Page 62
1 Friday, 28 April 2006
2 [Status Conference]
3 [Open session]
4 [The Appellant Blagojevic not present in court]
5 [The Appellant Jokic entered court]
6 --- Upon commencing at 2.22 p.m.
7 JUDGE SHAHABUDDEEN: Mr. Registrar, will you please call the case
8 next on the list.
9 THE REGISTRAR: Yes. Thank you, Your Honour. Case IT-02-60-A,
10 the Prosecutor versus Blagojevic and Jokic.
11 JUDGE SHAHABUDDEEN: I have an apology to make to all counsel who
12 are involved in this case. That is, we are a few minutes late, and I beg
13 of you to overlook that circumstance, this being attributable to a
14 deficiency in the arrangements on the part of the secretariat of the
15 Court. I hope this will be conveyed to the Registrar and we will avoid a
16 repetition of that in future.
17 Now, I welcome you all. This is a Status Conference at the
18 appeals stage in the case of the Prosecution against Blagojevic and Jokic.
19 I would like to begin by ensuring that the audio equipment is working
20 properly. So in the usual way, may I ask the appellant, Mr. Jokic, can
21 you hear the proceedings in a language you understand?
22 THE APPELLANT JOKIC: [Interpretation] Yes, Your Honour, I can hear
23 you in a language I understand, as well as in English.
24 JUDGE SHAHABUDDEEN: Thank you. And what about counsel? The
25 Prosecution?
Page 63
1 MR. FARRELL: Thank you, Your Honour. I can hear you.
2 JUDGE SHAHABUDDEEN: Yes.
3 MR. MURPHY: We can hear. Thank you, Your Honour.
4 JUDGE SHAHABUDDEEN: Thank you very much. Next, I would like to
5 call for appearances.
6 Mr. Murphy, I believe.
7 MR. MURPHY: Good afternoon, yes, Your Honour. Peter Murphy,
8 counsel for Mr. Jokic.
9 JUDGE SHAHABUDDEEN: And with you?
10 MS. LOUKAS: Yes. Good afternoon, Your Honour. Chrissa Loukas,
11 co-counsel for Mr. Jokic.
12 JUDGE SHAHABUDDEEN: Yes. And for the Prosecution.
13 MR. FARRELL: Good afternoon, Your Honour. Good afternoon to my
14 learned colleagues. Norman Farrell, and with me is the case manager
15 Lourdes Galicia, Mr. Milbert Shin, and Mr. Matteo Costi.
16 JUDGE SHAHABUDDEEN: Thank you. Counsel, as you are aware, Rule
17 65 bis of the Rules of Procedure and Evidence requires that Status
18 Conferences be held for each appellant in the Tribunal's custody at
19 intervals no greater than 120 days. We held a Status Conference for
20 Mr. Jokic's co-appellant, Mr. Blagojevic, on 13 March this year, but
21 postponed Mr. Jokic's due to his change in counsel.
22 The last Status Conference in Mr. Jokic's case was on 23
23 September, 2005. Mr. Jokic waived the application of the 120-day Rule so
24 as to accommodate several recent delays in his Status Conference, mostly
25 relating to the recent change in his assigned counsel.
Page 64
1 We have new counsel with us today. I welcome very especially
2 Mr. Murphy, Mr. Jokic's new lead counsel. I also welcome Ms. Loukas, who
3 is returning as his co-counsel after a hiatus from the case.
4 Let me begin by ask Mr. Jokic if he has any concerns to raise with
5 respect to the conditions of his detention.
6 THE APPELLANT JOKIC: [Interpretation] Your Honour, I have no
7 complaints. The conditions are good.
8 JUDGE SHAHABUDDEEN: Then that brings me to the principal order of
9 business today, which is to address the next steps to be taken in bringing
10 this appeal toward a hearing in light of the change in counsel. I will
11 first update the parties as to the status of the case and then invite them
12 to raise any concerns they have.
