Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17

 1                          Tuesday, 25 October 2005

 2                          [Status Conference]

 3                          [Open session]

 4                          --- Upon commencing at 3.04 p.m.

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

 6            THE REGISTRAR:  Yes.  Thank you, Your Honour.  Case number

 7    IT-04-81-PT, the Prosecutor versus Momcilo Perisic.

 8            JUDGE ROBINSON:  May we have the appearances.

 9            MR. STAMP:  May it please you, Your Honour.  For the Prosecution,

10    I'm Chester Stamp, and I appear with Sureta Chana, and Mr. Hasan Younis is

11    our case manager, who also appears with us.

12            JUDGE ROBINSON:  Thank you.  And for the Defence?

13            MR. CASTLE:  Jim Castle appearing on behalf of Mr. Perisic.  Along

14    with me is my case manager, Tina Drolec.

15            JUDGE ROBINSON:  Thank you.  Well, this Status Conference, as you

16    know, is convened pursuant to the provisions of Rule 65 bis (A).  I have a

17    number of matters to deal with.  I should say that the accused is on bail,

18    is on provisional release.

19            MR. CASTLE:  That's correct.

20            JUDGE ROBINSON:  So he's not here.  I deal firstly with pending

21    motions.  There are four preliminary motions filed, and two of the four

22    are granted in part.  The Prosecution was ordered to file an amended

23    indictment, which it has, and the Defence has not filed any objection to

24    the amended indictment.

25            There was also an application by the Prosecution to correct a

Page 18

 1    typographical error, changing the words "121 six civilians" to "146

 2    civilians."  It does not appear that any objection was taken to that

 3    either.

 4            MR. CASTLE:  There is no objection.

 5            JUDGE ROBINSON:  Thank you.  Disclosure under Rule 66(A)(i).

 6    Disclosure was completed on the 13th of May, except for one document

 7    subject to Rule 70.  The Defence had waived time-limit for disclosure and

 8    was apparently satisfied that the Prosecution was making efforts to obtain

 9    the document by consent or from some other source.

10            What is the position on that, Mr. Stamp?

11            MR. STAMP:  The original source has absolutely refused to waive

12    the Rule 70 restrictions, but we know that the document exists with

13    another source and we are pursuing that.  It is just taking us much longer

14    than we expected.  But I am quite confident that we will obtain a copy of

15    the document from the other source to disclose to the Defence.  As I

16    indicated on the last occasion, the contents of the document, so far as it

17    is relevant to the case, has already been disclosed to the Defence and I

18    can see them suffering no real prejudice from the ongoing delay --

19            JUDGE ROBINSON:  I see.

20            MR. STAMP:  -- which is unavoidable so far.

21            JUDGE ROBINSON:  Is there any sort of time frame within which --

22            MR. STAMP:  It is a government that we are seeking to obtain the

23    document from.  We have obtained similar documents from that government;

24    however, there are times, depending on the contents of the documents, when

25    they may require various investigations or inquiries to be made within

Page 19

 1    various departments.  It's very difficult for us to foresee how quickly or

 2    how long it will take, but I can only say that we expect to have the

 3    documents within -- the document, one document, within months.  However,

 4    we'd expected to have it by now, so it indicates how difficult it is to

 5    predict with any degree of certainty when we will have it.  We can only

 6    say that we are almost certain to have it.

 7            JUDGE ROBINSON:  Thank you, Mr. Stamp.  As you're on your feet,

 8    there's the matter of tapes of intercepts that had been requested by the

 9    Defence and as part of the supporting material.  What is the position with

10    regard to that?

11            MR. STAMP:  May I just make an inquiry?

12            JUDGE ROBINSON:  Yes.

13                          [Prosecution counsel confer]

14            MR. STAMP:  I could make an inquiry as to the degree to which we

15    have disclosed, because I know we have made -- we have done searches for

16    disclosure purposes in response to the Defence.  But in respect of that

17    particular genre, I could make inquiries and advise the Court before the

18    end of this Status Conference.

19            JUDGE ROBINSON:  Thank you, Mr. Stamp.  That will have to be done

20    very quickly, because I don't anticipate being here very long.

