Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Wednesday, 12 September 2007

 2                          [Status conference]

 3                          [Open session]

 4                          [The accused Stanisic not present]

 5                          --- Upon commencing at 8.05 a.m.

 6            JUDGE THELIN:  Good morning to everyone.

 7            Could we have the case called, please.

 8            THE REGISTRAR:  Thank you.

 9            Good morning, Your Honour.  This is case number IT-04-79-PT, the

10    Prosecutor versus Mico Stanisic.

11            JUDGE THELIN:  Thank you.

12            And for the record, we recognise that the Prosecution is

13    represented by Mr. Tieger and Mrs. Richterova.

14            Mr. Tieger.

15            MR. TIEGER:  Thank you, Your Honour, and also Karen Beausey for

16    the Prosecution, along with case manager Willem Wijermars.

17            JUDGE THELIN:  Thank you for that completion.

18            And Mr. Bezbradica is representing the accused, who is enjoying

19    provisional release.

20            MR. BEZBRADICA:  Good morning, Your Honour.

21            Stevo Bezbradica for the accused Stanisic.  Thank you.

22            JUDGE THELIN:  Well, were it not for some outstanding motions in

23    this case, we'd actually be ready for completing the pre-trial phase.  And

24    when we left it in May this year, we had about the same number of motions

25    outstanding as we have today, with the exception of a few additions,

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 1    primarily from Mr. Bezbradica, and also, I think, a few from -- at least

 2    one from the Prosecution, and those have been added mainly because of

 3    judgements being rendered in the meantime by this Tribunal, which has

 4    affected the position of the parties.

 5            I do not intend to go through, in detail, all of the outstanding

 6    pending motions, because I believe that you, in the 65 ter conference

 7    yesterday, we are in agreement as to the scope and number of those

 8    motions.  However, I would like to highlight some of them and see if we

 9    can clarify some matters in that respect.

10            The oldest of the batch of the motions, if you will, deals with

11    the question of adjudicated facts.  We have motions from the Prosecution,

12    two, if I'm counting correctly, and one from the Defence. The latest was

13    filed in May, the 10th of May, and that was the Prosecution's second

14    motion of judicial notice of adjudicated facts. And the Chamber is very

15    much aware of it, and I think I made promises in the past that we will try

16    to render a decision on these as soon as possible.

17            I would like now to ask, and I think this is something that we

18    have been touching upon before, to what extent, and this is primarily for

19    the Prosecution, if the Prosecution's motion in this respect were to be

20    granted in full, to what extent would that impact on the scope of the

21    Prosecution's case?  Is it possible, Mr. Tieger, to make an assessment of

22    this, or is it merely that this would have a marginal impact on the scope

23    of the case?

24            MR. TIEGER:  Of course, Your Honour, I'm reluctant to overstate

25    the impact.  However, it is our assessment that it would have a

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 1    significant effect on perhaps three or four municipalities.  In the

 2    overall scope of the case, that might not be characterised as substantial,

 3    but in terms of the actual affect on courtroom time, it can be meaningful.

 4            So given the number of municipalities involved and the necessity

 5    to call evidence for each and every one, the beneficial impact of the

 6    adjudicated facts, vis-a-vis that aspect of the case, can be roughly

 7    quantified, and I would say, in that sense, is significant.  So it's not

 8    going to reduce the overall trial time by a dramatic degree, but it

 9    certainly will, in the -- it will have an effect -- a real effect on the

10    number of days we need to be in court in that sense.

11            JUDGE THELIN:  Thank you, Mr. Tieger.  I will not press you on

12    this, because I understand it's difficult to make an assessment. I think

13    that reply was, however, helpful.

14            From the Chamber's point of view, this issue of adjudicated facts

15    is closely linked to the question of agreed facts, and when we left it in

16    May, I encouraged the parties to vigorously engage in discussions and try

17    to come to a meeting of minds relating to agreed facts, and also broaden

18    the discussion to any other avenue which the parties may want to go as far

19    as to come to any sort of agreement.  And I would like to hear from the

20    parties how successful or unsuccessful you have been in this respect.

