1 Tuesday, 6 May 2008
2 [Status Conference]
3 [Open session]
4 --- Upon commencing at 2.15 p.m.
5 JUDGE MOLOTO: Good afternoon to everybody in and around the
7 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honour. This is case number
9 IT-04-81, the Prosecutor versus Momcilo Perisic.
10 JUDGE MOLOTO: Thank you very much.
11 Can I take this opportunity just to welcome the parties to this
12 Status Conference and ask for the appearances, please, starting with the
14 MR. HARMON: Good afternoon, Your Honour. Mark Harmon and
15 Evangelos Thomas appearing on behalf of the Prosecution; we're assisted
16 by Carmela Javier the case manager.
17 JUDGE MOLOTO: Thank you very much.
18 For the Defence.
19 MR. CASTLE: Good afternoon, Your Honour, Jim Castle appearing on
20 behalf of Momcilo Perisic, whose appearance has been waived for today.
21 Also appearing here today is Novak Lukic.
22 JUDGE MOLOTO: Thank you very much.
23 Just to remind the parties that by order dated the 26th of March,
24 2008, I was assigned as the Pre-Trial Judge in this case. As you have
25 said, Mr. Castle, we note that the accused is on provisional release and
1 he has waived his right to attend today's conference. If I'm not
2 mistaken I think I read in the filing that waived that right an
3 indication that he may be on a videolink conference, if necessary.
4 MR. CASTLE: Yes, he would be available by videolink, if
6 JUDGE MOLOTO: But he's not going to be.
7 MR. CASTLE: He's not appearing by videolink. It's just if there
8 is a matter that we need to address with him.
9 JUDGE MOLOTO: Thank you very much.
10 I'm sorry, Mr. Castle, that causes me a little bit of confusion.
11 You say if there is a matter that we need to be discussed with him. Are
12 you saying the videolink is ready to be switched on if need be?
13 MR. CASTLE: That is my understanding.
14 JUDGE MOLOTO: All right. Thank you very much.
15 [Trial Chamber and registrar confer]
16 JUDGE MOLOTO: Mr. Castle, I'm advised to the contrary, that a
17 request had been for a teleconference link and that no arrangements have
18 been made for a videolink to be in place should one be necessary. So it
19 does seem as if we are going to have to dispense with communicating with
20 the accused at all.
21 MR. CASTLE: I stand corrected. I also do not anticipate there
22 being a need to have any conversations with him.
23 JUDGE MOLOTO: Okay. Thank you very much, Mr. Castle.
24 While we're talking about the accused being on provisional
25 release, Mr. Castle, may I ask you to be exercising in your mind during
1 this conference and when we come to talk about the trial dates just think
2 about the last request that you filed -- that was filed on behalf of the
3 accused for changing of conditions of release, for visitation -- the
4 dates of visitations. You don't have to answer me right now.
5 Okay. Can we just move on to the next item, which is the reasons
6 for this Status Conference. The last Status Conference was held on the
7 15th of January, 2008, and pursuant to Rule 65 bis of the Rules of
8 Procedure and Evidence, a Status Conference shall be convened within 120
9 days of the last Status Conference in order to organize an exchange
10 between the parties, to ensure exchanges between the parties solely and
11 to ensure the expeditious preparation for trial and to allow the accused
12 to raise issues in relation to the case.
13 Are there any issues that maybe you may want to raise with
14 respect to the health of the accused, Mr. Castle?
15 MR. CASTLE: Not at this time.
16 JUDGE MOLOTO: Not at this time.
17 To your knowledge he is in good health?
18 MR. CASTLE: Yes, he is in good health to this point.
19 JUDGE MOLOTO: Thank you very much.
20 Mr. Harmon, I don't think you have any contribution to make on
21 that position?
22 MR. HARMON: We have nothing to say on that matter, Your Honour.
23 JUDGE MOLOTO: Okay.
24 Can we then move on to pending motions. There is a motion on
25 provisional release that was filed on the 2nd of May, 2008, by the
1 Defence requesting alteration of the conditions of provisional release.
2 The Chamber would like to know whether the Prosecution intends to respond
3 to this motion, Mr. Harmon.
4 MR. HARMON: We do not, Your Honour.
5 JUDGE MOLOTO: You do not. Thank you very much. In that event,
6 then, an order will be issued in due course and again when we discuss the
7 dates we'll try to tie that with this motion. Okay. Thank you very
9 Then the next item was -- well, the next motion was on
10 adjudicated facts. On 6th February 2007, the Prosecution filed the
11 Prosecution's motion for judicial notice of adjudicated facts concerning
13 Rule 94 bis of the Rules to take judicial notice of 314 facts which have
14 been adjudicated in the Galic case. And the Defence filed two responses,
15 and this motion is currently pending, but on the 23rd of May, 2007, the
16 Pre-Trial Judge indicated that the motion for admission of adjudicated
17 facts should be determined by the Trial Chamber that will hear the case.
18 The Trial Chamber has still not been constituted, but if I might give my
19 personal inclination, Mr. Harmon, I would prefer adjudicated facts to be
20 agreed to the extent possible.
