Tribunal Criminal Tribunal for the Former Yugoslavia

Page 59

1 Friday, 28 November 2003

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3p.m.

6 JUDGE KWON: Good afternoon, ladies and gentlemen. Would the

7 Registrar call the case, please.

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

9 This is case number IT-03-68-PT, the Prosecutor versus Naser Oric.

10 JUDGE KWON: Will both parties make their appearances, please.

11 MR. WUBBEN: Good afternoon, Your Honour. My name is Jan Wubben.

12 I'm Senior Trial Attorney. Co-counsel is Mr. Jayantha Jayasuriya and

13 Ms. Diane Boles, case manager.

14 JUDGE KWON: Thank you, Mr. Wubben. And Defence? For the

15 Defence?

16 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honour.

17 Vasvija Vidovic representing Naser Oric.

18 JUDGE KWON: I note that the accused has difficulty in following

19 us. Can you hear me in your language, Mr. Oric?

20 THE ACCUSED: [Interpretation] Yes, I can, Your Honour.

21 JUDGE KWON: This is the second Status Conference --

22 THE INTERPRETER: Microphone for the presiding Judge, please.

23 JUDGE KWON: This is the second Status Conference held in

24 accordance with Rule 65 bis. Prior to the present Status Conference and

25 subsequent to the last Status Conference, there have been three 65 ter

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1 conferences convened by Ms. Featherstone, the Senior Legal Officer of this

2 Chamber, and she has been kind enough to keep me informed of the

3 substantive contents of those conferences. This Status Conference will be

4 held accordingly.

5 First off, I noticed there has been a change in the composition of

6 the trial team on the part of the Prosecution, and I note that the

7 Prosecution is now being represented by Mr. Jan Wubben. I'd like to

8 welcome you most of all.

9 MR. WUBBEN: Thank you, Your Honour.

10 JUDGE KWON: Let me start with the disclosure matter. So in

11 relation to 66(A)(i) problem -- issue, I don't see that there's any more

12 issues left. Can I confirm it through the parties?

13 MR. WUBBEN: No problem from our side, Your Honour.

14 MS. VIDOVIC: [Interpretation] Your Honour, we have received all

15 the materials in keeping with Article 66(A)(i).

16 JUDGE KWON: Thank you, Ms. Vidovic. Then we come to the matter

17 of Rule 66(A)(ii) disclosure, and there are two pending motions in

18 relation to this, and also I received a report from the Prosecution of the

19 status of the disclosure.

20 Let's set aside the translation matter. So let me clarify this.

21 All the materials have been disclosed except for three witnesses which is

22 dealt with in the motion for extension of time. Am I right in that?

23 MR. WUBBEN: Apart from that, Your Honour, there's also a motion

24 with a view to two protected witnesses.

25 JUDGE KWON: Yes. Yes. Then let me raise the translation matter

Page 61

1 first. Can you identify how much of the material has been translated and

2 how much are left?

3 MR. WUBBEN: Yes, Your Honour, I can, but before we come to that

4 part, I'd like to take the initiative to apologise, because the

5 Prosecution is indeed sorry to confirm that we did not fully comply within

6 the time frame of the Scheduling Order of the 30th of July to disclose all

7 our Rule 66(A)(ii) materials. We undertook all the steps for disclosure

8 in relation to it. We disclosed the material referring to 54 witnesses

9 who will be listed as Prosecution witnesses but did not in fact -- were

10 successful in the total 66(A)(ii) material. In fact, those documents have

11 been disclosed, but in that way provided in the English language only and

12 not in B/C/S. You requested to what extent. It will be around

13 31 per cent, and the --

14 JUDGE KWON: Sorry to interrupt you. 31 per cent?

15 MR. WUBBEN: To be translated.

16 JUDGE KWON: To be translated.

17 MR. WUBBEN: I can give more further details to it but we will

18 provide also the details in communicating with the Defence counsel. We

19 did so before this Status Conference, and we will do so immediately after

20 if there are any questions raised by Defence counsel. We have a good

21 communicating relationship, and we will fully support that.

22 With a view, we can also explain how it came. It has to do with

23 the change of staff. You see also a new case manager, but that's no

24 justification, and we undertook the steps to prevent that. And also, we

25 undertook steps to in fact come to a full translation as soon as possible,

Page 62

1 and we will disclose that translation not as a package but as soon as

2 every translation comes in, because when we request it, it comes in

3 backwards in return.

