Thursday, 26 September 2002
--- Upon commencing at 2.41 p.m.
JUDGE EL MAHDI: [Interpretation] I think it would be a good idea to proceed. I am now referring to what has been said during the Status Conference -- the preceding Status Conference.
JUDGE EL MAHDI: [Interpretation] I understand that the Prosecution said that all the exhibits have been disclosed and transmitted to the Defence team. Is this indeed the case? Has the Prosecution discharged all its obligations of disclosing all material to the Defence?
MS. KARAGIANNAKIS: Thank you, Your Honour. It's correct to say that the Prosecution has disclosed the confirming materials to the Defence in a language that the accused understands. In addition to that, the Prosecution has undertaken further measures to comply with its disclosure obligations. And if I may, I can outline them for you now.
JUDGE EL MAHDI: [Interpretation] Yes, please. You may.
MS. KARAGIANNAKIS: Firstly -- firstly the Prosecution has been disclosing witness statements pursuant to Rule 66(A)(ii) of the Rules. These witness statements have been disclosed in the form of transcripts and witness statements provided to the Office of the Prosecutor. The -- today the Prosecution is prepared to disclose a number of tapes in B/C/S of material that was given in live testimony in other cases, which would mean that out of the 18 witnesses we have identified and started to disclose, 98 per cent of the material, after today, would be disclosed to 58 the Defence in both a language of the Tribunal and a language that the accused understands.
The Prosecution has also identified a number of exhibits and has disclosed those exhibits. Those exhibits consist of maps and the like, which obviously do not require any translation; and secondly, in the form of documents in the B/C/S language.
I understand that my learned friend had filed a motion in this regard, Defence motion concerning the translation of documents, dated 19 September 2002. And we're prepared to address that motion today as well, Your Honour. But suffice to say that we are seeking to comply with our disclosure obligations on an ongoing basis and have been doing so. Finally, in respect of Rule 68 disclosure, the Prosecution sent a letter requesting from the Defence an identification of the general nature of their Defence and/or requesting assistance in the identification of Rule 68 criteria parameters. On the 6th of December, 2002 the Defence identified a limited number of parameter.
JUDGE EL MAHDI: [Interpretation] Excuse me to interrupt. Could you tell me exactly what the date is, 2002.
MS. KARAGIANNAKIS: Oh, pardon me. 6 September, 2002, Your Honour.
JUDGE EL MAHDI: September.
MS. KARAGIANNAKIS: Yes. I apologise. As a result of the identification of those parameters, the Office of the Prosecutor has initiated searches in order to comply with its Rule 68 obligations, and the process has begun and we intend to start 59 disclosing Rule 68 to the Defence in accordance with their parameters. Those are my comments in respect of disclosure, Your Honour. But we have undertaken a number of other steps to streamline the process, and I can outline those for you now if you wish.
JUDGE EL MAHDI: Yes, please.
MS. KARAGIANNAKIS: Yes. In addition to ongoing disclosure, the Prosecution has forwarded two sets of proposed adjudicated facts to the Defence pursuant to 94(B) of the Rules. On the 18th of July, 2002 proposed adjudicated facts were provided to the Defence from the cases of the Prosecutor and Tihomir Blaskic and the Prosecutor and Zlatko Aleksovski. On the 2nd of August, 2002 a second set of proposed adjudicated facts were forwarded from the cases of the Prosecutor and Kupreskic, the Prosecutor and Kordic, and the Prosecutor and Furundzija. Again, these adjudicated facts were derived from the judgements in those cases and were forwarded to the Defence with a request asking them to provide us with their agreement or otherwise to the admission of those adjudicated facts. As yet, Your Honour, we have not received a concrete answer as to whether or not the Defence agrees or does not agree with the proposed adjudicated facts. The --
JUDGE EL MAHDI: If I may interrupt you. You were saying concrete. Indication trying to -- in accord with the Defence that is there -- what is the situation. Is it a deadlock, or you are -- things are going between the -- you and the Defence counsel? I mean, I understand that Mr. Fourmy was in charge of the -- to help parties to get together and to finalise what they -- the points you are mentioning now. 60 And by the way, I would like to inform you that Ms. Susan Malmstrom will be in charge of this case until the nomination of the senior legal officer. But I hope that this effort will conclude -- you will conclude with the Defence in cooperation and under the supervision of our colleague that you will come with -- with an understanding.
Anyhow, excuse me for the interruption, and please go on.
MS. KARAGIANNAKIS: Just in response, Your Honour, the Prosecution stands ready to undertake all reasonable steps to facilitate discussions between the parties in any attempts to streamline the case with the cooperation of the Court and the senior legal officer and obviously the Defence.
