Tribunal Criminal Tribunal for the Former Yugoslavia

Page 80

 1                             Wednesday, 16 May 2007

 2                             [Status conference]

 3                             [Open session]

 4                             --- Upon commencing at 3.00 p.m.

 5            JUDGE THELIN:  Good afternoon.

 6            Could we have the case called, please.

 7            THE REGISTRAR:  Your Honours, this is case number IT-04-79-PT, The

 8    Prosecutor versus Mico Stanisic.

 9            JUDGE THELIN:  Thank you.  And for the record, the representation.

10    Prosecution.

11            MR. TIEGER:  Good afternoon, Your Honour.  Alan Tieger, Anna

12    Richterova, and Karen Bose appearing for the Prosecution, with case

13    manager Wilhelmus Wijermars.

14            JUDGE THELIN:  And for the Defence?

15            MR. BEZBRADICA:  Good afternoon, Your Honour, Stevo Bezbradica,

16    counsel for the accused, Mr. Mico Stanisic, and my co-counsel, Mr.

17    Slobodan Cvijetic.  Thank you.

18            JUDGE THELIN:  Thank you, Mr. Bezbradica.

19            Well, we know your client is on provisional release, and I take it

20    he is aware of this status conference.

21            Do you have anything to report in that context?

22            MR. BEZBRADICA:  No, Your Honour.  He is aware of everything.

23    Thank you.

24            JUDGE THELIN:  Thank you.  The last time we had a status

25    conference was towards the end of January, and we then had the prospect of

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 1    having, according to the work plan, the Prosecution Pre-Trial Brief filed

 2    and the Defence Pre-Trial Brief filed.  We had at that time one

 3    outstanding issue, and that was a motion for adjudicated facts which was

 4    filed, I think, in August 2006.

 5            So I would say at that time things were looking fairly bright when

 6    it came to bringing this case to an end, as far as the pre-trial phase is

 7    concerned.  And since then, we have indeed had the pre-trial briefs filed,

 8    but we also have had some other motions filed, which means that we still

 9    have some time to go before we can declare the pre-trial phase over.

10             Let me, before we go over the outstanding motions, and I will

11    offer counsel an opportunity to comment on it and shed whatever light I

12    can on where we are on that, I would like to assure, I think, primarily

13    the Prosecution, but it also concerns the Defence, that the Trial Chamber

14    is very much aware of the fact of the importance of the question of

15    adjudicated facts, well, for two reasons:  One is that a resolution of

16    that is of importance for the scope of the Prosecution's case; and the

17    second is, obviously, there's a link to the question of adjudicated facts

18    to the question of agreed facts.  The more adjudicated facts that could be

19    agreed between the parties, not only would it have an impact on the scope

20    of the Prosecution's case, but it will have an impact on the matter under

21    dispute which the trial could be concluded.

22            So that's why the Trial Bench will, obviously, try to bring a

23    resolution on the outstanding motions we have there as soon as possible.

24    But at the same time, and I will come back to that, I again would like to

25    urge the parties to take whatever opportunity there is to engage in direct

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 1    discussion regarding the whole scope of agreed facts.  And as I said, I

 2    will come back to this point later.

 3            This was just, Mr. Tieger, in order to encourage you and your team

 4    that that matter is not forgotten.

 5            Before we go down to the question of the outstanding motions, I

 6    would like to have an understanding to what extent a favourable decision

 7    by the Bench on the adjudicated facts motion, as they are now, if you can

 8    give me any assistance to what extent that would impact on your need to

 9    bring lead witnesses.  You know, just give an estimate, if you were

10    favourable on all counts, as far as see them, to what extent would that

11    impact in numbers of witnesses, leaving aside the question of 92 bis and

12    quater for the moment.

13            Is it possible to make an estimate on that, Mr. Tieger?

14            MR. TIEGER:  Your Honour, for many of the purposes of today's

15    hearing, as was the case in the 65 ter yesterday, I'm going to ask

16    Ms. Richterova to take the lead in responding to the Court.  And with

17    respect to this particular matter, I'm not sure we're in a position to

18    quantify that precisely for the Court.

