Tribunal Criminal Tribunal for the Former Yugoslavia

Page 24

1 Wednesday, 15 June 2005

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.03 p.m.

6 JUDGE BONOMY: Could I ask the Registrar to call the case, please.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-02-58-PT, the Prosecutor versus Ljubisa Beara.

9 JUDGE BONOMY: Who appears?

10 MR. McCLOSKEY: Good afternoon, Your Honour, Peter McCloskey and

11 Janet Stewart for the Prosecution.

12 MR. OSTOJIC: Good afternoon, Your Honour. John Ostojic on behalf

13 of the accused, Mr. Ljubisa Beara.

14 JUDGE BONOMY: Are you able to hear us clearly, Mr. Beara?

15 THE ACCUSED: [Interpretation] Yes.

16 JUDGE BONOMY: Thank you. Well, this is I think the second Status

17 Conference in this case. The transcript of the 65 ter meeting is not a

18 model of clarity and hopefully -- hopefully matters have improved or at

19 least the state of available information has improved since that meeting

20 took place.

21 Just hold on. There seems to be some doubt about whether

22 Mr. Beara can hear us in his own language. Can you now hear the

23 proceedings in your own language, Mr. Beara?

24 THE ACCUSED: [Interpretation] Yes.

25 JUDGE BONOMY: Thank you.

Page 25

1 Now, the first issue I think that I would like to address is

2 whether this case -- the preparation of this case ought to be materially

3 affected at this stage by the motion that's been made to conjoin it with

4 other cases, and I don't detect in the transcript of the meeting any sound

5 reason for that. It seems to me the case should proceed on the basis that

6 it may well be a case on its own. Now, before making a final decision on

7 that, I'm happy to listen to any further submissions that either counsel

8 wishes to make. Mr. McCloskey?

9 MR. McCLOSKEY: I don't think -- I can't see any reason to delay

10 the normal process of this case. Certainly discovery should carry on and

11 the only way that I am affected by the discovery of the other seven cases

12 is that -- of course, it's one case to me for discovery, so my discovery

13 processes, it will be a little more cumbersome than they would had it been

14 one case. But now we intend to go forward as if this case is on its own.

15 Hopefully certain motions that may normally have been filed may not need

16 to be filed because they may get trumped by the joinder but there wasn't a

17 challenge to the indictment. Provisional release, if that's the case

18 shouldn't be affected by this, though I think some other courts have found

19 provisional release -- have wanted to put off provisional release because

20 of joinders, so some courts may want to. I don't see why one way or

21 another.

22 JUDGE BONOMY: I don't see that one affects the other directly at

23 the moment. And certainly in this case, I can see no reason for not

24 pressing on with the pre-trial stage, and that's what I intend to do

25 today, subject again to what Mr. Ostojic might want to say.

Page 26

1 MR. OSTOJIC: Thank you, Your Honour. We are prepared and we

2 think it should proceed just as normal as if the case was on its own.

3 JUDGE BONOMY: Okay, thanks. Before you sit down, though, a lot

4 of what was said at the meeting was affected by the financial position

5 that the Defence are in. Now, I'd like to have that position clarified

6 and so there are no misunderstandings about where you stand. Can you make

7 it absolutely clear to me what it is you see as the barriers that are

8 being put in the way of engaging in a robust Pre-Trial process at this

9 stage?

10 MR. OSTOJIC: Yes, I guess I can. I think for the sake of

11 simplicity, there are two aspects to it. One is the staging of the level

12 of the case. We had insisted and thought we were able to show based on

13 the indictment factors, namely witnesses that the Prosecution has called

14 in two other cases, specifically Krstic and Blagojevic, that the case

15 warrants a level-3 case. We were rejected on that although quite frankly

16 with all due respect to OLAD, the rejection was just a regurgitation of

17 the factors and elements that they claim were supposed to set out to prove

18 a higher level. We set it out. We thought we adequately set it out and

19 they gave us a smaller level. And then they also did their investigation

20 of Mr. Beara's personal financial assets and made a further reduction from

21 the normal level-2 case, what I consider to be a significant reduction,

22 although we do disagree with their findings on that as well.

23 But most importantly and I think at least for our representation

24 of Mr. Beara, and to fairly represent him, is the second aspect and that's

25 the aspect on experts. OLAD after my informal discussions with them

Page 27

1 stated that there is a specific Rule on experts and that we are allowed

2 only 30 hours at 100 dollars an hour per expert and we are limited to only

3 two experts. Two days ago when we spoke to the Prosecution. They

4 identified that they had approximately 45 experts and then they said we

5 really are using 15 to 20 separate experts, I think, and I don't mean to

6 misrepresent or to misstate what Mr. McCloskey said. So in that vein and

7 he does have some expert that is we may not need, for example a watch

8 expert, some exhumation individual, we might need a demographer. But we

9 think we need at the very least four experts on various topics. To give

10 an expert just -- for example, their military expert's report,

11 Mr. Butler's report, it would take him far more than 30 hours to just

12 review it much less to analyse it, to summarise it, to digest it, and then

13 to begin his own preparation, if any, to give us an opinion on that. We

14 think we are really strapped in that aspect of the case.

15 The expert side, if we are going to get experts and we are, we are

16 planning on it, we spoke to a couple or at least preliminarily interviewed

17 some. That's where we are really seeing a problem. And then the third

18 part - although I said there were two; I apologise to the Court - is we

19 tried to put a Defence team together. One member has been denied because

20 of some, I think, technical problems. We are trying to resolve that but I

21 was also told that I cannot come and visit Mr. Beara once a month for

22 three to five days because it's costly, and I understand that, but whether

23 we do start aggressively looking at the documents and going over them with

24 our client, we would need at least five days to sit down and go through

25 what I consider to be a massive and significant amount of documentation.

