1 Tuesday, 15 January 2008
2 [Status Conference]
3 --- Upon commencing at 3.25 p.m.
4 JUDGE HOEPFEL: Thank you.
5 Madam Registrar, please, would you call the case.
6 THE REGISTRAR: Good afternoon, Your Honour.
7 This is case number IT-04-81, the Prosecutor versus Momcilo
9 JUDGE HOEPFEL: Thank you.
10 Welcome to this status conference, and sorry for the delay, which
11 happened due to technical problems. We will have a telephone conference
12 within this conference.
13 So I first want to say my name is Frank Hoepfel, and before going
14 into our agenda, I would like to mention, as the parties know, I am
15 covering Judge Robinson, who is out of town due to urgent private matters
16 which now were compounded by a death in his family. I am joining counsel
17 who both, in yesterday's Rule 65 ter conference, expressed their
19 Additionally, I would like to thank senior legal officer Linda
20 Strite Murnane, who provided excellent support in providing -- in
21 preparing for this status conference. Also, she again had yesterday's 65
22 ter conference.
23 May I now have the appearances. For the Prosecution.
24 MR. HARMON: Good afternoon, Your Honour. My name is Mark
25 Harmon. To my right is Barney Thomas, and to his right is the case
1 manager, Carmela Javier. Thank you.
2 JUDGE HOEPFEL: Thank you.
3 MR. CASTLE: Hello. I'm not able to hear at this point. I don't
4 know if anyone can hear me. This is Jim Castle --
5 MR. CASTLE: Hello.
6 MR. CASTLE: -- counsel for Momcilo Perisic.
7 JUDGE HOEPFEL: Hello, Mr. Castle. Can you hear me?
8 MR. CASTLE: I can hear you.
9 JUDGE HOEPFEL: Good morning to you in terms of --
10 MR. CASTLE: Good morning to you, also.
11 JUDGE HOEPFEL: -- your time in America. Thank you for appearing
12 by this telephone conference. It was granted by a decision of 10 of
13 December, 2007, and you are on the phone; is that correct, Mr. Castle?
14 MR. CASTLE: Yes, I am, and if I could address that for one
16 We had filed a waiver with the Court from our client, indicating
17 he acceded to my request that I appear by teleconference and that he
18 waived his appearance. We'll be following up with an additional waiver
19 indicating that co-counsel will not be present also.
20 JUDGE HOEPFEL: Very good. Thank you very much.
21 I wanted to say the accused is not present. He is on provisional
22 release, and his waiver of appearance originally was filed on the 14th of
23 January, 2008. However, this waiver was referring to his representation
24 by co-counsel, Mr. Novak Lukic. As Mr. Lukic is not present today, the
25 accused will only be represented by you, Mr. Castle, via telephone
2 I understand this altered waiver will be filed in order to meet
3 this concern.
4 MR. CASTLE: That is correct.
5 JUDGE HOEPFEL: Thank you.
6 Now, before we go into pending motions, I would like to briefly
7 address the health of the accused.
8 The accused, Mr. Perisic, as I said before, is on provisional
9 release, which was originally granted on 5th of June, 2005. He requested
10 and was granted, on 6th of December, 2007, the 10th alteration of these
12 The State of Serbia indicates he is in full compliance with all
13 requirements. There are no issues, as far as the Chamber is aware, with
14 respect to the accused's health or conditions of provisional release. Or
15 would either party wish to discuss any matter and, for that purpose, to go
16 into private session?
17 Mr. Harmon?
18 MR. HARMON: No, thank you, Your Honour.
19 MR. CASTLE: And on behalf of the accused, we have nothing to
20 add. General Perisic is in good health.
21 JUDGE HOEPFEL: Thank you. Thank you, Mr. Castle.
22 Now, as to item 2, pending motions, before discussing certain
23 motions, a still pending matter is the filing of the second amended
24 indictment. The Defence submitted its objections to this second amended
25 indictment on the 11th of November, 2007, which was 30 days after they had
1 received the B/C/S version.
2 The Prosecution filed its submission, which is titled "A Response"
3 but which the Defence refers to as a reply, on 22nd of November, 2007.
