Tribunal Criminal Tribunal for the Former Yugoslavia

Page 52

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

11 Prosecution?

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.

Page 53

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

Page 54

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

3 Prosecution?

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

Page 55

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.

Page 56

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,

Page 57












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 58

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.

Page 59

1 MR. HANNIS: Correct.

2 JUDGE BONOMY: So again, why the 31st of August?

3 MR. HANNIS: May I consult with my case manager?


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

10 discuss.

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

18 there?

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

Page 60

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

Page 61

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

Page 62

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

Page 63












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 64

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

12 case?

13 MR. HANNIS: Yes.

14 JUDGE BONOMY: There are -- are the two indictments absolutely

15 identical?

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.

Page 65

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

19 raise?

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.

Page 66

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

Page 67

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.