Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 4 February 2011

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused not present]

 5                           --- Upon commencing at 9.59 a.m.

 6             JUDGE MORRISON:  Call the case on, please.

 7             THE REGISTRAR:  Good morning, Your Honour.  Good morning,

 8     everyone in and around the courtroom.

 9             This is the case IT-98-32/1-R77.2-PT, the Prosecutor versus

10     Jelena Rasic.

11             JUDGE MORRISON:  Thank you.  And if we could just have

12     appearances.

13             MR. ROGERS:  Yes, good morning, Your Honour.  Paul Rogers and

14     Kyle Wood representing the Prosecution, together with our

15     Case Manager Ms. Jasmina Bosnjakovic.

16             And, Your Honour, Mr. Wood will be conducting the hearing this

17     morning.

18             JUDGE MORRISON:  Thank you.

19             MS. TAPUSKOVIC: [Interpretation] Good morning, Your Honour.  Good

20     morning to everybody in the courtroom.  I'm Mira Tapuskovic, Defence

21     counsel of the accused, Jelena Rasic.  Present today with me is

22     Liane Aronchick, an attorney from the United States of America, who is

23     our Legal Assistant.

24             JUDGE MORRISON:  I think I've run out of B/C/S now, so I shall

25     have to start listening to the translation.

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 1             Do all parties have a copy of the proposed agenda and timetable?

 2             Are there any initial observations before we go into the matters

 3     on agenda?  No.

 4             Right.  Well, the pending motions, the position is that there are

 5     two motions pending.  Time ran out, to be blunt, on the 1st of February.

 6     But unless there are any objections, I'm intending to unilaterally extend

 7     the time-limits under Rule 126 to deal with those issues.  It's just not

 8     been possible as a result of the make-up of the Court and the duties of

 9     other Judges involved to get everybody in the same place at the same time

10     to fully determine the issues, although I think we can perhaps deal with

11     them with a reasonable amount of consensus today.

12             Are there any objections to the extending of time-limits for the

13     judgements in those cases?  No.

14             Mr. Wood.

15             MR. WOOD:  None, Your Honour.

16             JUDGE MORRISON:  Yes.

17             MS. TAPUSKOVIC: [Interpretation] No, Your Honour.

18             JUDGE MORRISON:  Now, of course, time-limits are principally

19     designed to stop delays where there are long and complex cases and, of

20     course, where people are remanded in custody, features which, frankly,

21     don't apply to this case.

22             Let's deal with the issue of the indictment first and the Defence

23     motion.

24             I'm going to make my own position blunt.  It doesn't, of course,

25     in any sense tie the other Judges, nor does it predicate an eventual

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 1     decision for that reason; it's a majority decision.  But my own view is

 2     that the indictment does provide a prima facie case and complies with the

 3     Rules; had it not done so, I wouldn't have confirmed it.  However, I can

 4     see, although I think it may be formulistic, that there could be an

 5     advantage, although it seems to me that the accused must know the nature

 6     of the case that she faces which is the -- and the nature of the

 7     allegations which she faces.  It would be extraordinary if she didn't at

 8     this stage, especially being represented, as she is, by experienced

 9     counsel.

10             But when I first looked at the indictment, one thing that went

11     through my head was that it could be perfected simply by adding these

12     words after paragraph 2 on Count 1: "Knowing or believing the said

13     statement to be false."  That makes it clear beyond a peradventure.  It

14     seems to me to be absolutely clear anyway from the nature of the case,

15     and one could read into that.  Likewise, on -- paragraph 16, under

16     Count 5, and paragraph 9, under Counts 3 and 4, the same words, simply:

17     "Knowing or believing the said statement to be false, or said statements

18     to be false."

19             Under Count 2, it seems to me it's inherent from the words

20     "encouraged and ... persuaded" that the accused knew that the procuration

21     was a procuration alleged of false statements.

