Tribunal Criminal Tribunal for the Former Yugoslavia

Page 231

 1                           Tuesday, 2 September 2008

 2                           [Open session]

 3                           [Status Conference]

 4                           [The accused not present]

 5                           --- Upon commencing at 2.45 p.m.

 6             JUDGE MOLOTO:  Good afternoon to everybody in and around the

 7     courtroom.

 8             Mr. Court Officer, could you please call the case.

 9             THE REGISTRAR:  Good afternoon, Your Honour.  This is case

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

11             JUDGE MOLOTO:  Thank you very much.

12             May we have the appearances for the day, starting with the

13     Prosecution.

14             MR. HARMON:  Good afternoon, Your Honour.  Mark Harmon,

15     Barney Thomas, Dan Saxon, appearing for the Prosecution, along with

16     Carmela Javier, the case manager.

17             JUDGE MOLOTO:  Thank you very much, Mr. Harmon.

18             For the Defence.

19             MR. LUKIC: [Interpretation] Good afternoon, Your Honours.  Good

20     afternoon to everyone in the courtroom.  Novak Lukic and

21     Mr. Gregor Guy-Smith appearing for Mr. Perisic.  Together in the

22     courtroom we have our young assistants who will be helping us during the

23     trial, Mr. Chad Mair and Ms. Yasmine Chaib.

24             JUDGE MOLOTO:  Thank you very much.

25             I hope everybody has got a copy of the agenda for the day.  Thank

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 1     you so much.

 2             Now, the last status conference was held on the 6th of May, 2008.

 3     As Rule 65 bis requires one to be held every 120 days, so the Chamber has

 4     scheduled this status conference for today.

 5             The accused has given his written consent to the status

 6     conference being held in his absence, pursuant to Rule 65 bis(C)(2), and

 7     I think I saw that filing yesterday so there's no need to confirm that.

 8             On the 27th of August, the Chamber issued an order recalling the

 9     accused from provisional release.  He is to return to the

10     UN Detention Unit on the 18th of September, 2008, in preparation for

11     trial.

12             Now, just a question to the Defence counsel.  Seeing as the

13     accused is absent from this status conference, are you aware of any issue

14     regarding the mental or physical condition of the accused which should be

15     brought to the attention of the Chamber?

16             MR. LUKIC: [Interpretation] No, Your Honours, there are no

17     problems regarding the accused's health, mental or physical condition.  I

18     saw Mr. Perisic yesterday, I talked to him.  He is ready.  We have also

19     been in contact with the Registry regarding the standard procedure for

20     his transport, including people from the National Council for Cooperation

21     with the Tribunal, so that we will comply fully with the Court's order.

22             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.  The Court is

23     pleased to hear that the accused is in good health and ready to start the

24     case on the scheduled day.

25             I don't think any of the parties would like -- have anything to

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 1     say on this point.  Mr. Harmon, nothing from the Prosecution?

 2             MR. HARMON:  Nothing from the Prosecution, Your Honour.  Thank

 3     you.

 4             JUDGE MOLOTO:  Thank you very much.

 5             Can we look at the current schedule of the case.  Just to remind

 6     the parties that the pre-trial conference in this case is scheduled for

 7     the 24th of September, 2008.  At that time, the Chamber will render its

 8     decision on the Prosecution length of the case and number of witnesses,

 9     pursuant to Rule 73 bis(C).

10             The opening statements are scheduled to begin on the 1st of

11     October.  The Defence was required to inform the Chamber by the 15th of

12     August, 2008, if it would make its opening statement on the 2nd of

13     October, and whether the accused would make a statement under

14     Rule 84 bis.  I've been informed by the senior legal officer that the

15     Defence has elected to make its statement at the conclusion of the

16     Prosecution's presentation of evidence and that the accused may be making

17     a statement of one half hour in length following the Prosecution's

18     opening statement.

19             Can you confirm that information, Mr. Lukic?

20             MR. LUKIC: [Interpretation] We can confirm that, Your Honours.

21             JUDGE MOLOTO:  Thank you very much.

22             Mr. Lukic, I just say this now while the accused is not here.  I

23     hope if he does exercise his right to make a statement pursuant to

24     Rule 84 bis, that he will stick to the substance of the case.  The

25     Chamber is disinclined to allow the Court to be made a political

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 1     platform, so if he can stick to that.

 2             Mr. Harmon, given this information, the Chamber would like to

 3     know whether your opening statement and the statement of the accused

 4     could take place on the 1st of October, or are you going to need the

 5     whole of the 1st of October for your opening statement alone?

 6             MR. HARMON:  I'm not in a position to fully advise the Court at

 7     this point.  I'll advise the senior legal officer shortly.  I'm working

 8     on the opening statement.  I will be in a better position, I would say,

 9     in about a week or a week and a half.

10             JUDGE MOLOTO:  Okay.  Thank you very much, Mr. Harmon.

11             Mr. Lukic, I'm informed by the senior legal officer that you wish

12     to raise a matter with regard to the number of sittings per week.  Is

13     there any concern you have about sitting five days in a week?

14             MR. LUKIC: [Interpretation] We know that the basic schedule of

15     this Trial Chamber is to sit five days a week.  However, given the

16     situation that we found ourselves in in the last two months, and given

17     that there was a radical change in the Defence team, perhaps initially it

18     would be quite beneficial for us if we were to sit four days a week.

19     There is a substantial problem, and all of us in the courtroom are aware

20     of that.  This is a single-accused case, and the Prosecution and all

21     other parties will be fully active continuously in the courtroom.  This

22     is why it would be important for us to have one day less of sitting in

23     the courtroom, either a Friday or a Monday, so that we could consolidate

24     our work.

25             In addition to that, in our previous contacts with the

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 1     Prosecution and with Mr. Harmon, we agreed that both sides are to

 2     disclose to each other the order of witnesses three weeks in advance.

 3     I think this will be of great use to both of us, and both sides took this

 4     commitment.  We discussed, in principle, the first witnesses that

 5     Mr. Harmon intends to call, but we still do not have fully accurate

 6     information from him regarding that.  And depending on that, we will have

 7     to see how we're going to prepare for the initial witnesses.  But in the

 8     beginning, it would be quite beneficial for us if we were to sit four

 9     days a week so that we can fully consolidate our preparations and work.

10             JUDGE MOLOTO:  Just for my own edification, you're saying it's a

11     big problem to have a single-accused trial.  Would you rather you had had

12     more accused than one?  How are more accused beneficial?

13             MR. LUKIC: [Interpretation] I have previous experience in the

14     other cases where I worked where there are multiple accused.  In those

15     cases, the time allocation is different in relation to each witness

16     because there are several Defence teams examining a witness.  So each

17     Defence team has more time to prepare.  In a case like this one, where

18     it's just one accused, both members of Defence team will be actively

19     involved in the courtroom and sharing the work, and since we will be

20     sitting in the courtroom, both of us, the pressure will be greater and it

21     cannot be compared to cases where there are four or six accused in the

22     same case.  So this is what concerns us.