21            Rule 66(A)(ii), witness statements.  I think you had indicated,

22    Mr. Stamp, calling a total of 170 to 200 witnesses, though you would

23    expect that that would be reduced through the Yugoslav adjudicated facts

24    and agreed facts, and apparently the vast majority of statements have been

25    translated.  May I ask you, however, about protective measures and whether

Page 20

 1    an application is going to be made for protective measures.

 2            MR. STAMP:  Certainly an application will be made for protective

 3    measures when we have finally settled the list.  We would prefer not to

 4    make unnecessary applications.  A lot of the witnesses that we would call

 5    or we would put on the list will depend on the results of the application

 6    in respect to adjudicated facts which we expect to make later, but

 7    firstly, how well we proceed with discussion in respect to agreed facts,

 8    which I could report to the Court on later.  But having regard to those

 9    discussions, we do not expect that many of these witnesses will be on the

10    list and that would obviate the need for us to make applications in

11    respect of those witnesses.  There will be an application, but we would

12    not want to make it to cover witnesses unnecessarily.  So it will, of

13    course, depend on the proceedings.

14            JUDGE ROBINSON:  Your final witness list?

15            MR. STAMP:  Yes.

16            JUDGE ROBINSON:  Yes.  And at the last conference, you had

17    indicated that you had a fairly significant amount of Rule 68 material,

18    mitigating material.  What is the position in relation to this?

19            MR. STAMP:  Disclosure of that is ongoing.  We have disclosed, I

20    think, approximately every two weeks a substantial amount of material.  We

21    were to some degree hampered by a lack of focus in the searches we were

22    doing, and the fact that the section of the OTP that conducts these

23    searches was a little bit short-manned, having regard to preparations for

24    the major mega-cases which are upcoming.

25            As soon as we receive the results of the searches we make, we do

Page 21

 1    conduct our own analyses and disclose what is to be disclosed.  However,

 2    we have now received from the Defence guidance as to what they consider to

 3    be Rule 68 material, and that would help us focus our searches.  And we

 4    expect to bring the bulk of the disclosure to completion shortly, and

 5    thereafter the disclosure would be an ongoing process, depending on what

 6    material comes in.  I wish to emphasise that our searches on the quite

 7    extensive guidance we received from the Defence recently will be based

 8    primarily on 20 per cent of the material in the possession of the OTP

 9    which is not on the EDS suite -- well, not on the electronic disclosure

10    suite.

11            So I can report that it is going along satisfactorily, I would

12    submit.  However, there are some backlogs because of the shortage of

13    personnel to conduct the searches and to review the results of the

14    searches.  But with the present guidance we have received, we can proceed

15    much faster than in the past.

16            JUDGE ROBINSON:  Just as a matter of interest, Mr. Castle, what's

17    the kind of guidance that you have given?

18            MR. CASTLE:  The guidance has taken two forms.  Initially, a

19    representative of the OTP had anticipated certain requests that we would

20    make based upon an analysis of the indictment and the potential defences,

21    and so we received a document which said, essentially, "These are the

22    searches that we intend to make, unless you object to them," and of course

23    we didn't object to them.  And that's a fairly extensive series of

24    searches.

25            We then supplemented it with specific requests that we felt fell

Page 22

 1    outside of it.  Unfortunately, I believe that we will have more focus once

 2    we see what comes in in this next wave, essentially, of Rule 68

 3    disclosures, and until we see that, it's going to be hard to give any

 4    further focus.  But I frankly believe that we're about 90 per cent there,

 5    from what I've seen.

 6            JUDGE ROBINSON:  Thank you.  Thank you, Mr. Castle.  That matter

 7    seems to be progressing fairly well.

 8            Rule 66(B), Mr. Castle.  You had invoked Rule 66(B) and you were

 9    advised to put your request in writing.  And has that been done?

10            MR. CASTLE:  I have to admit that that has not been done.  I will

11    put that in writing.

12            JUDGE ROBINSON:  Thank you.

13            Mr. Stamp, what is the status with your experts and their

14    reports?

15            MR. STAMP:  I am afraid that I cannot advise with precision as to

16    the status of two reports, two novel reports that have been commissioned.

17    As I indicated on the last occasion, there might well be anywhere between

18    8 and 15 expert reports if this case had to be litigated completely, but

19    most of them would be addenda to previous reports submitted in previous

20    cases.