4 This was within the time authorised by the Chamber.
5 On the 3rd of December, 2007, the Defence filed a motion to strike
6 the Prosecution reply, alleging it was out of time. In subsequent e-mail
7 contacts, the Defence indicated it would withdraw this latter submission,
8 but to date it has not done so.
9 A draft of this decision is currently being reviewed by the
11 At yesterday's 65 ter conference, Mr. Castle, you were indicating
12 again that the Defence will withdraw its "motion to strike." You were
13 advised that it could be done orally at the status conference or it could
14 be done in writing.
15 May I ask you, Mr. Castle, if you wish to submit the withdrawal,
16 and if so, if you wish to do so orally now or would prefer to make the
17 submission in writing? May I advise --
18 MR. CASTLE: Yes, I would withdraw our objection orally --
19 JUDGE HOEPFEL: Thank you.
20 MR. CASTLE: -- and would state that based upon information that
21 was provided to me by Mr. Harmon, it had indicated that in a previous
22 status conference, Judge Robinson had provided more time to the
23 Prosecution for its response than was normally authorised by rule.
24 Therefore, our motion to strike was not well taken, and we would move
25 orally to withdraw that motion to strike at this time.
1 JUDGE HOEPFEL: I understand. Thank you.
2 And may I advise the parties that a decision will likely be issued
3 on this matter of the filing of the second amended indictment before the
4 end of the month.
5 Now, pending motions for discussion.
6 (A) There is the Prosecution's motion for judicial notice of
7 adjudicated facts concerning Sarajevo. On the 6th of January, 2007, the
8 Defence filed two responses.
9 (B) Prosecution's supplemental 65 ter summary for witness Glasen
10 Adamovic [phoen] of the 17th of August, 2007. The Defence's response was
11 due the 31st of August, 2007. No response was filed. Is that correct?
13 May I note that a decision will be taken in due course as it
14 pertains to a Rule 92 ter/quater issue ordinarily taken by the Trial
16 (C) is the Prosecution motion pertaining to Rule 70.
17 And (D), a Prosecution motion for leave to file a revised 65 ter
18 list, with confidential annexes, filed on 22nd of October, 2007. This
19 submission was followed by a further submission from the Prosecution,
20 seeking to supplement the 65 ter list. The Defence filed a request for
21 additional time to respond to this latter submission on 3rd of January,
22 2008, requesting a delay until there is a clarification as to what is
23 contained in the ex parte annex, and further requests that the Prosecution
24 be ordered to submit a detailed listing indicating the date on which each
25 of their 514 documents added to the 65 ter list in the supplement were
1 received. This matter is currently pending, and the Prosecution response
2 is due on 17th of January, 2008, which is the day after tomorrow.
3 Yesterday at the 65 ter conference, Mr. Castle agreed that the
4 Defence submission is only a request for an extension of time to respond
5 to the Prosecution's motion submitted on 19th of December, 2007, and does
6 not encompass any response to the motion for leave to file the revised 65
7 ter list filed on 22nd of October, 2007.
8 The parties were advised that the decision as to this list would
9 take quite some time but that it may possibly be taken by the Pre-Trial
10 Chamber if this Chamber is able to complete its work on this matter before
11 the case is transferred to a Trial Chamber. However, this matter is not
12 ready for a decision, as we are within the period for the Prosecution to
13 file its response now, the 17th of January.
14 MR. HARMON: Your Honour.
15 JUDGE HOEPFEL: Mr. Harmon.
16 MR. HARMON: If I may, Your Honour, I'd like to inform the Court
17 that following the court proceedings yesterday, I had a conversation with
18 Mr. Castle. I don't know if Mr. Castle can hear me.
19 Can you hear me, Mr. Castle?
20 JUDGE HOEPFEL: Mr. Castle, can you hear us?
21 MR. CASTLE: I can hear Mr. Harmon.
22 JUDGE HOEPFEL: Yes.
23 MR. HARMON: Following the proceedings yesterday, I had a
24 conversation with Mr. Castle in which I clarified the nature of the ex
25 parte attachment B that was appended to the 19 December submission for
1 additional -- identifying the additional exhibits. Furthermore, I sent to
2 Mr. Castle, by e-mail, a dated -- a list of the 514 documents with the
3 date that we had received each of those exhibits.