21            And I start with you, Mr. Bezbradica.

22            MR. BEZBRADICA:  Your Honour, as I said yesterday at 65 ter

23    conference, I recently received some -- the Prosecution proposal of new 60

24    facts to be considered.  As I read facts from this 60, I've already been

25    instructed by my client to accept 26 of them.  But after I heard the

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 1    discussion with the accused in Belgrade now, we agreed to accept the

 2    Prosecution suggestion to make some change in the rest of the proposed

 3    facts, and probably some of them will we accept additionally.  To some of

 4    them we will provide new proposals, and probably for some of them it will

 5    be objected by us and we will give to them our explanation of what is

 6    going on there.

 7            And I think I can give my full explanation maybe shortly after

 8    this status conference, within two, three weeks, for everything.

 9            Thank you.

10            JUDGE THELIN:  Do you wish to comment, Mr. Tieger, on how you see

11    the possibility coming forward here?

12            MR. TIEGER:  Only to say, Your Honour, that for the first time

13    yesterday we heard that Mr. Bezbradica is now prepared to suggest to the

14    Prosecution the reasons for rejecting the agreement on what the

15    Prosecution regarded as very simple and elementary facts.  We also heard

16    yesterday an explanation for the rejection of one particular fact by way

17    of example, and it does explain, to some extent, the reason why a proposal

18    that the Prosecution, I think, properly and fairly considered to be an

19    extremely simple one from which we would move on, perhaps, to more

20    complicated facts, was rejected, so that in that particular case even a

21    typo in the proposed facts was considered a basis for rejecting the fact,

22    rather than simply advising the Prosecution that we should modify the typo

23    and that would render the proposed agreed fact more amenable.

24            So in that sense, I guess there is reason for further optimism.

25    However, the identification of the basis for rejecting those facts is a

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 1    bit troubling, and if that continues to play a part in the process, it

 2    will clearly impede any progress.

 3            JUDGE THELIN:  Thank you, Mr. Tieger.

 4            Well, Mr. Bezbradica, I will close on this topic by encouraging

 5    you to --

 6            MR. BEZBRADICA:  Excuse me, Your Honour.

 7            JUDGE THELIN:  Sorry.

 8            MR. BEZBRADICA:  Might I --

 9            JUDGE THELIN:  Let me, because we have a shortage of time,

10    Mr. Bezbradica, so I'll just conclude here and say I understand there are

11    different positions on this and there may be reasons, Mr. Bezbradica, why

12    you're not engaging in substantial discussions, but I can only encourage

13    you to advise your client to instruct you to engage in discussion on

14    substance, not merely on formality when, when it comes to try to come to

15    an understanding between the parties on agreed facts.

16            So this is again a strong reminder to you, Mr. Bezbradica, to try

17    to be constructive in this field.

18            I will now move to some of the other motions.  We have motions

19    from Defence on requests for access to confidential material in other

20    cases, in the Mrdja case, in Deronjic and in Stakic, and we hope to have a

21    couple of those motions decided upon and filed in a couple of days.

22            The next batch I would like to mention is again two motions from

23    the Defence which deals with material in the Brdjanin and the Krajisnik

24    cases, and those are being considered and will be decided in due course,

25    as is the case for the Prosecution's motion for protective measures which

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 1    was filed in February of this year.

 2            We then come to the Prosecution's motion to amend the indictment,

 3    which the Defence responded to as late as the 7th of June, 2007, and that

 4    will also be decided.  However, understand that the scope of this issue

 5    will not to any great extent impact on the preparations for the case in

 6    other respects.

 7            That brings me to the final two motions, one being a Defence

 8    motion filed in March, the 16th of March, 2007, with a corrigendum of the

 9    8th of May, and it deals with the noncompliance, according to Defence, on

10    the Prosecution's part with Rule 65 ter (E).  That would also be decided

11    upon with some urgency.