21 Yes, Mr. Harmon.
22 MR. HARMON: Your Honour, of course that would be my preference
23 as well, but to date counsel and I have had discussions about certain
24 facts that relate to the indictment, particularly Srebrenica. There have
25 been agreed-upon facts in respect of Srebrenica. The discussions over a
1 year ago stopped in respect of agreements of the parties in terms of
2 facts. Now, that's not to say that we will not reach further agreements
3 in the meantime, but for purposes of trial planning, obviously it's in
4 the interests -- in our interests to know what is going to be adjudicated
5 and what is not. If one examines the motion that we filed in February of
6 2007, we, you will see, Your Honour, and the Trial Chamber will see, that
7 there are nine scheduled incidents that -- for which we ask that the
8 Court make a decision. Obviously the effect of reaching a decision on
9 that will impact on our ability to plan and could well shorten the trial.
10 I don't have at my disposal how many witnesses would be eliminated with
11 this, but it seems to me, Your Honour, that given that we have had over a
12 year where we have not been able to -- it's not that we haven't been able
13 to reach agreements, we haven't had those conversations. And I'm told by
14 Mr. Castle and Mr. Simic that the possibility exists, but that's only a
15 possibility. And for our purposes, it's very, very important that this
16 motion be decided before the trial commences. Obviously if we are able
17 to reach agreements before the commencement of trial, we'll bring that
18 immediately to the Court's attention. But I think I will strive, I can
19 make an undertaking to Your Honour, I'll strive to participate in such
20 discussions constructively. I'm anxious to reach agreements, but
21 obviously I'm limited in what I can do.
22 JUDGE MOLOTO: I really would like to encourage the parties to
23 continue negotiating. I personally have a philosophical problem with
24 admitting adjudicated facts. In another case when this accused in that
25 case was not represented in that case and we don't even know whoever was
1 being tried in that case was trying to implicate this accused, we really
2 don't know. And that's why I'm encouraging the parties to try as far as
3 it is possible to reach agreement, particularly because the Defence is
4 objecting to those -- to the admission of those adjudicated facts, you
5 know. So it makes it a little difficult to go over that philosophical
7 Okay. Do you have anything to add on to that, Mr. Castle?
8 MR. CASTLE: The only thing that I would add is to explain to the
9 Court what the impediment to further agreements is so that we all
10 understand what the problem is. When the Defence first engaged in this
11 process, we agreed to a number of the -- the admission of a number of
12 documents, a number of statements, then we proceeded to agree to a
13 certain facts that were related to the Srebrenica portion of the
14 indictment. It was our hope that with those agreements there would be a
15 concomitant reduction in the exposure our client faced, that there would
16 be some reduction on the part of the Prosecution or that a 73 bis
17 decision would reduce the number of counts that our client faced at
18 trial, but that didn't happen. And that's what stopped the negotiation
19 because the negotiation was a one-way street of the Defence agreeing to
20 facts that literally would lean towards his conviction without anything
21 in return. I have to let the Court know, we're not trying to stall for
22 the purposes of stalling, it's just that negotiations normally have to
23 take place in a situation where there is give and take.
24 And I won't say Mr. Harmon has been completely unreasonable, I'm
25 not saying that. Part of the problem is we don't sit down and talk
1 because we're in different countries and different locations. I'm
2 hopeful when we're -- our Defence team is here and we're able to sit
3 down, Mr. Harmon, perhaps his wisdom can prevail upon us. But that
4 essentially is what our problem is here.
5 JUDGE MOLOTO: I hear what you say, but let me make these two
6 comments. It seems to me what you consider as a reason for agreeing
7 facts is somewhat slightly different from what is normally expected. I
8 think you agree a fact because you believe that fact is fact, not because
9 you are plea bargaining. But when you say you want a two-way street it
10 seems to me that you are plea bargaining.
11 The next point I would like to make is that we are not yet at the
12 stage of 73 bis. We are still getting there, and most probably the
13 Prosecution is going to be asked to reduce its indictment one way or the
14 other when we get to that stage. So I would try and encourage you to
15 look at the facts and see whether this is a fact that you can accept that
16 has taken place, it exists, and is there a need really to call a witness
17 to establish it. You know, I think that should be the consideration.
18 Thank you very much.
19 Can we leave that point on the understanding that the parties
20 will carry on negotiating and trying to find each other on the
21 adjudicated facts?
22 MR. CASTLE: Yes, Your Honour.
23 JUDGE MOLOTO: Thank you very much.
24 MR. HARMON: Yes, that's certainly acceptable. Thank you.
25 JUDGE MOLOTO: Thank you.
1 [Trial Chamber and legal officer confer]
2 JUDGE MOLOTO: My apologies, I'm being advised that, in fact, the
3 73 bis decision has been taken on the 15th of May, 2007. You are aware
4 of that, Mr. Castle?
5 MR. CASTLE: [Microphone not activated]
6 JUDGE MOLOTO: You didn't hear. I was just apologising for
7 misstating the situation. I thought we hadn't reached the 73 bis stage
8 yet, but I'm advised that that decision was taken on the 15th of May,
10 MR. CASTLE: That's my understanding.
11 JUDGE MOLOTO: And that in fact some -- either incidents or
12 charges were cut out of the indictment. Can you confirm that,
13 Mr. Harmon?
14 MR. HARMON: The indictment was reduced as per the order of the
15 Pre-Trial Chamber.
16 JUDGE MOLOTO: To which then I would just say, Mr. Castle, that
17 if indeed you are looking for something in return you have heard that bit
18 through that 73 bis decision already.
19 MR. CASTLE: The only thing I would note is that actually there
20 was nothing cut out of the indictment at all. The only thing that was
21 cut was that Mr. Harmon had been requested to bring in other bad acts or
22 other acts that were not charged in the indictment, and the trial was
23 reduced in the eyes of the Court by saying, We're issuing a ruling that
24 absent some compelling showing of relevancy that the Prosecution would
25 not be allowed to bring in evidence of these other acts. So not a single
1 count was eliminated in that -- I think that's a fair statement of the 73
2 bis decision.