22             Any observations as to that position from either party?

23                           [Prosecution counsel confer]

24             MR. WOOD:  Yes.  Thank you, Your Honour.

25             Of course, this is something that would be addressed more fully

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 1     in a pre-trial brief and that's something that may address some of your

 2     concerns.  But also, that is something we'll reflect upon and consider

 3     more fully.

 4             JUDGE MORRISON:  Taking the hypothetical case, Ms. Tapuskovic,

 5     that that was the addendum or addition to the indictment, would that

 6     satisfy any concerns that you have?  It seems to make it plain beyond a

 7     peradventure what the accusation is.

 8             MS. TAPUSKOVIC: [Interpretation] Absolutely, Your Honour.  Thank

 9     you.

10             JUDGE MORRISON:  Very well.  Put that to one side at the moment

11     then.  I can hear from the Prosecution whether they adopt that

12     suggestion.  If they do, it may be that the motion can be withdrawn

13     without further ado, but ...

14             Now disclosure, Rule 66(A)(ii) disclosure, what is the status for

15     that, please.

16             MR. WOOD:  The Prosecution's records reflect that the 66(A)(ii)

17     disclosure is essentially complete Your Honour, with the exception of

18     four witnesses, two of which -- well, that are subject to request for

19     waiver.  Those will be provided to the Defence as soon as -- if and when

20     they become available.  With the exception of those, all the 66(A)(ii)

21     disclosure has been complete.  Ms. Tapuskovic and I discussed one

22     outstanding matter on Wednesday.  One 92 bis statement that she had not

23     received, and I sent that to her that same day.  I believe she's received

24     that.  I think that concludes the 66(A)(ii) disclosure.

25             MS. TAPUSKOVIC: [Interpretation] Your Honour, I can say that the

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 1     Defence is very pleased with the cooperation with the OTP so far.  Since

 2     I was appointed Defence counsel, I have, on several occasions,

 3     communicated with my learned friend, either in person or by e-mail, and

 4     the cooperation has been very fruitful.  The disclosure has been

 5     completed except for this matter.  And we had a meeting two days ago and

 6     my request was granted immediately.

 7             So I have no objections to the disclosure process so far.

 8             JUDGE MORRISON:  Very well.

 9             Any attempts or any successful attempts or otherwise to reach

10     agreement on any factual matters?

11             MR. WOOD:  This is something that we discussed immediately before

12     this hearing started.  It's -- I don't want to put words in the mouth of

13     Ms. Tapuskovic, who can speak for herself obviously.  But it's my

14     understanding, the Prosecution's understanding, that she's still in the

15     phase of investigating the allegations.  But we did discuss some matters

16     that we might able to reach agreement on.  That seems to be something

17     that we'll be able to do in the fullness of discussion as soon as

18     Ms. Tapuskovic is satisfied she has investigated the case fully.

19             MS. TAPUSKOVIC: [Interpretation] Your Honour, thank you.

20             As I have informed the OTP team, we are nearing the end of our

21     investigation and then we will be ready to negotiate which facts can be

22     considered as agreed.

23             So at some time in mid-February, we will be in that stage, when

24     we will be able to tell which facts we agree on.

25             JUDGE MORRISON:  Thank you.  Well, that's a very satisfactory

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 1     time-scale.

 2             Let's turn to the proposed work-plan, giving potential for dates

 3     to be fixed.  The preliminary motions we can set aside for the moment.

 4     Rule 66 material seems to be in hand.

 5             Pre-trial brief.

 6             MR. WOOD:  The Prosecution anticipates, Your Honour, that we

 7     would be able to produce a pre-trial brief within about four weeks from

 8     the determination of the outstanding motions.  Obviously some of the

 9     decisions that are made on those motions will affect how the pre-trial

10     brief looks.

11             JUDGE MORRISON:  Agreed.  And the date for the Defence brief is

12     going to be predicated by the service of the Prosecution pre-trial brief,

13     so we can hold that in abeyance for the moment as far as fixing a date is

14     concerned.

