1 Friday, 13 May 2005
2 [Status Conference]
3 [Open session]
4 [Accused not present]
5 --- Upon commencing at 3.33 p.m.
6 JUDGE BONOMY: Would the Registrar please call the case.
7 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honour.
8 This is case number IT-03-70-PT, the Prosecutor versus Vladimir Lazarevic.
9 JUDGE BONOMY: We are here to conduct a Status Conference in terms
10 of Rule 65 bis. Can I take the appearances first of all for the
12 MR. HANNIS: Thank you, Your Honour. On behalf of the Office of
13 the Prosecutor, I'm Thomas Hannis, assisted by Christina Moeller, and our
14 case manager, Susan Grogan.
15 JUDGE BONOMY: Thank you, Mr. Hannis.
16 For the accused?
17 MR. BAKRAC: [Interpretation] Good afternoon, Your Honours. My
18 name is Mihajlo Bakrac, attorney at law. I'm joined by Mr. Milan
19 Petrovic, also attorney at law.
20 JUDGE BONOMY: Thank you, Mr. Bakrac.
21 I take it Mr. Lazarevic is not intending to be here and that we
22 may continue now.
23 MR. BAKRAC: [Interpretation] That's correct, Your Honour. He
24 nearly returned, but it's a long way so I don't think he will make it to
25 this Status Conference.
1 JUDGE BONOMY: Now, Mr. Hannis, the case is one involving now
2 three accused who are before the Tribunal, and you have submitted a motion
3 for joinder of this case with the case of Milutinovic and others. Remind
4 me, please, has the time expired in relation to all accused for responses
5 to that motion?
6 MR. HANNIS: Well, Your Honour, there was some uncertainty in my
7 mind because two of the accused, I believe, Pavkovic and Lukic, did not
8 come in to appear before the Tribunal until the time had run to file a
9 response. Now, if their time began from the day they had their initial
10 appearance, I'm not sure what the procedural apparatus would be in
11 connection with that. The day -- the time has run; however, I would not
12 oppose a request from the two late-arriving accused to have an extension
13 of time to respond.
14 JUDGE BONOMY: As far as this accused is concerned, there clearly
15 is no response.
16 MR. HANNIS: Yes. As far as this accused, Your Honour, I think
17 Mr. Bakrac had filed a request for an extension of time which was denied
18 by this Court.
19 JUDGE BONOMY: But that was without prejudice to any further
20 motion based on an actual response being available, and of course none has
21 been presented.
22 It seems to me realistic for the moment to proceed on the basis
23 that there is a prospect of these cases being conjoined, and that's
24 without prejudice, obviously, to the decision which will ultimately be
25 made, but my understanding from previous occasions on which you have
1 appeared is that the Prosecution's aim would be to have a trial commencing
2 at the end of this year. Is that a correct understanding of the
4 MR. HANNIS: Your Honour, I'm not sure. I think perhaps at the
5 time it was first discussed, when the original three accused in the --
6 Milutinovic were still in custody, we were severely trying to aim to start
7 the trial at the end of the year because frankly in fact those accused had
8 been in custody so long and we felt that in fairness to them, we needed to
9 start the trial sooner rather than later. Now that they've been released,
10 my aim may have moved a little farther down the calendar into perhaps the
11 new year.
12 JUDGE BONOMY: Well, I won't quibble over a month. The -- it
13 seems to me that the proper management of this case and, if it is
14 associated with Milutinovic, that case, requires that we align the accused
15 so that any status conference hereinafter involves all three who are
16 presently before the Tribunal. But it also requires us to have a
17 potential trial date in mind. Otherwise, management becomes a meandering
18 process through the wilderness. So I am proceeding at the moment on the
19 basis that around the turn of the year, there is going to be a trial in
20 this case.
21 Now, that approach will inform the time scales that are then
22 applied to the Pre-Trial conduct of the case, and it seems to me
23 reasonable to make in this case the same order as I made in the case of
24 Lukic, about the disclosure of statements. If you can disclose the
25 statements in that case by the 30th of June, you can disclose the
1 statements to this accused by the 30th of June.
2 MR. HANNIS: Yes, we can, Your Honour.
3 JUDGE BONOMY: That's subject obviously to Mr. Bakrac trying to
4 persuade me to an earlier date. So I need to give him the opportunity to
5 comment on that. But what I have in mind here, Mr. Bakrac, is an order
6 that was made in the case of Lukic that disclosure in terms of Rule
7 66(A)(ii) should be completed by the 30th of June. Now do you have any
8 comment to make about that?
9 MR. BAKRAC: [Interpretation] No, Your Honour. I fully agree with
10 the deadline. What I can say is that I received the witness statements
11 from the OTP on the 31st of April. The unrevised witness statements.