3 JUDGE MOLOTO: No count was eliminated, but were incidents within
4 counts cut out?
5 MR. CASTLE: No incidents within counts were cut out. Only -- to
6 give the Court an idea, there was a number of witnesses that were
7 endorsed by the Prosecution which related to other events, namely, many
8 in the Sarajevo
9 as being indicative of the scope of the trial and attempted to reduce the
10 scope of the trial by a third and did so not through reducing counts or
11 crime bases, but by issuing an order indicating that absent compelling
12 reasons that the Prosecution would not be able to call those additional
13 witnesses that related to other events that were not charged in the
15 MR. HARMON: [Microphone not activated]
16 THE INTERPRETER: Microphone for Mr. Harmon, please.
17 MR. HARMON: There were a number of schedules in particular in
18 respect of Sarajevo
19 documents that we had filed with the Court, we sought to lead other acts
20 in addition to the 21 scheduled incidents and we were instructed by the
21 Trial Chamber that we would not be able to do so unless we had a
22 compelling reason and we sought leave of the Court to do so. So as a
23 result of that we were able to reduce, per the Court instruction, the
24 scope of the evidence, the volume of evidence that was being led. It did
25 not result in the elimination of a single count because the counts stayed
1 whether or not there was other act evidence. So in terms of what was
2 reduced and what we were instructed to do we have complied fully with the
3 Court's order. We have not to date filed any motions seeking leave of
4 the Court to admit other act evidence.
5 JUDGE MOLOTO: This other evidence is the evidence that was
6 outside the 21 scheduled incidents?
7 MR. HARMON: Yes. For example, Your Honour, what came -- one
8 issue is we have 21 scheduled incidents of shelling and sniping. Now, we
9 allege in the indictment there's a campaign of fire directed at civilian
10 targets, both shelling and sniping. To establish the campaign, we sought
11 to introduce additional evidence that would support the 21 acts. And the
12 Court said to us in clear terms, You are at this point in time precluded,
13 but not forever, from introducing that other act evidence. If you have a
14 compelling need to do so, you make an application to the Trial Chamber.
15 So the elimination of the other act evidence did not result in the
16 elimination of any counts in the indictment, but it resulted in a
17 reduction in the trial that the Pre-Trial Chamber then was facing.
18 JUDGE MOLOTO: I speak subject to correction, but the rule on
19 reduction of the case does not necessarily require reduction by way of
20 cutting out counts, it just wants you to reduce the scope of the case.
21 To show -- the idea is to shorten the estimated length of the
22 examination-in-chief for some witnesses, and the Court may order that the
23 number of witnesses the Prosecutor may call and the number -- the time
24 available to the Prosecutor for presenting evidence. It doesn't call
25 upon the Prosecution to cut out counts as I understand it.
1 MR. HARMON: We have the same understanding, Your Honour.
2 JUDGE MOLOTO: Thank you.
3 So -- and you say you've complied with the 73 bis decision of the
4 Pre-Trial Chamber?
5 MR. HARMON: We did, Your Honour.
6 JUDGE MOLOTO: Thank you very much.
7 And to that extent, Mr. Castle, you have heard the quid pro quo
8 that you are looking for. Okay.
9 Just as a final parting note on this, I remind the parties once
10 again to please try to reach agreement on those adjudicated facts.
11 Then there is the motions pursuant to Rules 92 bis, ter, and
13 Again, at the Status Conference of the 15th of January this year
14 it was anticipated that the decision of these motions would be taken in
15 due course by the Trial Chamber that will hear the case. Again, I'm also
16 inclined to say that matter of admitting evidence is a matter for a
17 Trial Chamber not just a Pre-Trial Judge. I don't know whether the
18 parties have anything to say, Mr. Harmon, on the issue.
19 MR. HARMON: No, Your Honour, I have nothing to add.
20 JUDGE MOLOTO: Mr. Castle?
21 MR. CASTLE: No, Your Honour.
22 JUDGE MOLOTO: All I can say is we will try to reach a decision
23 as soon as the Trial Chamber is constituted, and give a decision.
24 And there was a motions to amend exhibit and witness lists. I
25 think two motions are pending before the Chamber regarding the 65 ter
1 exhibit list, being the Prosecution motion for leave to file a third
2 supplement Rule 65 ter list with annex A filed confidentially on the 28th
3 of February, 2008, and Prosecution motion for leave to file a fourth
4 supplemental Rule 65 ter exhibit list with annex A filed confidentially
5 on the 28th of March, 2008. No response has been filed by the Defence
6 for the motion of the 28th of February, while a response for the motion
7 of the 28th of March has been -- was filed on the 10th of April.
8 Mr. Castle, is there -- does that response suffice for both
9 motions or does the --
10 MR. CASTLE: The response only dealt with the second of the
11 motions. The first one we did not have objections to, so we did not file
12 a response to it.
13 JUDGE MOLOTO: Thank you very much. That clears the point.
14 Okay. Just out of an abundance of caution, could we move into
15 private session, please.