4 What Mr. Castle and I discussed was attempting to resolve the
5 matter without the necessity of filing a response. Mr. Castle will be
6 reviewing the documents I submitted to him, and hopefully we may be able
7 to make some progress. At least we will be able to report by the 17th,
8 when our response is due, where we stand in that process.
9 Thank you.
10 JUDGE HOEPFEL: Very well, thank you.
11 Any comment, Mr. Castle?
12 MR. CASTLE: Well, yes.
13 I agree with Mr. Harmon, since yesterday he did provide me
14 information concerning the ex parte annex to their 65 ter amendment. I'm
15 satisfied with the grounds for that.
16 The additional -- the request in our motion for extension of time
17 was in regard to learning from the Prosecution what -- or when they
18 received the additional exhibits. They have provided that information to
19 me, and I'm satisfied with that information.
20 Ordinarily, the next step in the process would be for the
21 Prosecution to reply on the 17th. However, there's very little to reply
22 to at this point, because the Defence has requested an extension. The
23 only thing that remains at this point is for the Defence to receive a copy
24 of the exhibits. My understanding is that, well, originally they were
25 sent, but there was a problem with the disc that was sent. So that has
1 been re-sent as of either yesterday or today. It should be in my office
2 within a week.
3 My request of the Chamber would be to authorise the Defence until
4 February 5th to file their objections and that the Prosecution would then
5 have the ordinary amount of time to reply from that date. That would save
6 a step in the process of the Prosecution filing a pro forma response on
7 the 17th and the Chamber having to rule, accept orally at this time.
8 That is our request.
9 JUDGE HOEPFEL: Thank you.
10 Mr. Castle, that sounds reasonable to me.
11 Mr. Harmon, please.
12 MR. HARMON: Thank you, Your Honour.
13 We have informed Mr. Castle and the senior legal officer earlier
14 that we had no objection to Mr. Castle's request for an extension of
15 time. We would join in Mr. Castle's request, that extension until the 5th
16 of February be granted. We would not file -- if that were to be the case,
17 we would not file a written response on the 17th. We would wait to see
18 the response, if any, by Mr. Castle. Perhaps in the interim time we can
19 resolve this without the necessity of written pleadings and the Court
20 having to make a decision, but we certainly join in Mr. Castle's request
21 for an extension of time until the 5th of February.
22 JUDGE HOEPFEL: Thank you. That is granted.
23 Mr. Castle, you received that granting?
24 MR. CASTLE: I'm having some difficulty again hearing.
25 JUDGE HOEPFEL: Yes. Your request is granted.
1 MR. CASTLE: Okay, thank you.
2 JUDGE HOEPFEL: -- until the 5th of February. Okay?
3 MR. CASTLE: Thank you very much.
4 JUDGE HOEPFEL: So the next thing, disclosure.
5 We have the Rule 66 (A) (i). According to the work plan, the
6 Prosecution should have complied with all of its obligations under this
7 Rule at this point, so no issues should be arising.
8 Is that right, Mr. Harmon?
9 MR. HARMON: That's correct, Your Honour. We have asserted many
10 times that we have complied with that obligation, and the Defence has
11 agreed that we have done so.
12 JUDGE HOEPFEL: Thank you.
13 Mr. Castle?
14 MR. CASTLE: We would agree that they have complied.
15 JUDGE HOEPFEL: Thank you.
16 Now, as to (B), Rule 66 (A)(ii). We have here:
17 1. According to the order establishing a work plan issued on 11th
18 of October, 2006, the Prosecution should have complied with all its
19 obligations under this Rule at this point. However, on the 12th of
20 September, 2007, the Defence notified the Chamber that it had yet to
21 receive the redacted statements of protected witnesses MP-003, MP-004 and
22 MP-014. I will get back to that in a minute.
23 2. The Defence notified the Chamber, in the same 12th of
24 September, 2007 submission, that it had not received the following
25 materials falling within Rule 66 (A)(ii):
1 (A) 14 witness folders which the Prosecution has indicated it
2 would deliver in October.