In relation to the adjudicated facts, the Office of the Prosecutor sent a letter to the Defence in September -- I believe it was the 2nd of September -- asking for a response to the adjudicated facts, and we did receive a letter in response but not addressing each and every adjudicated fact. And I'll let Mr. Jonjic address that issue when it comes to that point.
The second way we have sought to streamline the process is by forwarding a copy of the indictment, the final version of the indictment, on the 2nd of August, 2002 to the Defence with a request that they could -- that they highlight any part of the indictment that they agreed with. As yet we have not received a response to that request. It's the Prosecution's view, Your Honour, that -- or submission that adjudicated facts and agreements in some parts of the indictment would streamline the process, and the Prosecution stands ready to speak 61 with the Defence about both of those issues, however, it would seek perhaps some assistance from the Trial Chamber in terms of is -- a scheduling order in terms of timetabling, discussions, and deadlines for agreements on the submitted adjudicated facts and also agreement, if any, on the indictment.
That concludes my submissions on these topics, Your Honour.
JUDGE EL MAHDI: [Interpretation] Thank you very much. I'd like to hear the point of view of the Defence. You have the floor.
MR. JONJIC: [Interpretation] Thank you, Your Honour. The Defence can confirm that the Office of the Prosecutor has disclosed all the supporting material to the Defence, the material supporting the indictment, and that was completed within the prescribed Rules. The Defence can also confirm that after that, meaning after the amended indictment was filed, the Defence received statements of several witnesses. The vast majority of that has indeed been translated into the language that the accused can understand; however, a smaller portion of this material has not been translated into the language that the accused can understand. And that was what prompted the Defence to file a motion on the 19th of September of this year asking for the translation to be completed in order to respect the rights of the accused and enable him to have a fair trial. The Defence can also confirm that the Office of the Prosecutor has disclosed or delivered to the Defence two sets of adjudicated facts. It is true that the Defence has not yet given its position regarding these adjudicated facts, and this is going to be one of the topics of -- that need to be discussed in a meeting between the 62BLANK PAGE 63 Defence and Mr. Harmon.
The Defence also confirms that the Prosecution, acting in accordance with the Appeals Chamber's decision, dated 19th of July, 2002, has disclosed to the Defence a large number of transcripts. As a result the Defence Office received yesterday a list of some 150 pages containing this material. Since I was already on my way to The Hague, I was unable to study this material in depth and therefore cannot give you any more details regarding this.
The Defence has no particular complaints regarding the attitude of the Prosecution, as far as the disclosure is concerned. The Defence is also interested in having this disclosure procedure completed as quickly as possible so that we can start preparing our case. Therefore, we would also like to see some framework, some time framework set up that would be in accordance with the Rules of Procedure and Evidence. That is all that the Defence has to state at this moment. Thank you.
JUDGE EL MAHDI: [Interpretation] Thank you very much, Mr. Jonjic. I would like to talk about the problem of translations now. And there again I am addressing both parties. I have the feeling that the meaning and the intention of the Rules, which you find both in the Statute and the Rules of Procedure and Evidence, is to go -- in the sense of the rights of the Defence, to protect the rights of the Defence. I also feel that one should not abuse such rights. There are limits where such an obligation ceases. So I would like to be informed with the help of Mrs. Malmstrom. Wouldn't the parties have the possibility of sorting out exhibits and to find out which documents are a problem, a translation problem? See, for 64 instance, a judgement or a decision of the Tribunal which happens to be in French or English. For instance, for a decision, do you demand that it be transmitted to you in B/C/S? I have a feeling that one has to sort out these things and that if one deals with a case-by-case basis. For instance, in the case of a resolution of the United Nations, I have a feeling that it's not necessary to have it immediately translated because the Tribunal has -- is overloaded with work. I do understand that the Prosecution would like to see every document disclosed in a language which the accused understands, but sometimes a limit has to be put to such an obligation in as much as the quantity, the volume, a whole book, for instance, which is tendered and in which one tries to find an article in a book, is one obliged to have the whole book translated or only the pertinent parts? I'm now examining this question of problem posed by translations. Couldn't the parties find an agreement? I think there is a cooperation, which I will, which I welcome which exists and certainly helps in order to achieve justice, which one hopes to be particularly just but also sufficiently expeditious. And now I'm speaking about your motion demanding translation of all the exhibits transmitted by the Prosecution. Do you maintain firmly your position, or is there room for you to accept a solution which might be more practicable; that is to say, if a need is felt, if it is felt that it becomes necessary to have a document translated, and I also mean concerning the question of time one needs to translate and transmit. There's a question of deadlines. We can always, of course, ask the Chamber to have an extension of time limit. My first question, first to the Prosecution: You said, 65 Madam Karagiannakis that you were ready to contemplate this question of translations in general. I think it would go beyond -- there is no agreement between yourselves. I'd like it to be resolved today. If one could find a formula which would enable both the Prosecution to discharge its obligations and to the Defence to be convinced that its fundamental rights have not been in any way jeopardised and also to have an equitable and expeditious justice. So could you tell me what you have considered as being a possible solution, broadly speaking, for these translations requested by the Defence.