16 [Private session]
11 Pages 147-151 redacted. Private session.
23 [Open session]
24 THE REGISTRAR: We're in open session, Your Honours.
25 JUDGE MOLOTO: Thank you very much.
1 The next item relates to disclosure issues. It is the Chamber's
2 general impression that the Prosecution has complied with all its
3 obligations pursuant to Rule 66(A). Are you able to confirm that,
4 Mr. Harmon?
5 MR. HARMON: Well, we believe we have, Your Honour.
6 JUDGE MOLOTO: But for the summaries of the French witness
8 MR. HARMON: Well, obviously with that exception.
9 JUDGE MOLOTO: That's right. So once that -- you confirm that
10 once that has been disclosed, those have been disclosed, you will have
12 MR. HARMON: And one additional. We have a previous Court order
13 that permits us to disclose the witness statements, three witness
14 statements, to the Defence 30 days before the commencement of trial, so
15 that's another category of statements.
16 JUDGE MOLOTO: That's right. Sure. Okay. Thank you very much.
17 Mr. Castle, any comment?
18 MR. CASTLE: No comment.
19 JUDGE MOLOTO: No comment. Good.
20 Then the Rule 68 obligations, that's an ongoing obligation and I
21 would imagine that the Prosecutor is continuously disclosing to the
22 Defence whatever needs to be disclosed.
23 Are you happy in that line of disclosure, Mr. Castle, so far?
24 MR. CASTLE: We're not aware of any exculpatory material that has
25 not been turned over.
1 JUDGE MOLOTO: Thank you very much. That is very helpful to
3 And let's then move on to Rule 66(B). Now, according to the
4 order establishing a work-plan issued on the 11th of October, 2006
5 Prosecution should have complied with all its obligations under this rule
6 at this point I would imagine.
7 MR. HARMON: Yes, Your Honour.
8 JUDGE MOLOTO: Okay. And on the 31st of October, 2007, the
9 Prosecution filed a report on outstanding translations in this case
10 pursuant to an order of the Chamber issued on the 19th of September,
11 2007. In that report the Prosecution indicated approximately 9.000 pages
12 of documents remaining to be translated, and the Prosecution indicated
13 that that translation would be complete by the 31st of January, 2008
14 that if it was not complete the Prosecution would give a report. No
15 report has been received. Can this Chamber assume that that -- those
16 translations are complete?
17 MR. HARMON: Those translations I believe are complete. They
18 were complete by the dead-line imposed by the Trial Chamber. The other
19 issue, however, I wanted to alert Your Honour to is that we have had
20 ongoing litigation with Serbia
21 relevant to this Prosecution. And the Court can see as a result of the
22 filing of 54 bis motions that we've had some difficulties in getting full
23 compliance. The motions before Your Honour on 54 bis are not the first
24 set of 54 bis motions that we have filed. What does that mean?
25 In terms of the production of documents, some of which are
1 voluminous to us, when we finally get them they are not translated for
2 us. So we are faced with, again, a problem with translation of those
3 relevant documents. We have taken extraordinary measures to ensure that
4 we can get those documents translated as soon as possible, and then when
5 they get translated their benefit to me as the Prosecutor and we disclose
6 them to the Defence immediately.
7 So we've also -- we've also undertaken a regime that when I get
8 documents that I think are relevant in B/C/S I give them to the Defence
9 before I get them translated. Because on the Defence team the Defence
10 has people who read the language and can study the documents. So in one
11 sense they're often better advanced than I am in terms of understanding
12 the content of those documents, but in order to ameliorate any issues
13 that could be raised by any issues that might affect the ability of this
14 trial to go forward, we've taken positive steps to disclose them
15 immediately to the Defence in B/C/S.
16 JUDGE MOLOTO: Okay.
17 MR. HARMON: That's where we are in terms of translations, Your
18 Honour. I don't want the Court to be misled believing that all the
19 translations that are relevant to this case have been completed. The
20 9.000 pages were on time.
21 JUDGE MOLOTO: I understand that very much, Mr. Harmon. The
22 question really related to the 9.000 pages. You have just told me those
23 have been translated, those have been disclosed.
24 MR. HARMON: Yes.
25 JUDGE MOLOTO: Obviously any material that is not currently in
1 your possession or that has recently come into your possession and still
2 needs to be translated still has to be translated before it can be
4 MR. HARMON: Yes.
5 JUDGE MOLOTO: That's quite understandable.
6 And I'm sure you understand that too, Mr. Castle.
7 MR. CASTLE: Yes, Your Honour.
8 JUDGE MOLOTO: It's just a practical notion.
9 MR. CASTLE: Yes, and just for the Court to know, I have no
10 evidence that the Prosecution has been dilatory in an attempt to get
11 documents translated, but other cases in this Tribunal have absorbed
12 resources that would ordinarily be available to have items translated.
13 We have been working with the Prosecution to identify items that we need
14 translated and the ones that we have a high priority on, and I belive
15 that process is continuing to work well.
16 JUDGE MOLOTO: Thank you so much.
17 Agreed matters of law or facts. On the 1st of May the parties
18 files a joint submission on agreed matters of law. On the 1st of June,
19 2007, again the parties filed a joint submission on agreed facts. All
20 agreed facts relate to the crimes allegedly committed in Srebrenica.
21 These agreed facts are recorded by the Chamber pursuant to Rule 65 ter
22 (H) of the Rules of Procedure and Evidence and the Chamber encourages the
23 parties to further develop the area of agreed facts to the extent
25 Is there any comment that you would like to make on that item,
1 Mr. Harmon, on agreed facts?
2 MR. HARMON: No, Your Honour.
3 JUDGE MOLOTO: Nothing.
4 Mr. Castle?
5 MR. CASTLE: No, Your Honour, we'll just keep the Court informed
6 as we go along if there's any changes in that.