Page 28

1 We would also like, although it was rejected, to have our legal assistant

2 or the co-counsel there as well with us so that we could with our client

3 divvy up, if you will, or separate the assignments of who should get --

4 take which witnesses, who should go on which terrain in order to interview

5 potential witnesses, potential experts, et cetera. Those are the three

6 main points that I take issue, but it's fallen on deaf ears unfortunately

7 and any help the Court can give us I would be much obliged as I'm sure

8 Mr. Beara would be as well.

9 JUDGE BONOMY: Whether or not there case is conjoined with others,

10 is there scope for you combining with others in the use of experts?

11 MR. OSTOJIC: I think there would be. I don't think that we all

12 need to have separate demographers, for example, or separate experts on

13 exhumations if we feel we are going to call any but I think from the

14 military side, from the intelligence aspect we may need one or two

15 separate experts but I can't envision at this time that we would needs

16 more than one or two separate from the other defendants.

17 JUDGE BONOMY: I've made some inquiry into the legal aid position

18 since seeing what happened at the meeting, and the information I have is

19 that the current policy of the Registrar is to allocate a maximum of 150

20 expert hours per stage to the Defence team, over and above the lump sum.

21 Now, the stages are three in number, Pre-Trial, trial and appeals. So we

22 are talking about Pre-Trial at this stage. Before any expert allocation

23 is released, however, the lead counsel in the case must request the

24 assignment of the expert to the team and include a proposed number of

25 hours from the 150 which will be required to complete the expert mandate.

Page 29

1 Experts must then invoice the Registrar for the number of hours -- their

2 work-hours performed, they are paid at rates that range from 80 to 110

3 dollars depending on their level of expertise. Now, have you gone through

4 this exercise yet?

5 MR. OSTOJIC: We have not, Your Honour.

6 JUDGE BONOMY: No. As far as your overall payment is concerned,

7 you're now at the stage where you should be sorting out the lump sum, the

8 large lump sum that's paid for Pre-Trial. Have you applied for that yet?

9 MR. OSTOJIC: Are you talking about level 2 or level 3?

10 JUDGE BONOMY: Level 2.

11 MR. OSTOJIC: Yes, we have. We have applied for that.

12 JUDGE BONOMY: Has that been dealt with and authorised.

13 MR. OSTOJIC: I believe they are in the process of doing that.

14 From my communication with them. Portions of it were and they are still

15 waiting to authorise the last four or five months or so.

16 JUDGE BONOMY: It goes on to say the Registry is flexible when

17 dealing with such requests as some cases tend to require more expert

18 evidence than others. In such cases the Registrar will typically add

19 expert hours to the 150 when requested. Now, I can't help you until you

20 go through the exercise of identifying what you need and asking for what

21 you want. And then we can see what response you get and whether you need

22 my assistance any further.

23 And in relation to travel and DSA, the position again is said to

24 be flexible where counsel can demonstrate there is good cause. Now, I'm

25 inclined today to proceed on the basis that if I make demands on the

Page 30

1 parties, the parties will use the fact that these demands have been made

2 to, if necessary, obtain the release of additional material. For example,

3 the Prosecution might want to engage more resources in translation

4 depending on the demands that are made and you might wish to try to

5 persuade OLAD to make payments to you depending on the demands that are

6 made. But I don't think there is anything specific from what I've read

7 and from what's been said to me today that I can do at this stage.

8 MR. OSTOJIC: If I may, Your Honour, specifically when we

9 requested to have visits with the entire Defence team with Mr. Beara, that

10 was not -- they rejected it. They rejected it in writing and said you

11 can't meet five days. We are not going to pay for your support staff

12 which includes co-counsel, two legal assistants who have in excess of 10,

13 12 years of legal experience in the United States of America. And we

14 understand the DSA. We are not bringing him here for the DSA. We've

15 worked out what I consider to be a reasonable payment schedule with these

16 individuals. But they have to meet with the client. They are studying

17 and trying to evaluate an aspect of the case whereas others are doing

18 other aspects of the case. They rejected that, said they wouldn't pay him

19 travel and they wouldn't pay him the DSA and they wouldn't approve of

20 anything. I think we've -- at least on that level, have gone through the

21 procedures.

22 JUDGE BONOMY: Let's see, Mr. Ostojic, if once we start putting

23 deadlines in place, whether that makes a difference. And bear this in

24 mind, that although until now this Tribunal seems to have functioned on

25 the basis that the Status Conferences, when there is a flurry of activity

Page 31

1 and in the few days before that, there is perhaps a preliminary flourish

2 of activity at the 65 ter Conference or meeting, the rules clearly

3 envisage that the judge can call upon counsel's cooperation between these

4 meetings and indeed that counsel themselves can trigger the involvement of

5 the Judge. There is a perfectly flexible and very wide motion procedure

6 here. I certainly would encourage informal communication with the Senior

7 Legal Officer in the case, or with Mr. Boas rather who I think will be

8 more directly involved. There are ways of dealing with things that don't

9 have to wait for Status Conferences or for 65 per meetings, and I'm

10 certainly willing to provide any assistance I can -- I can, I stress --

11 that will expedite the process, the Pre-Trial process. So I don't -- I

12 think Mr. Ostojic think that there is anything more I can do at this

13 particular point on that matter. All right?

14 MR. OSTOJIC: Thank you for hearing us, Your Honour.

15 JUDGE BONOMY: Now, if I can turn back to Mr. McCloskey, I'm

16 inclined to make a number of orders today, starting with the disclosure of

17 copies of the statements of the witnesses you intend to call, because you

18 seem to have a fair idea at the meeting earlier in the week of the numbers

19 and who these would be. So if I put a deadline of about a month or so

20 from now on that, is that going to cause any particular difficulty?