23             I wish to inform you that this Defence team will have two counsel

24     who will both be active in the courtroom during the trial.  Mr. Harmon

25     informed me that he will have a significantly greater team of lawyers

Page 236

 1     taking part in the trial, and this will make our position harder right

 2     from the outset.

 3             Given the fact that Mr. Guy-Smith has joined the case just one

 4     month ago and that I have been on the case for a year and a half, but in

 5     a different role, where I focused on different tasks and not on the

 6     strategy of the case, so given that situation, this puts us at a

 7     disadvantage.  This creates significant problems for us.  I would kindly

 8     ask Mr. Gregor Smith to add something to what I've just said, by your

 9     leave.

10             JUDGE MOLOTO:  Indeed he may.  Mr. Guy-Smith.

11             MR. GUY-SMITH:  Good afternoon, Your Honour.

12             JUDGE MOLOTO:  Good afternoon, Mr. Guy-Smith.

13             MR. GUY-SMITH:  All cases here, obviously, are not only complex

14     but require a great deal of work, and the distinction between a

15     multiple-defendant case and a single-defendant case manifests itself in a

16     variety of different ways.  I don't think any of us here believe that

17     it's easier to try a -- necessarily to try a multiple-accused case here

18     than a single-accused case simply by definition.  However, we are

19     presented with a slightly unique problem.

20             As the Chamber is aware, this case is a relatively large case.

21     It is considered to be one of the larger cases in the Tribunal, in the

22     history of the Tribunal, and there is a single defendant.  Up until quite

23     recently, as Mr. Lukic indicated, he was not at the helm.  There was

24     another individual at the helm who, as I understand it, was primarily

25     responsible for much of the strategy, and Mr. Lukic's efforts were broad

Page 237

 1     but necessarily discrete.  Since Mr. Castle has moved into a different

 2     position, and I believe that's the next matter on the agenda, we have

 3     found ourselves in a relatively unique position.  I wouldn't say that

 4     we're scrambling, but I would say that the 24-hour day has extended

 5     relatively quickly into a longer day than expected for purposes of

 6     preparation for trial because of the shortness of time between my

 7     introduction to the case and the date presently set for trial.  As a

 8     result of that, it was considered that perhaps a prudent request to the

 9     Bench would be that -- and once again this is conditioned upon the

10     witnesses called by Mr. Harmon at the outset -- that we sit for a day

11     less for purposes of ensuring that we are in a position to adequately and

12     properly prepare the presentation of the Defence for Mr. Perisic.

13             There had been some consideration given to asking today for an

14     ever-so-brief adjournment so that we could ensure ourselves that when we

15     came into court that we were fully girded; put it in those terms.  This

16     was of particular interest to us as a result of some of the arguments

17     that recently occurred in an appeal in which the issue of preparedness of

18     counsel had come up and whether or not it was a failure of counsel to not

19     alert the Chamber early on to the potential difficulties that may exist

20     in another large case that has been in the Tribunal.  We thought that

21     perhaps a way of resolving both issues, that being the issue of ensuring

22     we are fully prepared for the Defence and capable of meeting the evidence

23     that is presented by the Prosecution, as well as ensuring that the start

24     date of the trial is not, shall we say, aborted, that this may be an

25     equitable solution.  Obviously, we remain in your hands, and there are a

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 1     number of considerations with regard to this, and I suppose in large

 2     measure one of them is who Mr. Harmon intends on calling early on, what

 3     the nature of their evidence will be, and what the extent of their

 4     evidence will be, and by that I mean in terms just of the sheer volume of

 5     exhibits, which is something I think we'll probably be dealing with later

 6     today.

 7             But I should inform you that this has caused us a great deal of

 8     concern, and we, at one point, were thinking about potentially filing a

 9     motion with regard to a potential adjournment.  And we have felt, based

10     upon the work that we have been able to do, and the fine offices of some

11     of the younger people who have been working with us, that that would not

12     be necessary.  However, to say that the labour has been anything more

13     than full tilt would be disingenuous at this time.  We've been working

14     very, very hard, and there is a concern as to whether or not we'll be

15     able to do the work in an appropriate fashion.

16             I hope that's of some assistance to you, in terms of

17     understanding what our position is.  We're not throwing our hands up in

18     despair in any sense whatsoever, but rather trying to come up with a

19     prudent approach to dealing with what is a very real problem for us.

20             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.  I understand

21     what you say.

22             Another point that you raised, Mr. Lukic, was -- in relation to

23     this point, was an arrangement that you have entered into with the

24     Prosecution to be provided, about three weeks in advance, with lists of

25     witnesses -- was it lists of witnesses or names of witnesses?  What else

Page 239

 1     did you want to be provided with?

 2             MR. LUKIC: [Interpretation] Yes, that's precisely what we wanted

 3     to have, the order of witnesses as the Prosecution intends to call them.

 4     It would mean a lot to us, especially in this stage, and we have taken

 5     upon ourselves to do the same when it comes to the Defence case.

 6             JUDGE MOLOTO:  Thank you very much.

 7             Mr. Harmon, any comment on that last point raised by the Defence

 8     that affects the Prosecution?

 9             MR. HARMON:  No, Your Honour.  We have engaged in discussions

10     prior to, obviously, the status conference.  We are in agreement that

11     disclosure obligations that the Prosecution will impose upon itself will

12     be reciprocated by the Defence.  We fully accept that.  We work in the

13     spirit of cooperation.

14             In respect of Your Honour's inquiry about the four days a week,

15     we remain at the disposal of the Court.  Whatever the Court wishes, we

16     will comply with.

17             One observation of Mr. Lukic, that there are a greater number of

18     lawyers on the Prosecution team, I just want to point out that the

19     lawyers on the Prosecution team work on more than one case, myself

20     included, and we have a relatively small case.  So we have duties and

21     obligations in other cases that the Court should be aware of.

22             JUDGE MOLOTO:  Welcome to the club.

23             MR. HARMON:  I understand, Your Honour.  Thank you.

24             JUDGE MOLOTO:  May I suggest to the parties that this reciprocal

25     duty of disclosure be remembered when we deal with the guidelines.  Maybe

Page 240

 1     that's one of the issues that you might want to suggest that we put into

 2     the guidelines.  Okay?  Thank you very much.

 3             I'm not quite sure whether I am in a position at this stage to

 4     say "yes" or "no" to the request of four days.  I'm obviously sympathetic

 5     to your call, but I think a decision will be given at a later stage.

 6     Okay?  Thank you very much.

 7             The next item deals with the issue of withdrawal of counsel.

 8     Since the time of the last status conference, this issue arose that

 9     Mr. Castle sought to withdraw as lead counsel for the accused.  The

10     Chamber approved that request on certain conditions being met.  As a

11     result of that withdrawal, Mr. Lukic, you have now assumed the role of

12     lead counsel for the accused, and Mr. Guy-Smith has joined the Defence

13     team as co-counsel, and Mr. Castle is continuing as co-counsel for a

14     period of time to smooth out the transition.

