not
1 addressed by them nor requested by them and not -- in my respectful,
2 submission addressed by the order.
3 JUDGE HUNT: And is this a matter which you raise in your response
4 to their application?
5 MR. FARRELL: No. Because our response to their application was
6 whether or not they met the relevancy criteria. I mean, maybe we're at
7 fault for not doing so, but at that point in time the issue was with the
8 relevancy criteria, as I understand.
9 JUDGE HUNT: You see, many years ago in its infancy there was some
10 very, what might be called, conservative decisions by the Tribunal that
11 they would never reconsider something. That's been well and truly
12 overcome now and common sense has finally found its way forward and
13 Tribunal -- Trial Chambers and the Appeals Chamber would always reconsider
14 something if it is shown to be necessary. The Prosecution used to use
15 this word "clarification," in order to get around what used to be the old
16 conservative approach.
17 MR. FARRELL: I --
18 JUDGE HUNT: That's why the word rang a bell with me.
19 MR. FARRELL: No. That's quite all right. If you read the -- if
20 you read the two aspects for which we've sought clarification as a
21 reconsideration and if we've misread the order, I'd be happy to ask for
22 reconsideration. I think, in my respectful submission, that the order
23 doesn't address those two issues of filings and ex parte filings before
24 the Trial Chamber and we're not asked by Hadzihasanovic so if the order
25 encompasses those, we'll certainly comply with them.
1 There are additional issues in filing which is probably actually
2 more germane to your comment right now, not the ex parte. The other ones
3 relate to access to Rule 70 material. That, you may consider to be
4 something equivalent to a reconsideration request and I'll just explain to
5 you what's in the order if you wish.
6 JUDGE HUNT: Well, I haven't got the order in front of me.
7 MR. FARRELL: I'm sorry.
8 JUDGE HUNT: It's all right, but -- was there no reference to
9 other than Rule 70 material?
10 MR. FARRELL: No. The issue on Rule 70 material isn't
11 particularly of concern, it's just the provision of the Rule 70 material.
12 The order indicated that the Prosecutor was to seek the consent of the
13 Rule 70 providers and then to provide it to the applicants. We simply
14 asked, and maybe it is akin to a reconsideration, but the Prosecution
15 submits that we would be happy to identify, seek the consent and identify
16 the material but just thought that it should come from the Registry not
17 from the Prosecution, that we would identify the material so it comes
18 actually from the trial record with the proper Court Registry numbers on
20 JUDGE HUNT: I'm sorry. You mean the word "supply" appears to --
21 appear to apply to you.
22 MR. FARRELL: Yes. And We may have misread it, but that was one
23 of the -- that the issue under Rule 70 is just that do we give notice to
24 the Registry or do you wish that the Prosecution provides it directly to
25 the applicants?
1 JUDGE HUNT: I wouldn't have thought so.
2 MR. FARRELL: Well, we may not be too far off base then.
3 And then there are -- there is a third area which is a request for
4 protective measures. And in the request for protective measures, we
5 request that the Court inform us of the procedure to follow if the
6 protective measures, which include redactions, are granted.
7 JUDGE HUNT: Yes.
8 All right. Well, then, that's a matter that we can deal with
9 later. I just wanted to clear up what it was you were after.
10 MR. FARRELL: Absolutely.
11 JUDGE HUNT: Is there nothing else you want to raise?
12 MR. FARRELL: The -- nothing except for that that document that
13 was filed obviously you haven't received. I'm hopeful that you received
14 the short status report.
15 JUDGE HUNT: We did get that, yes.
16 MR. FARRELL: Okay. Great. No, other than that, Your Honour,
17 thank you.
18 JUDGE HUNT: That's because it was filed two days in advance.
19 MR. FARRELL: Correct. Thank you.
20 JUDGE HUNT: All right. Mr. Naumovski, any matters you want to
22 MR. NAUMOVSKI: [Interpretation] Your Honour, generally speaking,
23 we have nothing to raise. In our latest submissions, we reported on the
24 status of the case and we took the liberty of asking the Court to
25 designate the hearing date for 115 -- Rule 115 submissions.