7 JUDGE MOLOTO: Thank you very much.
8 Again, like with adjudicated facts, the Chamber still encourages
9 the parties to agree as many facts as possible. That will help to
10 shorten the trial also.
11 Let's deal with the little difficult question of the anticipated
12 length of the trial and the trial date. On the 23rd of May, 2007, the
13 Prosecution estimated that if none of its Rule 92 bis motions are
14 granted, and assuming that there is a sitting of five days a week in the
15 normal course of business with very few interruptions, the entire length
16 of the trial will last a year and a half.
17 You confirm that, Mr. Harmon?
18 MR. HARMON: Your Honour, may I just amplify that. Yes, I
19 confirm that I said that on the 23rd of May and that has been raised in
20 subsequent conferences, in 65 ter conferences, and I believe the last
21 Status Conference as well. Obviously both parties want to reduce this
22 trial. We --
23 JUDGE MOLOTO: That's a good start.
24 MR. HARMON: No, I think we genuinely -- the parties have been
25 willing to work together, have been unable to do so because there's a
1 vast distance between Denver, Colorado
2 and when Mr. Castle and his team get installed, I think we will work hard
3 to try to reduce this in a more understandable systematic way than we
4 have been able to do so far. The 15 months obviously is an estimate. I
5 was asked on the 23rd of May to speculate, and it's very, very difficult
6 to speculate to -- when you have literally hundreds of motions that are
7 outstanding and have not been decided. So that -- I want to reinforce,
8 Your Honour, that this was a best guess possible. We will try to make it
9 shorter than that, but I can also envision if there are no agreements and
10 there are -- we have to establish crime base material that I think is not
11 really contested, but if we have to go through the exercise then it will
12 take some time and it may well go over 15 months. That was my best
13 estimate then. It remains my best estimate. I think we'll come in
14 shorter than that.
15 JUDGE MOLOTO: Mr. Harmon, can I try and tie your hands behind
16 your back a little bit. You started very well by saying it is
17 everybody's intention and wish to shorten the case. You end up by saying
18 it might go little beyond by 15 months. I want to cut that part out.
19 That's where I want to tie your hands. And I do by saying the best
20 estimate you were asked to make, and as I read out that little paragraph,
21 was made on the assumption that none of your 92 bis and ter and quater
22 motions were granted and that therefore your entire case was going to be
23 viva voce. In other words, it was on a worst-case-scenario basis.
24 MR. HARMON: Your Honour, I accept that.
25 JUDGE MOLOTO: You accept that.
1 MR. HARMON: I accept that.
2 JUDGE MOLOTO: So if it wasn't a worst-case scenario basis, I
3 don't anticipate going beyond your worst case.
4 MR. HARMON: No, Your Honour, when I was asked this question
5 yesterday by the Senior Legal Officer, I went back and read my comments
6 and I said that the trial would last with all those conditions 15 months.
7 But I was -- what I was trying to say and I didn't say it well enough
8 was, the Prosecution case in chief would last 15 months. I can't speak
9 for the Defence case and how long that is going to take. Whether that is
10 incorporated in -- whether the Trial Chamber understands the Defence case
11 to be rolled into the 15-month estimate certainly wasn't by intention
12 because I can't speak for the Defence. I stand by a 15-month estimate
13 outside for the Prosecution's case in chief, but the length of the trial
14 I can't speak for the Defence.
15 JUDGE MOLOTO: That's a major departure, Mr. Harmon, I must say.
16 MR. HARMON: Well --
17 JUDGE MOLOTO: If I may reiterate to you the last bit of the
18 sentence that I said to you, the estimate was that the entire length of
19 the trial will last a year and a half. Now, I'm not suggesting I'm
20 quoting you. I'm suggesting this is the impression that this Chamber is
21 left with, that is the entire length of the trial. Now, if you say 18
22 months for just the Prosecution phase, now are you saying that on a
23 one-to-one basis we are likely to be here for three years?
24 MR. HARMON: I hope not, Your Honour. I've been through one
25 trial that lasted 32 months, and I don't care to repeat it. What I was
1 trying to say and what I can control in my estimate is the Prosecution's
2 case. Mr. Castle and I never discussed at that point in time how long
3 the Defence case would last. I don't know how long the Defence case is
4 going to last, and I don't think it would be, quite honestly, something
5 you would want to rely on me estimating the length of the Defence case.
6 I can tell you that 15 months is -- was a -- my best guess under those
7 conditions for the Prosecution case. That's what I can say, and I think
8 it will come in, assuming we reach some agreements, I think it will come
9 in shorter than that. We will endeavour to make it come in shorter than
10 that. But perhaps, you know, the -- I shouldn't be speaking for the
11 Defence in terms of how long their case will last because that's not --
12 I'm not in a position to do so, Your Honour.
13 JUDGE MOLOTO: That's true, and I would imagine that the Defence
14 usually does make that estimate at the opening of the Defence case.
15 MR. HARMON: I'm sure they do, Your Honour.
16 JUDGE MOLOTO: Not at this stage.
17 MR. HARMON: Absolutely, Your Honour.
18 JUDGE MOLOTO: So there's no point in trying to even engage
19 Mr. Castle on the point, on an estimation of their case.
20 MR. HARMON: Of course --
21 JUDGE MOLOTO: We can't do that at this stage.
22 Anyway, let's sort of go through the implications of what you are
23 saying. When one calculates the length of time one bears in mind that we
24 have a 52-week year. We have various recesses and adjournments during
25 the year that effectively bring about a working year to something like 41
1 weeks. And 41 weeks on the assumption that you sit five days at 3.5
2 hours a day brings you to something like 720 hours in a year. I see you
3 shaking your head.