4 Subsequently, we will immediately then send it to Defence counsel.

5 So this is how we will try to prevent any further delay. And according to

6 us, we assume that there is no prejudice caused to the Defence due to this

7 inadvertence. Anyhow, if there is an extension of time necessary for the

8 Defence to file its pre-trial brief, we will not oppose that.

9 JUDGE KWON: So rather than relying on the term "as soon as

10 possible," when do you think the Prosecution can complete the disclosure,

11 including the translation, apart from those witnesses raised in the

12 motions?

13 MR. WUBBEN: That should be possible in the second week of

14 January. But then, Your Honour, that means then the latest document,

15 because we can disclose already earlier from the coming weeks the first

16 translations.

17 JUDGE KWON: Let me consult the calendar. Second week of January.

18 MR. WUBBEN: Fourteen days in January --

19 JUDGE KWON: It's about the 16th of January.

20 MR. WUBBEN: Yes, Your Honour.

21 JUDGE KWON: Friday. And according to the general assertion of

22 the Prosecution, it seems to me the Prosecution is seeking new witnesses,

23 more witnesses.

24 MR. WUBBEN: Yes, Your Honour. As investigation goes on, and also

25 with a view to the response by Defence to our elements issue outline, it's

Page 63

1 important for us to reveal new sources also when we indicate that there

2 are even better witnesses than we already stated before, established

3 before.

4 JUDGE KWON: Then does it imply that the Prosecution's pre-trial

5 brief, which is supposed to be due on 5th of December, is -- will be a

6 kind of provisional one?

7 MR. WUBBEN: No. No, Your Honour. It will be our pre-trial

8 brief, meaning those 40 -- 54 witnesses will be our witnesses in trial,

9 but we can, of course, make use of the possibility to seek for allowance

10 to add new witnesses when they clarify further or are in the position to

11 better clarify our evidence or our position.

12 JUDGE KWON: So on the part of the OTP, there is no problem in

13 filing the pre-trial brief during -- on or before the 5th of December.

14 MR. WUBBEN: Yes. Yes, we will, Your Honour.

15 JUDGE KWON: Yes. Then I'd like to briefly deal with the recent

16 motions, outstanding motions, two motions, because I think they are filed

17 confidentially. So I will go into private session when necessary.

18 So why don't we go into private session briefly to deal with the

19 first motion for the extension of time.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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1 (redacted)

2 (redacted)

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4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 [Open session]

15 JUDGE KWON: Are we now in open session? Yes.

16 Then let's deal with the expert report. The Chamber received the

17 expert report as the Defence did, but I also note that there's no

18 translation of this. So if the Prosecution can tell us when the

19 translation will be ready.

20 MR. WUBBEN: Your Honour, by the end of next week, then it should

21 be ready.

22 JUDGE KWON: End of next week being the 5th of -- 5th of December.

23 MR. WUBBEN: Yes.

24 JUDGE KWON: So as with the pre-trial brief.

25 MR. WUBBEN: Yes.

Page 68

1 JUDGE KWON: I was made aware of the Defence's letter to the

2 Prosecution in relation to the expert qualification, et cetera, and I --

3 the Defence letter appears to be -- to have been copied to the

4 Trial Chamber, but I haven't received it. I saw it today for the first

5 time. If I may comment on that practice.

6 If the Defence's intention is to make the Trial Chamber be aware

7 of this kind of letter or motions, I -- to speak for myself, that should

8 be properly filed to the Registrar so that it can be a part of official

9 records and so that the Trial Chamber can be assisted in the later stage.

10 The same can be said as to the issue outline, which I will raise

11 later.

12 So Ms. Vidovic, could you bear it in mind in the future.

13 MS. VIDOVIC: [Interpretation] Yes, Your Honour. As for the legal

14 issues, we have already submitted that to the senior legal advisor, and in

15 the future, we are going to submit such briefs directly to the

16 Trial Chamber.

17 JUDGE KWON: Thank you, madam. Any observation on the part of the

18 OTP as to the expert witness report? You're going to respond to the

19 Defence's -- the issues Defence has raised.

20 MR. WUBBEN: Yes. The issues related to the report. The

21 questions, we already forward them to the expert himself, meaning that we

22 will get back with his response.