15             Just by way of elucidation, how much longer is he going to be

16     with the team?

17             MR. LUKIC: [Interpretation] Your Honours, we didn't want to be

18     quite specific about it precisely because of the situation which we find

19     ourselves in.  We continuously are in contact with Mr. Castle, and he's

20     prepared to come here and join us, if necessary, although all of us here

21     know the reasons why he asked to withdraw from the case, and this is what

22     we have to bear in mind as we cooperate with him at a distance.  There

23     are obviously means of communication allowing us to do that.

24             However, as to your question, I cannot be fully specific right

25     now.  We wish to continue our communication with him, at least for a

Page 241

 1     month into the trial, to have active communication with him, and then

 2     later on we will see to what extent we will be able to rely on our own

 3     efforts.

 4             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.  But you do

 5     confirm, however, that I stated the situation correctly with regard to

 6     his withdrawal and replacement by Mr. Guy-Smith.  Okay.

 7             Are there any remaining issues with respect to the withdrawal of

 8     Mr. Castle which the Defence would like to bring to the attention of the

 9     Chamber?

10             MR. LUKIC: [Interpretation] Specifically in relation to

11     Mr. Castle, we have nothing more, for the time being, to bring to the

12     attention of the Chamber, but we will be talking to OLAD about the

13     possibility of enlisting the help of new members for our team.  So far,

14     we shall not be encumbering ourselves with that, but we do wish to bring

15     our team up to strength for further courtroom appearances.  For the time

16     being, however, that is not a matter of great and pressing concern to us.

17             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.  I guess that

18     wraps up that item.  I don't think -- I don't see any indication from the

19     Prosecution to have anything to say.  Nothing?  Okay.

20             The next item deals with the composition of the Trial Chamber.

21     Before proceeding on to the status of pending motions and the length of

22     the Prosecution case, I just wish to inform the parties about the

23     composition of the Trial Chamber.

24             Currently, the Pre-Trial Bench consists of Judge Orie,

25     Judge Van Den Wyngaert, and myself as the Pre-Trial Judge.  I'm sure the

Page 242

 1     parties will have noticed since the last status conference that the

 2     President issued an order on the 29th of May, 2008, assigning ad litem

 3     Judges to the pre-trial proceedings.  Judge Orie, however, as

 4     Presiding Judge of the Trial Chamber, did not appoint these Judges to the

 5     Pre-Trial Bench, as the Security Council has not agreed to the extension

 6     of their terms beyond September 2009, at which time this trial will still

 7     be in progress.  To date, I understand that the matter of extending

 8     ad litem Judges' terms has yet to be resolved.  Therefore, I cannot tell

 9     you what the composition of the Trial Chamber will be at the time the

10     trial commences.

11             I can inform you, however, that I am expected to be the

12     Presiding Judge of this case at the trial.  Judges Orie, Van Den Wyngaert

13     and I have continued to decide as many of the pending motions as we feel

14     comfortable doing, but there will be some matters which must necessarily

15     await the composition of the Trial Bench.  I'm not sure to what extent

16     the delay in the appointment of the remainder of the Bench will impact on

17     the start of the trial.  It may very well be that we may not be able to

18     start on the 1st of October because of this point.  It may be that we

19     might hear sooner and we may be able to start, but I just wanted to put

20     that to the parties to understand that this is a matter that is beyond

21     anyone in this courtroom.

22             Do the parties have any question or comment with respect to these

23     matters?  Mr. Prosecution.

24             MR. HARMON:  No, Your Honour.  Thank you.

25             JUDGE MOLOTO:  Nothing?

Page 243

 1             MR. LUKIC:  No, Your Honour.

 2             JUDGE MOLOTO:  Thank you very much.  Let's then move on to the

 3     next item, which is the question of disclosure and translations.

 4             As we approach the start of trial, let me just ask whether the

 5     parties are aware of any disclosure or translation issues which need to

 6     be resolved.  Let me start with you, Mr. Harmon, and let me say, well in

 7     advance, that just in case you're going to be talking about issues that

 8     might require private session or ex parte session, do indicate.

 9             MR. HARMON:  Your Honour, I was informed by Mr. Lukic before the

10     proceedings commenced that on the issue of disclosure, there are some

11     statements, approximately eight in number, for which translations have

12     not been provided to the Defence.  Now, I was also informed that this was

13     a subject of discussion between Ms. Javier and the case manager for

14     General Perisic.  To reassure Your Honours -- Your Honour, the

15     translations that are in the statements that are at issue have been

16     submitted for translation a considerable period ago, and we are awaiting

17     receipt of those translations.  As soon as we get them, we will disclose

18     them to the Defence.  That's the only issue that I'm aware of in respect

19     of translations and disclosure.

20             I should add -- I'm sorry, Your Honour.  I should add there are

21     some documents that are footnotes in expert reports for which there are

22     not translations, and we have submitted those as well to the section that

23     does and deals with translations, and again the same applies.  We are

24     waiting for those footnoted documents to be returned to us so we can

25     provide them to the Defence.

Page 244

 1             JUDGE MOLOTO:  Without -- I was anticipating you talking about

 2     something else, maybe -- let me go ahead and just say it without

 3     revealing much.  Do I understand that disclosures are relative to the

 4     recent disclosures made to the Prosecution in response to some RFAs that

 5     have been made to the Defence?

 6             MR. HARMON:  Your Honour, perhaps it would be appropriate to go

 7     into private session and I can be very explicit.

 8             THE COURT:  May the Chamber please move into private session.

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Page 247

 1             THE REGISTRAR:  Your Honours, we are back in open session.

 2             JUDGE MOLOTO:  Thank you so much.

 3             Yes, Mr. Lukic.

 4             MR. LUKIC: [Interpretation] What Mr. Harmon has just announced --

 5     I have to be precise, after all, Your Honour.  There are a certain number

 6     of witness statements, material, generally speaking, their appearance in

 7     court or statements they made to the OTP, their affidavits, and these are

 8     very important for this trial.

 9             In a previous case, the Defence worked hard with the OTP, and we

10     analysed 66(A)(2), disclosure, Rule 66(A)(2) disclosure, I'm talking

11     about the witness lists now, and we focussed on something, we came up

12     with a name for it, a list of priority witnesses.  These are witnesses

13     that we, based on how the OTP represents them in their submissions, see

14     as priority witnesses.  It is only in relation to these priority

15     witnesses that there is a problem.  I will now be furnishing the names of

16     those witnesses without the ERN numbers, without stating them, for the

17     sake of the record.  I will be submitting this in writing.  The OTP are

18     in possession of this already, and as they have informed us, a

19     translation is in progress.  I do have to notify the Trial Chamber

20     exactly what this is about, though.