21            There are two new reports that were commissioned for this case,

22    both experts, one an American general whose name I prefer not to reveal

23    now, and the other from Romania, have had some difficulties in completing

24    their reports.  However, the officer who had direct contact with them, who

25    has had direct contact with them in the OTP, is presently on -- is

Page 23

 1    presently away.  And although I've been seeking to advise as to when the

 2    reports will be ready, I'm unable to give the Court that advice.  I know

 3    that they were expected in draft form sometime at the end of this month,

 4    but I could not advise any further as to when the drafts will be

 5    submitted.

 6            The other reports that I indicated we would contemplate submitting

 7    are matters of addenda, which we could have prepared fairly expeditiously,

 8    having regard to what is agreed upon.  We do have resource limitations,

 9    and the position now is not to proceed unless it is necessary.  And if it

10    could be agreed upon, it could be the subject of adjudicated facts.  We

11    would not commission expert reports in those areas.

12            JUDGE ROBINSON:  Thank you, Mr. Stamp.  You should proceed as

13    expeditiously as possible in this matter.

14            Pre-trial preparation on the use of 92 bis and 89(F).  Can the

15    Prosecutor indicate how many witnesses it intends to call by this route,

16    and when would it be making an application?

17            MR. STAMP:  Without the discussions that I mentioned coming to --

18    close to conclusion, it would be very difficult for me to give an

19    estimate.  What I can say, hoping that the Court will be encouraged by

20    that, is that we do not expect to be calling many, if any, viva voce

21    witnesses in respect to the crime base.  But I fear speaking more than

22    that, because any discussions we have had is done, as Your Honour would

23    expect, without prejudice.  So I would not want to make any undertakings.

24    But the Prosecution has given the idea of calling -- or not calling

25    witnesses, and tendering evidence pursuant to Rule 89 and 92 bis careful

Page 24

 1    consideration, and we expect to shorten the trial significantly by the

 2    application of those Rules.

 3            JUDGE ROBINSON:  Thank you, Mr. Stamp.

 4            At the last Status Conference I had encouraged both parties to

 5    meet to discuss the use of adjudicated facts, agreed facts, and

 6    stipulations, and in fact said that I would require a report by this

 7    Status Conference on the status of those discussions.  May I hear first

 8    from Mr. Castle on this.

 9            MR. CASTLE:  Yes.  The Prosecutor's office tendered to us, I

10    believe last Thursday, a list of proposed adjudicated facts.  We have not

11    had an opportunity to go through that with any thoroughness, certainly not

12    with our client.  It's my general take on this case that the Defence will

13    be stipulating to a number of facts and trying to narrow the issues before

14    the Court.  So I believe that it will be productive, those discussions,

15    and we're having discussions with the Prosecutor on an ongoing basis about

16    that, but we're not prepared at this time to indicate which of the

17    specific facts we can agree on.

18            JUDGE ROBINSON:  Mr. Stamp, what you submitted was just a list of

19    adjudicated facts.  Anything on agreed facts?

20            MR. STAMP:  No.  As a matter of fact, I think it's a slip from my

21    friend on the other side.  It was in respect to agreed -- facts that might

22    be agreed.  What we propose to do, and we have been discussing this over a

23    period of months, is to see where we can come to agreement.  And the signs

24    are positive.  As I indicated, the discussion, of course, is without

25    prejudice to anything which -- to anything we say.  Thereafter, at a

Page 25

 1    reasonable time when we come to some conclusion of those discussions, we

 2    would, where necessary, proceed, perhaps with the consent of Defence,

 3    perhaps not, to move the Court to receive into evidence facts that have

 4    already been adjudicated upon.  But at this point in time, we are

 5    discussing certain facts that we think we can come to some agreement

 6    upon.  As will no doubt be clear to the Court, many times the terminology

 7    used can sometimes cause some discussion, and there might be --

 8            JUDGE ROBINSON:  Yes.  Well, they're both terms of --

 9            MR. STAMP:  -- discussion.

10            JUDGE ROBINSON:  I thank you, but I encourage you to continue that

11    discussion.

12            In all the circumstances, I think it is appropriate for me to set

13    a date for the filing of a pre-trial brief by the Prosecution, unless I

14    hear convincing arguments.