21 MR. McCLOSKEY: Yes, it would. If you held me to those witnesses,

22 because I cannot possibly at this stage put down all the witnesses for

23 this case if he has co-defendants, and as you can imagine, if there are

24 co-defendants, some witnesses may be --


Page 32

1 MR. McCLOSKEY: Additional or not. I plan well before any

2 deadline you issued me to give him all the witness statements from the

3 Blagojevic trial.

4 JUDGE BONOMY: Let me cut you off there. The rule goes on to say

5 that, this is 66(A)(2), that "copies of the statements of additional

6 Prosecution witnesses shall be made available to the Defence when a

7 decision is made to call those witnesses."

8 So what I would be ordering you to disclose is the copies of the

9 statements of all witnesses whom the Prosecutor intends to call to testify

10 at trial, and that's on the information you have at the moment, which is

11 that this is a single accused trial.

12 MR. McCLOSKEY: Yes, I plan within hopefully a couple of weeks to

13 have all the witnesses to him that testified in the Blagojevic trial, and

14 the Krstic trial, and I can tell you that 90 per cent of the Blagojevic

15 trial witnesses will be on the -- I know will be on the final witness list

16 for this case. 90 per cent. That trial was incredibly thorough in terms

17 of witnesses, and I'm not just live witnesses but 92 bis witnesses as

18 well, and so 90 per cent of that case will be to him as soon as I can

19 electronically do it. That will be, I would think, at least 80 per cent

20 of the final witness list for this case, even if there are joined cases.

21 So we are going to get him a very good representative group of witnesses

22 for the Srebrenica case in electronic format in a searchable format, in

23 and all forms of it. And I can be accurate to, I think, 80 to 90 per cent

24 at this point. One problem I do have is putting a whole lot of work

25 into -- into looking at this case as if it's a single case and then being

Page 33

1 tied to those representations because I get hurt both ways.

2 JUDGE BONOMY: No. You can take it that if the case is conjoined

3 with others, that the position will have to be reviewed in the light of

4 the situation at that stage, but it's difficult to imagine at the moment

5 how joinder would significantly affect, in the sense of adding to, the

6 number of witnesses you would want to call in this case. I find that

7 difficult. You would obviously be then in a position where you would be

8 able to call the witnesses that were proposed for all the accused. Now,

9 the only sense -- the only situation in which you could be prejudiced

10 would be if somehow or other that process was going to result in a need

11 for you to call a witness you haven't envisaged at the moment. In any of

12 the -- for any of the eight accused.

13 MR. McCLOSKEY: My witness list will largely double, Your Honour,

14 if I get joined.

15 JUDGE BONOMY: Yeah, but it will be a witness list for a different

16 case. I'm only interested in the witness list for this case.

17 MR. McCLOSKEY: I view it as one big case.

18 JUDGE BONOMY: You may do, Mr. McCloskey but I think we've agreed

19 already today that we are proceeding on the basis that this is a

20 single-accused case for the moment. Let's get the preparation done for

21 there case. It will help us for all the others I'm quite sure of it. You

22 know, you know the issues in relation to this accused and if it's

23 conjoined with others, then the other witnesses will simply come in

24 because they will be witnesses in the other case any way. They will all

25 have to be pooled into the one pool.

Page 34

1 MR. McCLOSKEY: In any event, Your Honour, I have no problem being

2 able to give -- respond to your order for witnesses for this case. That's

3 not a problem at all. And especially with some flexibility given what is

4 available in the future, and these orders actually assist me in gearing up

5 the resources that I need so I have no problem with that.

6 JUDGE BONOMY: There is a grave danger of the whole Pre-Trial

7 process grinding to a halt if we say wait for the joinder to be dealt

8 with. It won't be dealt with, probably won't be dealt with until after

9 the recess.

10 MR. McCLOSKEY: There is the balance, though, because there is a

11 lot of work you could do for one case that is not helpful for the big

12 case, and so if there is a reasonable chance of saving work and doing it

13 at once.

14 JUDGE BONOMY: Give me an example.

15 MR. McCLOSKEY: Well, if I, for example, write a pre-trial brief

16 for this case.

17 JUDGE BONOMY: That was about to be the next matter to be turned

18 to, yeah.

19 MR. McCLOSKEY: If -- writing a pre-trial brief is a very critical

20 and important thing for everyone, and the difference in the pre-trial

21 brief for one versus the difference for three or six or eight is massive,

22 and when I -- what I would like to do when I get another lawyer is to

23 start on a pre-trial brief that is of -- broader, that I can restrict

24 based on whatever the outcome of joinder is. And especially when we are

25 looking at a time period where a trial -- let's not put off dates. I

Page 35

1 don't want to put off dates, but when the trial realistically may not

2 occur for a while, dates, certain times you don't need to come up with

3 dates at an early level. There are cases here where there are pre-trial

4 briefs that are stacked, that that have been stacked for months if not

5 years and, as a result, I don't think the product is as good as it would

6 have been had it been done closer to the actual date of a potential trial.

7 But so one example, if I do a pre-trial brief for this defendant only, the

8 resources and time and effort I put into it will be much, much different

9 and, in fact, if I'm writing -- imagine it -- nine pre-trial briefs or

10 eight different pre-trial briefs that is a big effort as opposed to just

11 one. I'm doing it so I can be like a car with different parts so I can

12 mix and match and be fluid and be able to not waste time. I'm not going

13 to make separate bumpers for nine different cars, there's going to be a

14 lot of bumpers are going to be the same. But you can imagine nine

15 separate trial briefs is a lot more work. I can't do it, frankly, on the

16 resources I have. That is one example. I think that's why a joinder is

17 so fundamental. It changes so much.

18 And one thing we should also look at realistically in terms of

19 joinder, this case was originally put forwards as a -- Mr. Beara, Mr.