1 At this point, it is difficult for counsel to decide what the best
2 course of action is. Every counsel's duty is to review the course of
3 proceedings because it may be relevant to the stage of appeal at which we
4 are, so we have the obligation of working continuously.
5 JUDGE HUNT: Just one moment before you get to the 115 materials,
6 that's quite separate. You have also filed a further matter in the
7 Hadzihasanovic case seeking redactions in relation to a number of
8 witnesses. Your only statement is that the witnesses themselves have
9 expressed concern. That's not a sufficient basis for getting some sort of
10 protection for them and you'll find there's a number of cases on the
11 books, in the books which say that something more must be shown than the
12 fears expressed by the witnesses themselves. You have to demonstrate
13 something objective which shows that those fears have at least some basis
14 so you may like to improve upon your application there before we can grant
15 the redactions which you seek.
16 Now, in relation to the 115 matters, we might as well deal with
17 that now. I realise that this appeal is proceeding under the old Rule 115
18 because of the provisions of Rule 7, I think it is, which says that if
19 there's something to your detriment, you are not affected by the
20 amendments to the Rule. But you do realise, of course, that even under
21 the old Rule which allows you to file 115 motions up to 15 days before the
22 hearing of the appeal, the Chambers do have a -- the Appeals Chamber does
23 have a power to vary those times. And if there's one thing we've learnt
24 and which brought about the amendment to the Rule that it is absolutely
25 hopeless to try and hear an appeal 15 days after applications have been
1 made to tender additional evidence.
2 What we propose to do will be to make an order that you file your
3 Rule 115 a certain time after the last delivery by the Prosecution of the
4 material to you and we'll fix a time table and then when we see how the
5 time table is going, we'll fix a hearing date of the appeal, and it will,
6 of course, be a lot more than 15 days. But what concerns me particularly
7 is your suggestion that you should wait quite an extraordinary length of
8 time, if I can find your document, before filing your consolidated Rule
9 115 motion.
10 I'm afraid you're not going to be given that sort of time, I think
11 it was a month. What you've got to realise is that you've had these
12 documents for years, most of them, taking out some of the figures that the
13 Prosecution have provided us in its status report, you had, during the
14 course of the year 2001, 1.394 documents. During the year 2002, you got
15 another 1.734 documents. So far you've only had three documents this
17 Now, you are expected to be working on your 115 application and to
18 have been working on it since year 2001. You can't sit back and say,
19 "Well, after we've got the final lot of documents, we'll start work on
20 our motion." And depending upon what Mr. Farrell tells us about what he
21 anticipates or the size or the number of documents that he anticipates
22 will be given to you at the end of this month, you're going to get a very
23 brief time indeed to get your Rule 115 motion on, something like 7 days, I
24 would expect because, as I say, that depends upon what Mr. Farrell tells
25 us. But we're not going to have this very slow procedure timetable that
1 both parties seem to be anticipating here.
2 If we accepted your time table, I'm afraid this case could -- the
3 appeal could not be heard before summer and that's just absurd. We had
4 hoped to be hearing it next month sometime. Obviously that's no longer
5 possible but it is going to be a lot speedier timetable than you -- than
6 either side has produced for us to consider.
7 So you have to understand that you're not going to be given the
8 time you seek, and it may be, indeed, considerably shorter. But anyway,
9 you then want to say something about the Rule 115 motion generally so you
10 proceed, Mr. Naumovski.
11 MR. NAUMOVSKI: [Interpretation] Your Honour, I have to say I am
12 very glad to hear what you've just said. When we were working on these
13 dates, I was afraid that even this is too soon. Moreover, from the point
14 of view of the Defence of Mr. Kordic, we would be glad to seek these dates
15 even sooner. When we were looking at this date of filing the possible
16 Rule 115 motion, I had in mind what Mr. Farrell said about reviewing
17 several thousand new documents and I was expecting to receive thousands of
18 new documents and I didn't know whether we would be able to review them in
19 due time.