21             The interview of witness Dusan Kovacevic, we have it in the

22     English, but not in the B/C/S.

23             JUDGE MOLOTO:  Let me just interrupt you at that point.  Are you

24     absolutely sure that you are not going to be talking about protected

25     witnesses in that list?

Page 248

 1             MR. LUKIC: [Interpretation] I might get this wrong.  I think we

 2     better go into private session.

 3             JUDGE MOLOTO:  May the Chamber please revert to private session.

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 9                           [Open session]

10             THE REGISTRAR:  Your Honour, we are back in open session.

11             JUDGE MOLOTO:  Thank you very much.

12             May we then move on to the next item, which is the status of

13     pending motions.

14             Let me just provide the parties with the status of the Chamber's

15     decisions on several pending motions.

16             First, I would like to mention that the three decisions which the

17     Chamber has rendered over the past few days, the first one, last Friday

18     the Chamber issued its decision on the Prosecution's fifth motion for

19     amendment of the exhibit list of the 1st of July, 2008.  Secondly,

20     yesterday the Chamber issued its decision on the Prosecution's motion for

21     judicial notice of the Srebrenica intercepts of the 17th of July, 2008.

22     And, lastly, this morning the Chamber issued its decision on the

23     Prosecution motion for judicial notice of adjudicated facts on Zagreb of

24     the 27th of June, 2008.

25             Now, pending motions.  The Prosecution 92 quater motions of the

Page 254

 1     1st of May, 2007, 3rd September, 2007, and 2nd April, 2007, as well as

 2     Prosecution motion -- 92 bis motion, rather, of the 1st of May, 2007,

 3     that the Chamber will await the composition of the Trial Bench before

 4     issuing a decision on this motion, because of virtual admission of

 5     evidence, and we would like to make sure that the Trial Chamber and not

 6     the Pre-Trial Chamber decides on that issue.

 7             Is there any comment by the parties on that?  Mr. Harmon.

 8             MR. HARMON:  May I have just one minute, Your Honour.

 9             JUDGE MOLOTO:  Yes, all right.

10             MR. HARMON:  Nothing, Your Honour.  Thank you.

11             JUDGE MOLOTO:  Mr. Lukic?

12             MR. LUKIC:  [No interpretation]

13             JUDGE MOLOTO:  Thank you very much.

14             Then there is the Prosecution motion for leave to add a witness

15     pursuant to Rules 70 and 65 ter of the 31st of March, 2008.  The Chamber

16     will not issue a decision until the Defence has had an opportunity to

17     reply.  At the time of the last status conference, the Defence was

18     awaiting a revised witness summary from the Prosecution.  The

19     Prosecution, in turn, was awaiting clearance from the Rule 70 provider.

20     Since then, the Defence informed the senior legal officer that it would

21     only require three days to respond once the summary was provided.

22             Are you able to give us an update, Mr. Harmon?

23             MR. HARMON:  I am not able to report that I have advanced further

24     than my last efforts.  I am still in discussions with the Rule 70

25     provider.  It is proving to be quite a complicated issue.  We are making

Page 255

 1     progress, I'm told, and as soon as I have a decision, I will let

 2     Your Honour know.

 3             JUDGE MOLOTO:  Is there any way in which -- and I ask this -- if

 4     my memory serves me well, I think this procedure has been adopted in one

 5     of the cases that I sat in.  Is there any way that the Chamber can help?

 6     Are you having difficulty with the provider or is it just that the course

 7     that the matter takes has to be that long, but there are no hitches,

 8     there are no problems you're having with the provider?

 9             MR. HARMON:  We're working -- the provider and I are working in a

10     spirit of --

11             JUDGE MOLOTO:  Collegiality.

12             MR. HARMON:  Yes, yes.  Good faith efforts to resolve the matter.

13     There are just difficulties that are more complex than I have ever seen

14     in a -- in this case in 14 years, so we're still working on it,

15     Your Honour.

16             JUDGE MOLOTO:  Thank you very much, Mr. Harmon.

17             Do you have anything to say, Mr. Lukic, on this point?

18             MR. LUKIC: [Interpretation] No, Your Honour.  We stand by

19     previous submissions.

20             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.

21             Then there was the Prosecution motion for judicial notice of the

22     Srebrenica facts of the 10th of July, 2008.  The Chamber will be issuing

23     a decision shortly, and also for the Prosecution motion for judicial

24     notice of the Sarajevo facts of the 10th of July, 2008, the Chamber will

25     also be issuing its decision fairly shortly.

Page 256

 1             Now, Mr. Harmon, you've just been telling us of difficult and

 2     complex matters.  I have got to raise a very difficult and complex matter

 3     with you now.

 4             The Prosecution's motion for judicial notice of ICTY convictions

 5     of the 10th of July, 2008, the Chamber notes that the Defence elected not

 6     to respond to the motion.  However, the Chamber wishes to hear from the

 7     Prosecution, with better clarity at this time, what it is seeking by its

 8     motion and how it envisions using such evidence at trial.  In other

 9     words, is it simply the fact of the convictions which you seek to have

10     judicially noticed or the underlying facts which justify the convictions?

11     Mr. Harmon.

12             MR. HARMON:  Your Honour, in our motion for ICTY convictions, we

13     seek to establish that the persons identified in the motion, themselves,

14     have been convicted of either ordering or aiding and abetting crimes that

15     are described in the indictment.  In the indictment itself, Your Honour,

16     for example, in paragraph 58 of the indictment, it alleges that the

17     crimes described in the indictment were, in part, planned, instigated,

18     ordered, committed, and aided by members of the 30th Personnel Centre of

19     the VJ, including but not limited to -- and then we list people who have

20     been convicted before this institution; General Krstic, Blagojevic,

21     Jokic, Obrenovic, et cetera.  Now, those people have been -- there have

22     been judicial findings in this institution that they either aided and

23     abetted in the crimes committed in Srebrenica or they committed the

24     crimes in Srebrenica.  And we intend -- what we are seeking is:  One,

25     judicial notice of the fact that they have been convicted by this

Page 257

 1     institution, and in the domestic jurisdiction, for example, if I had to

 2     prove a prior conviction, I would introduce the judgement of the

 3     conviction.

 4             JUDGE MOLOTO:  Sure, but you didn't ask for judicial notice.

 5             MR. HARMON:  I wouldn't, of course.  I wouldn't.  I would be --

 6     it's a standard practice and it's well understood.

 7             I would seek, with those convictions, to prove certain elements

 8     of this case, that those convictions prove, for example, elements

 9     described in paragraph 58; that General Krstic, for example, aided and

10     abetted in the killings of Muslim civilians from -- and prisoners from

11     Srebrenica.  So we seek to introduce the fact that they have been

12     convicted, that those findings have been made by this institution, and it

13     is consistent with what we allege in various paragraphs, including in

14     paragraph 56 --

15             JUDGE MOLOTO:  To what extent -- to what extent does taking

16     judicial notice of the conviction add on to the underlying facts from

17     those cases that you have put before this Court and asked this Court to

18     take judicial notice of?