19            Certainly, we could indicate to the Court, as a general

20    proposition, that the thrust of the Court's inquiry, at least what I

21    understand to be the thrust of the Court's inquiry, is perfectly correct.

22    There obviously is a relationship between the particular witnesses and

23    number of witnesses the Prosecution would be obliged to call, and the

24    adjudicated facts that may be decided upon.

25            Ms. Richterova may have some more specific information on that

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 1    that she can relay to the Court; but as I say, at this moment, I'm not in

 2    a position to provide the Court with a precise correlation between the

 3    adjudicated facts and a favourable ruling on all or a portion of that

 4    motion and the precise number of witnesses who would be called, beyond

 5    saying that there's a clear relationship between the two.

 6            JUDGE THELIN:  Ms. Richterova, anything to add?

 7            MS. RICHTEROVA:  At this point, I can add just a little.

 8            As you are aware, we filed a second motion for adjudicated facts

 9    because the Brdjanin case, the Simic case, and the Galic case have been

10    settled on appeal.  We added new facts.  They mostly relate to

11    crime-based.  So as you can see from these facts, they relate to the ARK

12    region, I would say to five municipalities in the ARK region; further, it

13    relates to Bosanski Sumac and Visegrad.   We can reduce significantly the

14    number of witness calling for these municipalities.

15            It doesn't mean, of course, that we won't call any witnesses from

16    these municipalities, but I would like to stress we can reduce their

17    number.

18            JUDGE THELIN:  Thank you.  Obviously, I had hoped you would say,

19    well, it would cut the case down to two months or something, but I

20    understand the difficulties at this stage to make an assessment.  Thank

21    you for what you've given me.

22            Let's now then look at the motions.  We have, as far as I can see,

23    three motions on judicial -- adjudicated facts:  One from the Defence --

24    sorry, from the Prosecution, from 2006; and one from the Defence filed

25    early this year on the 1st of February, and those have been responded to,

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 1    so those are ready, as it were; And then, as Ms. Richterova indicated, we

 2    have a very newly-filed motion, filed on the 10th of May.  And as you

 3    indicated, it's gone by the now final decisions in the Brdjanin, Simic,

 4    and Galic cases, and that one needs still to be responded to before the

 5    Chamber is ready to deliberate and resolve on it.

 6            When would you be ready to respond, Mr. Bezbradica?  I am asking

 7    because you have indicated that you would have problems meeting the times

 8    as it now is laid down.  I believe the time would be the 24th of May.

 9    Would you be ready to file a response to that at that time?

10            MR. BEZBRADICA:  Your Honour, as you're aware, I just came in from

11    Belgrade last week, Tuesday of last week, and I print out everything from

12    internet on Friday.  At this stage, we are still translating the

13    Prosecution motion into the Serbian language, and at this stage everything

14    is under our serious consideration.  We will try to reconsider our

15    position and maybe try to make some progress in this way.

16            As I mentioned yesterday, I appreciate if you can give me some

17    extension, not just for this -- my response for this motion, but also for

18    another one or an amended indictment.

19            As you're aware, I go back to my home on Saturday, but I will be

20    retired.  I just ask maybe for days, if you can give me.  If not, I will

21    do my best to finish everything in due time.

22            Thank you.

23            JUDGE THELIN:  Thank you, Mr. Bezbradica.  We certainly appreciate

24    that coming from down under, as it were, and having to relate with your

25    client in Belgrade, and that puts the stress on you, on a personal base,

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 1    although the choices that you have undertaken for this assignment, given

 2    your domicile, there are obviously limits to the excuses that could be

 3    made given that fact.  However, I'm not unresponsive, so you are to file a

 4    response on the case -- in the matter of the Prosecution's motion for

 5    adjudicated facts not later than the 7th of June this year.  I added "this

 6    year" just to make that clear.