12 Yes. That's it. As for what you mentioned after that, I'm fully in
13 agreement with the deadline you have just proposed.
14 JUDGE BONOMY: Thank you. Now, I have a note from your -- or from
15 your office, Mr. Hannis, that Rule 68 disclosure will be completed by the
16 31st of August in installments between now and then. That seems quite a
17 long time to me. Is there a particular difficulty?
18 MR. HANNIS: It's mostly resource and logistical difficulties, as
19 I understand from my case manager. Yes, in an ideal world it would have
20 been that we would have had six or seven sets of the Rule 68 material just
21 sitting around waiting the arrival of additional accused as they came in,
22 but that's not the case and we have to start sort of from scratch again to
23 compile those sets and that's why we asked for that -- that date and why
24 we proposed to make it in -- in installments because there is such a large
25 volume of material.
1 JUDGE BONOMY: I don't think there's any problem with
2 installments; it's the ultimate date that concerns me. However, let me
3 hear what Mr. Bakrac has to say on that.
4 Mr. Bakrac, do you have any comment to make on the proposal that
5 the Prosecution should have until the 31st of August to complete
6 disclosure of any exculpatory or potentially exculpatory material?
7 MR. BAKRAC: [Interpretation] Your Honour, there is no doubt that
8 the OTP are facing a number of technical difficulties that keep them from
9 disclosing these documents to us on an earlier date. In that far I would
10 be ready to have the Rule 68 disclosure done by that deadline.
11 JUDGE BONOMY: Well, I am prepared to accede to that request,
12 particularly in light of the lapse of time that there will be in any event
13 before the trial, but I think I should make it clear that my approach to
14 disclosure, and this applies probably most importantly to Rule 68, is that
15 the Prosecutor has an obligation to identify relevant material and not
16 simply to throw the warehouse key at the Defence, or even all the material
17 from the warehouse at the Defence and leave them to sort it out. I hope
18 that that time will be used to weed out material which in the actual
19 knowledge of the Prosecutor may suggest innocence or mitigate the guilt of
20 the accused or affect the credibility of the Prosecution evidence. And
21 perhaps that will cut down the work involved. I really don't know, but I
22 certainly regard it as a duty at the moment as the rule stands to exercise
23 a considered search of the potential material and to identify what
24 actually has the capacity to achieve what is identified in Rule 68(i).
25 MR. HANNIS: I understand, and agree with what you're saying,
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13 English transcripts.
1 there. Partly I feel constrained by the events thereof case, and myself
2 having come into this case late. Rule 68 disclosure having been made to
3 the original 3, and now perhaps giving a reduced amount of Rule 68 to this
4 new accused and raising issues there. But I have in mind what you're
5 saying. Also, I think once we have a pre-trial brief from the Defence as
6 to what their Defence is we can focus our attention more on what their
7 precise Defence is in identifying Rule 68 material.
8 JUDGE BONOMY: But the other option, Mr. Hannis, is to restrict
9 the time you have to disclose it because it's the period after the 31st of
10 August that concerns me. If you dump masses of material without too much
11 guidance on the Defence, then it will be no surprise that they need time
12 to work their way through it, and therefore if I'm giving you until the
13 31st of August, I expect you to do something to try to cut down the mass
14 and exclude the plainly irrelevant or immaterial from that.
15 MR. HANNIS: Well, we will try to proceed according with that
16 direction, Your Honour.
17 [Trial Chamber and legal officer confer]
18 JUDGE BONOMY: Now, Mr. Hannis, the question of expert disclosure
19 is also raised in your note. Do the experts in this case differ from the
20 experts in Milutinovic?
21 MR. HANNIS: No, they don't, Your Honour.
22 JUDGE BONOMY: So there are certain difficulties obviously with
23 experts in Milutinovic which we'll come to later today, but there is no
24 difficulty with the majority of the experts, at least so far as disclosure
25 is concerned.
1 MR. HANNIS: Correct.
2 JUDGE BONOMY: So again, why the 31st of August?
3 MR. HANNIS: May I consult with my case manager?
4 JUDGE BONOMY: Yes.
5 [Prosecution counsel confer]
6 MR. HANNIS: Your Honour, I -- we would propose trying to have
7 that before the summer break, at the end of July. The difficulty is in
8 doing it in conjunction with the other requirements that we have taken on,
9 and also we still have the matter with our military expert which we'll
11 JUDGE BONOMY: I think what we can do is separate him and we can
12 separate I think also the constitutional law expert, if you require one
13 for this case, from our thoughts at the moment, and a written order can be
14 issued once I have considered the position in relation to the other case,
15 but it seems to me that there is no reason given by you for delaying the
16 disclosure of the other expert witness reports beyond the same date as for
17 the witness statements, the 30th of June. Where would be the difficulty
19 MR. HANNIS: It's just that it's -- it's adding to the total
20 amount of work that needs to be done by our trial support staff.
