Tribunal Criminal Tribunal for the Former Yugoslavia

Page 107

 1                          Wednesday, 19 September 2007

 2                          [Status Conference]

 3                          [Open session]

 4                          [The accused not present]

 5                          --- Upon commencing at 7.58 a.m.

 6            JUDGE ROBINSON:  I begin by asking the Registrar to call the case.

 7            THE REGISTRAR:  Good morning, Your Honours.  This is case number

 8    IT-04-81-PT, The Prosecutor versus Momcilo Perisic.

 9            JUDGE ROBINSON:  And the appearances.

10            MR. HARMON:  Good morning, Mark Harmon, Faith Devine and

11    Carmela Javier for the Prosecution.

12            JUDGE ROBINSON:  And for Defence.

13            MR. LUKIC: [Interpretation] Good morning, Your Honours, my name is

14    Novak Lukic and I'm co-counsel for Mr. Perisic, together with me is

15    Tina Drolec our case manager.

16            JUDGE ROBINSON:  Thank you, Mr. Lukic.  The accused is not

17    present.  I understand you have something to say about his waiver.

18            MR. LUKIC: [Interpretation] Yes, Your Honour.  Yesterday, I got in

19    contact with Mr. Perisic.  He authorised me over the telephone to inform

20    you that he is agreeable with today's Status Conference being held in his

21    absence.  And today we shall submit a written statement to confirm that

22    consent.

23            JUDGE ROBINSON:  Thank you, Mr. Lukic.

24            I am to express my sympathy to the accused and to ask that you

25    transmit that sympathy, Mr. Lukic, on the passing of his brother.  At the

Page 108

 1    same time, I feel the Tribunal is to be congratulated on having a system

 2    of provisional release that is sufficiently humanitarian in outlook to

 3    allow accused like Mr. Perisic to visit their relatives while ill, and I

 4    know that he was able to visit his brother while he was ill.

 5            MR. LUKIC: [Interpretation] Your Honours, since we're talking

 6    about that, I would like to convey his gratitude to the Tribunal for the

 7    Tribunal's prompt reaction at the moments when Mr. Perisic needed

 8    assistance to attend the funeral.  I would therefore like to thank both

 9    the registry and the secretariat who have contributed to this happening.

10            JUDGE ROBINSON:  Thank you.  Now we have many other matters to

11    deal with and we have to combine, as usual, speed with efficiency and

12    fairness.

13            The second amended indictment was filed by the Prosecution.

14    However, on reading the amended indictment it is clear that some

15    amendments were made, which go beyond those that were authorised in the

16    Chamber's decision of the 15th of May.  And I will therefore give the

17    Defence an opportunity to respond to those amendments, which exceed the

18    authority in the decision of the 15th of May, and the Defence will have 30

19    days in which to submit any objections, those 30 days being from the

20    receipt of the B/C/S version of the indictment and the Prosecution will

21    have 14 days in which to reply.

22            I turn next to pending motions.  There is a Prosecution motion for

23    judicial notice of adjudicated facts concerning Sarajevo, and the Defence

24    has filed two responses.  I will deal with that later when I deal with

25    adjudicated facts as a discrete subject.

Page 109

 1            The Prosecution's supplemental 65 ter summary contains a witness

 2    Dragan Erdemovic.  The Defence was to respond on the 31st of August but it

 3    does not appear that any such response was filed, and I'm to ask Mr. Lukic

 4    whether any response has been filed.

 5            MR. LUKIC: [Interpretation] No, Your Honour.  It hasn't been

 6    filed.

 7            JUDGE ROBINSON:  Well, I'm to say that in any event the Chamber

 8    will give a decision on this matter in due course.

 9            There is also a Defence motion for sanctions for failure to bring

10    the accused to trial without undue delay.  The Prosecution response was

11    filed on the 23rd of August, 2007, and the Chamber will give a decision

12    shortly on this matter.

13            There is also a Prosecution motion relating to Rule 70, in respect

14    of which the Prosecution has not yet received the required permission from

15    the state concerned, and the Chamber will be monitoring this in the usual

16    way.

17            I turn next to disclosure.  Rule 66(A)(i), supporting material to

18    the indictment, there are no issues outstanding in this regard.

19            66(A)(ii), witness statements, there is an issue, I understand,

20    relating to the redacted statements of protected witnesses MP-003, MP-004,

21    and MP-014.  The Defence has submitted that their testimony should be

22    excluded, or, alternatively, that an order requiring copies of the

23    redacted statements be provided within seven days.

24            The Prosecution submitted at the 65 ter Conference yesterday that

25    it had no statements relating to 003 and 004.  In relation to 014, its

Page 110

 1    submission was that disclosure would prejudice the identity of the

 2    witness, in violation of the existing protective measures that were issued

 3    on the 16th of November.