23 JUDGE KWON: And if the Prosecution can tell me about the

24 situation as to the Rule 68 disclosure. I know it is ongoing, but I'd

25 like to emphasise that given the Defence is going to -- should be filing

Page 69

1 its pre-trial brief around February, so a substantial amount -- a

2 substantial part of those materials should be disclosed.

3 MR. WUBBEN: Your Honour, I requested my co-counsel to prepare.

4 Thank you. He will inform.

5 JUDGE KWON: Yes, Mr. Jayasurija, please.

6 MR. JAYASURIYA: In respect of the Rule 68 disclosure, as

7 Your Honour indicated, it's the ongoing obligation and the Prosecution is

8 continuing to disclose whatever the material that we come across during

9 the other searches which the Prosecution believes falling under Rule 68

10 material, and during the process of reviewing materials or search results

11 in relation to the 54 witnesses, in complying with our obligations under

12 Rule 66(A)(ii), whatever the material that we came across through those

13 searches, we have all those disclosed if they came under the purview of

14 Rule 68 obligation.

15 In respect of specific searches carried out by the ISU, we have

16 instructed ISU to expedite the specific searches on the village names and

17 the other criteria that the ISU adopts in conducting Rule 68 searches, and

18 we anticipate the results start to come in about another two weeks' time

19 and we would disclose as soon as practicable when we receive the material

20 and we'll give them to the Defence, Your Honour.

21 JUDGE KWON: Thank you, Mr. Jayasurija. I would like to emphasise

22 again to make the best effort to make full disclosure in advance of

23 submission of Defence's pre-trial brief.

24 MR. JAYASURIYA: Yes, Your Honour.

25 JUDGE KWON: Is there anything the OTP wishes to raise at this

Page 70

1 stage?

2 MR. WUBBEN: No thank you, Your Honour.

3 JUDGE KWON: How about the Defence, Ms. Vidovic?

4 MS. VIDOVIC: [Interpretation] Your Honour, yesterday at the

5 Status Conference according to 65 ter Rule, we specified our priorities

6 with regard to the documents that we deem to fall under the Rule 68. We

7 kindly ask our learned friends to give priority when delivering documents

8 to us to give priority to these documents that we specified yesterday.

9 JUDGE KWON: Very well.

10 MR. JAYASURIYA: Yes, Your Honour. We have taken note of that,

11 and we have in light of the Defence to specifically identify to the extent

12 that it's possible if they are in the possession of any materials or if

13 they believe that which are in the possession of the Prosecution so we

14 could immediately take steps to deliver such materials, Your Honour.

15 JUDGE KWON: Then let me wrap up today's conference. As to the

16 pending motions, I will give a ruling on the extension of time after I

17 have received the response from the Prosecution, and the motion for

18 delayed disclosure will be before the Chamber and the Chamber will give

19 the ruling in due course.

20 Except for those witnesses referred to in those outstanding

21 motions, all the witness statements and the materials will be translated

22 by the second week of January, that is by the 16th of January, 2004. That

23 is so ordered.

24 And the translation of the expert witness report will be

25 disclosed, translated and disclosed to the Defence on or before 5th of

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1 December, and that is also so ordered.

2 And I confirm --

3 MR. WUBBEN: Your Honour, if I may.

4 JUDGE KWON: Yes, please.

5 MR. WUBBEN: My co-counsel informed me that we will receive as

6 confirmed the translation of that expert report by the 5th. Is it then

7 practical to include a working day after it for -- to prevent the risk or

8 would you prefer to take that risk by us and see to it at the same day?

9 It might mean administration problem.

10 JUDGE KWON: I think you can file a motion for extension of time

11 for that, not at the eleventh hour, but you can do that. Yes. Thank you.

12 And then the Prosecution has no difficulty in filing its pre-trial

13 brief on or before 5th of December.

14 MR. WUBBEN: No, Your Honour.

15 JUDGE KWON: And the Chamber -- rather, I as the pre-trial Judge

16 will consider whether to give some extension to the Defence due to the

17 delayed disclosure in a later stage, and the Defence is able to raise the

18 matter again to the Chamber.

19 So unless there is anything to be raised by the parties or the

20 accused, the conference is adjourned.

21 And one thing, the next -- I have to hold the next

22 Status Conference by -- on or before 26th of March next year. So my

23 intention is to have the pre-trial brief of the Defence at least by that

24 time. So please make your best effort.

25 Adjourned.

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1 --- Whereupon the Status Conference adjourned at

2 3.31 p.m.