3 (B) prior testimony of either 102 or 104 priority witnesses. Only
4 59 have been received, and proofing notes have not been received.
5 (C) statements of (redacted), John Almstrom and Milan
7 (D) Radislav Jovanovic and Lord David Owen, transcripts have been
8 received, but proofing notes and prior statements have not been received.
9 (E) Bogdan Sladojevic, testimony and transcripts from Dragomir
10 Milosevic and an update of any other witnesses who may have testified
11 since the initial disclosure.
12 May I go through the rest - it's three other -- four other
13 points - and then ask the parties to comment on that? Is that fine or
14 would you now want to say anything?
15 Mr. Harmon?
16 MR. HARMON: Your Honour, I leave it to your discretion.
17 JUDGE HOEPFEL: Thank you.
18 And, Mr. Castle, I had the impression it was some sound in the
20 MR. CASTLE: Yes.
21 JUDGE HOEPFEL: You wanted to say something?
22 MR. CASTLE: We would agree with the Chamber's proposal.
23 One other thing I would note is if -- with the permission of the
24 Chamber, I'm wondering if Mr. Harmon -- my guess is he is rising every
25 time he is speaking. I'm wondering if he could be excused from that
1 requirement so that his voice is closer to the microphone.
2 JUDGE HOEPFEL: Yes, that's a very good idea.
3 Mr. Harmon, are you fine with that request?
4 MR. HARMON: I'm quite happy with that suggestion. Thank you.
5 Is that better, Mr. Castle?
6 MR. CASTLE: [Indiscernible].
7 JUDGE HOEPFEL: That sounds now better.
8 I wanted to list the following sub-points: 3. The Defence also
9 notified the Chamber that it had not yet received a B/C/S version of the
10 transcript of the accused's statement.
11 4. At the status conference of 19th of September, 2007, the
12 Chamber ordered the Prosecution to disclose the redacted statements of
13 mentioned witnesses MP-003 and MP-004 within seven days. The Prosecution
14 submission was that there was no witness statement provided by Witness
15 MP-014. The Chamber declined to order the taking of a statement of MP-014
16 for the purposes of requiring its disclosure.
17 5. At the 65 ter conference yesterday, the Prosecution
18 represented and the Defence agreed that the following matters listed above
19 have now been disclosed:
20 (A) the 14 witness folders which the Prosecution indicated it
21 would deliver in October and;.
22 (B) the B/C/S transcript of the statement of the accused.
23 Now to the last point in this list, 6. As to the remaining
24 issues, the Prosecution submitted the following:
25 (A) As to those persons whom the Prosecution identified as "the
1 French witnesses," apparently there are four in total, including (redacted)
2 (redacted) and John Almstrom and two others. The Prosecution advised
3 that they are currently engaged in a process required by the French
4 government as a precursor to disclosure of these statements, and may I
5 have -- and may have to address requests for protective measures for these
6 individuals or their materials, should the French government so request.
7 They are not yet disclosed.
8 (C) As to Milan Popovic, the Prosecution submits that the Defence
9 co-counsel, Mr. Novak Lukic, was present at the taking of a judicial
10 statement taken at a hearing in Belgrade, and Mr. Novak Lukic was provided
11 with a copy of that judicial statement at the time of the taking of that
13 (D) As to Lord David Owen, the Prosecution submitted, at the 65
14 ter conference, that there were no proofing notes or prior statements as
15 to him. His prior transcript has been provided. However, today, at 10.48
16 in the morning, the Prosecution e-mailed the Defence counsel - it must
17 have been quite early for you, Mr. Castle - with a copy to the senior
18 legal officer, advising that the Prosecution had identified a court
19 document and that they were immediately undertaking to disclose it. The
20 Prosecution stated that Lord Owen only agreed to appear as a court witness
21 and not as a Prosecution witness in the Slobodan Milosevic case and
22 apparently intends to take the same approach in this case. But as he is on
23 their witness list, the disclosures are required.