MS. KARAGIANNAKIS: Thank you, Your Honour. I should point out at the outset that the Office of the Prosecutor, due to an administrative error inside our office, only received -- that is, counsel only received the Defence motion today at 12.30. So when I said earlier we were prepared to address it, I was prepared to make some preliminary comments about the motion. However, we would seek -- we are planning to file a written and detailed response to the Defence's motion within the time limits prescribed by the Rules, which I believe are in another seven days or so. So we will be filing a written response, Your Honour. In terms of preliminary comments about the motion, the Prosecution, of course, has brought to the attention of the various Trial Chambers the translation problems that are faced by this Tribunal. It recognises that the working languages of the Tribunal are English and French. The Defence has cited jurisprudence in its motion. That's paragraph 10 of the motion, that this jurisprudence indicates that translation into the B/C/S language is limited to the evidence presented 66 at trial only.
Let me say also, Your Honour, that at this stage of disclosure virtually all of the disclosure to the Defence will have been in the B/C/S language, so that currently on the basis of material disclosed we-- probably we do not have a problem, according to us, in terms of B/C/S translations. However, this is an extremely important subject and we would like to -- we submit that the registrar should be invited to comment upon the motion of the Defence to see what is in fact possible in respect of translations. We can reiterate that, as Your Honours said, there is a very large backlog regarding translations before the Tribunal and imaginative solutions need to be considered in order to solve it. But at the moment we don't appear to have an issue that this motion is largely moot. However, we will be providing a detailed written response to the defendant's motion in due course.
JUDGE EL MAHDI: [Interpretation] Thank you very much. Now I'm addressing the Defence, counsel for Defence. For moment up to now, if I understand, there is no big problem, so are you foreseeing matters for the future? Why have you presented this motion, since the Prosecution has disclosed all documents in a language which the accused understands?
MR. JONJIC: [Interpretation] Thank you, Your Honour. That is not entirely so. The Defence adheres to our requests contained in our motion, although we do take notice of everything that has been just said by the Prosecutor. As you can see in our motion regarding translation, the Defence has identified five categories of materials that should theoretically be translated, although the Defence is fully aware that the 67 abuse of right denies the right itself, nevertheless the Defence in its motion stated that we would agree to have the material that represents either the communication between the parties or that contains legal arguments -- it does not necessarily have to be translated into the language that the accused understands. However, we believe that the rights of the accused can be protected only if the factual allegations and incriminations can be read directly by the accused so that the accused can directly familiarise himself with it.
As far as the material that has been delivered to the Defence so far as concerned, a majority of it has been translated but not the entire material. There are some witness statements that have not been translated into the language that the accused understands, and the Defence believes that this is the material that the OTP has already translated at some point into the Croatian language, because this is material pertaining to other cases before this Tribunal, such as Lasva Valley case and other cases.
Another portion of the material that has not been translated are the transcripts that have been disclosed to the Defence based on the Appeals Chamber decision dated 19th of July. This is a very voluminous material, partially from closed or private sessions. This material has not been translated so the accused can familiarise himself with this material only if the Defence undertakes to translate it on its own. The core problem, as the Defence sees it, is that we believe that a large portion of this material had been translated into the language that the accused understands at some point in the past, because this 68BLANK PAGE 69 material deals with the facts that have been discussed before this Tribunal for the past six years. This is why the Defence maintains the request contained in its motion and asks that the Chamber rules appropriately, because otherwise the accused's rights will not be respected.
JUDGE EL MAHDI: [Interpretation] Thank you, sir, for this clarification. Now, what I find reassuring now is that we all agree that the greater part of the documents which have been disclosed have been translated in a language which the accused understands; therefore this is a problem for the coming days or months, but it is not a problem today which would need an immediate intervention and, therefore, I would propose that if you accept the help of Ms. Malmstrom to see, as you have yourself stated -- that we will see when there is a question of a right and when there is a possibility of an abuse of a right and so that an effort can be made in order to have -- to expedite matters and to have true justice while respecting the fundamental rights of the Defence. I therefore invite Ms. Malmstrom to deal with this matter, and in the meantime, since I don't want things to drag on, I would ask Ms. Malmstrom also to start dealing with this as soon as possible, because I think it is extremely important to the case. And I think I've understood that the position of the Prosecution is that it has discharged its duties under Article 66 of the Rules, Article 67 -- Article 66 deals with the disclosure by the Prosecutor of exhibits. If I have understood rightly, exhibits have been disclosed and transmitted.
