1 Thursday, 4 November 2004

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 3.05 p.m.

5 [The accused entered court]

6 JUDGE ANTONETTI: [Interpretation] Well, we are just first going to

7 check that the accused can hear properly what is being said.

8 Mr. Registrar, could you please call the case.

9 THE REGISTRAR: Your Honours, good afternoon. Case number

10 IT-97-25/1-PT, the Prosecutor versus Mitar Rasevic.

11 JUDGE ANTONETTI: [Interpretation] Thank you very much,

12 Mr. Registrar.

13 Would now hear who are the appearances for the parties.

14 MS. UERTZ-RETZLAFF: Good afternoon, Your Honour. For the

15 Prosecution, trial attorney William Smith and my name is Hildegard

16 Uertz-Retzlaff.

17 JUDGE ANTONETTI: [Interpretation] Thank you. Appearances for the

18 accused. Introduce himself, please.

19 MR. DOMAZET: [Interpretation] Thank you, Judge. Vladimir Domazet,

20 lead counsel for the accused Mitar Rasevic.

21 JUDGE ANTONETTI: [Interpretation] Thank you very much. We greet

22 everybody, representatives, counsel, and all the staff in this room.

23 Following Rule 65 ter of the Rules, we are today having this Status

24 Conference, but before we start on this, I have to inform you that I made

25 an order at half past 2.00 seizing Trial Chamber II. I shall read this

1 order to you for this case. It's been -- seeing in the fact that we

2 nominate by reason given by this Chamber number II, in particular, 11 bis,

3 62, 65 ter of the Rules of Procedure and Evidence, Rules, by Rule 11 bis

4 of Rules, the Chamber may order ex officio [as interpreted] or on request

5 of the Prosecutor that the case be deferred to another court and, with

6 Rule 11 bis of the Rules, examination of a case has to be referred to the

7 authorities of a state. Chamber will take account, according to the

8 Resolution 1534 of the Security Council.

9 Since the facts probably enter in the provisions of Rule 11 and

10 Rule 15 -- 11 bis of the Rules, president may designate a Chambers for the

11 case to be referred to the authorities of the state. This paragraph --

12 possibility to designate, not an obligation, and that following the

13 dictionary Robert and Collins the term "may" conjures a possibility --

14 indicates a possibility, inasmuch as the Chamber II is already seized,

15 this possibility foreseen by paragraph (A) of Rule 11 bis of the Rules is

16 useless. Therefore, the Chamber II presently seized of the case has to

17 see this matter in a collegial way in another hearing, giving to the

18 Prosecutor and the accused the possibility to be heard, and after being

19 sure that the accused will have a fair trial.

20 And following Rule 65 ter, the Judge has to control the

21 proceedings of case and be sure that the -- there is no delay, unjustified

22 delay and takes all the necessary measures so the case may be ready for

23 fair trial. Seeing that the accused has been since the 4th September 2003

24 in the Detention Unit, it is therefore necessary to seize Chamber II,

25 Trial Chamber II, to examine the possibility of the referral of this case,

1 and the decisions to be made for the protection of certain victims or

2 witnesses. For these reasons, orders Trial Chamber II to be seized

3 following the provisions of Rule 11 bis of the Rules and particularly to

4 protect witnesses and victims after this order was signed, also by the

5 Registrar, at 1440, at 2.40, and there was a letter written to the

6 President of the Tribunal to enact the procedure of Rule 11 bis of the

7 Rules.

8 Therefore, the Chamber, possibly the President, may have to make

9 determinations to see who is competent to hear the motion of Rule 11 bis.

10 I have personally considered that Chamber -- Trial Chamber II should be

11 seized of this matter in order possibly to refer the case, to defer the

12 case.

13 This is, therefore, the tenor of this order. On this question of

14 Rule 11 bis, does anybody want to have the floor, intervene?

15 MS. UERTZ-RETZLAFF: No, Your Honour.

16 JUDGE ANTONETTI: [Interpretation] Very well.

17 MR. DOMAZET: [Interpretation] Judge, when it's protective

18 measures, we have nothing against it. For the rest, I would like to keep

19 the possibility to answer later.

20 JUDGE ANTONETTI: [Interpretation] Very well. Now, about the

21 Status Conference today, as you know, it has to take place every four

22 months. The last one was on the 9th of July, 2004. And I had announced

23 on the 9th of July, 2004 that following the exchanges and disclosure of

24 the documents, there might be soon beginning of the trial.

25 Since then, no information was received. The senior lawyer

1 yesterday proceeded with the parties to meeting on today's hearing, and

2 reported to me the fact that in the case trial would take place in The

3 Hague here. The Prosecution for the moment has provided for about 50

4 witnesses, 35 which would be under Rule 92 bis and 15 witnesses would come

5 to testify viva voce. According to this estimate, if there are 15 viva

6 voce witnesses, the Prosecution considers that the trial might take from

7 three to four weeks. And I will specify the fact that according to

8 documents I have, it has been said that these witnesses are those who in

9 fact have already been witnesses in the Krnojelac case.