20 However, if the volume of these documents is going to be
21 significantly lower, then of course the time for their review and
22 assessment is considerably shorter. We are now looking forward to you
23 setting the date for the hearing of this appeal and, of course, we will
24 have reviewed the material by the end of this month.
25 If you allow me just a word about the topic we raised a moment ago
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 regarding witnesses. Your Honour, I have to say that the Defence of
2 Mr. Kordic merely presented the position of witnesses in its filing. We
3 did not elaborate on the reasons, we just asked the witnesses what their
4 opinion was and we presented their views in our submission. I understand
5 that this may not be sufficient for the Trial Chamber to grant the
6 protective measures but I thought it was my duty as Defence counsel to
7 convey what the Defence witnesses were looking for. That was the purpose
8 of my filing.
9 If you have no more questions to address to me, I would like to
10 mention in passing that the beginning of the record, there is an error in
11 so far as the -- Mr. Kordic is named as General. He is not a General, he
12 is merely a civilian. That's page 1, line 24. I understand that this
13 error is made just because there are too many cases going on.
14 JUDGE HUNT: Okay. Thank you very much, Mr. Naumovski. It was my
16 Thank you. Is there anything else you want to add?
17 MR. NAUMOVSKI: [Interpretation] I do not think so, Your Honour. I
18 am very much encouraged by what you just said about the hearing date being
19 very soon. Thank you very much.
20 JUDGE HUNT: Thank you. Mr. Kovacic, do you want to say anything?
21 MR. KOVACIC: [Interpretation] Your Honour, I don't think we have
22 much to add. I would just like to remind Your Honour that we have before
23 us two very similar proposals about the expected course of proceedings
24 regarding the filing of Rule 115 motions and the subsequent conference.
25 The Prosecution gave its views and the Defence presented its views and I
1 don't see major discrepancies. At your initiative, we have discussed the
2 possible time frame within which the Defence could file its 115 motions,
3 it was last year, I believe before the summer, and at that time, you asked
4 us to give our assessment. We said 40 to 60 days after finalisation of
5 disclosure by the Prosecution. However you reiterated this today.
6 Obviously we have received much of the material and we have reviewed it
7 and prepared. A certain volume remains outstanding, I don't believe it is
8 large, and based on our experience of previous packages of material,
9 sometimes smaller packages of material required much more research than
10 large ones simply because the topics in question were not so interesting.
11 The Defence singled out material which was the most relevant,
12 reviewed it and prepared. This is continuous work and sometimes we
13 receive new material, replace something that we had prepared before and
14 generally speaking, I believe we will be ready with this in due time.
15 We are anxious to see speedy unhindered and expeditious
16 proceedings which ever option the Court designates, we will abide by it.
17 My only request to Your Honour would be the following, to be cautious
18 about this. So far we have basically wasted two years until now, that's
19 nobody's fault. Now archives have been opened in Croatia and in Bosnia
20 that were not available before, new material has become available and we
21 have asked access to certain material from other cases just as the other
22 Defence has done so in our case. There are objective reasons why this
23 procedure took a long time.
24 When I say that we "wasted," so much time, I mean to say that it
25 is -- it makes no sense to make an issue of a month here or there.
1 Instead, it is up to us to set the time for making a certain filing. As
2 my colleague, Mr. Naumovski, said, it is our duty to follow other
3 proceedings and look for any material which would be useful to us.
4 The Prosecutor announced that they have a package of new material
5 which we now know that will be processed and made available to us by the
6 end of this month so our dilemma is resolved. After receiving this
7 material, we will review it and finalise our 115 submission. Depending on
8 the quantity and content of the material, I cannot promise that we will do
9 this work within 7 days because I don't know whether it's going to be 50
10 or 500 pages.