4 MR. HARMON: [Microphone not activated]
5 As you're talking, Your Honour, I'm doing some calculations
6 myself. No disrespect intended.
7 JUDGE MOLOTO: Not a problem, not a problem. Indeed my
8 calculations are also a rough calculations, and I would appreciate being
9 corrected as I go along. Okay.
10 Now, the Chamber is also aware that the estimated time is still
11 subject to further revision in light of the pending motions.
12 Anyway, based on the revised witness list filed by the
13 Prosecution on the 28th of June, 2007, and the required hours indicated
14 therein, the Chamber has calculated an estimated time of 907 hours for
15 the direct examination of Prosecution witnesses. It is a striking
16 difference and -- considering that the Prosecution took steps in
17 accordance with the Chamber's Rule 73 bis decision to reduce the
18 estimated time of 950 hours by 169 hours in relation to the Sarajevo
19 component of the case. And then I think it should also be borne in mind
20 that the same amount of time for cross-examination and perhaps something
21 like 25 per cent for re-direct, questions from the Bench, et cetera,
22 should be added to that estimated time. That overall number would then
23 come to something like 2.040 hours, which corresponds to nearly three
24 years only -- for the Prosecution case only.
25 MR. HARMON: I can assure you, Your Honour, we don't intend to
1 lead evidence for three years in our case, and we will find ways to
2 reduce three years so all the parties are satisfied.
3 JUDGE MOLOTO: Okay.
4 Can I then suggest or make a contribution to what you are going
5 to do to cut down to make sure that we are not here for three years. If
6 we try to ask the Prosecution to stay within nine months to complete its
7 case, which would give you 540 hours for the Prosecution phase; in other
8 words, something like 220 hours for direct, 220 for cross, 100 for
9 re-examination, something like that roughly. How would that work out?
10 MR. HARMON: I would have to study those figures, Your Honour, in
11 light of our witness list and other matters, but I will certainly study
12 that --
13 JUDGE MOLOTO: Please --
14 MR. HARMON: -- very carefully.
15 JUDGE MOLOTO: -- do and the Prosecution is invited and once
16 studied that to file a witness list in accordance with those indications
17 and how they've studied them. Would you like to tie yourself to a
18 time-line on the witness list? I'm being kind. I don't -- I'm not
19 imposing the time-line. I want you to tie yourself.
20 MR. HARMON: May I get back to you on that, Your Honour. I just
21 don't know the schedules of my team at this point. I know I'm going to
22 be away a period of time in the next two weeks and I need to find out
23 what other peoples' schedules are. If I can get back to you on that.
24 JUDGE MOLOTO: How soon can you get back?
25 MR. HARMON: Just think --
1 JUDGE MOLOTO: [Microphone not activated]
2 Let me throw a two-week timeline to you which you can put into
3 equation as you talk to your staff.
4 MR. HARMON: Let me just look at the calendar I have in front of
5 me, Your Honour.
6 JUDGE MOLOTO: Please.
7 MR. CASTLE: Your Honour, if it's possible.
8 JUDGE MOLOTO: Yes, Mr. Castle.
9 MR. CASTLE: I don't want to be a pessimist, but if one's to look
10 at the indictment it is enormous. We have I think it's 32 endorsed
11 experts in the case, almost 10.000 exhibits that include almost 100.000
12 pages of material. The constituent cases that make up parts of this each
13 took in excess of two years to try, the constituent parts, the Sarajevo
14 each part. On top of that we're dealing with the political structure and
15 the military structure of three different armies and the
16 inter-relationships of those three armies. We're going to try to the
17 best of our ability to cut down on a lot of the crime base evidence,
18 but -- and I have never had a trial here before so guessing the estimate
19 is a pure guess. But I don't know how this trial's going to be shorter,
20 the people that were the subordinates, the alleged subordinates, of my
21 client's trials. I don't know how that's possible when the linkage
22 evidence is going to be more difficult to prove. I just want to let the
23 Court know that I fear that despite everyone's best efforts that the
24 trial may last longer than we anticipate it.
25 JUDGE MOLOTO: That's true. We do factor that in, Mr. Castle.
1 All what we are doing here is our best guesstimate. It's not even an
2 estimate, it's just a guesstimate, and it's subject to change as we go
4 MR. CASTLE: The only reason I bring that up and it's perhaps our
5 hope is that 73 bis doesn't indicate that the Court only gets one
6 opportunity to reduce the size of the Prosecution's case.
7 JUDGE MOLOTO: Okay.
8 MR. CASTLE: I think it can be used a number of times in the case
9 as need be. And so with that in mind we have no other comment.
10 JUDGE MOLOTO: Your comment is noted. Thank you, Mr. Castle.
12 MR. HARMON: Your Honour, if I could inform the Court by the 20th
13 of May, if that would be acceptable.
14 JUDGE MOLOTO: Thank you.
15 MR. HARMON: That is essentially two weeks.
16 JUDGE MOLOTO: Thank you. 20th of May. Thank you. We'll note
18 MR. HARMON: Thank you.
19 [Trial Chamber and legal officer confer]
20 JUDGE MOLOTO: Mr. Harmon, I suppose you referred to hundreds of
21 motions outstanding. Do I understand by that to mean -- to refer to the
22 92 bis, ter, quater and -- motions and the witnesses individually?