19             MR. HARMON:  Because there have been -- there's been a finding by

20     this Court that those people aided and abetted in these crimes.

21             JUDGE MOLOTO:  Sure.

22             MR. HARMON:  There's been a finding in one or more of those cases

23     that those people committed those crimes.

24             JUDGE MOLOTO:  Now, what I'm saying -- what I think I'm saying,

25     Mr. Harmon, is:  It is one thing to seek as a fact that "A" aided and

Page 258

 1     abetted.  It is another to say "A" was convicted.  If I look at the

 2     disposition of those cases, I'm going to find perhaps something to the

 3     effect that "A" has been convicted on count a for having done A, B, C, D,

 4     full stop.  But actual evidence underlying -- the facts underlying that

 5     conviction are facts that are in the body of the case, in the transcript

 6     of the case, in the record of the case, not necessarily in the

 7     disposition.

 8             MR. HARMON:  We want to establish that he was convicted of the

 9     crime, and the conviction and the mode of liability for that conviction

10     was that he either aided and abetted in those crimes, that he was --

11             JUDGE MOLOTO:  Are you saying that you can't give that evidence

12     other than by requesting a judicial notice -- the taking of judicial

13     notice of the conviction, as such?

14             MR. HARMON:  I'm saying that the most efficient way to present

15     that evidence to the Court, particularly in a situation where we are

16     limited and restricted in our time, is to present the judgement of

17     conviction by this Chamber for the particular offences.  My alternative,

18     Your Honour, is to go into the facts, and I don't particularly care to go

19     into those facts ab initio, that that would take a considerable period of

20     time.

21             JUDGE MOLOTO:  I'm not suggesting that you do that.  The

22     Prosecution has put before the Chamber a list of facts which it said were

23     adjudicated facts and it asked the Court to take judicial notice of.  I

24     would have expected that among those facts would have been facts that

25     underpin the very convictions that you're talking about --

Page 259

 1             MR. HARMON:  Your Honour, we -- sorry.

 2             JUDGE MOLOTO:  -- and that therefore if the current Bench were to

 3     look at those facts as listed there, it would say, "If I add up all these

 4     facts, I have no choice but to come to the irresistible conclusion that

 5     this person must have been convicted of the crime."

 6             MR. HARMON:  We intend to prove a linkage between these people

 7     who have been convicted, so we have to separate the conviction, first of

 8     all, that they have been convicted in this institution, and the nature of

 9     those convictions are described in our appendix that's attached to the

10     motion.  As to the facts that underlie those convictions, we intend to

11     prove, in part, those facts through some of the adjudicated facts that

12     are before Your Honours.

13             And, second of all, we have testimony of expert witnesses who --

14     I'm thinking of Rick Butler, who will testify.  Mr. Butler will testify

15     about the Drina Corps and its connections to the crimes at hand.  We have

16     intercepts, intercepted communications, for example, between

17     Colonel Beara, who is listed as one of the persons in paragraph 58, and

18     General Krstic, who is listed in paragraph 58, that we will tender.  That

19     particular intercept that comes to mind is an intercept of a conversation

20     with General Krstic, where General -- where Colonel Beara is pleading for

21     some additional manpower because he has 3.500 parcels to distribute,

22     which is code for killing 3.500 Muslims.  Now, that's part of our

23     evidence that we're going to be leading in this case.

24             So the Court, in terms of underlying facts, will be getting data

25     from a variety of sources; through experts, through intercepts and

Page 260

 1     through the testimony of witnesses who have been identified on our

 2     witness list, for example, Colonel Obrenovic is listed as a witness,

 3     Momir Nikolic is listed as a witness, so the underlying facts will be

 4     established through evidence that we have attempted to streamline in our

 5     total consideration of how to present this.  But the fact of the

 6     conviction is also relevant, because there's been a judicial finding as

 7     to how those -- the nature of their involvement in those crimes,

 8     precisely what we allege in paragraph 58 of the indictment.

 9             JUDGE MOLOTO:  I just want to ask you one -- two more questions.

10             You are asking that these convictions be judicially taken notice

11     of pursuant to 94(A)?

12             MR. HARMON:  Correct.

13             JUDGE MOLOTO:  Isn't this a circumvention of the need not to ask

14     for judicial notice of facts that have a legal characterization?

15             MR. HARMON:  The fact of a conviction, Your Honour, is

16     universally recognised in most domestic courts.  I don't see how it

17     should be exceptional in this case.

18             JUDGE MOLOTO:  It's a legal finding.

19             MR. HARMON:  It's a legal finding.  It's a judgement of this

20     institution that is beyond dispute.  There is no doubt, from the finding

21     itself, that it has occurred, and that's what we're -- whether it's a

22     legal characterization, of course, it's the result of a legal proceeding.

23             JUDGE MOLOTO:  You see, I'll tell you my understanding of

24     Rule 94(A) is that it is something that one doesn't even bring by way of

25     a motion.  You couldn't bring a motion before this Court to say this

Page 261

 1     Chamber must take judicial notice of the fact that the sun rises in the

 2     east and sets in the west.  This Court, proprio motu, would take judicial

 3     notice of that.  It's a notorious truth, it's a notorious fact.  Is it a

 4     notorious fact that this Court rendered those judgements?  It is

 5     notoriously known among those people who deal with this institution or

 6     who read about this institution, but if I went into the street and met

 7     "A," who comes from Timbuktu, he might not even know what I'm talking

 8     about.  But if I ask the same man, "Do you know where the sun rises," he

 9     will tell me.

10             MR. HARMON:  Put in those terms, I have no argument with you,

11     Your Honour.  But in terms of being a fact that is beyond dispute,

12     indisputable, it is an indisputable fact that there has been a conviction

13     here.

14             JUDGE MOLOTO:  I'm with you.

15             MR. HARMON:  As to the legal characterization of these

16     convictions, what comes to mind is the Karemera decision, with a decision

17     finding genocide occurred in Rwanda.  Genocide is, of course, a legal

18     characterization.  And in the Karemera decision, under Rule 94(A), there

19     was a decision by the Appeals Chamber saying that genocide is a notorious

20     fact and would be judicially noticeable under 94(A).

21             JUDGE MOLOTO:  Let me understand.  Genocide is a notorious fact

22     or the fact that genocide was committed in Rwanda is a notorious fact?

23     What was --

24             MR. HARMON:  The latter, Your Honour.  Now, that was a

25     characterization of what occurred, a legal characterization of what

Page 262

 1     occurred.

 2             JUDGE MOLOTO:  I guess you're preempting my last question, which

 3     was going to be precedent, and I guess that's your precedent.

 4             MR. HARMON:  That's one precedent, Your Honour.  I think we -- I

 5     mean, I have to review our precedents that we cited in our motion.