11 Another thing I would like Your Honour to bear in mind is this:
12 Although we, according to the Rules, have the right to prepare our
13 submission in our language, we draft it in English to save time and
14 technically, it needs to be revised and this revision takes another two or
15 three days. So when you say that the time allowed is 7 days, that means
16 for us, that these 7 days have to include a couple of days for revision.
17 Thank you.
18 JUDGE HUNT: Well, Mr. Kovacic, you do not have a right to prepare
19 your submissions in your own language. You know what the rules are. You
20 are required to have a working knowledge of either English or French and
21 you are obliged to produce your documents in that language. I understand
22 that you probably prefer to do them in your own language first, but the
23 rules are there to prevent this sort of time being taken up.
24 However, what you say about your duties, as Mr. Naumovski has
25 said, are matters of importance and they will be recognised. What I am
1 concerned about is that the submissions that were made appeared to proceed
2 upon the basis that you were allowed to wait until you got everything
3 before you started work. I'm very gratified to hear from each of you that
4 you are in fact well ahead and that you have not been waiting until
5 everything arrives before you started work on this application. But the
6 point I sought to make and I reiterate it is this: That the time that you
7 will be given for filing your Rule 115 application will depend solely upon
8 the size of what is delivered by the Prosecution between now and then and
9 I will be asking Mr. Farrell to give us some enlightenment about that in a
11 Also, that any order that we make will have an express provision
12 that you will have liberty to apply for an alteration in an informal
13 manner so that we don't have to go through motions and responses and
14 replies, et cetera and if you are running into a genuine problem because
15 of what has been supplied, then we will obviously listen to what you have
16 to say and extensions will be granted. That's why we're not going to fix
17 an appeal date straight away. It would be absurd to have everybody
18 setting aside time for a hearing which may very well be interfered with
19 because of something that arises during this rather long process.
20 So you will have a safety valve, but I think the time has come to
21 ask Mr. Farrell to disclose to us a little bit more about what is coming
22 by the end of this month.
23 Is there anything else you want to add?
24 MR. KOVACIC: Your Honour, it seems that there was a slight
25 miscommunication, probably for the reasons of translation. When I
1 mentioned the issue of language and translation, it was not a matter of
2 asking special benefit or a position in which we would file on Croatian
3 language. My point was -- and actually we are preparing all the briefs
4 and motions originally in English language. What I'm merely trying to
5 say, of course, that is not our mother tongue as you can notice from my
6 bad English. So it does require a certain time for English editing. That
7 is all. I'm merely trying to say when you order something to be done in
8 seven days, it is fine with us; however, there is a certain advantage
9 let's say far the Prosecution since in that office, almost everybody is
10 speaking this language as a mother tongue. For us, it is additional two
11 or three days work. Nothing else, of course.
12 JUDGE HUNT: I'm afraid, Mr. Kovacic, if you set out by speaking
13 in English to disclose to us your bad English, you have failed. You spoke
14 very well indeed.
15 MR. KOVACIC: But not in writing, Your Honour.
16 JUDGE HUNT: I can assure you that coming as I do from the other
17 side of the world, I'm told that English is not my mother language either,
18 we speak a type of English, that's all. But thank you very much, indeed.
19 MR. KOVACIC: Thank you, Your Honour.
20 JUDGE HUNT:
21 Well, now, Mr. Farrell, there are two things I think which arise
22 here. First, we would like to have some estimate of what's coming and the
23 other is, is there any problem with you disclosing this material on a
24 rolling basis, as it were? Because that would assist the accused and us
25 and you and everybody to get on with this matter.