15             If we can, can we say, for a date for the pre-trial brief, you

16     say a month after the motions are determined, but to try and give

17     slightly more structure to it, can we aim, please, for Friday, the

18     29th of April?

19             MR. WOOD:  Yes, Your Honour, that -- as my colleague said, it's

20     very generous.  I think we can do that.

21             And obviously I didn't mention, but the exhibit list and the

22     witness list would follow the same timetable and ...

23             JUDGE MORRISON:  Well, that's -- that's -- I make it plain.

24     That's the last date.  If it can be available before that, all well and

25     good.  But I take into account the fact that Easter intervenes, and I

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 1     know that some of my fellow Judges are not going to be present in

 2     The Hague in that intervening period, so I'm afraid my generosity is

 3     tempered by reality.

 4             Any observations, Ms. Tapuskovic?

 5             MS. TAPUSKOVIC: [Interpretation] No, Your Honour, I have no

 6     remarks.  The deadline is fine with us.

 7             Now the question is how much time will you give us to draft our

 8     65 ter documents.

 9             JUDGE MORRISON:  How long are you asking for?

10             MS. TAPUSKOVIC: [Interpretation] We will need three weeks after

11     the reception of the OTP pre-trial brief.

12             JUDGE MORRISON:  Very well.  Taking the -- the pessimistic

13     assumption that it's the 29th of April, that gives us by

14     Friday, the 20th of May.

15             MS. TAPUSKOVIC: [Interpretation] That is acceptable for the

16     Defence, Your Honour.

17             JUDGE MORRISON:  Thank you.

18             Now, a number of witnesses is going to be, I think, at the moment

19     a fluid assessment.  And the number of Defence witness, were there to be

20     any, is something that one, at the moment, can't calculate for various

21     reasons.

22             Let's take a worse case scenario that this matter goes to a full

23     trial with all of the witnesses that both parties presently anticipate.

24     Can you give an estimated length of trial?

25             MR. WOOD:  Yes, Your Honour.  In the Prosecution's case, at most

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 1     we anticipate having to call up to 19 witnesses.  We have identified that

 2     11 of those, with the Court's leave obviously, could be presented via

 3     92 bis.  Obviously this is not taking into consideration that some

 4     agreements might be able to made on some of these smaller matters.

 5             Seven of those, the Prosecution anticipates or would seek to

 6     tender via 92 ter.  And there is one expert witness that the Prosecution

 7     has noted.

 8             Taking all that into account, if we could proceed on the

 9     92 bis/92 ter path, the Prosecution anticipates we could maybe do in

10     seven -- five to seven court days, the length of the Prosecution case.

11             JUDGE MORRISON:  Thank you.  And on the assumption that the

12     Prosecution case took seven working days and that the Defence was

13     required to present their entire Defence, what's the longest period you

14     would have thought it was likely to last, Ms. Tapuskovic?

15             MS. TAPUSKOVIC: [Interpretation] Your Honour, I have no problem

16     with giving an estimate now.  At this moment, the Defence expects to call

17     four viva voce witnesses and a Rule 92 bis witness.

18             As far as we're concerned, the Defence case would not take more

19     than four or five days.  But as you have said, Your Honour, at the

20     beginning, this is, of course, approximative.  However, we don't expect

21     much deviation from this estimate.

22             Thank you.

23             MR. WOOD:  And if I could just add, Your Honour, to clarify:

24     That estimate is -- doesn't take into account if the three main witnesses

25     were to testify viva voce.  That would change the timetable obviously.

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 1             JUDGE MORRISON:  It appears to me though that we're looking at a

 2     trial that's going to take probably in the order of 15 working days at a

 3     maximum.