 7            MR. BEZBRADICA:  Thank you.

 8            JUDGE THELIN:  Moving, then, to, leaving the three motions of

 9    adjudicated on the side, next batch, if you will, or motions I have are

10    the two motions from the Defence on access to confidential material:  One

11    related to the Mrdja case, and the other to the Deronjic case.  And unless

12    you wish to add something on this, Mr. Bezbradica, my intention was only

13    to assure that you we are ready to take a decision on those two motions in

14    the near future.

15            MR. BEZBRADICA:  I don't have anything.  Thank you.

16            JUDGE THELIN:  Thank you.

17            There is also, from the Prosecution, a motion on protective

18    measures, a matter which we also will deal with, I hope, in the near

19    future.

20            Any comment from the Prosecution on that?

21            MS. RICHTEROVA:  No, Your Honour.  I think everything is stated in

22    that motion.

23            JUDGE THELIN:  Thank you.

24            Then we have from you, Mr. Bezbradica, two motions dealing with

25    what you perceive to be noncompliance as far as the Prosecution is

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 1    concerned.  The first one regards the question of disclosure of witness

 2    statements under Rule 66(A)(II) which you filed on the 23rd of March and a

 3    corrigenda to that file on the 30th of April, and it seems to me - I know

 4    that this was discussed yesterday at the 65 ter conference as well - that

 5    there have been some matters of translation which have delayed the full

 6    disclosure from the Prosecution.

 7            Is the Prosecution ready to state when a full disclosure of this

 8    matter could be had?

 9            MS. RICHTEROVA:  Yes, Your Honour.  As I stated yesterday, we

10    anticipated to disclose 14 of audiotapes with B/C/S translation of certain

11    transcripts, but, unfortunately, today we are faced with a major technical

12    problem.  So it has been addressed.  It has been almost solved, so I

13    discuss it with Mr. Bezbradica that these 14 transcripts and some

14    additional translations will be disclosed tomorrow morning, and additional

15    they will be disclosed as soon as possible.  And if you want to -- if you

16    want me to be more precise, just in case we are facing any other technical

17    problem, one month.

18            JUDGE THELIN:  Comments, Mr. Bezbradica.

19            MR. BEZBRADICA:  I don't have really any comments, only that I

20    just met a few minutes ago with Ms. Anna to come back tomorrow morning and

21    pick up CDs.  Thank you.

22            JUDGE THELIN:  Thank you.

23            Well, with those clarifications, I think that matter is ready for

24    a resolution here and now, and in that sense I grant the motion in part by

25    directing the Prosecution to make the full disclosure under 66(A)(II) not

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 1    later than the 15th of June, which is a Friday, and that should give you

 2    your month, Ms. Richterova.  And as far as the rest of the motion, that is

 3    denied, Mr. Bezbradica.

 4            When it comes to the second motion, Mr. Bezbradica, where you

 5    argue that the Prosecution is in noncompliance with Rule 65 ter(E), a

 6    motion which you filed on the 16th of March, 2007, and with a late

 7    corrigendum on the 8th of May, we have had a response to that and the

 8    Trial Chamber will take a decision also on that matter in the future.

 9             Do you have anything to add to that?

10            MR. BEZBRADICA:  No, Your Honour, I don't have.  Everything is

11    stated there in my motion.  Thank you.

12            JUDGE THELIN:  Thank you.

13            I take it, by the shaking of the head, nothing from the

14    Prosecution on this.

15            MS. RICHTEROVA:  You are right, Your Honour, we have nothing more

16    to add.

17            JUDGE THELIN:  Thank you.

18            We then come to what was indicated by you, Ms. Richterova; namely,

19    that you also filed simultaneously, more or less, with your motion of

20    adjudicated facts in May, a motion for leave to amend to the rights to

21    amend the indictment on the 9th of May, and I take it from that motion -

22    and I would like to have your confirmation on that - that would not or

23    lead to be granted, change the scope of the indictment.  Is that correct?