10 So this is eventually -- the way this case is going to develop,

11 although, to my knowledge, we have no available date which has been fixed

12 for the trial in the coming months. There we have really a real problem

13 for the hearings, because, as you know, we only have three rooms, and

14 therefore, there can only be six ongoing trials. There are many cases

15 pending, and this one in particular, if it is not deferred to courts of

16 the country of the accused, this case could only be heard in 2005.

17 Now, on the matter of disclosure of Rule -- according to Rule 66

18 and 68, did the Defence receive all the necessary documents and whether it

19 has any problems or not?

20 MR. DOMAZET: [Interpretation] Yes, we received all the documents,

21 all the exhibits. We have no problems with that. We received everything

22 from the Prosecutor's office.

23 JUDGE ANTONETTI: [Interpretation] Very well. Now, on the

24 Prosecutor's side, about all the documents, everything has therefore been

25 disclosed and communicated?

1 MS. UERTZ-RETZLAFF: Yes, Your Honour. Nothing is outstanding.

2 And I actually want to mention that we also received the documents from

3 the Defence. So just to indicate that the cooperation and discussion

4 between Defence and Prosecution are going well.

5 JUDGE ANTONETTI: [Interpretation] Very well. I was sure of that.

6 I was quite convinced. I had no doubts about that. There is certainly a

7 fruitful dialogue ongoing between the parties. You have understood that

8 there remains this question of Rule 11 bis of the Rules which has to be --

9 which decided, and there is also the matter of the trial itself, in case

10 there is no deferral of the case. So I have also taken account of the

11 provisions of Rules 65 ter, in particular, the provisions of paragraph

12 (E), where it is said that the Pre-Trial Judge shall order the Prosecutor

13 upon the report of the Senior Legal Officer, and within time-limits set by

14 the Pre-Trial Judge and no less than six weeks before the Pre-Trial

15 Conference required by Rule 73 bis, the final version of the Prosecutor's

16 pre-trial brief including, for each count, a summary of the evidence which

17 the Prosecutor intends to bring regarding the commission of the alleged

18 crimes and the form of responsibility incurred by the accused; this brief

19 shall include any admissions by the parties and a statement of matters

20 which are not in dispute; as well as a statement of contested matters of

21 fact and law.

22 Therefore, there should be a document which will be prepared by

23 the Prosecution and which will marshal -- summarise all these elements.

24 There's also a list of witnesses which the Prosecutor intends to call,

25 specifying the name of -- pseudonym of each witness in case there are

1 witnesses which have protective measures. The summary of the facts on

2 which each witness will testify, the points in the indictment as to which

3 each witness will testify, including specific references to counts and

4 relevant paragraphs in the indictment, the total number of witnesses and

5 the number of witnesses who will testify against each accused and on each

6 count, an indication of whether the witness will testify in person or

7 pursuant to Rule 92 bis by way of a written statement or use of transcript

8 or testimony from another proceedings before the Tribunal, the estimated

9 length of time required for each witness and the total time estimated for

10 presentation of the Prosecutor's case and the list of exhibits the

11 Prosecutor intends to offer stating, when possible, whether the Defence

12 has any objection as to authenticity. The Prosecutor shall serve on the

13 Defence copies of the exhibits so listed.

14 Once it will have been communicated to the Chamber, the Chamber

15 will, following the provisions of paragraph (F), order Defence within

16 time-limits set by the Pre-Trial Judge, no later than three weeks from

17 pre-trial -- to file a pre-trial brief addressing the factual and legal

18 issues and including a written statement setting out different items.

19 Some of the conditions of paragraph (E) of Rule 65 ter have already been

20 fulfilled, so presently I think I can already fix a date which, since we

21 are now in November, which might be 10th of January, 10 January. So I fix

22 10 January 2005 to the Prosecution to prepare this brief, this pre-trial

23 brief, and the list of the exhibits.

24 Once this pre-trial brief and these exhibits will have been filed,

25 I will give time-limit to the Defence to enable the Defence to prepare its

1 own brief, this dependent on the matter of the possible deferral of the

2 case which may be ordered by the Trial Chamber in due time.

3 Therefore, we will avoid losing any time. Parties may continue to

4 work on the case. Beginning of the trial. If this trial does not take

5 place in The Hague, then this work will not be wasted.

6 Can the Prosecutor let me know whether it is in a position on the

7 10th of January to file the required documents required in paragraph (E)

8 of Rule 65 ter of the Rules of Procedure and Evidence?

9 MS. UERTZ-RETZLAFF: Your Honour, the Prosecution would like to

10 request the postponement of the imposition of a concrete deadline until

11 the 11 bis motion is decided upon. Because the staff of the Prosecution

12 is very limited. The counsel present here are also working on several

13 other cases, with deadlines for this year. And we would have a real

14 problem to facilitate this and, therefore, I think you should postpone the

15 imposition of the deadline until this 11 bis motion is decided upon. If

16 you don't want to do that, I would request that -- to pick a date for

17 February for the deadline and not January. Because it's a little bit too

18 tight, giving all the other deadlines that we have. We could make it in

19 February, that's for sure. But a 10 of January, given also the Christmas

20 break, is really hard on us.