21 JUDGE BONOMY: The 30th of June.
22 MR. HANNIS: Thank you.
23 JUDGE BONOMY: That's with the exception of the reports of the
24 military expert and constitutional law expert.
25 Now, Mr. Bakrac, in return for this fairly expedited obligation to
1 disclose, I'm anxious to encourage the Defence to disclose expert evidence
2 at an early stage. I appreciate the limitations of my powers under the
3 rules, but there is nothing more likely to delay the completion of a trial
4 than delayed disclosure by the Defence of expert reports, giving rise
5 possibly to the need for further investigation by the Prosecution. So I
6 simply draw to your attention that in return for getting all this material
7 early, particularly the expert reports, I hope you will give consideration
8 to identifying and informing the Prosecution of the identity of your
9 experts at the earliest possible date and also disclosing the reports as
10 soon as you possibly can within reason. Can I expect that of you?
11 MR. BAKRAC: [Interpretation] Yes, Your Honour. We will do our
12 utmost to do that as soon as possible. I would like to say that all the
13 documents that are disclosed within the deadline you have proposed must be
14 studied and the Defence must take that lead in order to prepare our
15 witnesses, and our evidence. We will do our utmost to keep the procedure
16 as brief as possible and to complete it as soon as possible.
17 JUDGE BONOMY: I have little doubt that Rule 92 bis and 89(F)
18 should play a major part in this case, but I think it's premature to do
19 anything or even to talk to any extent about that at the moment. There is
20 a distinct possibility that there will be a further Status Conference in
21 this case before the recess, and that would be the time, I think, at which
22 to enter into discussion of statements within these two Rules. I just
23 want to say something, though, about 89(F). There is recent growing
24 experience within the Tribunal of the use of this Rule to enable a witness
25 to give evidence viva voce but so far as his evidence-in-chief is
1 concerned to simply adopt a written statement of that evidence, thus
2 expediting the process considerably. But giving the person leading the
3 witness the chance to focus on important issues with a little
4 supplementary evidence and allowing cross-examination so far as relevant,
5 and I would encourage the use of that course in relation to witnesses who
6 inevitably must be cross-examined, and obviously we would encourage the
7 use of 92 bis in cases where cross-examination is unnecessary. Obviously
8 that's not to rule out cross-examination in 92 bis cases but I think it's
9 a useful distinction to bear in mind.
10 In the same connection, agreed facts and adjudicated facts have to
11 be considered, but there is probably less scope in this case than in
12 others before the Tribunal for resort to adjudicated facts. The question,
13 then, is really one of agreed facts and stipulations, and again it's too
14 early to enter into any discussion of that. But again I'd like to make my
15 position and my approach to these matters clear. It seems to me that the
16 system here is designed in a way that requires leadership from the
17 Prosecution, and it will be for the Prosecution, I think, in the first
18 instance to identify the areas in which agreement ought to be possible and
19 to tender to the Defence lists of potential agreed facts.
20 I don't subscribe to the view that agreement can only be in
21 relation to matters which are stated in the indictment specifically or
22 necessarily to matters that fall only within the indictment period. In
23 fact, it's often very difficult to identify what the indictment period is,
24 and therefore it should be possible to include in any agreement on facts
25 material matters which may appear to one side to be peripheral, as long as
1 the other can identify some relevance in them, and they are matters which
2 are capable of agreement. So when we come to that stage, again after the
3 next Status Conference, then I hope that at a fairly early stage the
4 Prosecution will be able to take the lead in this.
5 Now, Mr. Hannis, just finally from my point of view, I know that
6 you have in mind to consider some steps in relation to the indictment in
7 the course of preparing, at my request, a red-lined version of how the
8 indictment will look in the event of joinder of the two cases, and the
9 issue will arise in our later Status Conference but it has a bearing on
10 this one, I think, and it has a bearing here particularly because I am in
11 the course of dealing with a challenge to the indictment in the present
12 case. What is it you envisage doing with the indictment in response to
13 the request I made to you?
14 MR. HANNIS: Your Honour, I envision basically having an evidence
15 review of the current indictment, taking into consideration matters that
16 have transpired recently in the Milosevic case and matters concerning
17 Kosovo, with an eye thinking about the possibility of having a trial with
18 six or seven defendants instead of against just three and having concerns
19 about the logistics and the management difficulties in a case that size,
20 looking at ways that we might be able to streamline the case, whether
21 that's reducing by eliminating maybe some events or narrowing the number
22 of incidents that we talked about in the indictment in light of new
23 evidence, whether or not we should perhaps try to go forward with six or
24 eight of our best incidents instead of going with all of them that are in
25 our indictment. But I'm not able to tell you as I stand here today
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13 English transcripts.
