Tribunal Criminal Tribunal for the Former Yugoslavia

Page 94

1 Wednesday, 15 October 2003

2 [Status Conference]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 2.34 p.m.

6 JUDGE SCHOMBURG: Good afternoon, everybody.

7 A special welcome today to the parties and the accused

8 in my new capacity as presiding and pre-appeal judge

9 of this case.

10 May I ask Mr. Registrar, please, to call the

11 case.

12 THE REGISTRAR: Good afternoon, Your Honour.

13 This is case number IT-95-14/2-A, the Prosecutor

14 versus Dario Kordic and Mario Cerkez.

15 JUDGE SCHOMBURG: Thank you.

16 And the appearances, please, for the

17 Prosecution.

18 MR. FARRELL: Thank you, Your Honour.

19 Appearing for the Prosecution today, myself, Norman

20 Farrell, and with me is Ms. Helen Brady, Ms.

21 Marie-Ursula Kind and our case manager, Ms. Lourdes

22 Galicia. Thank you.

23 JUDGE SCHOMBURG: Thank you. And for the

24 Defence.

25 MR. NAUMOVSKI: [Interpretation] Your Honour,

Page 95

1 my name is Mitko Naumovski, attorney at law from

2 Zagreb, representing Dario Kordic. Thank you.

3 MR. KOVACIC: [Interpretation] Good morning,

4 Your Honour. My name is Bozidar Kovacic. I am

5 representing Mario Cerkez, together with my colleague

6 Goran Mikulicic in his capacity as co-counsel in this

7 case.

8 JUDGE SCHOMBURG: Thank you. And may I take

9 the opportunity to start the other way around than

10 usual, and I ask the accused themselves whether they

11 have any complaints about the Detention Unit.

12 Do you have any special health problems or

13 anything you want to address directly to the Chamber,

14 or to me? May we start with Mr. Kordic, please.

15 THE INTERPRETER: Microphone, please.

16 JUDGE SCHOMBURG: Microphone, please.

17 THE APPELLANT KORDIC: [Interpretation] Good

18 afternoon, Your Honour. Thank God, I feel well. I do

19 not have any objections as to the conditions in the

20 Detention Unit, and thank you for your question.

21 JUDGE SCHOMBURG: Thank you. You may be

22 seated, please.

23 And Mr. Cerkez, please.

24 THE APPELLANT CERKEZ: [Interpretation] Your

25 Honour, thank you for asking. I'm fine, thank you.

Page 96

1 JUDGE SCHOMBURG: Please be seated, then.

2 I'm aware that both parties, but first of

3 all the Defence, and primarily the accused themselves,

4 are waiting for a decision on a motion to set dates

5 for oral hearing of the case. Please accept that not

6 only me, but the entire Trial Chamber, regrets that no

7 final date for a hearing of this case can be set

8 today.

9 You know, the Appeals Chamber is seized with

10 numerous cases, some even waiting longer than your

11 case. In general, this is no apology and no excuse at

12 all for the delay. The only thing I can promise you

13 today is that we try to do our very best to hear the

14 case as soon as possible. But admittedly, I myself

15 and my colleagues, we feel uncomfortable with the

16 situation where, since such a long period of time has

17 elapsed since the trial judgement has been handed

18 down, it's not possible to set even a date for the

19 appeal. Let's hope that we can overcome as soon as

20 possible the obstacles.

21 Let us check together what are the open

22 motions to be decided.

23 May I first turn with Mr. Kordic's notice of

24 OTP's non-compliance with its Rule 68 obligations,

25 filed in March this year. May I hear the parties

Page 97

1 first on this issue. Let's start with the Defence,

2 please.

3 MR. NAUMOVSKI: [Interpretation] Your Honour,

4 I believe that we have explained our submissions in

5 our motion, and I believe that the Prosecutor has

6 already responded and addressed all of the issues. So

7 we are now waiting for your decisions, and the

8 instruction as to how to proceed. Should our motion

9 be granted, then we would certainly need a certain

10 amount of time to prepare our motion, the one that we

11 requested leave to submit.

12 I overestimated the time necessary for that,

13 and I said that should the motion be accepted, that we

14 would perhaps need two weeks to file an additional

15 motion. However, in the meantime, I have given it a

16 bit more thought and realised that we would need a

17 minimum of three to four weeks to submit a new motion.