13 Mr. Blagojevic and the Prosecution have both filed appeals in this
14 case, as has the co-appellant Vidoje Blagojevic. Now, I find that the
15 judgement of the Trial Chamber in this case was delivered on 17th of
16 January, 2005, and a written judgement then followed on the 24th of
17 January, 2005. The Prosecution filed its notice of appeal on 23 February,
18 2005, and its appeal brief on 9th of May, 2005. Both Mr. Blagojevic and
19 Mr. Jokic filed their briefs in response to the Prosecution's appeal on 20
20 June, 2005. Mr. Jokic also filed his notice of appeal on 23 February,
21 2005. Mr. Blagojevic filed his notice of appeal on 31 May, 2005.
22 As I have said, we are not dealing with Mr. Blagojevic's case now.
23 The briefing on the Prosecution's appeal was thus already complete
24 prior to the last Status Conference, and the briefing on Mr. Blagojevic's
25 appeal was completed on 28 December, 2005.
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1 In Mr. Jokic's appeal, the Prosecution filed its consolidated
2 response brief on 16 December, 2005, but Mr. Jokic has not filed a reply
3 as yet. On the 6th of January, 2006, Mr. Jokic's prior counsel filed a
4 notice of her intention not to file a reply and instead to reply to the
5 Prosecution's argument at the oral proceedings.
6 There have been a number of procedural decisions filed since the
7 last Status Conference which need not be exhaustively summarised here.
8 They include decisions relating to Mr. Jokic's provisional release for a
9 memorial service last fall, decisions relating to the motions of the
10 accused in other cases for access to certain confidential materials, and
11 decisions relating to extensions of time and page limits. They also
12 include decisions relating to the pleadings in Mr. Jokic's appeal. In
13 particular, Mr. Jokic was permitted to file various amendments to his
14 notice of appeal and ordered to make certain corresponding changes to his
15 appeal brief.
16 I take it that all of these decisions and the related filings are
17 available to new counsel so that they can familiarise themselves with the
18 procedural history of the case and put themselves in order to answer the
19 case.
20 What I would like to do now is to get an idea from Mr. Murphy as
21 to what further filings he anticipates making in this case and how much
22 time he thinks it will be necessary for him to have. I must caution that
23 this is only a preliminary discussion for informational purposes. As
24 counsel will appreciate, any new submissions or requests for extension of
25 time must be submitted in writing according to the normal procedures.
Page 66
1 Then the Prosecution and Mr. Blagojevic will have a chance to respond in
2 writing.
3 Mr. Murphy.
4 MR. MURPHY: Thank you, Your Honour. The Appeals Chamber will be
5 aware that the pleadings filed so far on behalf of Mr. Jokic by prior
6 counsel were the subject of certain responses from the Prosecution and
7 also comments by the Appeals Chamber. In -- in the light of that, Your
8 Honour, Ms. Loukas and I have made a careful analysis of what seem to us
9 to be the issues, with the advantage of having access to all the previous
10 filings that Your Honour mentioned, and also, in both our cases, with a
11 certain prior familiarity with the case. In Ms. Loukas's case as
12 co-counsel; in my case, Your Honour, some time ago as legal consultant for
13 Mr. Jokic at the pre-trial stage. And based upon that analysis, we have
14 -- we are in a position today to address Your Honour about our proposed
15 conduct of the case from this moment on.
16 Your Honour, I have given Mr. Farrell advance notice of what I'm
17 about to say, and I have also supplied Mr. Roberts with what I will call a
18 very rough draft of a proposed revised notice of appeal. Your Honour,
19 this is not a filing, it's simply a note which I hope will be of
20 assistance to Your Honour in following the matters that I will address.
21 Your Honour, it's our view that it would be in the interests of
22 justice and also greatly simplify the task of the Appeals Chamber and
23 perhaps the Prosecution, as well as the Defence, if we were to file in due
24 course a revised notice of appeal and appellate brief. We will, of
25 course, as Your Honour says, file a motion. At this point I'm only giving
Page 67
1 the Court an outline of our intentions.
2 Briefly, Your Honour, we -- we believe, as I think the Appeals
3 Chamber did also, that there was a certain lack of clarity in the filings
4 that have been made to this point, and we believe that if allowed to file
5 a revised notice of appeal and appellate brief, we can achieve two major
6 goals. The first would be to -- to simplify and clarify the issues. It
7 seems to us, Your Honour, that there were a number of issues, or at least
8 allegations made in the notice of appeal and the brief that need not be
9 pursued in the sense that they have no -- in our judgement, have no
10 reasonable prospect of success, and we would, therefore, propose to delete
11 those and then that would simplify the task considerably.