24            MS. RICHTEROVA:  You are right, Your Honour.  The reason for

25    filing this proposed amended indictment was primarily to, in light of the

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 1    recent Brdjanin Appeal Judgement, to reduce the scope of JCE, and also

 2    based on the Defence Pre-Trial Brief and his various comments, to clarify

 3    the amount of responsibility of his client.  There are no new charges

 4    included in this proposed second amended indictment, and we are -- we do

 5    not intend to call new witnesses or to submit new documents in relation to

 6    this proposed amended indictment.

 7            JUDGE THELIN:  Thank you.

 8            Well, Mr. Bezbradica, that is also something that needs to be

 9    responded to.  All I think that Ms. Richterova indicated, some matters

10    there clarified matters that you had raised in the motion that I referred

11    to earlier, but you have indicated that you will not be ready to file a

12    response, which timely would be on the 23rd of May; is that correct?

13            MR. BEZBRADICA:  Yes, Your Honour.  And I would like to ask for an

14    extension for the same reason as earlier.  Thank you.

15            JUDGE THELIN:  I had understood that, and you will have the same

16    time as granted for responding to the adjudicated facts motion; that is,

17    on the 7th of June, 2007, we expect to have your response also on the

18    amended indictment motion.

19            MR. BEZBRADICA:  Thank you, Your Honour.  Thank you very much.

20            JUDGE THELIN:  Well, that exhausts my list of outstanding matters

21    involving the parties.  Would that square with the parties' understanding,

22    or are there other matters outstanding as far as motions are concerned?

23            MS. RICHTEROVA:  I'm not aware of any additional pending motion or

24    outstanding issues.

25            JUDGE THELIN:  Thank you very much.  And I take it that is your

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 1    position as well, Mr. Bezbradica.

 2            MR. BEZBRADICA:  I think at this stage everything is in proper

 3    order, and I am not aware about anything.

 4            JUDGE THELIN:  Thank you very much.

 5            I then come to what I indicated before, the question of agreed

 6    facts.  As you may recall, I underscored and tried to make that as clear

 7    as possible, the Bench appreciation of the parties getting together to

 8    agree on matters; not only, as I said, linked to the outstanding motion of

 9    adjudicated facts, but also should the parties feel inclined to do so, to

10    cover the whole scope of the case, as such, and only the parties will set

11    the limits for how far agreements can go.

12            And I was a bit disappointed when I understood that despite

13    promises made after the last status conference, there hasn't been - that's

14    my understanding- in a direct context between the Prosecution and the

15    counsel for the Defence on this.  I may be wrong, but I wish to have

16    confirmations that regardless of what has happened, in the future parties

17    will now engage in discussions in order to be able to maximize the amount

18    of agreed facts and other matters related to the scope of the case.

19             Mr. Tieger.

20            MR. TIEGER:  Yes, Your Honour.  I'm happy to confirm that from the

21    Prosecution's side.  We are determined not to let the absence of progress

22    in the past discourage us from engaging in discussions with the Defence

23    towards that end.  In light of the past, I'm certainly not going to

24    overstate the likelihood of success, but I will certainly assure the Court

25    that we'll do our best to move that process forward.

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 1            I can also indicate to the Court that there were discussions with

 2    the Defence this week along those very lines, and we'll take on board the

 3    Court's suggestion that there's no reason to arbitrarily limit the scope

 4    of such discussions, and do everything that can be done to address all

 5    issues which may be amenable to agreement.

 6            JUDGE THELIN:  Thank you, Mr. Tieger.

 7            Mr. Bezbradica.

 8            MR. BEZBRADICA:  Your Honour, I would like to make some

 9    clarification in this regard of agreed facts.

10            As you are aware, the accused agrees to accept the facts under

11    paragraph 25 on page 10 of the current indictment; but in my letter of 13

12    February 2007, the different advise of the Prosecution that in light of

13    the status conference of the 8th of January, 2007, the accused further

14    agreed to accept the facts under paragraph 29 and 30 on page 11 of the

15    indictment as agreed facts.  It means that we have some progress there.