18 This is just my best estimate. I cannot tell you

19 exactly how much time we would require to submit the

20 additional motion.

21 JUDGE SCHOMBURG: In case leave would be

22 granted as from the day of granting leave. Any

23 additional remarks by the Prosecution?

24 MR. FARRELL: No. Thank you.

25 JUDGE SCHOMBURG: Thank you. Then it's for

Page 98

1 the Bench to decide as soon as possible on this issue,

2 and you will receive as soon as possible a decision on

3 the primary question, whether or not to grant leave.

4 Then we have two motions from Mr. Kordic,

5 one motion from Mr. Cerkez, under Rule 115. Let us

6 once again start with the two ones of Mr. Kordic.

7 Here a decision will be rendered soon. However, a

8 decision by the Bench. Please understand that, for

9 the time being, I can't give you any further

10 explanations. What about Mr. Cerkez's motion on 115?

11 MR. KOVACIC: [Interpretation] Your Honour,

12 the submissions, including the response and the reply,

13 have been completed. All of the arguments have been

14 presented, and it is up to the Court to decide as to

15 how to proceed pursuant to the motion for additional

16 evidence based on Rule 115, that is, in what stages

17 they will decide what criteria they will apply in view

18 of the case law of this Tribunal, and at what time the

19 Judges will decide to convene an oral hearing to hear

20 oral submissions. I don't know whether that's going

21 to be prior to the issuance of a Rule 115 decision, or

22 once they have decided on the admissibility of the

23 motion. I believe that the case law has been changing

24 in this regard, but we do not have any additional

25 proposals or suggestions, aside from what we have

Page 99

1 already argued.

2 We are now waiting for the Chamber to decide

3 on this issue before a Pre-Appeal conference, because

4 the decision is likely to have some consequences on

5 how the appeal will go. But before you ask the

6 question, and I think that you will probably ask me,

7 let me just say that whatever we have so far received

8 from the OTP, including material pursuant to Rule 68,

9 we do not intend to use this for any additional

10 motions pursuant to Rule 115. With one caveat in

11 respect of the so-called fourth submission for

12 additional evidence in the Blaskic case. I should

13 certainly like to see this first, and then make a

14 decision, though I don't see any significant changes

15 taking place in that regard.

16 With your permission, Your Honour, before we

17 used to be asked whether we wished to speak our mother

18 tongue or English, and let me just ask the question

19 now: I would like to speak my mother tongue. If you

20 should decide contrary to this, then I will address

21 the Court in English.

22 JUDGE SCHOMBURG: I have no problems with

23 this. You only should be aware that sometimes the one

24 or other slight problem might be -- may arise from

25 translation. But being capable of both languages, you

Page 100

1 will immediately identify yourself when there seems to

2 be a mistake or a misunderstanding. Please advise the

3 Judge or the Bench when this should happen. Otherwise

4 we are prepared, of course, to listen to you in the

5 language you commonly use. Thank you for this

6 specific request.

7 So I noticed your caveat. I understand your

8 caveat, and so on the other hand, you will understand

9 that time is not yet ripe for a final decision, and we

10 have to look forward to this fourth motion in the

11 Blaskic case you just mentioned before. Thank you for

12 these additional remarks.

13 Just to clarify as regards the two motions

14 by Mr. Kordic: They were those for access to ex parte

15 submissions in Mr. Cerkez's Rule 115 motion, and there

16 a decision will follow as soon as possible, hopefully

17 in the course of this week already.

18 In preparation of the case, I have one

19 additional problem. The Prosecutor has filed the 26th

20 of September, 2003 a motion, confidential and ex

21 parte. Therefore, I can't, it's self-understanding,

22 not go into any details. May I ask the Prosecution

23 whether it's -- what are the reasons. Is it necessary

24 having to go into detail? That is, this motion is

25 filed ex parte. Because I think it could infringe one

Page 101

1 party's right to be heard.