 4            The Defence has also notified the Chamber that it has not yet

 5    received a B/C/S version of the transcript of the accused's testimony --

 6    accused's statement.  Now, clearly there can be no obligation on the

 7    Prosecution to manufacture a statement for disclosure if no such statement

 8    exists.  That is sufficient to deal with MP-003 and MP-004.

 9            As to MP-014, the existing protective measures are adequate to

10    provide the statement to the Defence 30 days prior to, and no redacted

11    statement should be required to be disclosed at this time.

12            Therefore, in respect of MP-014, the Chamber's decision of

13    November 16th stands.  The Defence will get the unredacted statement of

14    014, 30 days prior to trial.

15            The accused's statement is obviously an important document, and

16    priority for its translation should be provided, and I will order the

17    Prosecution to provide a B/C/S version of the transcript of the accused's

18    statement by the 1st of December, 2007.

19            I turn next to -- yes, Mr. Harmon.

20            MR. HARMON:  Yes, Your Honour.  May I just be heard on that.

21            A transcript -- to prepare a transcript of a statement the

22    defendant has had in his possession for two years will require us to

23    consume five to six weeks of limited resources of translation resources

24    that we have that we're trying to apply to untranslated exhibits.  The

25    Defence has applied to the registrar, that has been rejected.  The Defence

Page 111

 1    has the statement, Mr. Perisic has had the statement for, I think, at

 2    least two years.  So the transcription of that statement is essentially a

 3    luxury that he is trying to impose on the Prosecution's office at the

 4    expense of what is more pressing and what is more pressing to us, and I

 5    think, Your Honour, more pressing to the Court would be to have the

 6    Defence receive in the fastest possible time the remaining outstanding

 7    translations.

 8            I just make those submissions to Your Honour because it will

 9    consume considerable resources and we do not have those resources and we

10    have to then re-adjust our -- within the -- what we can provide to the

11    Defence and we are trying our best to provide what the rules require and

12    what the rules require are the translations not the transcript.  He has

13    the tape of the interview in his language.  He has had that from --

14    shortly after --

15                          [Prosecution counsel confer]

16            MR. HARMON:  He has had those the tape-recording of his statement

17    since he was interviewed and I don't have the date, I'm trying to look

18    that up, Your Honour, but it has been a couple of years.  So sitting and

19    making a transcript, applying our resources when Mr. Perisic could sit and

20    make the same transcript seems to us, with due respect, Your Honour, to be

21    a consumption of resources that are not required under the rules.  He has

22    his statement.

23            So I make those submissions.

24            JUDGE ROBINSON:  For you, then, it is not a question of time

25    within which to do this. It's that you say that you should not be required

Page 112

 1    to do it.

 2            MR. HARMON:  Yes, Your Honour, I do.  He has the statement, he has

 3    had the statement for years.

 4            JUDGE ROBINSON:  Mr. Lukic.

 5            MR. LUKIC: [Interpretation] Your Honour, Mr. Perisic did receive

 6    the audiotape in B/C/S, and indeed this was a long interview.  What we

 7    insist upon and why we think --

 8            JUDGE ROBINSON:  [Previous translation continues] ... Are you able

 9    to say how long the -- or Mr. Harmon can you tell us?

10            MR. HARMON:  Your Honour, the interview lasted, I believe, six

11    days.   It is -- I think 600 pages.  He has had the interview since

12    approximately September the 5th, 2005.  So in those -- that intervening

13    period of time it seems to me that Mr. Perisic could have sat down and

14    made his own transcript.

15            JUDGE ROBINSON:  Yes, Mr. Lukic.

16            MR. LUKIC: [Interpretation] May I finish, please.

17            I believe that we're talking about 500 pages, I can't be sure, but

18    indeed the interview was long.  But what we believe is that this document

19    from the 65 ter list if it becomes an exhibit, will be used in Court quite

20    often.  It will be shown to a number of witnesses both on the Prosecution

21    and the Defence sides, and many witnesses will come and testify in B/C/S.

22            If we play audiotape to them instead of showing them that the

23    transcript that will waste the Court's time.  In the previous trials the

24    interviews of a number of witnesses have been translated despite their

25    length, and in trial they were used in the transcripted form.

Page 113

 1            As you have told us before, this is a very important 65 ter

 2    document irrespective of the fact whether it will become an exhibit or

 3    not; most probably it will be used during trial.  The problems with

 4    playing the audiotape or reading the English transcript and a vista by the

 5    interpretation will slow us down.  It is a technical matter for this

 6    document to be translated into B/C/S before the beginning of trial and

 7    this is the main reason why we insist on that.

 8            JUDGE ROBINSON:  But as a matter of principle, whose

 9    responsibility is it.  Mr. Harmon?  I mean, suppose the transcript was

10    just one page and not 500 or 600.

11            MR. HARMON:  Your Honour, what we normally do with suspect

12    interviews is we play the audio recording, we have a transcript in English

13    of the interview.  That has -- the interview has been transcribed in

14    B/C/S, so -- in the English, Your Honour.  And so if we decide to use the

15    interview as an exhibit and we are contemplating that possibility, if we

16    are to use it, we would decide the best manner in which to do that because

17    we're also concerned about efficiency.  But right now, from our point of

18    view, transcribing that whole interview in B/C/S, as I said, would take

19    five to six weeks of our time.  That's the best information I have.