12            Finally, we have a leftover from the last status conference, and

13    that deals with the Defence motion for disclosure of witness statements

14    and an assessed violation of Rule 66(A)(ii), and that was coming to the

15    Defence analysis of the Prosecution pre-trial brief and a claim that full

16    disclosure under this Rule had not been made.  And the topic was raised

17    during the last status conference in May.  The Prosecution was directed at

18    that conference to fulfill certain obligations.  Now Mr. Bezbradica

19    claims, in a motion of the 5th of September, that the Prosecution has

20    failed to fulfill that obligation.  No reply has been formally filed, but

21    I understand this was discussed yesterday as well, and I just want, for

22    the record, to hear what the Prosecution has to say in respect of the

23    motion of the 5th of September.

24            MR. TIEGER:  Well, I know the Court is familiar with the

25    discussion yesterday, so I'm happy to address any particular aspect of

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 1    that that might have been left unclear.

 2            If I may begin, I think we ended the 65 ter conference with a

 3    request by the senior legal officer for Mr. Bezbradica to check the

 4    materials provided by the -- that it had just been provided by the

 5    Prosecution to confirms that, indeed, those are the remaining materials

 6    that were addressed by the order at the previous status conference and

 7    that were the subject of Mr. Bezbradica's motion.  It's the Prosecution's

 8    position that those materials have now been provided.  We would like to

 9    know from Mr. Bezbradica if he agrees that those materials were, indeed,

10    provided yesterday.  And I'm perfectly happy to address any other aspects

11    of the motion, should the Court desire.

12            JUDGE THELIN:  Thank you, Mr. Tieger.

13            Before I turn to Mr. Bezbradica, I understand that the problem you

14    may have is to request assistance from other parts of the Tribunal in

15    order to get transcripts and written material from what you have in the

16    electronic form.  Isn't that correct?

17            MR. TIEGER:  It is, Your Honour.

18            I should mention, in addition, that insofar as I'm aware and

19    insofar as our reading of the Rules is concerned, we're in compliance with

20    our obligations when we turn over the material we have; that is, if we

21    conduct an interview and obtain a statement on tape, and then disclose

22    that tape, which represents the totality of what is in the Prosecution's

23    possession, we have complied with our obligations.

24            Now, for various reasons of courtroom convenience and logistics,

25    the Prosecution then attempts to obtain a transcript of that tape for ease

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 1    of reference in court and for everyone's benefit as they go through the

 2    process.  And as soon as that transcript is obtained, of course, we turn

 3    it over.  But as the Court has just noted, we're dependent upon the

 4    resources of the institution to do that, and those resources are

 5    prioritised based on various factors outside our control.

 6            JUDGE THELIN:  Thank you, Mr. Tieger.

 7            Mr. Bezbradica.

 8            MR. BEZBRADICA:  Yes, Your Honour.  It's correct, what Mr. Tieger

 9    mentioned.  Last night I checked the new tape, and I disclose that still

10    the Defence does not have all of the missing statements, as the

11    Prosecution said yesterday, concerning disclosure dated 14th of June,

12    2007.

13            Particularly concerning paragraph 4 of my motion, as you are

14    aware, in that paragraph it says the accused has not been provided with

15    the first ICTY statement translated into B/C/S of some witness.  By

16    yesterday's disclosure, I have not received the requested statement

17    concerning the following witness:  ST-143, ST-128, ST-100 and ST-105.