20 Popovic and Mr. Nikolic all together. These are three people from the

21 security branch, Main Staff, corps, brigade. And that indictment was

22 worked on quite a bit by Judge Schomburg, the confirming judge, and he

23 divided it up so that we filed indictments separately so we came out with

24 three separate indictments, so in that event, it's -- I can't imagine a

25 situation where Popovic and Beara at the very minimum wouldn't be joined.

Page 36

1 So when I look at the odds of joinder, it's hard to guess, but that one I

2 can almost assure would be joined because it was originally, but for the

3 way it was filed, the same indictment filed at the same time, same

4 charges, written up the same way. So that's one example. I'm with you, I

5 do not want to sit back and wait because if we sit back and wait it's

6 going to be 2010 and we are going to still have ten trials in front of

7 us. But I can't do nine separate pre-trial briefs right now. I don't

8 have the resources. But I'm going to make every effort to get started on

9 a pre-trial brief right now that can be used and will be done in a manner

10 that I would hope certainly before the new year.

11 JUDGE BONOMY: I take it that we are first in the queue, then,

12 from what you say?

13 MR. McCLOSKEY: Which queue? It's a long queue.

14 JUDGE BONOMY: You don't have an order to file any pre-trial brief

15 so if an order is made today, this will be the first one.

16 MR. McCLOSKEY: Yes, we are. I think Mr. Beara was the first

17 arrest in this big series so we are in the time frame, the first in the

18 queue.

19 JUDGE BONOMY: Okay. Thank you.

20 [Trial Chamber and legal officer confer]

21 JUDGE BONOMY: It seems to me that the common elements are largely

22 going to be crime-base elements. I don't rule out the possibility that

23 there might be other common elements in any case, and if work is done on

24 the pre-trial brief in this case in relation to crime base, it can be used

25 in all the others. I'm not persuaded at all that there is a good reason

Page 37

1 for not at least in this case proceeding as if it might take place sooner

2 rather than later and ordering you to file a pre-trial brief. I think it

3 will focus the mind greatly on the -- all the cases because of what you

4 claim as the involvement of these accused in the same transaction. So I

5 am not persuaded that this is not the stage to order the filing of the

6 Prosecutor's pre-trial brief, and my only concern is timing, and I would

7 have been inclined to make this before the recess. Now, you've indicated

8 difficulties, Mr. McCloskey, but I'm afraid I'm not with you in

9 understanding exactly what these difficulties are. I fully appreciate

10 that doing something nine times or doing nine separate pre-trial briefs is

11 a lot more work than doing one, but I'm not convinced that where it really

12 matters, that's individual criminal responsibility, that you won't have to

13 do nine anyway, or eight, whatever number of accused there are, and

14 hopefully in this particular case, that's what the trial will be focusing

15 on, bearing in mind what has gone on in previous cases relating to the

16 similar subject matter.

17 MR. McCLOSKEY: Absolutely, Your Honour, I will be but, remember,

18 there is -- even without joinder, I have seven other accused and I have

19 right now.

20 JUDGE BONOMY: But this one is a major priority. An accused in

21 custody, the first one in, so it should be taking the lead.

22 MR. McCLOSKEY: Every one is in custody, Your Honour, and they've

23 all come in within the last two months, there is no real difference in

24 that regard but yes, he is first in line and I will absolutely follow your

25 orders. That's not a problem. We have a pre-trial brief in Blagojevic.

Page 38

1 That's an excellent pre-trial brief that has the crime base, that has much

2 of the law you're talking about, and it's a question of adding to it and I

3 will, and the -- and that's not a problem. It's just a question of

4 reasonable time, and if that time can be in conjunction with what -- when

5 you can expect this case to reasonably come to trial, we are on the same

6 path, but putting things in and giving me deadlines when there is no trial

7 that's close by, that I think is a false economy.

8 JUDGE BONOMY: But these events were nearly ten years ago now, and

9 I follow the argument that it's important -- it may be important in some

10 cases which are dealing with more recent events, not to rush things and

11 perhaps the position will be better expressed closer to the trial but that

12 can't be the case here.

13 MR. McCLOSKEY: Let me give you an example of one complication.

14 You are correct, it's ten years. We tried the case twice. The briefs I

15 have are good. The experts have spoken many, many times and I hope

16 counsel, I'm sure he will review the Defence experts that have appeared

17 here.

18 But having said that, the collection of the archives of the Drina

19 Corps, the fundamental organisation that was involved in these events,

20 working with the Main Staff, that has been -- the mystery of the

21 whereabouts of that collection, it's been nine years missing. They

22 testified in the Krstic case that it went missing. Well, relatively

23 recently, that was found, and in Serbia, and was transported by the

24 Republika Srpska police to RS and we have it now.

25 JUDGE BONOMY: When did you get it?

Page 39

1 MR. McCLOSKEY: Several months ago.

2 JUDGE BONOMY: A bit more precise, please.

3 MR. McCLOSKEY: I can give you a date but I don't have all the

4 dates but I can -- but what I can tell you is ever since we got it,

5 because -- December 2004. Ever since we got it, I envisioned this moment,

6 of course, and we have been working on it day and night to get it

7 scanned -- get it organised and put in electronic format. It came in no

8 organisation, all the papers of it were a complete mess and so the first

9 thing we had to do was try to organise it by subject matter so that it

10 wasn't completely mixed up. Now they are going through the process of

11 scanning it and iffing it, and with me pushing and other people pushing,

12 they tell me that it will be fully scanned in September. Now, this is a

13 collection that is potentially critical for everyone. The experts of the

14 Prosecution, the experts for the Defence, everyone. These are documents

15 that would have been authored by all the accused, Mr. Beara and others,

16 have been found in this thing. And documents are important in these

17 cases, as you know, and so if our expert is going to write a reasonable

18 report and if my pre-trial brief is going to have a reasonable exhibit

19 list, I have to be able to have a reasonable time to digest this most

20 critical of archives. Now, I don't think we should wait, and I think as

21 long as the Court is aware of this potential delay and is flexible, and

22 will allow us to add exhibits as we find them, and as long as due

23 diligence is shown, as is required, we are okay, but that's just one

24 example that, yes, it's old but it's also new.