24 (E) As to Vladislav Jovanovic, following the 65 ter conference on
25 14 January 2008, the Prosecution informed the senior legal officer that
1 there are no statements or witness notes regarding this witness and that
2 the transcript, which has been disclosed to Defence, is the only matter
3 which the Prosecution has in its possession which requires disclosure.
4 (F) As to Bogdan Sladojevic, the Prosecution submits that they
5 have made all relevant disclosures from the Dragomir Milosevic case,
6 including this witness's information.
7 It appears that the disclosures are still pending as to the four
8 French witnesses, but that the process is required to obtain approval from
9 the French government as to these witness prior statements. As this case
10 will shortly be ready to be transferred to a Trial Chamber, and as the
11 disclosures under Rule 66 (B) should have been long ago completed in
12 accordance with the work plan established on 11th of October, 2006, it
13 would seem that more than a year later, the Prosecution should have
14 informed the Chamber of this problem long before now.
15 In order to move this process forward, as the Pre-Trial Judge, I
16 order that the Prosecution, within 30 days, either to file a report
17 concerning the process or to file a motion for protective measures, as
18 requested by the French government, or a Rule 70 motion, or to disclose
19 the materials. Thirty days are the 14th of February, 2008.
20 Is that understood?
21 MR. HARMON: That is understood, Your Honour. I just would like
22 to make two points.
23 JUDGE HOEPFEL: Yes, please.
24 MR. HARMON: John Almstrom is not one of the French witness. He's
25 a Canadian witness.
1 JUDGE HOEPFEL: Yes.
2 MR. HARMON: The same issues, I mean related issues, Rule 70
3 issues, apply to him. I am informed that there were verbal negotiations
4 between previous counsel and Canadian officials, but I don't know the
5 status of those ongoing or if they're -- the status of those negotiations.
6 In respect of the 30-day ruling the Court just made, we don't have
7 any problem with that. I will say, however, Your Honour, that we have
8 informed the Court on previous occasions of the process, that there is a
9 [French spoken] that is required, and the French government is working at
10 a pace it deems appropriate. We have vigorously, vigorously made efforts
11 to expedite the process. We have made multiple trips to Paris to ensure
12 that the earliest possible compliance is done.
13 So I think, fairly, the Prosecution has kept both the parties and
14 the Court informed of this. We appreciate the Court's ruling, because we
15 will convey that ruling to the French government, and hopefully we will be
16 in a position within 30 days -- we will comply with one of the options
17 that Your Honour has outlined.
18 Thank you.
19 JUDGE HOEPFEL: Yes, thank you, and I stand corrected if I got it
21 I would clarify that the order applies to both the four French
22 witnesses and Mr. Almstrom, whom I misrepresented as a French witness.
23 MR. HARMON: We understand, Your Honour. Thank you very much.
24 JUDGE HOEPFEL: Thank you for your understanding.
25 Now, a question to Mr. Castle. Do you have anything to add?
1 MR. CASTLE: I have nothing to add, and we appreciate the
2 Chamber's order.
3 JUDGE HOEPFEL: Thank you.
4 Now as to (C), Rule 68, this disclosure of mitigating or
5 exculpating material is an ongoing obligation anyway. These materials
6 should already have been disclosed or will be disclosed as soon as
8 Now, (D), Rule 66 (B). Just a moment.
9 The Prosecution indicated that based upon the most current
10 information it had, that it should be able to comply with the 31st of
11 January, 2008, translation estimate they provided in the 31st of October,
12 2007 report. Other than noting this, I am advising the Prosecution that
13 if it learns that it will not meet that deadline, they should notify the
14 Chamber in a report and provide the reasons such translation cannot be
15 completed in accordance with its estimated time.
16 Further, they should provide a realistic estimate as to complete
17 the outstanding 9.000 pages of translations.
18 Now to (E), the Rule 94 bis expert reports. I will not take this
19 issue up, but we should wait until Judge Robinson returns or the case is
20 being transferred to a Trial Chamber. If the parties feel strong about
21 it, they can seize the Chamber with a motion.