 6             JUDGE MOLOTO:  Please, do review them.

 7             MR. HARMON:  Yes.

 8             JUDGE MOLOTO:  You don't have to review them for now.  What I

 9     mean is you can review them and --

10             MR. HARMON:  Okay.  In terms of the notoriety of the judicial

11     convictions, of course, I think one of the tests -- one of the tests for

12     judicial notice is it is -- it's beyond dispute.

13             JUDGE MOLOTO:  I have no quarrel with that point.

14             MR. HARMON:  Okay.  Well, then I have no further submissions,

15     Your Honour.

16             JUDGE MOLOTO:  Thank you very much.

17             MR. HARMON:  Thank you.

18             JUDGE MOLOTO:  Thank you.

19             We've been talking for quite a long time, Mr. Lukic.  Do you want

20     to engage in this?

21             MR. GUY-SMITH:  Initially, if I understood the Chamber's

22     question, the question was whether or not the Prosecution sought to have

23     the fact of the conviction judicially noticed or have the underlying

24     facts that form the basis of that conviction judicially noticed, if I'm

25     not mistaken.

Page 263

 1             JUDGE MOLOTO:  That was my question, indeed.

 2             MR. GUY-SMITH:  And if I'm correct in that regard, I think that

 3     in a certain sense Mr. Harmon has not answered your question.

 4             JUDGE MOLOTO:  Not directly, not actually.

 5             MR. GUY-SMITH:  With regard to the issue of the fact of the

 6     conviction itself, that there is a conviction, nothing more, nothing

 7     less, the manner in which you've posed the question leaves me some pause

 8     for thought, because I've always thought of when there has been a

 9     conviction that we all know there's a conviction, it's indisputable.  So

10     be it.  And if that is the extent to which the Prosecution wishes to have

11     that information considered by the Chamber, the mechanism whereby that is

12     done, whether it be by judicial notice or not -- now, I have to think

13     about that for a moment, because I think you've raised an issue that I'm

14     not clear how to answer -- the mechanism whereby it's done may not be so

15     terribly important, but the fact of the conviction itself may be

16     sufficient.  But I don't think that's what they want.

17             I think, in fact, what he's really driving for is something more,

18     which is that he really wishes for the Chamber to take judicial notice of

19     the fact of the conviction and the underlying facts or conceptual or

20     legal basis upon which that conviction rests, and therein, I think, lies

21     a bit of a difficulty, because I don't believe that that is information,

22     as you have pointed out, that would be on par with the sun rising and the

23     sun setting.  As a matter of fact, I think that that kind of information

24     would not obtain under the Rule.

25             Mr. Harmon said something which I thought was actually somewhat

Page 264

 1     important with regard to what his -- as I understand his intention to be

 2     in this regard, which is:  There is a conviction of an individual for

 3     criminal behaviour which we wish to attribute to Mr. Perisic under some

 4     linkage theory, and there is independent evidence which they either have

 5     or don't have for those purposes.  But the fact of the conviction itself

 6     does not establish a linkage, and I don't think that Mr. Harmon would

 7     suggest that it does, and the assertions that are made in the indictment,

 8     specifically the assertions that are made in paragraph 58, which he has

 9     been alluding to, and --

10             JUDGE MOLOTO:  And 57.

11             MR. GUY-SMITH:  Correct, 57 and 58, contain not only -- not only

12     the names of specifically-identified individuals who have, in fact,

13     suffered conviction of this Tribunal, but also contain the conceptual

14     basis upon which he believes or the Prosecution believes there is

15     linkage, which is something that he's going to have to prove.  I think,

16     in large measure, as the case will bear out, this case is going to be a

17     great deal about that particular issue, is there or is there not linkage.

18     And if there is linkage, what is that linkage.  But now I do the same

19     thing that he did a moment ago, which is that I digress and that I choose

20     not to do.

21             I think that with regard to the question of the underlying facts

22     which establish the basis of that conviction, and the underlying legal

23     theories or the conceptual basis upon which those convictions rest, is

24     not appropriately the subject matter under Rule 94.

25             I'll stop at that.  I'll stop there.

Page 265

 1             JUDGE MOLOTO:  Thank you very much.  [French spoken on English

 2     channel] [In English] Are you hearing what I'm hearing?

 3             Mr. Guy-Smith, are you hearing what I was hearing?

 4             MR. GUY-SMITH:  I am now.

 5             JUDGE MOLOTO:  I wasn't hearing English.

 6             MR. GUY-SMITH:  I was hearing French.

 7             JUDGE MOLOTO:  What do you now hear?

 8             MR. GUY-SMITH:  I hear English.

 9             JUDGE MOLOTO:  Thank you.

10             I've heard the submissions of the parties, and I'm not sure

11     whether I have opened a can of worms here between now and the

12     decision-rendering in this motion, but I see you're ready to stand up,

13     Mr. Harmon.

14             MR. HARMON:  I want to be clear for Your Honour's sake and for

15     the Defence's sake, in terms of if there's any ambiguity of whether I've

16     answered the question, the question Your Honour posed.  We want the Court

17     to judicially notice the fact of the conviction.

18             JUDGE MOLOTO:  Full stop.

19             MR. HARMON:  Full stop.  The issue of the facts, in other words,

20     reopening the Krstic case for purposes of establishing, you know,

21     underlying facts, one, we have the underlying facts are the subject of an

22     agreement.  The links to the perpetrators relative to those underlying

23     facts have never been agreed upon by the parties.  There was, in fact,

24     submissions in terms of adjudicated facts relating to the perpetrators of

25     those crimes, including Beara, Popovic, Pandurevic, et cetera.  Those

Page 266

 1     have been -- the recognition of the conviction, however, is separate.

 2     And I want to be clear.  We want the judicial notice of the convictions,

 3     because there are convictions, and they are described in great detail in

 4     the judgements, in their capacity as either aiders and abettors or as

 5     committers.  That's what we're seeking with this motion.

 6             I hope that --

 7             JUDGE MOLOTO:  I hear you.

 8             MR. HARMON:  -- clarifies the ambiguity that has been suggested

 9     in my previous answer.

10             JUDGE MOLOTO:  I'm going to ask you the same question, put

11     slightly differently.  You don't need to be very long on it.  Be as brief

12     as we can.

13             Am I right to say that in this Tribunal, in support of various

14     submissions, counsel and Judges quote from judgements of this case as

15     authority for whatever position they take, but they don't ask for

16     judicial notice to be taken of that authority before using it?  We just

17     refer to it.  We say, "A, B, C, D, see Hadzihasanovic case, appeal case

18     of so-and-so," and that's it.  Is it any different to say, at the

19     appropriate time, "Trial Chamber, you know what, we've told you about the

20     facts underlying the Krstic case.  We just want to tell you this man was

21     actually convicted.  Here is the judgement."  That's my question.