25 JUDGE BONOMY: There seems to be an example of how the advance of

Page 40

1 technology slows the process of preparation down, that you don't even

2 start a proper analysis until nine months have elapsed while you scan it

3 into some electronic equipment. The world, I'm afraid, is far too big a

4 place for us to take nine months to scan one document source in relation

5 to one case into computer equipment and then to begin an analysis process

6 for the purpose of one trial. There must be another way of doing this.

7 MR. McCLOSKEY: Your Honour, in all frankness, that's not what I

8 said. This -- I can explain to you. When we found out about this, we

9 sent an officer there and for four days he went through every one of those

10 documents as he could, and anything that had a key date on it or a key

11 name he brought back and we photocopied, And we have been trying to work

12 with. But if that document gets out in our office, let alone to Defence,

13 without an ERN number on it, then it becomes a nightmare for all of us

14 because we don't know where it came from, who got it, and these can

15 be critical issues.

16 So we have begun the analysis process, we are slaves to -- to some

17 degree to technology but we have done it we have been working as much as

18 we could, our investigative staff has been cut massively so we don't have

19 the people we used to, to do it, and we have been trying as hard as we

20 can. And I know I can show you due diligence on any of those issues and

21 we can talk about the -- how this is done electronically forever but I

22 have the same attitude you do, and I've said the same thing to the people

23 doing it, and we are just trying to get it done but it's really actually

24 an excellent programme the way it's working. It's just slower than any of

25 us would like.

Page 41

1 [Trial Chamber and legal officer confer]

2 JUDGE BONOMY: How critical, Mr. McCloskey, is the Drina Corps

3 archive to the preparation of the pre-trial brief?

4 MR. McCLOSKEY: It's a question of quality. I can file a

5 pre-trial brief very simply that, without looking at the Drina Corps

6 archives but as a result I would be missing several documents, and since

7 the key part of the pre-trial brief is an exhibit list, for it to be a

8 valuable exhibit list, we would be better off reviewing that. But -- so

9 it's really a question of quality. In fact all of these issues are a

10 question of quality. I can get you what you -- what you need to get us by

11 within whatever deadlines you give me, and -- though if I had more time it

12 will be better quality. Right now, I have one other

13 English-speaking/English-writing lawyer with me, and that's it. I hope to

14 get more and I think the orders you're anticipating will probably assist

15 that process.

16 JUDGE BONOMY: And the final -- the final question I have on this

17 aspect is: Does that archive affect any expert evidence?

18 MR. McCLOSKEY: It's fundamental for the expert evidence for the

19 Prosecution.

20 JUDGE BONOMY: Is there one expert, though?

21 MR. McCLOSKEY: All -- there is principally one expert for each

22 accused in the Prosecution that will have the most affect on, and that is

23 the military expert, and as you may be aware, these cases have been tried

24 with either one, sometimes two, military experts. I'm basically planning

25 on one.

Page 42

1 JUDGE BONOMY: But a lot of your experts apparently relate to

2 forensic science evidence to exhumation and so on; is that right?

3 MR. McCLOSKEY: Yes, and that has no affect on those. Just so you

4 understand, there are 45 expert reports, I think maybe 15 to 20 experts,

5 none I which have ever seriously been challenged by anyone so the forensic

6 experts, I don't imagine, once people look at the evidence, they will --

7 there will be much of a challenge and that doesn't affect the Drina Corps

8 archives as such. It's the military experts, the ones that are helping

9 put together the documents and help explain to the Trial Chamber what the

10 documents mean and how they fit in, that's fundamental to everyone here

11 and that's where this will be important for the Prosecution and, of

12 course, the Defence.

13 JUDGE BONOMY: All right. Thank you.

14 Mr. Ostojic, is there anything you need to say on this aspects of

15 the case?

16 MR. OSTOJIC: Not at this time, no, Your Honour, thank you.

17 JUDGE BONOMY: All right. What I'm going to do is I'm going to

18 put a tight deadline on the statements, as I indicated, and order their

19 production to the Defence, and indeed copies to the Trial Chamber, but to

20 the Defence in particular, a month from now, or let's say the end -- that

21 would be about a week before the recess. So 15th of July is what date?

22 That's a Friday. 15th of July.

23 I'm also going to order you, along with that, because it I think

24 makes sense, to file your list of witnesses. Now, because the statements

25 are being produced, you don't need to comply with 65 ter(E)(ii)(b), that's

Page 43

1 a summary of the facts. There is no need for a summary if the statement

2 has been produced anyway, and similarly the points in the indictment, B

3 and C are not necessary as a result of that. And the list will make it

4 clear the number of witnesses and whether they are 92 bis witnesses. It

5 would be helpful to know that. And I personally would like to start

6 making orders that you also indicate whether witnesses might be 89(F).

7 That would greatly assist the preparation process. That's a flexible rule

8 for enabling to you bring a witness whose evidence you intend to produce

9 largely in writing or perhaps exclusively in writing, knowing that there

10 will be cross-examination, without having to face up to the formalities of

11 92 bis, and at least we know what's going to happen, the material is

12 there. So I would be grateful if you would consider the distinction

13 between these two rules and how they might both be used in this case.

14 I'm not so concerned with the length of time for each witness as

15 with the total length of time that you anticipate the case will take. So

16 I'll make specific orders in relation to parts of that rule, 65 ter(E)(ii)

17 so that I don't duplicate what you'll be doing by producing the statements

18 themselves.