22 Is that understood? Mr. Harmon?
23 MR. HARMON: It is, Your Honour. Thank you.
24 JUDGE HOEPFEL: Mr. Castle?
25 MR. CASTLE: Nothing further.
1 JUDGE HOEPFEL: Thank you.
2 Now to the pre-trial preparation, in the technical sense.
3 We have (A), possible use of 92 bis/92 ter evidence. Here,
4 motions will be dealt with by the Trial Chamber that will hear the case.
5 The only issue is the filing of an additional request under Rule 92
6 quater, which does not require resolution in this hearing.
7 Mr. Harmon.
8 MR. HARMON: Your Honour, I indicated yesterday, during the 65 ter
9 conference, that we received notice of the unexpected death of a witness
10 who was listed on our witness list. We intend to file a 92 quater motion
11 based on that recent information and will do so as soon as we can.
12 JUDGE HOEPFEL: Yes, understood.
13 Mr. Castle.
14 MR. CASTLE: We'll await that request and respond accordingly.
15 JUDGE HOEPFEL: Thank you.
16 Now as to (B), agreed facts, adjudicated facts and stipulations on
17 the indictment. The parties filed a joint submission on agreements on
18 matters of law on the 1st of May, 2007, and a joint submission on
19 agreements on matters of fact on the 31st of May, 2007.
20 As to adjudicated facts, Prosecution filed a motion for judicial
21 notice concerning Sarajevo on the 6th of February, 2007, to which the
22 Defence filed two responses. This motion is currently pending.
23 On 23rd of May, 2007, the Pre-Trial Judge indicated that motions
24 for admission of adjudicated facts should be determined by the Trial
25 Chamber that will hear the case.
1 Please, Mr. Castle.
2 MR. CASTLE: Oops. I'm sorry, I couldn't hear that last
4 JUDGE HOEPFEL: I was just saying motions on adjudicated facts
5 will be dealt with by the Trial Chamber that will hear the case. Could
6 you understand that?
7 MR. CASTLE: Yes, that is my understanding.
8 JUDGE HOEPFEL: Thank you. Thank you very much now.
9 Lastly, I would like to address the anticipated length of the
10 trial and the trial date, in a brief form.
11 On the 23rd of May, 2007, the Prosecution estimated that if none
12 of its Rule 92 bis motions are granted and, "assuming that there is a
13 sitting of five days a week in the normal course of business, with very
14 few interruptions," the entire length of the trial will last a year and a
15 half. I don't have to comment to that now.
16 Just as to the date of the next meeting, it is anticipated that
17 this case will be transferred to a Trial Chamber which will be assigned to
18 hear the case in the very near future. A mid- to late spring start date
19 is hoped for, and if the current projections hold, it is possible that
20 this case should come to trial before the 120-day point, which would be
21 the 14th of May, 2008. We will not set another status conference date,
22 but advise the parties that if for any reason the case is not transferred
23 prior to that date to a Trial Chamber, that they will be contacted to set
24 the next status conference.
25 Do the parties have any comments or any other matters?
1 Mr. Harmon.
2 MR. HARMON: Yes, Your Honour.
3 Yesterday, in the 65 ter conference, I raised the issue of my
4 unavailability between the 3rd and the 13th of April and informed the
5 senior legal officer as to the reasons why I would be unavailable. And I
6 requested that the Trial Chamber, in setting a trial date, take that
7 information into consideration.
8 Thank you.
9 JUDGE HOEPFEL: Thank you, Mr. Harmon. This is now on the record,
10 and it can be worked on the basis of that information.
11 Any other matters, Mr. Harmon?
12 MR. HARMON: No, Your Honour. Thank you very much.
13 JUDGE HOEPFEL: Thank you.
14 And Mr. Castle.
15 MR. CASTLE: No additional issues. Thank you.
16 JUDGE HOEPFEL: Thank you.
17 Then this status conference is closed, and we will get back to you
18 as pointed out.
19 Good afternoon. Good day to America.
20 MR. CASTLE: Good day.
21 JUDGE HOEPFEL: Thank you very much.
22 Good evening.
23 --- Whereupon the Status Conference concluded at
24 4.13 p.m.