Status Conference (Open Session)Page 1
Status Conference (Open Session)Page 1
1 Tuesday, 28th March 2000
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3 p.m.
6 JUDGE BENNOUNA: [Interpretation] Would the
7 Registrar call the case.
8 THE REGISTRAR: Good afternoon, Your Honour.
9 Case number IT-95-8-PT, the Prosecutor versus Dragan
10 Kolundzija and Damir Dosen.
11 JUDGE BENNOUNA: [Interpretation] Thank you
12 very much. I will now ask for the appearances,
13 please.
14 For the Prosecution.
15 MS. HOLLIS: Good afternoon, Your Honour.
16 Brenda Hollis, Michael Keegan, Kapila Waidyaratne
17 appear on behalf of the Prosecutor.
18 JUDGE BENNOUNA: [Interpretation] Thank you
19 very much.
20 And could we have the appearances for the
21 Defence, please? Could you introduce yourself?
22 MR. VUCICEVIC: On behalf of Dragan
23 Kolundzija, Dusan Vucicevic, from Chicago, and
24 Mr. Jeffrey Aaron, from Los Angeles.
25 MR. AARON: Good afternoon, Your Honour.
1 MR. PETROVIC: [Interpretation] Good
2 afternoon, Your Honour. I'm Vladimir Petrovic, and
3 with me is Sanja Turlokov. We represent the defence of
4 Mr. Damir Dosen.
5 JUDGE BENNOUNA: [Interpretation] Thank you
6 very much.
7 I will start by very quickly spelling out our
8 agenda for this particular Status Conference. I will
9 start by reminding all of you what a Status Conference
10 is and what it is that I am expecting from the
11 parties.
12 Then I will discuss with both parties the
13 point which you, the Defence, and you, the Prosecution,
14 have reached in terms of pre-trial procedures.
15 I will talk about the indictment, of course,
16 of the communication of evidence in conformity with the
17 order delivered by the Chamber on March the 10th, which
18 related to the protection of victims and witnesses. We
19 will discuss the communication of other evidence in
20 application of Rule 66(ii) of our Rules of Procedure
21 and Evidence, and then we will discuss the calendar and
22 the dates that have to be set by the pre-trial Judge.
23 I will then go over the schedule of the trial
24 proper, and I will particularly try to establish how it
25 is we can deal with the length of witness testimonies
1 and what can be done in terms with the links that could
2 be established with other trials that are currently
3 being heard by this Tribunal.
4 Lastly, we will look at all other pending
5 issues before this Trial Chamber. I will ask of the
6 parties to tell us a little more about the accused's
7 state of mind and how they feel; I will turn to the
8 accused as well. And I will try to attend to all other
9 matters that might arise during this Status
10 Conference.
11 As for the Status Conference in itself, I
12 would simply like to remind you what you maybe know,
13 i.e., that the pre-trial Judge has a full role to play,
14 but he can only play his role to the full with your
15 cooperation, and I wish for optimum cooperation between
16 us. This is what is stipulated by both the Statute and
17 our Rules of Procedure and Evidence.
18 As you may know, the Rules provide for the
19 fact that the parties can meet in order to discuss all
20 issues pending in order to try to reach agreements on
21 points of fact or points of law, and I wish for the
22 parties to take full opportunity of this, which is
23 provided for by the Statute and the Rules of Procedure
24 and Evidence, and I wish for us to try and resolve all
25 matters which the parties do not agree upon.
1 I wish to favour all kinds of arguments and
2 discussions between you, the Defence and the
3 Prosecution. I wish you to reach agreements wherever
4 possible, and you know that these agreements can occur
5 outside the courtroom, if that is necessary; it can
6 also happen in my office, for example. The main
7 objective is to give priority to a speedy preparation
8 for the trial so that the case might be heard as early
9 as possible and in the best conditions possible. We
10 want the trial to be just for both parties
11 represented.
12 So we will try to take stock of where we
13 stand in terms of pre-trial motions, and I will then
14 try to look over the various documents which have to be
15 filed in order for the trial to begin.
16 The first question that arises and which is
17 related to the trial pre-trial procedure is precisely
18 the question of pre-trial motions, and more
19 particularly the indictment.