20            JUDGE ROBINSON:  Yes, but it doesn't answer the question that I'm

21    asking.  Whose responsibility is it?

22            MR. HARMON:  If it is a one-page document in B/C/S, we would

23    translate it, if it is a one-page document.  But we make considerations,

24    Your Honour, if it is a 600-page document, we sometimes excerpt only

25    portions of that and we introduce portions of the transcript.  We are

Page 114

 1    doing that exercise now, Your Honour, in the course of reviewing documents

 2    that are voluminous.  Book's passages, for example, we don't translate the

 3    whole book, we translate a paragraph that is relevant.

 4            JUDGE ROBINSON:  Thank you.  I'm going to move on and come back to

 5    this at the end.

 6            Rule 68, mitigating exculpatory material.  Of course, the

 7    provisions under Rule 68 impose an obligation that is ongoing.  There are

 8    no issues here.

 9            66(B), the Defence has notified the Chamber of a number of

10    exhibits -- exhibit issues and translation issues.  One, they say no

11    English translation has been provided for 2721 exhibits which are in

12    B/C/S.  Two, no B/C/S translation for 488 exhibits in English.  And

13    they're particularly concerned that exhibits -- about exhibits to be

14    offered through experts.  And we'll come back to that later.  Intercepts,

15    261 have now been identified, nine have no B/C/S translation and for 56 no

16    English translation has been provided.

17            Intelligence notes require English translation for those

18    identified as exhibits.  And the submission of the Defence is that

19    translations are to be ordered or should be ordered before December the

20    1st, 2007 or the exhibits be struck from the list.

21            It appears to the Chamber that it will be very difficult for the

22    CLSS to make these translations a priority when other cases that are

23    closer to trial have to be given greater priority.

24            The Chamber will instruct the Prosecution to file a report by 31st

25    October 2007, on the status of all outstanding translations with a

Page 115

 1    projected completion date, and this includes the Rule 94 bis expert

 2    reports.

 3            Now pre-trial preparation, the use of 92 bis and Rule 92 ter.

 4    There have been a number of communications between the parties in relation

 5    to these matters.  I don't consider it necessary for me to delve into them

 6    in any detail in this stage in the pre-trial proceedings.

 7            It is sufficient for me to say that motions relating to 92 bis,

 8    ter and quater, will be dealt with by the Trial Chamber that will hear the

 9    case.

10            I turn next to adjudicated facts, agreed facts, and stipulations

11    on the indictment.  The parties filed a joint submission on agreements on

12    matters of law on 1st May 2007.  The parties filed a joint submission on

13    agreements on matters of fact on 31st May 2007.

14            Adjudicated facts, the Prosecution filed a motion for judicial

15    notice of adjudicated facts concerning Sarajevo, to which I have referred.

16    The Defence filed two responses.  This motion is currently pending, but I

17    indicated on the 23rd of May that motions for admission of adjudicated

18    facts will be determined by the Trial Chamber that will hear the case.

19            The anticipated length of the trial, I was informed on the 23rd of

20    May that the length of the trial will be approximately one year and a

21    half.

22            Now, I return to the question that we considered earlier and which

23    I have not decided.  I had originally said that the Prosecution was to

24    provide a B/C/S version of the transcript of the accused's statement by

25    1st December 2007.  I have heard submissions from both parties.  Please

Page 116

 1    put those submissions in writing, and I will give a decision on this

 2    matter early next week.

 3            Let us have those submissions by Friday.

 4            Mr. Lukic, did you hear?  The submissions by Friday.

 5            At this stage, it is perhaps not necessary to set a date for

 6    another Status Conference, but I prefer to err on the side of precaution

 7    and I'm therefore going to set Tuesday, January the 15th, 2005 [sic].

 8            And I'm to ask Mr. Lukic whether there is any matter that wishes

 9    to raise concerning the detention of the accused or his health or any

10    other matter relating to the trial.

11            MR. LUKIC: [Interpretation] As regards the health condition of the

12    accused, I can say that there are no problems.  He is complying with all

13    of the decisions of the Pre-Trial Chamber relative to his provisional

14    release and he will continue to do so.

15            I don't have any other issues to raise at this moment.

16            JUDGE ROBINSON:  Thank you.  Mr. Harmon.

17            MR. HARMON:  Only that the record typo, a typographical error on

18    page 10, line 8 it says 2005.  I think it should say 2008.  And other than

19    that, Your Honour, I have no other submissions.

20            JUDGE ROBINSON:  Yes, going -- Tuesday, January 15th, 2008.  Thank

21    you very much for that correction.

22            There being no other matter, the hearing is adjourned.

23                           --- Whereupon the Status Conference adjourned

24                           at 8.24 a.m.