16             At this stage -- or last week I received the proposed second

17    amended indictment and the numbering of paragraphs is slightly changed

18    now, and I'm not sure at this stage what will happen with that

19    indictment.  But at this stage we will have new consideration in regard to

20    everything, and we will advise you is there any progress our not.

21            Thank you.

22            JUDGE THELIN:  Thank you, Mr. Bezbradica.  I'm fully aware that,

23    obviously, you need to seek guidance from your client; but on the other

24    hand, it is you who are the legal expert, and you are the one who is best

25    equipped to assess, for instance, the impact of the Appeals Chambers

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 1    decisions on cases newly handed down, what that would entail for your

 2    client as well, when it comes to assessing the scope of the case as you

 3    see it.  So it's a two-way street between you and your client.

 4            And as I have indicated, I think the broader the discussions could

 5    be on what could be agreed between the parties, the better.  I think, it

 6    would be -- it would be certainly in the interests of justice and in the

 7    interests of your client to try to maximise the scope of the field of

 8    agreements that could be reached between you and the Prosecution.

 9            So with that, I will again underscore the direct contacts between

10    counsel to try to explore, to the extent possible, what could be done

11    here, provided obviously that you bring your client well into the fold in

12    this, Mr. Bezbradica.

13            You're nodding, so I take it you consent.

14            MR. BEZBRADICA:  I understand everything, Your Honour, and I will

15    advise my client in respect of the conclusion of this status conference.

16            JUDGE THELIN:  Thank you very much, Mr. Bezbradica.

17            I have some matters, before I leave the parties, to raise whatever

18    needs to be raised just to tick off what I have on my list.

19            As far as your work plan is concerned, there are only two

20    outstanding items, and that is the pre-trial conference and the start of

21    the trial.  And as the parties are aware, this -- at present this case is

22    scheduled not with an immediate priority; but we also know, and I think

23    the Delic case is an example, that even if scheduling indicates that a

24    case may be some time off to be ready for trial, as far as the Tribunal is

25    concerned, there is a need for the parties to be ready, and that's why

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 1    this process in order to bring the pre-trial phase to a close is so

 2    important.

 3            I also understand, Mr. Bezbradica, that you have indicated that

 4    you would need something in the order of three months early advanced

 5    notice before any trial.  Is that correct?

 6            MR. BEZBRADICA:  Yes, it is, Your Honour.  I gave my submission

 7    yesterday in this respect.  Thank you.

 8            JUDGE THELIN:  Thank you.  Well, we obviously cannot promise, but

 9    we have noted your request, and, obviously, we'll take that into account.

10    But some of these matters are, obviously, outside the hands of this Trial

11    Bench when it comes to the planning of the cases for the Tribunal as a

12    whole.

13            With that, it's obviously too early to fill in the blanks when it

14    comes to pre-trial conference and the start of the trial, and that also

15    impacts on the question which also was raised yesterday by you,

16    Ms. Richterova, the question of 92 bis ter and quater statements, and I

17    think you are right, and I think the Defence agrees that the proper Bench

18    to decide on those matters would be the Trial Bench, i.e., the Bench that

19    eventually will hear the case.

20            It also obviously has an impact on the outcome of the pending

21    motions on both adjudicated facts and the motion for leave to amend the

22    indictment.  Once those are out of the way, there may also be a need to

23    add to the already-filed pre-trial briefs on both sides; but that would

24    decide, I would imagine, the scope of 92 bis, ter and quater submissions

25    which the Prosecution will make.

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 1            So what I see is once we have a decision on the outstanding

 2    motions, that would be the time for the Prosecution to file motions

 3    regarding the written statements, then for the Trial Bench to address

 4    that.

 5            Would that meet with the parties' understanding?  Prosecution?

 6            MS. RICHTEROVA:  I fully agree with you, Your Honour.  It makes

 7    sense to wait until all the unresolved issues has been resolved, and then

 8    we can file our further submissions.