 4             MR. WOOD:  I think that's fair to say, Your Honour.

 5             JUDGE MORRISON:  Yes.  Very well.  That ...

 6                           [Trial Chamber and Legal Officer confer]

 7             JUDGE MORRISON:  I'm reminded, in the necessity of serving the

 8     evidence of an expert witness, that should be done at the latest a week

 9     before the service of the Defence -- the Prosecution pre-trial brief,

10     which would be the 22nd of April.

11             MR. WOOD:  Yes, Your Honour.

12             JUDGE MORRISON:  And obviously much earlier if that's feasible,

13     which I -- no doubt it is.

14             MR. WOOD:  It is.  In fact, the report of the expert has already

15     been disclosed to Ms. Tapuskovic.

16             JUDGE MORRISON:  Ah, so be it.

17             Any other matters at this stage that the Court can assist with?

18             MR. WOOD:  Not from the Prosecution's view, Your Honour.

19             MS. TAPUSKOVIC: [Interpretation] Your Honour, I would like to

20     raise one issue with you and the OTP team.

21             For that purpose, I would ask for us to go into private session.

22             JUDGE MORRISON:  Certainly.

23                           [Private session]

24   (redacted)

25   (redacted)

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11  Page 19 redacted. Private session.















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 1                           [Open session]

 2             THE REGISTRAR:  We're in open session, Your Honours.

 3             JUDGE MORRISON:  Yes, thank you.

 4             Well, I take into account what you say.  At the moment, I don't

 5     think it impacts upon the trial.  If things change, so be it.

 6             I'm proposing to fix a date of the next Status Conference, to

 7     make sure that we have it in mind from now, which would be Friday,

 8     unfortunately, Friday the 13th, but Friday, the 13th of May, 2011.

 9             Any difficulties with that?

10                           [Prosecution counsel confer]

11             MR. WOOD:  My colleague is just suggesting, Your Honour, that it

12     might best to have the next Status Conference after the Defence pre-trial

13     brief has been filed.  At that point we'll have both briefs and we'll be

14     in a better position to know what comes next.

15             JUDGE MORRISON:  It's a good point.  I just don't want to allow

16     for too much -- well, as one knows, it has to be within -- it should be

17     within 120 days.  If no objection is taken, if there's any slippage over

18     that date, that's a requirement which is really in place for those people

19     who are remanded in custody, to make sure that they are not remanded for

20     too long, as well as for keeping a grip on the timetable of the trial.

21             But on the -- on the assumption that the Defence brief is not in

22     fact filed until 20th of May, which, as I say, as with the Prosecution

23     brief, that's a latest date, not an earliest date.  For the moment, let's

24     fix the next Status Conference to the 27th of May, with the understanding

25     that that can be brought forward, if it's possible to do so, assuming

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 1     that all briefs have been filed before that date.  But at least it gives

 2     us a day to work towards.

 3             Any other matters?

 4             MS. TAPUSKOVIC: [Interpretation] No, Your Honour.  I would just

 5     like to say that I agree with the OTP proposal, that our

 6     Status Conference should be scheduled for after the Defence brief has

 7     been filed.  And we will do our best to do it by the deadline just given

 8     by you, Your Honours.

 9             We don't have any other remarks at this stage.  Thank you.

10             JUDGE MORRISON:  Thank you.

11             Prosecution.

12             MR. WOOD:  Nothing further, Your Honour.

13             JUDGE MORRISON:  No.  Well, thank you very much.  It seems

14     obvious that this is a reasonable collegiate effort between the parties

15     in this case, which I encourage.  When I was Defence counsel, I was on

16     the -- that was the Defence representative on the Rules Committee, and I

17     tried to encourage the creation of agreed facts, documentary agreed

18     facts, which is what I was used to doing in the United Kingdom.  I think

19     I might have been overly enthusiastic, because it was shortly after that

20     that Rule 92 was imposed.  But I disclaim any responsibility for that

21     whatsoever.

22             Thank you very much.  And the hearing is adjourned.

23                           --- Whereupon the Status Conference adjourned at

24                           10.26 a.m.