1 whether that's the course we will take, but that's what I'm looking at.
2 JUDGE BONOMY: It's the sweetest music I've heard for a long time,
3 but I am concerned about the time scale you have in mind.
4 MR. HANNIS: I understand that, Your Honour but I'm trying to
5 persuade you to give me the benefit of that additional time because I
6 think if that time is well spent by our office and looking at that and we
7 are able to do that, the time we spend on the front end here will save us
8 all time on the far end of the case.
9 JUDGE BONOMY: So these alterations or modifications or
10 streamlining measures are not related to the challenge that's being made
11 by Mr. Lazarevic, they are related to your review of the evidence in the
13 MR. HANNIS: Yes.
14 JUDGE BONOMY: There are -- are the two indictments absolutely
16 MR. HANNIS: Yes, they are.
17 JUDGE BONOMY: All right. Well, nothing turns on that particular
18 point in this case. It may turn -- it may be relevant to the other one.
19 What I shall do -- whether you provide your red-line version now
20 or not is determine the challenge. It seems to me that it's a separate
21 matter from joinder. It's a separate matter from joinder. I will -- the
22 Trial Chamber will have to deal with the two separately and I don't think
23 the one should necessarily depend on the other being completed. So I will
24 proceed to deal with these or put them into a shape for the Trial Chamber
25 to deal with at the earliest possible date.
1 MR. HANNIS: We had filed a motion to hold that in abeyance in
2 anticipation of perhaps having a different indictment, but that was denied
3 so we did file a response to the challenge.
4 JUDGE BONOMY: Yeah. And your response doesn't acknowledge that
5 there are any weaknesses and therefore as I say what you are proposing is
6 something rather different and there is little point in me insisting on a
7 red-line version of an indictment when you assure me that the two are
8 absolutely identical anyway, and that you don't have any immediate plans
9 to alter in light of this challenge. So it's a matter for you, how you
10 deal with streamlining, but I have to say that -- and I'll reiterate this
11 in connection with Milutinovic -- the longer you wait to make proposals,
12 unless they are simply removing items or modifying the indictment, then
13 the more difficult it's going to be to persuade the Trial Chamber to
14 agree. On the other hand, you'll be pushing at an open door, I suspect,
15 if it comes to modifying it, to focus it better.
16 MR. HANNIS: I understand. Thank you.
17 JUDGE BONOMY: Now, Mr. Bakrac, these seem to be the issues that
18 require to be dealt with today. Is there any other matter you wish to
20 MR. BAKRAC: [Interpretation] No, Your Honour, none. Thank you.
21 JUDGE BONOMY: Thank you very much.
22 Ms. Featherstone?
23 [Trial Chamber and legal officer confer]
24 JUDGE BONOMY: Well, I have in mind to have the next Status
25 Conference on the 19th of July, which is in the week preceding the recess.
1 It's a Tuesday. And I have in mind to have all accused who are on the
2 same indictment as Mr. Lazarevic at that stage at that Status Conference.
3 Obviously, if there were a particular reason for changing the date, then
4 that would happen, but unless you hear to the contrary, that will be the
5 date of the next Status Conference in this case.
6 Now, is there any other matter you want to raise, Mr. Hannis?
7 MR. HANNIS: Your Honour, because we did talk about the
8 possibility of setting a trial date sometime, I don't know if the Court
9 wants to inquire of the Defence counsel their position about a trial date,
10 because that may be something that you want to take into consideration in
11 the joinder motion.
12 JUDGE BONOMY: Mr. Bakrac, you've heard that comment from
13 Mr. Hannis. Bearing in mind the indication I gave that there could be a
14 trial in this case starting at the beginning of next year. Do you want to
15 say anything about that?
16 MR. BAKRAC: [Interpretation] Your Honour, the Lazarevic case is
17 not only about the accused Lazarevic, as you know, so at this stage,
18 before there is a joinder, we must take into account both Lukic and
19 Pavkovic, who arrived at the Tribunal after Mr. Lazarevic. We need to
20 take into account the fact that it would probably take some time for them
21 to prepare their defence. That's one thing. Secondly, the Defence does
22 not yet know how much case material will be forwarded by the OTP.
23 Therefore, we cannot now tell how much time we shall be requiring in order
24 to prepare all those documents. I would not like to speculate but one
25 thing I can say as Defence counsel for Mr. Lazarevic is that the Defence
1 team will do our best to prepare as quickly as possible and be ready for
2 trial as soon as possible. Thank you, Your Honour.
3 JUDGE BONOMY: Thank you, Mr. Bakrac.
4 Well, I adjourn the proceedings this afternoon. Thank you very
5 much, gentlemen, for your assistance.
6 --- Whereupon the Status Conference adjourned at
7 4.10 p.m.