19 Similarly, I will order the list of exhibits for the same time but

20 will note clearly that that is subject to the addition of documents in the

21 Drina Corps archive which you're not yet in a final position to deal with.

22 I then would like to make an order in relation to the testimony of

23 experts. So I -- but that's subject to the military expert. I'm quite

24 content to leave the question of a military expert until the archive has

25 been dealt with. But it may be difficult for you to comply with quite

Page 44

1 such a demanding order in relation to all the experts, or are you in a

2 position, do you think, to do that?

3 MR. McCLOSKEY: I'm not sure what you have in mind in -- again in

4 the Blagojevic case we didn't call -- the only expert we actually called

5 was the military expert.

6 JUDGE BONOMY: But you have to -- you nevertheless are obliged if

7 you are using expert evidence, are you not, to produce the statement of

8 the expert witness? Now, if you're content that the order I'm making for

9 the delivery of all witness statements covers that, with the exception of

10 the military expert then that's sufficient but I'm looking at Rule 94 bis.

11 MR. McCLOSKEY: Your Honour, we have all the --

12 JUDGE BONOMY: Because we need to use that rule to trigger the

13 part B of the rule so that you can try to get agreement on your expert

14 statements.

15 MR. McCLOSKEY: Yes. We have all those, and all those statements,

16 and reports are in a nice package, no problem.

17 JUDGE BONOMY: I'm going to make an order for the same deadline.

18 MR. McCLOSKEY: In fact that material has been disclosed already.

19 JUDGE BONOMY: But this is a formal. You may have disclosed it

20 but this is a formal stage so I am going to order -- I make an order which

21 will trigger B, which means that Mr. Ostojic has to apply his mind now to

22 the expert witnesses. And as far as the pre-trial brief is concerned, I

23 take note of what you say in regard to that, and I think I will make no

24 order in relation to that, but I will envisage having a further Status

25 Conference in this case in September rather than August, say at the end of

Page 45

1 September, in the hope that a sensible order can then be made about the

2 pre-trial brief.

3 Now, a number of issues arose which I don't think were resolved at

4 your meeting earlier in the week. I was confused about the issue of

5 intercepts, and it might be best if I were to hear Mr. Ostojic first of

6 all on that.

7 MR. OSTOJIC: Thank you, Your Honour. The issue that we raised a

8 couple of days ago on the 65 ter conference was related to the intercepts.

9 We were under the impression that the OTP has in their possession various

10 tape recordings of alleged intercepts which have my client's purported

11 voice on it. Later we learned some were handwritten form, some were

12 destroyed, which -- I hesitate to use that word, but I think that was the

13 Prosecution's word. Some were taped over. The tapes were taped over. We

14 would like a catalogue of the tapes that were actually received by the

15 Prosecution, when they were received, the status of those tapes, so that

16 we can engage potentially our own expert to review those. Obviously an

17 expert better than I can tell the Court that even if a tape was

18 re-recorded over they are still able to find traces of previous

19 conversations or previous data on that tape. That's one of the reasons we

20 would use it for. Obviously, the majority of the intercepts were

21 supposedly handwritten by individuals who listened to conversations and

22 then recorded who they thought were on these telephone conversations or

23 conferences. But we think it's necessary to catalogue all the tapes and

24 then to decide which ones are still in existence, produce those tapes to

25 us and those that were destroyed give us some idea of when and why they

Page 46

1 were in fact destroyed.

2 JUDGE BONOMY: Thank you.

3 Mr. McCloskey?

4 MR. McCLOSKEY: These answers are all in the record of the

5 previous trials, but that's not a problem. There are -- there are very

6 few actual audiotapes, and when we learned of his specific interest of

7 that we have been able to note that and we'll get him the tapes that --

8 the few tapes we do have. And I would also say the Defence in Jokic hired

9 an expert named Ashkenasy that wrote a report and dealt with a lot of

10 these issues, so that might be helpful as a starting block for you to look

11 at, they ended up not -- I don't think they called him as a witness but

12 that's no problem.

13 JUDGE BONOMY: There is a separate issue of whether it might be

14 appropriate to identify circumstances here where there have been tape

15 recordings which were either damaged in the process of use and reuse

16 beyond further use, and also situations where perhaps there never was a

17 recording because I assume that an intercept can in fact be heard and

18 noted without necessarily being recorded.

19 MR. McCLOSKEY: And I can answer -- give just a brief background

20 to that. All the intercepts that I know that we have used previously, and

21 those are the most relevant ones, were initially recorded by the intercept

22 operator. Then they go back and take a few minutes to play the tape over

23 and over again and they try to carefully write down what they've heard.

24 And then that tape -- it's about an 8-inch reel to reel tape eventually

25 gets used again, and recorded over. So when I say destroyed, I mean it's

Page 47

1 recorded over and then it's recorded over and over again. Tapes were very

2 valuable and very scarce in the war and so they were taped over numerous

3 times. We did find a tape -- a couple of tapes that were done in August

4 that were not destroyed, that have a couple of relevant conversations on

5 them, and we do have those in a format that they can be provided the

6 Defence and we have already provided the conversations themselves. But

7 that's in a nutshell what we have. There's -- additionally, Croatia has

8 been coming up with intercepts relatively recently and in fact we are

9 waiting for one to arrive from Zagreb that has -- involves potentially

10 involves other cases, and so that's another matter, but most of the

11 intercepts that we are talking about, that's the way the setup is and it's

12 been done now very thoroughly twice in two trials.

13 JUDGE BONOMY: So these will appear on your list of exhibits,

14 either as a tape or as a written record of a recording.

15 MR. McCLOSKEY: The index shows whether or not if there is a tape

16 or whether or not it's a printout or a handwritten notebook. That all in

17 the past has been done and there's two nice binders of those all organised

18 by date that we have been able to get to Mr. Ostojic and the -- we will

19 add a few as we've found a few new ones but that's fundamentally the

20 exhibit in two trials so it won't change much.

21 JUDGE BONOMY: The important thing is that it will be in the list

22 of exhibits which he will have by, at the latest, the 15th of July.