18            I can confirm the Prosecution provided the requested statement of

19    ST-61 and ST-129.

20            Also, yesterday the Prosecution provided just audio files without

21    transcripts translated into B/C/S for the following witness:  ST-134,

22    ST-136, ST-133, ST-132, ST-131, ST-130, ST-120, and ST-118.

23            Concerning my paragraph 5 of the motion, the Defence has not been

24    provided transcripts of audio testimonies of the following witness who are

25    listed in the motion dated 23rd of March and concerning the disclosure

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 1    dated 14 June 2007.  They are:  Witness ST-111, ST-061, ST-109, ST-115,

 2    ST-104, ST-113, ST-088, ST-079, ST-071, ST-065, ST-070, ST-082, ST-040,

 3    ST-121, ST-127, ST-123, ST-119, ST-125, ST-126, ST-099 and ST-144.

 4            Thank you.

 5            JUDGE THELIN:  Thank you, Mr. Bezbradica.  I realise that it may

 6    be a bit too early to ask the Prosecution to respond to this, so this is

 7    what I propose to do:

 8            After the session here, I think the parties should meet in order

 9    to check so we don't have any misunderstanding as to the reply which

10    now -- or the additional comment which Mr. Bezbradica made.  And on top of

11    that, given the fact that we may have a question as to the form of

12    disclosure, I suggest that the Prosecution file a formal reply to the

13    motion on the back of the information which was supplemented by

14    Mr. Bezbradica today, and the response time then starting as of today, and

15    then we will see whether we can bring this matter to a final closure.

16            Thank you.

17            Well, on my list of matters that need particular attention today,

18    I don't have anything else.  Do the parties have anything they wish to

19    raise, either in connection with what has been said or any other matter

20    that they think should be brought to the attention of the status

21    conference?

22            Mr. Tieger?

23            MR. TIEGER:  No, Your Honour.  Thank you very much.

24            JUDGE THELIN:  Mr. Bezbradica.

25            MR. BEZBRADICA:  Your Honour, I would like to mention that it has

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 1    not been mentioned one extra, my motion.  It's Defence counsel motion for

 2    review of the Registrar decision according to Article 13(b) of directive

 3    of the assignment of Defence counsel, filed the 30th of February, 2007.

 4            Thank you.

 5            JUDGE THELIN:  Well, Mr. Bezbradica, the reasons they were not

 6    mentioned is they are following a different format.  They are ex parte in

 7    part, and they also will be brought to our attention through certain

 8    mechanisms.  So that's why I didn't take it up.  We are very much aware of

 9    those motions, Mr. Bezbradica, so don't worry.

10            With that, I will just sign off by indicating that the next status

11    conference will be held before the winter recess.  Otherwise, we might end

12    up in problems and have a date which we will scramble for during the

13    recess.  So sometime mid-December, before we take the winter recess, and

14    then the ambition is that before that the outstanding issues that we now

15    have and where the obligation rests obviously with the Chamber to address

16    some of the motions, that those should have been resolved, and at that

17    time we should have had a formal declaration of the end of the pre-trial

18    phase.

19            And as you know, I'm aware that the parties wish, obviously,

20    notice to be given as to the time for a trial.  Mr. Bezbradica, I notice

21    that you have requested three months' notice from the end of the pre-trial

22    phase to the trial itself, and I think a couple of months was the request

23    from the Prosecution.  That means, obviously, that the time for setting a

24    date for the pre-trial conference is a bit too early.  In the Tribunal's

25    thinking at the moment in scheduling, as far as I know, this case is

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 1    slotted in with not the utmost of priorities, so that means at the later

 2    part of next year.

 3            However, as I've stated before, and recent examples could be

 4    given, things could change.  That means that there is no reason to have a

 5    laid-back approach to this case, and it could very well be that in

 6    December we are looking at a start of a trial, let's say, a couple of

 7    months after that, so early next year.  That could happen.  I just want to

 8    give the parties an understanding of how things are, but those things are

 9    taken care of by those in the Tribunal who do the planning of cases. But I

10    wanted to put this on record so that you are aware of that.

11            And no other matters needing to be raised, this brings this status

12    conference to its close and we are now adjourned.

13                          --- Whereupon the Status Conference adjourned.

14                          at 8.29 a.m.