 9            JUDGE THELIN:  Then, Mr. Bezbradica, it's for you to react to each

10    submission from the Prosecution in a timely manner.

11            MR. BEZBRADICA:  Your Honour, I understand everything, and once we

12    receive some more we will respond in due time.  Thank you.

13            JUDGE THELIN:  Thank you.

14            Well, we have the ongoing matter of Rule 68 disclosures.  Are

15    there any things that the parties need to raise here on this, or can I

16    take it that is continually being handled according to usual practice?

17    Mrs. Richterova?

18            MS. RICHTEROVA:  Of course, we are aware of our ongoing

19    obligation, and it is more or less under control.

20            JUDGE THELIN:  Do you agree, Mr. Bezbradica?

21            MR. BEZBRADICA:  Agreed partially.  At this stage, I still haven't

22    seen disclosure materials from the Prosecution, but at this stage I

23    haven't seen enough evidence that may suggest the innocence of my client

24    or affect the credibility of the Prosecution witness.  But shortly, when I

25    review everything in probably a short period of time, I will address.  The

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 1    Prosecution asked for disclosure of these materials, and we will see what

 2    will happen after.

 3            Thank you.

 4            JUDGE THELIN:  Thank you.

 5            Well, those are the matters I thought I should raise with the

 6    parties.

 7            MS. RICHTEROVA:  I'm sorry, I --

 8            JUDGE THELIN:  I'm sorry.  I am just reading the transcript.

 9    There was something here.  I don't fully understand what you mean here.

10    Would you like to comment, Mr. Tieger?

11            MR. TIEGER:  I had the same problem, Your Honour.  I want to

12    assume, and I'd like confirmation of the fact, that that's not any kind of

13    allegation by Mr. Bezbradica that the Prosecution is not complying with

14    its Rule 68 obligations by disclosing material that falls within the scope

15    of 68.

16            If it's simply a comment that Mr. Bezbradica hasn't identified

17    himself some kind of material that he would hope to find, then he's

18    welcome to make such comments.  But if there is something more to that

19    comment than meets the eye, we would like to know about that because we

20    have been in contact with the Defence about Rule 68, and we weren't aware

21    of any logistical or other disclosure problems in relation to that.

22            JUDGE THELIN:  Mr. Bezbradica, one thing is obviously your

23    analysis of the material that you are being provided with by the

24    Prosecution, that's one matter.  The other is whether you feel that you

25    are being provided what you have the right to expect.  I didn't

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 1    understand, although it was a bit oblique here, that you made an

 2    allegation that the Prosecution didn't provide you with what you are to

 3    expect under the disclosure rules, 68.

 4            MR. BEZBRADICA:  I didn't feel I received plenty of CDs, and when

 5    I have time, I'm going to review everything.  And at this stage, I haven't

 6    reviewed all CDs and all paperwork; and at this stage, I didn't find some

 7    information which are going to for the benefit of my client.  I didn't

 8    feel they are not going to provide me with that; but if I find something

 9    that I don't understand or I'm looking for some more information, I will

10    contact them and I will try to fix everything.

11            JUDGE THELIN:  Thank you for clarifying that.  I think that matter

12    is out of the way now.

13            My list is then exhausted.  Are there any other matters which the

14    parties need to raise at this point?  Prosecution?

15            MS. RICHTEROVA:  I'm not aware of any issues which need to be

16    raised during this status conference.

17            JUDGE THELIN:  Thank you, Mrs. Richterova.

18            Mr. Bezbradica?

19            MR. BEZBRADICA:  Your Honour, I don't have any new issues to raise

20    today.  Thank you.

21            JUDGE THELIN:  Thank you.

22            Well, with that, I think we can bring this status conference to a

23    close, and again I encourage parties to engage in vigorous discussions.

24             We are adjourned.

25                          --- Whereupon the Status Conference concluded at

Page 96

 1                          3:33 p.m.