23 MR. McCLOSKEY: Absolutely, it shrub number 1. It will be right

24 up there.

25 JUDGE BONOMY: Now, Mr. Ostojic, I understand the point you're

Page 48

1 making about the original recordings, but I think what you're going to

2 have to do here is review what you get and if you're dissatisfied with

3 any -- with the results of any further requests you make to the

4 Prosecution, then you would have to raise the matter at a later stage but

5 only, I think, after you've reviewed it could we take a sensible view of

6 what else you might be entitled to, to seek. All right?

7 MR. OSTOJIC: That's fair, Your Honour, thank you.

8 JUDGE BONOMY: I may be asking this out of turn, Mr. McCloskey. I

9 saw a reference I couldn't understand what was called a Dutch statement or

10 a bunch of Dutch statements. Are they part of the Drina Corps archive or

11 are they something else?

12 MR. McCLOSKEY: No, they are not part of the Drina Corps archives.

13 As Your Honour is aware, the Dutch Battalion was present during the key

14 dates. The Dutch government has done several investigations. We had one

15 particular collection of interview statements of almost all the Dutch

16 soldiers, and it was catalogued a long time ago by someone that did an

17 excellent job and put all the ERN numbers on all this material, and as an

18 early test to see how well our system worked to get this stuff from lost

19 in the -- not lost, but in the -- deep-buried into the databases to EDS

20 where it could be easily accessible. We provided that material recently

21 to our folks that do that and it took, we had a thousand pages and it took

22 them about five days to get it on the EDS, and so that gave us some

23 confidence that we can get this disclosure done in a timely way because

24 that's one of the -- my biggest worries. I've got this material and I

25 need to get it to everyone and when I need to get it to nine people, we

Page 49

1 can't do it very well in the old fashioned way. It needs to be done this

2 massive electronic way and there is light in that tunnel but I will keep

3 you afield on any issues if we do get held up. In fact that reminds me,

4 would you like electronic versions of these statements? Or do you require

5 paper versions?

6 JUDGE BONOMY: No, I think the Trial Chamber on this occasion, or

7 the Pre-Trial Chamber on this occasion would prefer them electronically.

8 Any doubt about that, Mr. Boas? No, electronically. Don't sit down. The

9 one sort of power I have as a Pre-Trial Judge in trying to make the

10 Defence engage with you, if they decide to be truculent is to try to see

11 if there are areas in which agreement might be reached.

12 Now, that process is only successful if somebody takes the lead.

13 The judge has difficulty himself identifying areas for agreement. The

14 parties need to guide him. And the Prosecution are plainly best placed to

15 try to identify areas where matters might be agreed or where decisions

16 about the use of adjudicated facts might be taken.

17 I'm still of the view, having heard all that's been said today,

18 that this case could well set a sort of template for the others related to

19 it, and that therefore there is much to be said for trying to identify

20 areas of agreement in this particular process. I would like to come to

21 the next status conference with an agenda for agreement set, if possible,

22 but always appreciating that that might change because you've got more

23 material coming on line. But there must be a lot -- the way you're

24 speaking today, there is lots from previous cases that should be capable

25 of at least consideration for agreement.

Page 50

1 Now, I would like to encourage you. I don't think I want to make

2 an order about this at the moment, but I would like to encourage you to

3 set an agenda for trying to reach agreement on crime base as an example,

4 but there may be other things in this case. Now, is that realistic?

5 MR. McCLOSKEY: That's -- it's absolutely realistic to try and

6 make a good effort. In fact sometimes a court order could even be

7 helpful, a mandatory conference between parties. That may help OLAD get a

8 ticket for our counsel.

9 JUDGE BONOMY: The conference needs an agenda, and only you, I

10 think, can set that agenda.

11 MR. McCLOSKEY: I suggested, as the initial agenda, to take a look

12 at the indictment with a highlighter and it's a fairly detailed, factual

13 indictment. It's the same facts in every one of these other indictments,

14 give or take a few facts, and most of them have been found true in three

15 different judgements, so -- and there is a lot of is very forensic

16 crime-base oriented which many of the Defence attorneys thus far have told

17 me verbally that they didn't want to have to relive that evidence. I

18 think there is a very good chance of getting together and I hope that

19 Mr. Ostojic and my self can give it a good shot.

20 JUDGE BONOMY: But you're neatly side stepping the issue that I'm

21 trying to impose upon you at the moment. I'm expressing the view that

22 your commendable approach and attitude to agreement and discussion is much

23 more likely to be fruitful if you put down in black and white what you

24 think ought to be capable of agreement. For example, if you take an item

25 out of the indictment on which one, two, or three decisions holding it

Page 51

1 established having made, it might be a good idea to focus the mind of the

2 Defence to identify that as a matter for agreement and also set out for

3 them the terms in which that item was established or held to be

4 established in the previous proceedings.

5 Now, it's laborious but if you don't set that kind of agenda with

6 the very wide-ranging indictments we have here, you'll find it difficult,

7 I suggest, to get a real focus for any meeting that you propose with the

8 Defence.

9 MR. McCLOSKEY: There are 25 paragraphs in the background of the

10 indictment. They speak for themselves. That's exactly what you're

11 referring to is what I'm suggesting.

12 JUDGE BONOMY: I think you're super-optimistic if you think you'll

13 get the Defence to just agree to these things without perhaps pointing out

14 clearly to them where the decisions have been made that have held these

15 facts to be established.

16 MR. McCLOSKEY: Well, we are currently doing that in a draft

17 adjudicated facts brief. We have an adjudicated facts brief from the

18 Blagojevic case that unfortunately was never enacted by the Court.

19 JUDGE BONOMY: You can now revise it to show what Blagojevic held

20 to be established.

21 MR. McCLOSKEY: Absolutely, and I can put Mr. Ostojic's name on it

22 and we can develop it exactly like you chose and put the ball in his

23 court.