12 The second -- well, going along with that, what we would come to,
13 Your Honour, would effectively be five grounds of appeal, two legal --
14 well, three legal and two factual, which are summarised in the note that I
15 handed up to Your Honour today. And obviously we will work on a little
16 more formal language for some of this, but really it would simplify, I
17 think, and consolidate the issues into those grounds of appeal that have a
18 reasonable prospect of success and would greatly simplify matters.
19 I think I'm right in saying, Your Honour, that with respect to
20 these grounds of appeal, only one would really represent perhaps something
21 of a surprise to the Prosecution in being a new ground of appeal. It is
22 the third legal ground on the second page of the note, and in fact this
23 ground is mentioned in the appellate brief, so it is in fact there but it
24 is not treated as a separate ground and the Prosecution I think could have
25 been forgiven for overlooking its significance the way matters stand now.
Page 68
1 Ms. Loukas and I believe, however, that this is a substantive ground of
2 appeal in its own right that should be --
3 JUDGE SHAHABUDDEEN: Is it paragraph (b), beginning with the
4 words, "The Trial Chamber erred in law ..."?
5 MR. MURPHY: Yes. It's under the heading "Third Ground of
6 Appeal."
7 JUDGE SHAHABUDDEEN: Oh, third ground.
8 MR. MURPHY: On the second page, Your Honour, yes. And it has to
9 do with the law recording circumstantial evidence in the Tribunal. As
10 Your Honour knows, in the Celebici case, a certain rule was laid down
11 about the handling of entirely circumstantial cases, which we believe this
12 to be.
13 And so with that exception, we believe the other grounds of
14 appeal, although they may be set out in a different order, have already
15 been articulated and briefed. So we recognise that some additional burden
16 will be placed on the Prosecution in responding to this, but on the other
17 hand, we think that that burden will be relatively light and certainly
18 would be offset by the -- by the fact that a great deal of unnecessary
19 material will be deleted.
20 The second advantage, Your Honour, would be this: That in the
21 course of filing, we will, of course, automatically cure the defects which
22 the Appeals Chamber has drawn attention to before in the numbering of the
23 paragraphs, references to pages of the judgement, the correspondence
24 between the notice of appeal and the appellate brief. These are all
25 matters that the Appeals Chamber had occasion to comment on in the
Page 69
1 procedural rulings. And if I may say it in this way, Your Honour, that is
2 what I would like to call Plan A. Obviously, we will be dependent on the
3 Appeals Chamber's agreement with us that it would be in the interests of
4 justice and of fairness to Mr. Jokic to permit that course of action.
5 Plan B, if I can so describe it, Your Honour, would be to -- as
6 far as possible, to deal with the matters that should have been dealt with
7 already in the existing notice of appeal and appellate brief, and that
8 would include certainly a motion to file a reply out of time. We take the
9 view, Your Honour, that a reply should have been filed in this case. It
10 would be our intention to file a motion for leave to file one.
11 And at the same time, of course --
12 JUDGE SHAHABUDDEEN: Is that very usual, Mr. Farrell, for an
13 appellant not to file a reply?
14 MR. FARRELL: You've obviously been on the Bench hearing appeals
15 longer than I've been arguing here, but in, I think, the seven years here
16 I don't think I recall one, quite honestly, where they did not file a
17 reply. Thank you.
18 MR. MURPHY: Your Honour, my experience has been some the same as
19 Mr. Farrell's, and certainly Ms. Loukas and I take the view that a reply
20 should have been filed.
21 Also implicit in Plan B, of course, would be that the formal
22 defects in the notice of appeal and the brief will be corrected as far as
23 that can be done. And however on any view, Your Honour, Plan B will still
24 leave -- leave all of us picking between different documents in order to
25 see what has gone before and to make sense of the issues.