20 I might have to remind you of the fact that
21 an order has been made by the Trial Chamber on the 10th
22 of February, 2000, and according to this particular
23 order, which bears on the indictment, the Prosecution
24 has submitted an amendment, if you will, an amended
25 attachment to the indictment, and this amended
1 attachment is now officially part of this indictment,
2 and that was something the Trial Chamber gave its
3 decision on.
4 Of course, the Defence, with Mr. Vucicevic
5 and Mr. Petrovic, has followed closely and has, I
6 believe, received all the necessary elements in order
7 to follow closely this particular issue, so you should
8 now know what the indictment looks like.
9 I would now like to turn to you,
10 Mr. Vucicevic, and then I will turn to you,
11 Mr. Petrovic, I would now like to ask you if there are
12 any comments that you would wish to make on that
13 particular issue.
14 MR. VUCICEVIC: Thank you very much, Your
15 Honour, concerning your remarks and your willingness to
16 expedite the preparation of the trial as speedy as
17 possible.
18 We have reviewed the amended schedules to the
19 indictment, and we, at this time, do not believe that
20 that fully complies with the terms of your order.
21 However, Your Honour, in order to apply for a set of
22 preliminary motions under Rule 72, which we
23 respectfully believe that we would be permitted to
24 because that, indeed, constitutes an amendment, we
25 would like to study the matter for a few more days and
1 then, you know, submit our application in writing.
2 But, briefly, as long as -- if I may address
3 the point, Your Honour. There is only a new column,
4 and that column is not directing the type of the
5 activity that the accused has been charged with,
6 because that's basically indicating that the accused
7 has been present from the time that the camp was
8 established to the time that the camp was disbanded.
9 However, the witnesses that the Prosecutor has clearly
10 dispute such broad errorment [sic] in the indictment,
11 and that is only one particular detail that I would --
12 you know, I wouldn't wish to kind of impose the facts
13 upon the Court at this time.
14 But not withstanding, you know, that every
15 indictment has to be looked at with a view to the facts
16 that the Prosecutor has, the Prosecutor has the duty,
17 under your ruling previously, to tie the acts of the
18 defendant to the particular charges. And I believe
19 substantially, in a form -- maybe there was an
20 attempt -- but in substance, it failed. And we'll
21 address that, Your Honour.
22 JUDGE BENNOUNA: [Interpretation] Thank you,
23 Mr. Vucicevic.
24 Now, Mr. Petrovic, since you represent
25 Mr. Dosen, would you please like to take the floor?
1 MR. PETROVIC: [Interpretation] Your Honour,
2 we had sufficient time and opportunity to consider the
3 material submitted by the Prosecution, along with their
4 motions, and I believe that this was delivered to us on
5 the 9th of March.
6 We have some serious objections to this, some
7 of them are procedural in nature, and we would like to
8 lay them out for you today, if possible. The Defence
9 for Mr. Dosen fully understands your order, and we
10 wanted to be part of the indictment. What we are
11 bothered with is the way in which something can become
12 an integral part of the indictment. Something that has
13 so many details, that contains so many information,
14 that has so many specific charges in relation to my
15 client can only be made part of the indictment only by
16 the decision of the Chamber or by a formal process of
17 amendment of the indictment, so that it would become an
18 integral part of the indictment.
19 This is my understanding of the process, that
20 this attachment has to become formally an amendment to
21 the indictment. And the only way for an indictment to
22 be changed anyway is for it to be amended in a way
23 which is provided for by the Rules.
24 I would also like to point out something that
25 is clear to the Trial Chamber, the situation in the
1 Kvocka trial. It was an identical type of situation.
2 After the preliminary motions, the indictment was
3 amended, and the changes consisted of several
4 attachments which became an integral part of the
5 indictment through the process of amending it. So the
6 process of the amendment, the Defence was in a
7 position, by filing preliminary motions, pursuant to
8 Rule 72, it was able to test its -- it was able to test
9 the validity of the charges, as it was done in the
10 Kvocka case.
11 There is another reason which I find very
12 important. There are some very serious charges that
13 are leveled against both the clients, and we, as the
14 Defence team, have asked from the Trial Chamber that to
15 be clarified between the parties by challenging the
16 form of the indictment and asking --
17 JUDGE BENNOUNA: [Interpretation]
18 Mr. Petrovic, allow me to interrupt you for a few
19 seconds.
