Tribunal Criminal Tribunal for the Former Yugoslavia

Page 668

1 Wednesday, January 21, 2004

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 3.09 p.m.

5 JUDGE ROBINSON: Will the Registrar call the case, please.

6 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honour.

7 This is case number IT-99-37-PT, the Prosecutor versus Milan Milutinovic,

8 Nikola Sainovic, and Dragoljub Ojdanic.

9 JUDGE ROBINSON: Thank you. And may we have the appearances.

10 MR. NICE: For the Prosecution, Geoffrey Nice, Christina Romano,

11 Milbert Shin, Christina Mueller, Patricia Fikirini, and our case manager

12 is Susan Grogan.

13 JUDGE ROBINSON: Thank you, Mr. Nice.

14 For the Defence.

15 MR. O'SULLIVAN: Good afternoon, Your Honour. Eugene O'Sullivan

16 appearing on behalf of Mr. Milutinovic.

17 Thank you.

18 MR. FILA: [Interpretation] Good afternoon, Your Honour. I am

19 Toma Fila and I represent Mr. Sainovic. Thank you.

20 JUDGE ROBINSON: Mr. Fila.

21 MR. VISNJIC: [Interpretation] Good afternoon. I am Tomislav

22 Visnjic for the Defence of General Ojdanic.

23 JUDGE ROBINSON: Thank you, Mr. Visnjic. We have a number of

24 matters to get through today, and I'll begin with motions that are

25 pending. We have two Prosecution motions to vary nondisclosure orders.

Page 669

1 The motions were filed in December, and a response was filed by the

2 Ojdanic Defence. No other responses have been filed. And I am to say

3 that the Chamber will give a decision on that motion shortly.

4 There is the Ojdanic motion challenging jurisdiction over events

5 in Kosovo, and I'm referring here to the appeal from the decision of the

6 Trial Chamber in that matter. And that is still before the Appeals

7 Chamber. I understand that the Appeals Chamber will shortly be adopting

8 a particular decision in relation to this matter, which is very important

9 for the progress in the pre-trial proceedings. I say it's important

10 because on it hangs a number of other things, the Prosecution's pre-trial

11 brief, which is to be filed one month after that decision, and then, of

12 course, the Defence pre-trial briefs.

13 Disclosure of witness statements, disclosure made under Rule 66 (A)(i) and

14 66(A)(ii). There was a matter, Mr. Nice, in relation to two witnesses to

15 whom protective measures had been extended. The Prosecution has dropped

16 one, I understand, but there was one other in relation to which a report

17 was to be made on a monthly basis. One report was filed 21st November,

18 and none has been filed since. So one is now due.

19 MR. NICE: Yes, there has been no change in the circumstances.

20 Efforts have been made to pursue the circumstances of that particular

21 witness and see what they are, but it's very difficult. The present

22 report will be to the same effect, I think, as the report in November.

23 It can, of course, be filed. But there are active steps to see what

24 further moves, if any, may be made so far as that witness is concerned.

25 At the hearing two days ago, we made the point to Senior Legal

Page 670

1 Officer Featherstone that the consequences of the order for us is that

2 witnesses are having to be dropped because of difficulties over

3 disclosure at this very early stage in the trial because whatever the

4 Appeals Chamber's decision may be, there's quite a long time to go even

5 before the earliest 65 ter date at which witness lists would normally

6 become appropriate. And we regret that we had to drop one witness. So

7 far as the other one is concerned, we're doing our best to see how much

8 further we can help.

9 JUDGE ROBINSON: Thank you.

10 Expert witnesses, expert reports have been disclosed, both in

11 B/C/S and in English. Rule 68 disclosure, there were some amendments to

12 the Rules recently. There is now an obligation on the Defence in

13 relation to certain matters, and the Prosecution still has some

14 responsibility.

15 Mr. Nice, anything to say on this?

16 MR. NICE: No, nothing, again, save beyond what I said in the

17 presence of Ms. Featherstone the other day. The working out -- the

18 practical working out of these changes in the Rules may, of course, take

19 some time. There may be some further clarification or refinement of the

20 Rules that will eventually be required. But we recognise both our

21 continuing obligation as well as the fact that we have been relieved in

22 part the obligation that previously existed.

23 JUDGE ROBINSON: Well, your basic requirement now is to pass over

24 to the Defence certain material.

25 MR. NICE: In our actual knowledge.

Page 671

1 JUDGE ROBINSON: In your actual knowledge, yes. And the rest to

2 be made available to them.

3 MR. NICE: Yes. When the electronic suite, as it's so described,

4 is fully operational, then of course the Defence have access to a

5 substantial majority of the overall collection of the OTP. Our duties in

6 relation to the balance are determined by the phrase "actual knowledge,"

7 a phrase not yet further defined or identified. I think I can probably

8 speak for this case and for others in saying that we will be cautious

9 before abandoning practices that operated in favour of the accused too

10 extensively. I mean we will be cautious before we abandon them too

11 extensively.

12 JUDGE ROBINSON: It's not a phrase that's unfamiliar to you.

13 MR. NICE: Yes, but I have yet to be quite sure what it means in

14 this context. But yes, we are aware of the changes and we are doing our

15 best to ensure that we comply with them.