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1 So it would be our submission, Your Honour, we will file -- it's
2 our intention very soon to file a motion in which I anticipate we would
3 ask for the following relief: To be allowed within a reasonable time -
4 and I'm very mindful of time here; we would probably ask, I think, for 45
5 days, not longer - to file --
6 JUDGE SHAHABUDDEEN: 45, did you say?
7 MR. MURPHY: Yes. From the date when the motion is granted, Your
8 Honour. And we would file at the same time the notice of appeal and the
9 brief. We would not wait, of course, for any additional period of time.
10 We would file both of the documents together. And --
11 JUDGE SHAHABUDDEEN: I'm only asking that because I think you
12 would have gathered from the paperwork that it was the general intention
13 to have the hearing of this appeal during the first six months of this
14 year, if possible. That's not possible any longer.
15 MR. MURPHY: Yes.
16 JUDGE SHAHABUDDEEN: But we need not postpone the hour of
17 reckoning too far.
18 MR. MURPHY: Indeed. We're conscious also of the interests of
19 Mr. Blagojevic in this, Your Honour, that clearly he has an interest also
20 in having the appeal heard as soon as possible. And what we will -- and
21 that's why we're anxious not to delay.
22 Your Honour, our submission, briefly, will be -- will be this,
23 that the paramount interest here will be -- should be the interests of
24 justice and of fairness to Mr. Jokic, and while we obviously recognise
25 that this is a matter within Your Honour's discretion and within the
Page 71
1 discretion of the Appeals Chamber, it would be our submission that those
2 interests in this case, as well as perhaps the interests of ease in
3 identifying the issues which will assist the Appeals Chamber in due
4 course, Your Honour, we would suggest that the balance of those interests
5 would be in favour of allowing us to do that. But failing that, Your
6 Honour, it would be our intention, within the same time frame, of course,
7 to implement what I've called Plan B, to make sure that all the points
8 that the Appeals Chamber has drawn attention to this in case that need
9 correction will be corrected within -- within a reasonable time.
10 And, Your Honour, that really is our submission as to the way in
11 which we would like to conduct the --
12 JUDGE SHAHABUDDEEN: Thank you. Thank you a lot, Mr. Murphy.
13 That's very helpful.
14 I must say to you, Mr. Farrell, that Mr. Murphy has seemed to make
15 out a good case based on the grounds of a simplification and clarification
16 of issues. What do you say?
17 MR. FARRELL: Thank you, Your Honour. In terms of the Plan B, the
18 intention to file a reply and to deal with matters that should have been
19 dealt with before, Mr. Murphy was kind enough to phone me yesterday. We
20 discussed the matters and, as a general matter, I don't think he'll get
21 much opposition from the Prosecution in terms of things that -- well,
22 another counsel may have done if in the shoes of the previous counsel and
23 as these counsel would like to do. So in terms of that matter, I think
24 we'll just wait until we get their filing, and generally I think if they
25 feel it's necessary in the interest of their client, I don't think you'll
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1 get much opposition from the Prosecution.
2 In relation to the first issue, I haven't had the chance, of
3 course, to look -- I do appreciate the importance of simplification and
4 deletion of grounds for appeal from any Defence brief, but I haven't had
5 the chance to look at it and of course would appreciate the time, as I'm
6 sure Mr. Murphy understands, to look at the additional ground that they
7 have proposed before responding, but I'll wait for the filing from
8 Mr. Murphy and I'm certainly available, as is the Prosecution team, to
9 meet with both Mr. Murphy and Ms. Loukas at their convenience to try and
10 resolve some of the other matters that may arise as they prepare.
11 JUDGE SHAHABUDDEEN: Thank you very much.
12 MR. FARRELL: Thank you.
13 JUDGE SHAHABUDDEEN: Well, we have every indication of willingness
14 to cooperate. That's very welcome to the Court. You will make your
15 applications in due course to the Appeals Chamber.
16 MR. MURPHY: We will, Your Honour. Thank you.
17 JUDGE SHAHABUDDEEN: It will receive such consideration as on the
18 merits will be due to the applications.
19 Will there be any further motions made this afternoon?
20 MR. MURPHY: Not on behalf of the Defence, Your Honour.
21 JUDGE SHAHABUDDEEN: Then we may close the proceedings? Thank you
22 very much.
23 --- Whereupon the Status Conference adjourned
24 at 2.47 p.m.
25