I did understand what you said. You have discharged your 70 obligation in virtue of Rule 66 of the Rules, Ms. Karagiannakis?
MS. KARAGIANNAKIS: Thank you, Your Honour. I should clarify one point which may be giving rise to some confusion. Today the Prosecution will be disclosing tapes, B/C/S tapes, of transcripts previously disclosed in English to the Defence, which may cure a number of complaints the defendant has made.
Now, in terms of Rule 66 disclosure, that is an ongoing process which we will engage in in the months to come. So it is not -- whilst the confirming materials and that disclosure is complied with, that is, the disclosure within -- contemplated by Rule 66(A)(i) is complied with in total, the disclosure of additional witness statements under Rule 66(A)(ii) is a continuing process, and obviously this process would be affected by any facts -- adjudicated facts or facts stated in the indictment which may or may not be agreed to by the Defence. Because, obviously, if more facts are uncontested, then it may therefore result in a reduction of witnesses.
In respect of exhibits, we understand that the Rule that governs exhibits is Rule 65 ter (E)(iii). Now, we are in the process of disclosing exhibits. That is also a continuing process, which is not completed and will obviously be affected by further discussions between the parties. However, there is no outstanding -- current outstanding order with respect to deadlines of the disclosure of materials under Rule 65 ter (E)(iii). So that is not complete. What is complete is 66(A)(i) and the other types of disclosure are continuing.
JUDGE EL MAHDI: [Interpretation] Thank you for clarifying this 71 point. And what about duties and obligations contemplated by Article 67? What is the position, reciprocal disclosure?
MS. KARAGIANNAKIS: Your Honour, the Defence has not invoked reciprocal disclosure, as far as I understand, and therefore at this point in time Rule 67 doesn't have application in this case.
JUDGE EL MAHDI: [Interpretation] This is your interpretation. I will come back to this.
In the meantime, I would like firstly to ask you -- what you are requesting from the Defence is to state its position in respect of facts which are admitted. So the parties must get together as soon as possible to examine and discuss these matters. And I leave the choice of the date and of the means of communication to the responsibility of Ms. Malmstrom. I think it should happen as soon as possible.
Counsel for Defence could also specify and state his position. If he agrees on certain established facts, this could help to proceed a bit faster in the proceedings. So I think this meeting is essential -- is of essential importance.
Do you wish my intervention as from now to give time limits within you would be obliged to disclose, communicate documents or exhibits? If I understand you, you are awaiting a decision by virtue of A(2)(i) of Article 66 so that you can then discharge your obligations. Is that what is to be understood? And what sort of time limits were you thinking of, would you think would be in order? If I tell you, for instance, in a week, are you going to be in a position to disclose and communicate these documents within a week? Because the Defence is also hoping to go as 72 quickly as possible forward in these matters. I'm not asking you to answer immediately, but will the Prosecution be ready to communicate with Ms. Malmstrom and tell her that you would find a specific date, a specific time limit of, let's say, one month more or something but something -- a date which would respect the right of the Defence, the right to -- an expeditious decision, a just decision. So I think it will be for Ms. Malmstrom whom I totally trust, to deal with this. Does counsel for Defence have anything to say at this stage of the proceedings?
MR. JONJIC: [Interpretation] No, we have nothing to say at this point, Your Honour. Thank you very much.
JUDGE EL MAHDI: [Interpretation] Thank you, sir. Now I would like to examine the last subject -- the next subject. And I'm addressing Mr. Ljubicic. I would like to know how is your health condition in the Detention Unit. Is there anything you wish to say to the Chamber? The Chamber will be happy to hear anything you may wish to say on this matter of your health in detention.
THE ACCUSED: [Interpretation] Thank you, Your Honour. I can say briefly that I do not have any complaints whatsoever regarding my stay in the Detention Unit or the treatment of the staff of the unit. My state of health is quite good, and I don't have any problems regarding that issue either. Everything else is less important.
JUDGE EL MAHDI: [Interpretation] Thank you, Mr. Ljubicic. Will you please sit down.
So this is -- it is proper to congratulate those who are in charge 73 of the Detention Unit, and I express the hope that all of us by our efforts will finally achieve an expeditious procedure. And I have to say that during the past phase there was this question of the indictment, of the form taken by the indictment. And I hope that now that we have determined these matters, we could enter into the substance, and this in a more expeditious way -- in such a way which respects the rights of the Defence and also good administration of justice.
This being said, I see no other question, and therefore the Chamber rises.
--- Whereupon the Status Conference adjourned at 3.22 p.m.