16 JUDGE ROBINSON: Any remarks from the Defence counsel on this?

17 MR. O'SULLIVAN: Not on this point, Your Honour.

18 JUDGE ROBINSON: Okay.

19 Reciprocal disclosure, I understand, there's no particular

20 problem. Does anyone wish to make any comment on that? No.

21 There's disclosure from the Milosevic trial. Some difficulties

22 had been encountered, but I understand that they have been resolved.

23 Agreed and adjudicated facts. At the last conference, Mr. Fila,

24 you were told to make a list of agreed facts, to pass them over to the

25 Prosecution. Where are you with this?

Page 672

1 MR. FILA: [Interpretation] On Monday, this list was given to

2 Mr. Nice, and now I have met my obligations. Thank you.

3 JUDGE ROBINSON: How many facts on the list? Mr. Nice?

4 MR. NICE: We received this document two days ago of 17 --

5 MR. FILA: 18.

6 MR. NICE: Well, it says 17, but it may be that it's 18.

7 MR. FILA: [Interpretation] I apologise. I thought there were 18,

8 but it's 17.

9 MR. NICE: And we have in mind the following, that the first

10 effort to agree facts was built on the indictment by the Prosecution

11 inviting Defence could agree to parts of the indictment, which seems to

12 us the way in which these -- the issues between the parties might be

13 narrowed down. That was rejected, and a counterproposal was made, and

14 Your Honour said on the last occasion, I think it was, that the Sainovic

15 Defence team's proposal of a different methodology, that is, a list of

16 facts which go beyond the statement-by-statement approach in relation to

17 the indictment was one that you thought to be reasonable. So that what's

18 been offered has been offered on the basis that it goes beyond the

19 statement-by-statement approach in relation to the indictment.

20 What we have been provided with is, we regret to say, we think

21 entirely inappropriate and of very little or probably no value. The

22 first series of facts relate to matters of history or constitutions that

23 preceded that which is relevant for the indictment, and the latter

24 half-dozen or so raise the sort of self-evidently contentious statement

25 such as the following: "The degree of self-governance of Kosovo and

Page 673

1 Metohi [phoen] For the period 1968 until 1998 was larger than the degree

2 of autonomy of the federal units in some federations, for example,

3 Austria, Canada, and India." A proposition with or without a factual

4 basis that would be hard for a Trial Chamber, I think, to handle

5 valuably.

6 And also, doesn't appear to be, if I may diffidently say so,

7 doesn't appear to be responsive in any way to parts of the indictment,

8 and really agreed facts are only going to be of value if they

9 specifically address by one means or another either the indictment or the

10 pre-trial brief, which are the documents that identify the Prosecution's

11 case. Typically, just to make the point obvious, although I'm sure it

12 is, in a domestic case of theft of property from Mr. AB, a defendant

13 could admit that yes, the property was the property of Mr. AB. And then

14 the question is whether the defendant stole it, something like that. And

15 where the Sainovic Defence proposed this methodology beyond that which

16 had been rejected and that was indictment-related, we fear that they have

17 rather failed to meet up to the promise.

18 JUDGE ROBINSON: Well, be that as it may.

19 Mr. Fila.

20 MR. FILA: [Interpretation] Your Honour, the methodology which we

21 suggested was used in the Omarska case. We received a proposal, a

22 point-by-point proposal from the Prosecution. We accepted what we

23 accepted. And on our part we proposed some things, some of which the

24 Prosecution accepted. The methodology which we proposed, I think there

25 were 16 or 17 points, so I would expect the Prosecution to respond in

Page 674

1 writing what of those points they accept and which ones they don't. I do

2 not ask for an evaluation of what is reasonable of those and what is not,

3 because there must be a reason why we're proposing them.

4 So the Prosecution should say "we are accepting this, and we are

5 not accepting this" just as we will do the same to them. I will not put

6 forth any opinion about what Mr. Nice is suggesting, whether it is wise

7 or not. So this is what I'm expecting from the Prosecution. If they

8 agree, fine. And if they don't agree, that is also fine. That is up to

9 them. So this is as much as I had to say.

10 JUDGE ROBINSON: The exercise should be continued in good faith,

11 and the Trial Chamber is available to assist if there are difficulties.

12 92 bis, the discussions on this are probably premature at this

13 time. The Prosecution witness list still hasn't been served. And as I

14 said earlier, much depends on the Appeals Chamber's decision coming out

15 shortly in the Ojdanic jurisdictional matter.

16 The other matter is the length of trial, and there was an

17 original estimate of 100 to 120 witnesses with the trial taking perhaps

18 three to four months.

19 I wonder, is there any matter that any of the counsel would wish

20 to raise? Any specific matter?

21 Mr. O'Sullivan.

22 MR. O'SULLIVAN: There is a matter I would like to address at

23 some point in this conference in relation to conditions of detention.

24 I'm not sure if you want to deal with that at the end or now.

25 JUDGE ROBINSON: Well, now, yes. Yes.

Page 675

1 MR. O'SULLIVAN: Can I ask that we move into private session.

2 JUDGE ROBINSON: Yes, private session. Yes.

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20 [Open session]

21 JUDGE ROBINSON: The next conference has to be held before

22 Friday, the 21st of May. And I'm going to set Wednesday, May 12th. Thatís

23 some time away. If there is to be any change, the parties will be

24 notified.

25 The hearing is adjourned.

Page 681

1 --- Whereupon the Status Conference

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