21 JUDGE ANTONETTI: [Interpretation] Well, I will now ask

22 Mr. Domazet. You heard what was just said by the Prosecution.

23 Mr. Domazet, about the deadline of the 10th of January, for two reasons,

24 which may cause problems. First of all, that indeed there are three weeks

25 of recess at the beginning of January. So that reduces, of course, the

1 available time, and also the Prosecution tells us that there is this

2 procedure of Rule 11 bis. And Prosecution cannot do two things at the

3 same time. Before you take the floor, Mr. Domazet, I would like to say

4 that for the moment, we have no date concerning the hearing on the 11 bis

5 matter, since, as you know, Rule 11 bis, I will read it again. This

6 possibility of referral is only if the Chamber which is seized knows that

7 the accused will have a fair trial. From that, if one waits for the

8 procedure of Rule 11 bis to be concluded, there is a risk of losing time.

9 So in parallel, it would be better to start on both tracks, all the more

10 so as the accused has been detained for more than a year. So,

11 Mr. Domazet, what is your own point of view, since the Prosecution would

12 like to see a deadline a few weeks later, for instance, on the 10th of

13 February?

14 MR. DOMAZET: [Interpretation] Judge, I would also like to see this

15 date pushed to the 10th of February, because you would have the winter

16 recess, Christmas recess, and I know that the Prosecution has got a lot of

17 work. So I have nothing against it. And I also suggest to work on both

18 tracks, because I'm not sure how things will go for the 11 bis Rule

19 matter.

20 JUDGE ANTONETTI: [Interpretation] Very well, Mr. Domazet. So I

21 take account of the observations of both parties. Therefore, the final

22 date, the cut-off date, will be the 10th of February, which will enable

23 the Prosecution to get ready and to produce -- to do what is expected to

24 do according to the provisions of letter (E) of Rule 65 ter. And as

25 Mr. Domazet has just said, everybody has understood there are two possible

1 tracks, and since nobody knows exactly at what speed we will progress on

2 either, it's better for both parties to keep open the possibility of

3 acting in such a way that there will be no waste of time and that the

4 accused may have also the feeling that one is concerned with his case.

5 Therefore, concerning the obligations of this Status Conference, I

6 have now talked about the problems of procedure, procedural problems. I

7 see that presently there are no problems, no specific problems.

8 Therefore, within the framework of the preparation of this brief, I will

9 invite the parties, as much as possible, to agree about certain facts, the

10 admission of certain facts, in order to expedite the proceedings, agree on

11 the agreed facts.

12 Finally, it behooves me in this case to ask now the accused, will

13 you please stand up, Mr. Rasevic. Could you let me know if the conditions

14 in detention are good. Do you have specific problems while being in

15 detention -- detained? I'm here to help you solve them. What could you

16 tell me on the conditions of your detention in the Detention Unit, please?

17 THE ACCUSED: [Interpretation] Your Honour, I have no complaints to

18 make concerning the staff at the Detention Unit, as well as all other

19 staff. My health is quite good.

20 JUDGE ANTONETTI: [Interpretation] Are you receiving visits from

21 your family? Do people come and see you? Are you able to phone outside

22 of the unit?

23 THE ACCUSED: [Interpretation] Your Honour, thank you for

24 inquiring. My family has visited me. They do that as often as they

25 financially can afford that. And that pertains as well to the telephone

1 communication.

2 JUDGE ANTONETTI: [Interpretation] Very well. You told me that

3 about your health, there is no problem. Everything is all right?

4 THE ACCUSED: [Interpretation] There are no problems. Thank you.

5 JUDGE ANTONETTI: [Interpretation] Very well. So I suppose you

6 also have the possibility to meet your counsel. Do you see counsel?

7 THE ACCUSED: [Interpretation] Yes. We do visit each other

8 regularly whenever there is a need for that.

9 JUDGE ANTONETTI: [Interpretation] Very well, Mr. Rasevic. Thank

10 you very much. You can sit down.

11 Very well. So I've taken stock now of all the matters which were

12 on the agenda of this hearing. Does the Prosecution wish to take the

13 floor on any other matter? You have the floor.

14 MS. UERTZ-RETZLAFF: No, Your Honour. There is nothing arising.

15 JUDGE ANTONETTI: [Interpretation] Thank you very much.

16 Now Mr. Domazet, do you wish to take the floor on any other

17 subject?

18 MR. DOMAZET: [Interpretation] No, thank you, Judge. No, thank

19 you, Your Honour.

20 JUDGE ANTONETTI: [Interpretation] Thank you very much,

21 Mr. Domazet.

22 Now, as you know, presently there are two different proceedings,

23 ongoing proceedings, the 11 bis procedure and the continuation of 65 ter

24 procedures. As you know, we have to at the latest have a new Status

25 Conference or pre-trial meeting within the next four months, so we will

1 meet again within the next four months. I wish to thank you.

2 The agenda has been taken care of. The hearing is adjourned.

3 --- Whereupon the Status Conference adjourned

4 at 3.30 p.m.

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