22             MR. HARMON:  Your Honour, the actual judgement, of course --

23     well, let me backtrack, Your Honour.  I am not quite sure I understood

24     Your Honour's question, so that's what I'm struggling with.

25             JUDGE MOLOTO:  My question is:  Why, at the appropriate time --

Page 267

 1             THE INTERPRETER:  Microphone for the Presiding Judge, please.

 2             JUDGE MOLOTO:  I will start all over again.

 3             My question is:  Why, at the appropriate time, the Prosecution

 4     can't say, "Your Honour, we have finished our case, we have given you the

 5     facts in this case, we've referred to the Krstic case and the facts in

 6     that case, and we have said they must be taken judicially notice of, they

 7     have been, we just want to say to you in that very case of Krstic, Krstic

 8     was actually convicted, here is the judgement," and say that without a

 9     prior request of a judicial notice of the conviction?

10             MR. HARMON:  Your Honour, it was our view that the appropriate

11     time to raise it was in a pre-trial motion, and that's why we raised it

12     in a pre-trial motion, so the parties would be fully apprised of the

13     Court's decision on such a request and we could move on accordingly.

14             JUDGE MOLOTO:  Thank you very much, Mr. Harmon.

15             Can I suggest that we take a break at this stage and come back

16     maybe at 4.30.

17             Court adjourned.

18                           --- Recess taken at 4.03 p.m.

19                           --- On resuming at 4.28 p.m.

20             JUDGE MOLOTO:  Mr. Harmon, I understood what you said before we

21     took the break, but having said that, I just want to make it abundantly

22     clear to all of us, what is it we are agreeing on on this point.  And

23     forgive me if I am perhaps repetitious, but I'm trying to put the

24     questions to you in such a way that it can be quite clear what we can

25     expect in the future.

Page 268

 1             The first question is:  Would taking judicial notice of the

 2     convictions relieve the Prosecution of proving any facts underlying the

 3     decision which are not judicially noticed already under Rule 94(B), and

 4     if so, which would be those facts?

 5             MR. HARMON:  The answer is "no," Your Honour.  We still have to

 6     prove the linkages to -- first of all, to the perpetrators, Obrenovic,

 7     Krstic, et cetera, who have been convicted here, and it has always been

 8     our intention to do so through evidence, in various forms, that we will

 9     be submitting to the Trial Chamber.  I've outlined those in my earlier

10     submissions.

11             JUDGE MOLOTO:  Would that then relieve the Prosecution of the

12     duty to argue what the legal qualifications is of those facts or similar

13     facts?

14             MR. HARMON:  Legal qualifications being that these people aided

15     and abetted or committed the crimes?

16             JUDGE MOLOTO:  Committing the crime, I would imagine, is probably

17     a factual issue, but I'm talking of aiding and abetting.  That's a legal

18     concept, that's a legal conclusion.

19             MR. HARMON:  Well, we -- we believe, Your Honour, that the Court

20     has reached a decision that these persons were, one, convicted and they

21     aided and abetted and they committed the crimes, as found by the

22     Trial Chamber -- as found by Trial Chambers, so we believe that that is

23     what -- and that is what we've been asking the Court to find.  Would it

24     relieve us of the responsibility?  In part, yes.  Could we argue the

25     assistance and the commission through the other facts?  We can also do

Page 269

 1     that.  The Court will have evidence of that as well.

 2             JUDGE MOLOTO:  Based on just that answer that you have given, are

 3     you able to say what facts you will be relieved of or what arguments you

 4     will be relieved of and what -- because you're saying, "In part, yes."

 5             MR. HARMON:  Well, Your Honour, with the -- we would be relieved

 6     of having to prove what is described, for example, in the paragraph 58,

 7     that General Krstic aided in the commission of the crimes described in

 8     the indictment, Srebrenica.  We would be relieved of that because there

 9     has been a judicial finding of that fact.  We would be relieved of the

10     fact that if -- again, I need to go to the annex, Your Honour, the

11     indictment.  We would be relieved of the fact that General Galic was

12     convicted of ordering certain crimes, as described.

13             JUDGE MOLOTO:  My question then is:  What is the purpose of

14     separately taking judicial notice of the individual facts found proved in

15     those cases?

16             MR. HARMON:  We are asking only that there be judicial notice of

17     the convictions.  The facts in those cases, Your Honour, the facts in the

18     cases will be proved by us through other evidence.

19             JUDGE MOLOTO:  I suppose I can't take the matter any further.

20             MR. HARMON:  Well, apparently I'm not responding to your answer

21     in a way that satisfies Your Honour.  The --

22             JUDGE MOLOTO:  There must be something I'm missing somewhere, but

23     as I say, I can't take the matter any further.  Thank you so much,

24     Mr. Harmon.

25             MR. HARMON:  Thank you.

Page 270

 1             JUDGE MOLOTO:  Any comments from the Defence?

 2             MR. GUY-SMITH:  Not at this time.

 3             JUDGE MOLOTO:  Thank you very much.

 4             Let's leave that motion on that note and move on to the

 5     Prosecution motion on compliance.  May the Chamber please move into

 6     private session.

 7                           [Private session]

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18   (redacted)

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Page 271

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16   (redacted)

17                           [Open session]

18             THE REGISTRAR:  We are in open session, Your Honours.

19             JUDGE MOLOTO:  Thank you very much.  Are we going to raise the

20     curtain?

21                           [Trial Chamber and Registrar confer]

22             JUDGE MOLOTO:  The next item relates to future motions.  Now, I

23     understand that the Prosecution may soon be filing a sixth motion for

24     amendment of its exhibit list.  I just wanted to say that in doing so,

25     Mr. Harmon, if the Prosecution could keep in mind the Defence's informal

Page 272

 1     request that they be provided with exhibits in CD-ROM form so as to

 2     expedite the ability to respond to this new motion in a timely fashion.

 3             MR. HARMON:  We already do provide the Defence in CD-ROM with

 4     those exhibits, Your Honour.  It's our practice.

 5             JUDGE MOLOTO:  Thank you.  Thank you so much.

 6             I'm also informed that the Prosecution may be filing supplemental

 7     expert reports concerning two proposed expert witnesses, a certain

 8     Mr. Patrick Treanor, and General Constantin Degeratu.  If these are

 9     witnesses you intend to call early in your case, I urge you to file the

10     reports as soon as possible so as to permit the Defence sufficient time

11     to prepare.  If you're not able to do so as soon as possible, may you

12     consider the possibility of calling them much later in the trial, when

13     you will be able to give the Defence sufficient notice.

14             Are you -- do you have anything to say, Mr. Harmon?

15             MR. HARMON:  I can say, Your Honour, we'll be filing

16     Mr. Treanor's report very shortly, his supplemental report that

17     incorporates documents that we received from Serbia, and Mr. Degeratu's

18     report will be filed at a later time, and we will obviously give the

19     Defence sufficient time between the filing of that report and the calling

20     of General Degeratu to testify.

21             JUDGE MOLOTO:  Thank you very much.

22             Any comments from the Defence?

23             MR. LUKIC: [Interpretation] For the time being, we reserve our

24     right to declare our position as soon as we've seen the documents that we

25     just received today.  I don't know to what extent that will affect our

Page 273

 1     position, but we'll do our best to comply with all the Trial Chamber's

 2     rulings in terms of expediency.