20 If I understood you well, as Mr. Vucicevic
21 has said for Mr. Kolundzija, you also wish to file a
22 written answer to what has been presented by the
23 Prosecution. You are not satisfied by the decision
24 given by the Trial Chamber, the decision by which the
25 Trial Chamber considers that the amended attachment is
1 now officially part of the indictment in this case.
2 Have I well understood what you wanted to say?
3 MR. PETROVIC: [Interpretation] In essence,
4 yes. Yes.
5 JUDGE BENNOUNA: [Interpretation] Because, at
6 any rate, it will be not be up to the Trial Judge, but
7 to the Trial Chamber in full to decide upon that
8 particular issue. What kind of schedule are you
9 looking at? When would you like to file this written
10 submission on the issue?
11 MR. PETROVIC: [Interpretation] No other
12 deadline except the one provided for by Rule 72 for
13 preliminary motions, no extension of the deadline.
14 This is the situation which we treat as a situation of
15 the amending of the indictment, and we only ask for the
16 deadline which has been provided for for this
17 situation, that is, the filing of preliminary motions
18 pursuant to Rule 72.
19 JUDGE BENNOUNA: [Interpretation] Thank you
20 very much, Mr. Petrovic. Have you finished?
21 MR. PETROVIC: [Interpretation] I have several
22 other specific points to make which would contribute to
23 the argument.
24 I believe that in this first part, there was
25 non-compliance with the order of 10 March of this year
1 by the Trial Chamber. And I would not like to take up
2 any more time, either of you, Mr. President, or any
3 other party represented here, but I would like to point
4 out just the most glaring points that -- omissions in
5 this motion.
6 Pursuant to Article 7(1) of the Statute,
7 there is no --
8 JUDGE BENNOUNA: [Interpretation] No. No, I
9 don't think you've understood what it is that I wanted
10 to say to you. If you think that the Prosecution has
11 not complied with our decision, you must state that in
12 writing. I'll ask the same thing for -- I'm going to
13 ask Mr. Vucicevic the same thing. I asked you when you
14 plan to submit your written documents, your written
15 comments, so that the Trial Chamber can rule, because
16 the Trial Chamber is going to rule on your comments.
17 MR. PETROVIC: [Interpretation] Within any
18 deadline which you set out. It could be three days,
19 seven days. Any deadline is acceptable for the Defence
20 of Damir Dosen.
21 JUDGE BENNOUNA: [Interpretation] Thank you
22 very much.
23 Mr. Vucicevic, is it? Do you need a time
24 period in order to present your comments in writing?
25 MR. VUCICEVIC: Yes, Your Honour, because we
1 are on our way to a field investigation in Bosnia, and
2 I will be staying there until the 4th, 5th, 6th, as
3 long as it takes, you know, to interview all the
4 witnesses that are available for me there. So,
5 therefore, if I may, we consider what you said in your
6 initial -- in your opening remarks, that this is an
7 amendment process to the indictment, whether it would
8 be an amendment of the text or an amendment of the
9 schedule.
10 In Rule 72, as we understand it, and it was
11 commented on last time at the hearing by the Trial
12 Chamber, this would trigger the invocation of Rule 72
13 in allowing the Defence to present its preliminary
14 motion. However, in Rule 72, the point that I would
15 only need cleared by you, Your Honour, is -- because
16 Rule 72 provides 60 days after the amendment; however,
17 30 days after the Prosecutor discloses the evidence
18 upon which the amendment is based. And we have -- on
19 the 9th of April, it will be 30 days since that was
20 submitted by the Prosecutor. We have not had any
21 submission of the Prosecutor based on what amendments
22 were made, and when the Prosecutor addresses that
23 issue, we would clearly have the decision because you
24 could then specify whether that should be 30 days.
25 But we can do it even sooner. I think, you
1 know, we could do it within the next two weeks.
2 Because the common desire is to expedite this, I
3 believe that we can submit this within the next two
4 weeks.