23 MR. HARMON: Your Honour, yes. I referred to approximately 44,
24 92 bis decisions that have to be taken in respect of individual witnesses
25 where we have attached to the 92 bis motion a schedule identifying the
1 parts of the written evidence for which we seek admission; and the
2 exhibits in respect of 92 ter, there's approximately 80 -- one motion but
3 a schedule with 85 individual decisions that have to be taken; 92 quater
4 there are approximately ten separate motions before the Court.
5 JUDGE MOLOTO: Thank you very much. We understand that. I was
6 just getting scared that there may be hundreds of motions that the Court
7 is not aware of. Now I understand what you are talking about.
8 MR. CASTLE: [Microphone not activated]
9 JUDGE MOLOTO: Thank you, Mr. Castle.
10 As for the date of trial, can we start by saying that the parties
11 should perhaps try to be ready to start the trial in earnest shortly
12 after the summer recess. The Chamber considers holding a
13 Pre-Trial Conference and opening statements just before the summer recess
14 if it's possible. And depending on what the parties -- how the parties
15 feel about this, the Chamber would like to propose Monday, the 21st of
16 July, 2008, for Pre-Trial Conference; and Thursday, the 25th of July,
17 2008, for opening statements.
18 There might -- and while we are on that, Mr. Castle, if I may
19 just find out at what stage of the trial would the Defence like to make
20 an opening statement, if they do wish to make a statement at all?
21 MR. CASTLE: We've been talking about that and we have not yet
22 made a decision. In the event that we did wish to avail ourselves of an
23 opening statement, we do not anticipate it to be an extremely long one.
24 I guess that's a loaded term, but I'm talking not -- I mean, half a day
25 maximum. But we have not made a decision fully on that yet.
1 JUDGE MOLOTO: Okay. Is there a possibility that you can -- that
2 you might make a decision in favour of making an opening statement before
3 the opening of the Prosecution trial -- case?
4 MR. CASTLE: There is a possibility of that, Your Honour.
5 JUDGE MOLOTO: There is a possibility.
6 MR. CASTLE: I know that's not normally the practice of Defence
7 here, but sometimes I'm less Orthodox.
8 JUDGE MOLOTO: You -- it's up to you.
9 Okay. The reason I ask this question is because just in case the
10 opening statement of the Prosecution takes the entire 25th of July, then
11 we should be able to provide the 26th for you to make your opening
12 statement. Otherwise, if you want to make it at the opening of the
13 Defence case, that's your choice.
14 MR. CASTLE: That's alright, Your Honour.
15 JUDGE MOLOTO: Do you suggest that we make provision for the 26th
16 of July?
17 MR. CASTLE: I would suggest so.
18 JUDGE MOLOTO: We will do that. Thank you so much.
19 But again, I understand from the parties that you agree to this
20 date so that a Scheduling Order can be issued.
21 MR. HARMON: That's agreeable, Your Honour.
22 JUDGE MOLOTO: Is that agreeable?
23 MR. CASTLE: That's agreeable.
24 JUDGE MOLOTO: Now, the start of the actual trial, that's what we
25 need to talk about and then bear in mind the defendant's -- the accused's
1 motion. The Chamber at this stage is not able to give clear guidance for
2 the simple reason that there are still the Delic commitments. And the
3 anticipation, however, is that within a month or so after the recess we
4 should be able to start full blast with the trial; that is, end of
5 August/beginning of September. It's a rough indication. We will
6 re-visit that in due course as we see the progress in the other case.
7 Is that reasonable and agreeable to the parties.
8 Mr. Harmon.
9 MR. HARMON: May I just clarify something, Your Honour, just so
10 it's clear in my own mind. The recess I think will end in --
11 JUDGE MOLOTO: Third week of August.
12 MR. HARMON: -- August?
13 JUDGE MOLOTO: August -- I'll tell you --
14 MR. HARMON: 20 -- it may be the --
15 JUDGE MOLOTO: I'll tell you.
16 MR. HARMON: Thank you. It may be August 15th, Your Honour, is
17 when the recess ends.
18 JUDGE MOLOTO: Is that it?
19 MR. HARMON: That's what I'm told, it ends on the 15th. So.
20 JUDGE MOLOTO: Yes, yes. You are right, it ends on the 15th.
21 MR. HARMON: Okay. I'm clear now reading Your Honour's --
22 JUDGE MOLOTO: Right.
23 MR. HARMON: -- comments.
24 JUDGE MOLOTO: So we say we could start trial end of
25 August/beginning of September somewhere in there.
1 MR. HARMON: Okay. That's clear. Thank you.
2 JUDGE MOLOTO: That's a rough estimate.
3 That said, are you looking at the visitations of the accused to
4 the -- do you need a private session for this?
5 MR. CASTLE: No we don't.
6 JUDGE MOLOTO: Okay.
7 MR. HARMON: I'm sorry. Your Honour, may I just return to the
8 date of the opening statement because looking at the calendar, it's been
9 brought to my attention that the 26th is a Saturday.
10 JUDGE MOLOTO: The 25th --
11 MR. HARMON: The 25th is a Friday. In the court schedule the
12 Prosecution opening statement on the 25th of July and the Defence for the
13 26th, but the 26th is a Saturday. So ...
14 [Trial Chamber and legal officer confer]
15 JUDGE MOLOTO: Thank you for bringing that to our attention,
16 Mr. Harmon.
17 Could we shift then the opening statements by the Prosecution to
18 Thursday, the 24th, and then any possible Defence opening on Friday, the
19 25th? Is that okay?