1 MR. FARRELL: Regarding your second request, absolutely not. The
2 way we've been dealing with it is we do a -- without wasting your time
3 explaining we do an initial cut of all the material. There were 45
4 binders. We do an initial cut of relevance, anything that looks like it
5 might be directly relevant and then after that we proceed through -- we're
6 starting to proceed through the second phase. We've already gone through
7 the 45 binders and removed all the irrelevant material and that was done
8 initially and I and others are involved in the second stage. No problem
9 whatsoever with getting out whatever we can get on a rolling basis,
10 absolutely, and we'll undertake to do that the beginning of next week with
11 the first cut. We're going through now of the second set -- second
12 review, I mean.
13 Regarding the volume, I'm not sure I can be much of assistance and
14 I apologise. We had this discussion with other members in the Appeals
15 Section, and since we actually haven't gotten through about half of the
16 remaining 20 or 25 binders for a review of where they fall under Rule 68,
17 I can't say at this point the volume. I don't think it will be that
18 great. We've actually cut out quite a few and in comparison to what we
19 have reviewed under the more strict second Rule 68 review, it hasn't been
20 very voluminous at all. In light of my inability to inform you of that, I
21 can, if you wish, propose to file a notice at the point in time of
22 disclosure to the Defence with the Court to inform them of the actual
23 volume of documents disclosed upon their being, of course, disclosed of
24 the date the Defence receives them so that the Court is fully aware and
25 won't have to wait until whatever time frame, until you're informed.
1 JUDGE HUNT: Well, what is the best procedure then? Should we
2 start on a scheduling order now or should we wait until we hear from you
3 when you're further into your task.
4 MR. FARRELL: I think it would probably be advisable to wait.
5 We'll at that point be in a better position to tell you the volume and I
6 can also file a notice with the Court when full disclosure has been
7 completed so at that point, the Court will be in a better position to know
8 the volume and the completion date.
9 JUDGE HUNT: But what I want to do is to have the matter dealt
10 with so far as we can by some form of agreement when the parties say,
11 "Well we've seen the documents now. We think we're going to need so much
12 time," and we'll consider that as a relevant factor. I'm not saying we'll
13 be bound by it, but I would prefer that we get some form of agreement
14 before the orders are made then we have to keep on changing them as the
15 case proceeds but we will clearly have to have some informal procedure for
16 seeking alterations to it. The filing of motions and responses and
17 replies in relation to such simple matters strikes to me as a very
18 American way of doing things but not a very efficient way. So that's what
19 we'll -- the way we'll go about it.
20 Can I at least prevail upon you to say that we might get something
21 by, say, the end of next week or the beginning of the week afterwards as
22 to how you're going?
23 MR. FARRELL: Absolutely.
24 JUDGE HUNT: And what your anticipation is at that stage.
25 MR. FARRELL: Of course, Your Honour.
1 JUDGE HUNT: Okay. Well, then we'll look forward with interest to
2 reading your application for clarification and see what needs to be
4 MR. FARRELL: If anything at all, Your Honour.
5 JUDGE HUNT: The problem with these enormous number of
6 applications for access is that you tend to look at them all in the same
7 way and they're not always the same. And although I thought we'd got
8 ourselves down to a fairly regular form of order, it may be that it might
9 have been given too hastily, I don't know.
10 MR. FARRELL: I'm not insinuating that at all, Your Honour. Thank
12 JUDGE HUNT: But we do rely upon the Prosecution to draw our
13 attention to its concerns when they are putting in their response, and if
14 you see that the matter is more limited than usual, we hope that you will
15 give some attention to that in your response.
16 MR. FARRELL: I will endeavour to do so.
17 JUDGE HUNT: All right. Well, is there anything else that anybody
18 wants to raise?
19 MR. FARRELL: Not from the Prosecution side, thank you.
20 JUDGE HUNT: From the Defence side? Well, thank you very much.
21 I rather suspect that we will be seeing you here again on another Status
22 Conference before the hearing of the appeal at the rate we're going but
23 hopefully not. And if so, then we shall see you next at the hearing of
24 the appeal. Thank you.
25 --- Whereupon the Status Conference
1 adjourned at 2:50 p.m.