5 JUDGE BENNOUNA: [Interpretation] I'm going to
6 confer with the legal officer.
7 [Judge Bennouna confers with legal
8 officer]
9 JUDGE BENNOUNA: [Interpretation] I'm going to
10 ask the representatives of the Prosecutor, that is,
11 Ms. Hollis, whether she has any comment to make about
12 what was just said by the Defence.
13 MS. HOLLIS: Thank you, Your Honour.
14 Your Honour, in the Prosecution pleadings on
15 this issue of the form of the indictment, the
16 Prosecution has taken the position that the schedule
17 and the amended schedule were not an integral part of
18 the indictment but rather were, if you will, a variant
19 of a bill of particulars relating to the indictment.
20 The Trial Chamber, in its decision,
21 determined that the schedule would be a part of the
22 indictment. The Trial Chamber then ordered that we
23 file an amended schedule dealing specifically with the
24 culpability under Article 7(1), the capacity of the
25 accused, and if we were alleging that each accused was
1 responsible under both 7(1) and 7(3).
2 We did file that amendment addressing those
3 issues. We filed no additional supporting material for
4 this amendment. We did file it with the Trial Chamber;
5 it was our understanding that we were to file it with
6 the Trial Chamber. But we did not submit additional
7 supporting material, so there is no additional
8 supporting material for this particular amendment.
9 JUDGE BENNOUNA: [Interpretation] For the
10 Defence, you have heard what the Prosecutor just said,
11 and if I understand you correctly, you say that there
12 is no substantive issue, no formal problem with the
13 indictment, but rather with an amendment.
14 I will give you time, then, until the 11th of
15 April, in order to submit your arguments in writing,
16 because the Chamber will have to rule in a full bench
17 on that issue that you are raising, the issue that you
18 are challenging, the fact that this is simply a formal
19 change but stating that there is really a problem with
20 the indictment itself, that is, with the counts.
21 I will ask Ms. Hollis, that is, for the
22 Prosecution, whether one week will be enough after that
23 in order to respond to the comments made by the
24 Defence, which would take us to the 25th of April. I'd
25 like to know whether that's all right for you. Are you
1 satisfied with that, Ms. Hollis?
2 MS. HOLLIS: Yes, Your Honour. As I
3 understand it, the Defence would file on the 11th, and
4 then we would have one week to file our response; is
5 that correct? Would that be five -- could we have a
6 specific date? That would help clarify it.
7 JUDGE BENNOUNA: [Interpretation] Yes, I've
8 made an arithmetical error. I said the 11th of April
9 for the Defence. We've got to add another week. I
10 don't have a calendar in front of me. That would take
11 us to the 18th.
12 Would that date be all right for you,
13 Ms. Hollis, the 18th?
14 MS. HOLLIS: Yes, Your Honour.
15 JUDGE BENNOUNA: [Interpretation] Very well.
16 On the basis of that, on the 18th of April,
17 we will have the Defence position and the response from
18 the Prosecution. At that point, the Chamber, meeting
19 in full bench -- as I've already said to you, since
20 this does not fall under the authority of the pre-trial
21 Judge, who can only exercise what he is competent over,
22 and this does not fall within his jurisdiction --
23 therefore, as I said, the full Chamber will render its
24 decision in the proper time.
25 As regards that issue, that is, the area of
1 preliminary motions, I believe that was the only point
2 that was raised as regards the preliminary motions, for
3 the time being.
4 I am now going to move, if you agree, to the
5 second point, which deals with the issue of disclosure
6 of evidence. The documents -- on the basis of Rule
7 66(A)(i), the documents that were presented to the
8 confirming Judge for the indictment were disclosed to
9 the Defence. Let me remind you of this point. They
10 were redacted before being disclosed, and I would
11 repeat also that the Chamber ordered, on the 19th of
12 October, 1999, that is, the order for disclosure as
13 such.
14 In another decision, on the 10th of March,
15 the Chamber rejected the motion presented by the
16 Prosecutor that some of the documents be redacted, and
17 ordered, on the 10th of March, ordered the Prosecution
18 to produce the documents in a non-redacted form within
19 three days and to notify the Chamber by the 17th of