20 MR. HARMON: That's fine, Your Honour.
21 JUDGE MOLOTO: Thank you so much.
22 MR. CASTLE: That's fine.
23 JUDGE MOLOTO: I must also make a note.
24 Thank you so much.
25 That said, Mr. Castle, do you find any need to change the dates
1 or to do anything to that motion?
2 MR. CASTLE: Yes. Our request for alterations in the terms of
3 provisional release asked for three separate periods of time, the third
4 of which took place in July. We would withdraw the request for that
5 third period at this point in time. If something changes and we're not
6 going to be in court, we'll re-raise it by a separate motion. We also
7 would anticipate filing a motion allowing our client to return to his
8 country by the summer break, but we'll do that by separate motion also.
9 JUDGE MOLOTO: Thank you very much, Mr. Castle.
10 Are there any issues that the parties would like to raise? That
11 brings me to the send of the formal agenda by the Chamber. Is there
12 anything that the parties would like to raise.
13 Mr. Harmon?
14 MR. HARMON: Nothing. Thank you, Your Honour.
15 JUDGE MOLOTO: Mr. Castle.
16 MR. CASTLE: Yes, Your Honour, just briefly.
17 The -- we're on the verge of trial and one of the considerations
18 always is how prepared the sides are for trial. And I need to make a
19 record on what our situation is. Now, I'm not asking for an extension of
20 the trial date, but I think that we need to put on the record what our
21 situation is. Our client is facing a very, very large indictment, three
22 different years of war, three different locations, three different
23 armies, it's part of the Slobodan Milosevic case, it's portions of the
24 Galic case, the Krstic case, the Martic case, all rolled into one. It's
25 I believe the second-largest indictment in terms of scope that's been at
1 this Tribunal. We're the only Defence team because Mr. Milosevic didn't
2 choose -- he chose to represent himself, we're the only Defence team that
3 has been found in that position. We have been saddled with the exact
4 same budget that Defence counsel have in multiple Defence cases have and
5 can share multiple versions of that same budget and add them on to each
6 other to defend their clients. We're faced against a Prosecution team
7 that will have a number of lawyers on their team, and they have on-staff
8 military experts that are on staff and have been working on this case or
9 portions of this case over a decade. That's what we're faced with.
10 In addition, myself and co-counsel for the last year have not
11 been compensated for our work. We have been able to compensate our staff
12 but not the lawyers for any of our work. So we're in that position. So
13 to say that we're ready for this trial would not be accurate, we're not,
14 but each day that the trial doesn't happen the disparity and the gap and
15 the inequality of arms gets -- becomes greater because the Prosecution
16 continues to work, which I would expect them to do; and I don't fault
17 them for doing, but we can't. And so we wish to go to trial starting in
18 July because it's our best moment to because if we wait any longer the
19 gap will be larger and larger and larger. And I bring this to this
20 Court's attention. I have to the prior Court and we have made numerous
21 requests to expand it, but there is an element of unfairness that will
22 pervade this case based upon the fact that we're not going to be on equal
23 footing. And that is how we will start the case. And anything this
24 Court can do to encourage the registry to provide additional resources I
25 think will not only have the benefit of providing the defendant with a
1 fair trial, but frankly will also make the trial go smoother and lead to
2 more agreements and more resolutions.
3 I bring that to this Court for its consideration.
4 JUDGE MOLOTO: Let me hone in on your request to the Court to
5 encourage the registry to provide additional resources. Do I understand
6 you to say that -- you're talking of monetary resources?
7 MR. CASTLE: Yes.
8 JUDGE MOLOTO: I may be wrong, but from the little experience I
9 have on that issue it doesn't seem as if we, the Court, is able to do
10 anything unless and until something's placed before the Court on that
11 matter. Usually that's a matter that Defence counsel negotiates with
12 OLAD and what have you, and if Defence counsel feels dug-in by OLAD then
13 you put your case before us and we look at it -- I don't even know the
14 rating of the case. I haven't heard anything about this case, whether
15 it's level A, B, or C, or -- what do they call them? 1, 2, or 3, I can't
16 even remember now. It looks like there are three levels. I don't even
17 know what level of complexity this case enjoys with OLAD. And I would
18 imagine what you have said to us in terms of the enormity of the case,
19 the complexity of the case, the scope of the case, those are all points
20 in motivation for reconsideration by OLAD for that I suggest to you, you
21 put before the Court. And I can suggest to you if and when you are still
22 not satisfied, only then you can come before us. But there is no way
23 without a -- at least a written motion that the Court would intervene.
24 MR. CASTLE: Yes, Your Honour, and I wasn't actually asking for
25 any specific relief at this time. I just wanted the Court to know before
1 we began this venture that there may be times when we may need delays or
2 more time. And I did not want our acceptance of the trial date to be
3 viewed as an affirmation that we are as prepared as we should be --
4 JUDGE MOLOTO: -- no, I understand. Thank you very much.
5 Is that all that you wanted to raise?
6 MR. CASTLE: That is all, Your Honour.
7 JUDGE MOLOTO: Do you have any comment to make on that,
8 Mr. Harmon?
9 MR. HARMON: I do not, Your Honour.
10 JUDGE MOLOTO: And you still have nothing to raise from the
11 Prosecution's side?
12 MR. HARMON: Nothing, Your Honour, thank you.
13 JUDGE MOLOTO: In that event, that brings us to the conclusion of
14 today's Status Conference. The court stands adjourned until further
15 notice. Court adjourned.
16 --- Whereupon the Status Conference
17 adjourned at 3.30 p.m.