15            MR. STAMP:  No doubt, the Rule 72 proceedings having been

16    completed, the Court is quite entitled to proceed that way.  However, I

17    would respectfully ask the Court to have regard to the discussions we are

18    now undertaking and to give it some chance of bearing fruit within the

19    next few months.  There are other matters which concern the Prosecution,

20    especially having regard to the way we have allocated resources for

21    upcoming, what are known as mega-trials, which to some degree is some

22    incentive for us to shorten proceedings in other cases and to shorten them

23    under staffing that might be required to fulfil Rule 65 ter obligations.

24    So if we are given time to see how we can abbreviate an upcoming trial,

25    then we could more efficiently, at a later time, fulfil those same Rule 65

Page 26

 1    ter obligations.  So I'd ask the Court to consider those factors.  There

 2    are resource issues and perhaps the timing is not at this moment the best

 3    for the Prosecution.

 4            JUDGE ROBINSON:  Well, I take that into consideration, Mr. Stamp.

 5    What I'll do, then, is I'll fix the next Status Conference for the 15th of

 6    February, and at that time I would expect that the negotiations and

 7    discussions that are taking place would have been very far advanced, and

 8    at that time I think I'll consider fixing a date for the Prosecution

 9    pre-trial brief.

10            Is there any other matter?  Mr. Castle?

11            MR. CASTLE:  Yes.  I would just like to raise one issue that I'll

12    follow up with a written motion.  Part of the discovery obligations of the

13    Prosecution has been fulfilled in the past through --

14            JUDGE ROBINSON:  Disclosure.

15            MR. CASTLE:  Disclosures, yes.  Through the EDS system.  And to be

16    completely honest with the Court, it's a very cumbersome and sometimes

17    impossible system to manage.  And that's not a problem that is confined to

18    this Defence team, but is one that's shared by Defence teams throughout

19    this Tribunal.  But to properly disclose the difficulties and the

20    impediments that that system presents, I think it would be proper for me

21    to do that in a written form prior to the next Status Conference to inform

22    the Court what these problems are and what proposed solutions the Defence

23    will make.

24            The only other issue that I would bring up is we did make

25    inquiry -- it's our practice to make inquiry on discovery issues, not to

Page 27

 1    the Court initially but to the Prosecutor's office, so that we could try

 2    to resolve these matters.  We had made inquiry concerning the taped

 3    intercepts and we had had a communication that they had searched and there

 4    were no tape-recordings that matched with the intercepts that were -- the

 5    transcript of the intercepts that were disclosed in the initial disclosure

 6    materials.  So I believe that answers the Court's question, unless they've

 7    learned something since we had our communication.  But I happen to have --

 8    I have a memory on that issue because I'm focussed on that issue perhaps

 9    more so than the Prosecutor is.

10            JUDGE ROBINSON:  Thank you very much.  We'll expect your motion.

11            Mr. Stamp, you wouldn't have had any report on that matter, the

12    intercepts.

13            MR. STAMP:  The report confirms what my friend has just said.

14    We've had the transcripts and our search did not reveal that we had the

15    tapes.  May I have a moment?

16            JUDGE ROBINSON:  Yes.

17            MR. STAMP:  As far as the disclosure is concerned, the difficulty

18    being experienced by the Defence has been communicated to us, and although

19    we do not accept the responsibility of searching the EDS, where it is

20    accessible to the Defence, that is, 80 per cent of the material, we do

21    volunteer to do -- to assist them when there are areas that appear to be

22    important, as long as it is communicated to us.  That is all I have to say

23    on that matter.

24            JUDGE ROBINSON:  It may very well turn out that you do not need to

25    file the motion, then, Mr. Castle, but you can have discussions with the

Page 28

 1    Prosecutor and see where that leads to.  Hopefully, the matter will be

 2    resolved.

 3            Mr. Castle, I take it that if Mr. Perisic had anything to say to

 4    the Court regarding his -- anything relating to the trial - I know he's on

 5    bail - that you would have put that on his behalf to us.

 6            MR. CASTLE:  I would have, Your Honour.

 7            JUDGE ROBINSON:  Thank you.

 8            Anything else, Mr. Stamp?

 9            MR. STAMP:  Nothing from the Prosecution, may it please you.

10            JUDGE ROBINSON:  Very well.  The hearing is adjourned.

11                          --- Whereupon the Status Conference adjourned

12                          at 3.28 p.m.