2 MR. FARRELL: Yes, Your Honour. I think the

3 simple answer is that the original protective measure

4 order of July 31st indicated that the decision and the

5 contents of the decision for protective measures,

6 which, as you know, the motion of September 26th is an

7 attempt to vary that, that original decision of July

8 31st indicated that -- imposed certain protective

9 requirements on it which would, at least in our

10 interpretation, preclude us from filing it in any

11 other form than ex parte.

12 JUDGE SCHOMBURG: As I said already

13 beforehand, I think no decision by the entire Bench is

14 necessary. Do you see from your side any obstacle to

15 file this motion once again confidentially only?

16 MR. FARRELL: If I could respond to that by

17 having a chance to review the decision to see if

18 there's anything in there that would require some form

19 of possible redaction to ensure compliance with the

20 previous decisions relating to the content of that, I

21 can either get back to your Senior Legal Officer or I

22 can file something, if possible, in redacted form, if

23 that may assist the Court.

24 JUDGE SCHOMBURG: You should only know that

25 I would prefer, if possible, and inasmuch as possible,

Page 102

1 to file this confidentially only, because I really

2 believe that the other party has a right as well to be

3 heard of this and to respond, if necessary. But I

4 think the procedure suggested by you is the

5 appropriate one.

6 MR. FARRELL: Thank you, Your Honour.

7 JUDGE SCHOMBURG: May I ask the parties:

8 For the time being, are there any other issues to be

9 discussed in the framework of the Status Conference?

10 The Defence, please.

11 MR. NAUMOVSKI: [Interpretation] Your Honour,

12 the Defence of Mr. Kordic has no special issues to

13 raise at today's Status Conference, but we would

14 simply like to inform you that today I was not able to

15 gain access to the Hadzihasanovic material in

16 accordance with the previous decisions of this

17 Chamber. The reasons were technical and I assume that

18 the materials will be mailed to me shortly, so that

19 within 10 or 15 days we will be able to inform the

20 Chamber as to whether we shall use some of these

21 materials or not. I had intended to take all this

22 with me now I'm in The Hague today but I was not able

23 to.

24 In any case, the Defence of Mr. Kordic is

25 encouraged by what Your Honour has said today as to

Page 103

1 speeding up and expediting these proceedings, and we

2 are awaiting your decisions in this respect. Thank

3 you, Your Honour.

4 JUDGE SCHOMBURG: Let me just clarify. The

5 decision has been filed on the materials in the

6 Hadzihasanovic case, and we took it as granted that

7 you would have access already today. When do you

8 intend to leave The Hague, may I ask?

9 MR. NAUMOVSKI: [Interpretation] I have the

10 decision, Your Honour.

11 I'm leaving tomorrow, but the Registry says

12 that, due to lack of time, they are unable to prepare

13 this material. They have to make sure that there

14 isn't something ex parte in the material, to avoid any

15 confusion. And as far as I was able to understand,

16 the lady in charge of this is on sick leave. However,

17 I feel that there will not be a problem. If I can't

18 get the material today, I assume it will be mailed to

19 me within a few days. What is important is that we

20 have established contact, and I trust that this will

21 all be resolved soon.

22 JUDGE SCHOMBURG: Can we conclude by saying

23 that in case you don't have access to this material

24 within the next seven days, you will alert the Trial

25 Chamber that the necessary message be taken that you

Page 104

1 can have access to the material as soon as possible?

2 MR. NAUMOVSKI: [Interpretation] If

3 necessary, Your Honour, we will apply to you for

4 assistance.


6 MR. NAUMOVSKI: [Interpretation] Thank you,

7 Your Honour.

8 JUDGE SCHOMBURG: Any other issues by the

9 Defence of Mr. Cerkez?

10 MR. KOVACIC: [Interpretation] No, thank you,

11 Your Honour, we have no further issues to raise. And

12 we think we will not need to file any further motions,

13 apart from what was discussed today. Thank you.

14 JUDGE SCHOMBURG: And the Prosecution,

15 please.

16 MR. FARRELL: Thank you for your inquiry,

17 Your Honour. The Prosecution has nothing further to

18 raise. Thank you.

19 JUDGE SCHOMBURG: I have to thank you for

20 this Status Conference.

21 Let's once again be assured that we try to

22 be as expeditious as possible. The Status Conference

23 is hereby adjourned.

24 --- Whereupon the Status Conference

25 adjourned at 2.56 p.m.