24 JUDGE BONOMY: I'm not referring to Mr. Ostojic when I say this,

25 but it is possible in theory for the Defence to sit back and do nothing,

Page 52

1 absolutely, and just let you prove your case. Now, most counsel don't

2 behave that way, as you know. Most counsel are willing to engage in

3 discussion and reach sensible agreements about things that don't need to

4 be explored again, especially when they involve such harrowing events.

5 But I do think that while it may seem burdensome, it's much more likely to

6 prove fruitful if it's set out in a way that shows clearly how much has

7 been clearly held established in other cases. So I'm not making an order

8 about this. I'm encouraging you to do it, but I would certainly, if

9 nothing much was happening along these lines next time around I think I

10 would make a much more specific statement about it and probably an order.

11 MR. McCLOSKEY: We have identified those facts.

12 JUDGE BONOMY: I'm encouraged by that.

13 MR. McCLOSKEY: And we can -- that's one of the things that we are

14 of course doing for the trial any way and we can adapt it as you say as --

15 to a product that we can work together in Pre-Trial with Mr. Ostojic.

16 That's not difficult.

17 JUDGE BONOMY: Okay. Thank you.

18 MR. McCLOSKEY: And of course for all the other eight.

19 JUDGE BONOMY: Now, Mr. Ostojic, for the next Status Conference, I

20 hope that you, having received by the 15th of July, indeed you may have

21 them already, it would appear, the expert statements, that you will be

22 able to tell me what the prospects are of agreeing some of them, and also

23 how many you're likely to have and who they are likely to be, because

24 albeit there are certain things you don't have to disclose until after the

25 end of the Prosecution case, that doesn't apply to expert evidence. I'm

Page 53

1 in a position to make an order about expert witnesses. So I would like

2 you next time round to be in a position to be fairly explicit about the

3 Defence expert position. Is that okay by you?

4 MR. OSTOJIC: If that's what the Court orders, it will have to be,

5 yes.

6 JUDGE BONOMY: Do you see any real difficulty about being able to

7 identify who they are going to be so that we can see what the areas of

8 dispute are?

9 MR. OSTOJIC: Well, I --

10 JUDGE BONOMY: I know you've got a payment problem.

11 MR. OSTOJIC: No, no, no, it's not --

12 JUDGE BONOMY: That's a separate matter.

13 MR. OSTOJIC: I agree it's separate, but it goes part and parcel

14 with it. The problem is that the Prosecution has experts on experts.

15 They have every single imaginable kind of expert, truthfully. We've

16 had -- in the last trial we had an expert who wasn't an expert on

17 anything, just cataloging documents and we had a -- I mean experts that

18 are totally unnecessary. If we looked at the hours that they spend on the

19 experts, whether it was Mr. Butler or any of the other experts they used,

20 the military expert here, they spent a vast amount of time, far in excess

21 of the 150. I can't predict until I sit down with two or three sides who

22 are going to be my military experts and have a better idea for them how

23 long will it take you to review and digest that. I'll have some names for

24 you. I have an idea of the type of experts we think we can get.

25 JUDGE BONOMY: Also, whether it comes to exhumation and forensic

Page 54

1 science and I don't know if there is ballistic information or anything of

2 that nature, that's territory that it should be easier to try to reach

3 agreement in and we could cut these experts down to the ones that really

4 matter.

5 MR. OSTOJIC: In principle would agree with you but I have to

6 share with you two points, if I may. If I may. The Prosecution suggests

7 their experts were untouched, brilliant in the other trials although we

8 are not trying that case. For example in the Blagojevic case they had a

9 demographer who testified, who -- I reviewed her testimony and I thought

10 the demographer expert was not adequate. However, the demographer did not

11 get cross-examined for whatever reason by the Defence team. It was an

12 issue raised later. I don't know that I'll agree on not cross-examining a

13 demographer.

14 The second concern and probably most important concern is when we

15 tried in a prior case with this confirming Judge this there case to

16 stipulate to crime-base evidence, crime-type testimony, we felt and I feel

17 still today that was used against the accused and against the Defence.

18 JUDGE BONOMY: I read what was said about that.

19 MR. OSTOJIC: Those are my two points, and I candidly feel if we

20 look at that judgement it's plain in there they make a statement

21 suggesting that we didn't even challenge anything, and that wasn't the

22 point of agreeing on crime-base evidence. And I think the Court obviously

23 understands what is I'm saying.

24 JUDGE BONOMY: Well, sometimes of course it's the way in which

25 things are expressed that perhaps doesn't accurately reflect what the

Page 55

1 judge was thinking, but any way, I've read what you've got to say about

2 that. Thank you very much.

3 MR. OSTOJIC: Thank you.

4 [Trial Chamber and legal officer confer]

5 JUDGE BONOMY: Anything else you wish to raise, Mr. McCloskey?

6 MR. McCLOSKEY: No, Your Honour.

7 JUDGE BONOMY: Thank you. Anything on the legal side at all, or

8 the Pre-Trial side, Mr. Ostojic?

9 MR. OSTOJIC: No, Your Honour.

10 JUDGE BONOMY: On the personal side affecting your client, is

11 there anything you wish it raise?

12 MR. OSTOJIC: No, Your Honour, we do not.

13 JUDGE BONOMY: Are you in a position to speak adequately for him.

14 I don't need to address him directly, do I?

15 MR. OSTOJIC: I believe I am, Your Honour, and no, you do not.

16 JUDGE BONOMY: Thank you very much.

17 In that case, I will adjourn now and the next status conference

18 will be on Wednesday, the 21st of September. That will be at 3.00 as was

19 the case with the other Status Conferences in this case.

20 I'm grateful to both counsel for your assistance. Thank you.

21 --- Whereupon the Status Conference adjourned

22 at 4.13 p.m.




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