 3             JUDGE MOLOTO:  Thank you very much.

 4             At this point, Mr. Harmon, the Chamber would like to ask the

 5     Prosecution, when everything else has been disclosed and all documents

 6     have been received, to file a consolidated Rule 65 ter exhibit list,

 7     including these outstanding documents and exhibits.  Is that asking for

 8     too much?

 9             MR. HARMON:  I just have one question, Your Honour.  By the term

10     "consolidated exhibit list," precisely --

11             JUDGE MOLOTO:  What I mean is comprehensive.

12             MR. HARMON:  Yes, we'll do that.  And just to amplify on the

13     supplemental report so the record's clear, an expert by the name of

14     Reynaud Theunens is also considering the new documents that have been

15     submitted by Serbia, and he will be filing a supplemental report as well,

16     and the same applies to Mr. Theunens in terms of the date of the

17     disclosure and the timing of his evidence.

18             JUDGE MOLOTO:  Thank you very much.

19             Are the parties aware of any other motions to be filed prior to

20     trial or any other outstanding motions that the Chamber might have

21     missed?

22             MR. HARMON:  There is, Your Honour, one 92 quater motion that we

23     will be filing this week.  It deals with a witness who is no longer

24     available or we're unable to locate the particular witness.

25             In respect of a -- actually, if we could go into -- if we could

Page 274

 1     go into private session, Your Honour, I'd appreciate it.

 2             JUDGE MOLOTO:  May the Chamber please move into private session.

 3                           [Private session]

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22                           [Open session]

23             THE REGISTRAR:  We are in open session, Your Honours.

24             JUDGE MOLOTO:  Thank you very much.

25             The next item relates to previously-agreed facts on Srebrenica.

Page 278

 1             Yes, Mr. Guy-Smith.

 2             MR. GUY-SMITH:  If I might, I'm not sure that we fully exhausted

 3     or even addressed some of the other issues that may be of moment to the

 4     Chamber with regard to potential motions that may be brought pre-trial,

 5     and I just --

 6             JUDGE MOLOTO:  I am very sorry to be running ahead of you,

 7     Mr. Guy-Smith.

 8             MR. GUY-SMITH:  I mean, I'm very sorry to interrupt, but I

 9     thought it would be appropriate just to quickly mention two areas where

10     we are contemplating bringing motions.  One is a motion for the

11     confidential materials that may exist in a case, and I'm sure Mr. Harmon

12     is intimately familiar with this, the Karadzic matter.  We have not filed

13     a motion in that regard, and to the extent that any of those confidential

14     materials may impact on the early presentation of evidence, we should

15     alert the Court to that.

16             The second --

17             JUDGE MOLOTO:  In the Karadzic matter?

18             MR. GUY-SMITH:  Yes.

19             The second area, and I say this in somewhat of an ill-defined

20     fashion and I do apologise, which is:  There may be further motions

21     brought, and I am presently terming them in the form of in limine motions

22     with regard to certain experts that we have previously given notice to

23     that we wish to cross-examine.  Prior counsel, as I understand it, had an

24     agreement with Mr. Harmon with regard to a fair number of experts, which

25     were agreed and there's no objections whatsoever.  There are a series of

Page 279

 1     people who are going to be tendered as experts.  Notice has been given

 2     for purposes of cross-examination, but there may be some underlying

 3     issues with regard to the issue of them testifying as experts at all that

 4     may be addressed by way of motion, that I'm at this point putting in

 5     terms of in limine.  This is one of the areas where we're still moving to

 6     catch up.

 7             JUDGE MOLOTO:  Okay.  How soon do you think you'll catch up?

 8             MR. GUY-SMITH:  I want to say as quickly as possible.  I would

 9     hope within the next ten days.

10             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith, much

11     appreciated.

12             Does that exhaust the question of any other motions to be filed

13     before trial that we may have forgotten?  Thank you very much,

14     Mr. Harmon.  I see you nodding on the side of the Defence.  Thank you so

15     much.

16             Now let's move to previously-agreed facts on Srebrenica, and I

17     see the curtain has just been drawn.  And by way of confirmation, we are

18     in open session, aren't we?

19             THE REGISTRAR:  We are indeed, Your Honours.

20             JUDGE MOLOTO:  Thank you very much.

21             It has been brought to my attention that the parties are

22     negotiating a matter which concerns -- maybe we should stay in private

23     session.  I'm sorry about that, Mr. Court Usher, Court Officer.

24                           [Private session]

25   (redacted)

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Page 288

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 6                           [Open session]

 7             THE REGISTRAR:  We are in open session, Your Honours.

 8             JUDGE MOLOTO:  Thank you very much.

 9             I just said, while we were still in private session, that the

10     next item relates to the guidelines for admission of evidence and conduct

11     of counsel, and also, I guess, their proposed elimination of the need for

12     filing Rule 92 ter motions.

13             Let me just kick off by saying the parties may have noticed that

14     the Trial Chamber in which I sat, both in Delic and in Martic, had

15     guidelines for admission of evidence and conduct of counsel.  I expect

16     that guidelines very similar to those will form the basis for this trial,

17     supplemented by lessons learned over the course of the Delic and Martic

18     trials, and these will provide to the parties, hopefully -- I beg your

19     pardon.  We will provide these to the parties hopefully by the time the

20     trial begins.

21             One addition to these guidelines will be the management agreed

22     between the parties to eliminate the need for filing Rule 92 ter motions.

23     My understanding of this arrangement, conveyed to me by the senior legal

24     officer, is that the Prosecution has identified which witnesses it

25     intends to call under Rule 92 ter in its Rule 65 ter witness list, and

Page 289

 1     that the proposed number of this case reflects extensive use of the Rule.

 2     Rather than filing a motion for each witness, the Prosecution will

 3     provide the Defence with all materials for each witness three weeks in

 4     advance of the testimony of the witness, and the Defence will then raise

 5     any objection prior to the witness being heard or the Rule 92 statement

 6     being accepted by the Chamber.  The Chamber expects that the parties will

 7     narrow any differences, and where the Defence does indeed object, the

 8     Chamber will hear from the parties briefly on the record before issuing

 9     an oral ruling.

10             Does this capture the proposed arrangement between the parties?

11     I see you raise -- you stand up, Mr. Guy-Smith.

12             MR. GUY-SMITH:  I believe that it does.  My only -- my only

13     question is one which is more practical in nature, which is:  Assuming

14     for purposes of discussion there might be that occasional time when we

15     disagree with some aspect of the 92 ter, one hopes that will not occur,

16     but experientially I've seen it happen before, the parties will try to

17     work it out between themselves.  And in the event there is any disputed

18     issue, let me put it in this term, a disputed paragraph, for example, I

19     had the experience of then going through an e-mail discussion both with

20     the Prosecution as well as with somebody in Chambers so that the Chamber

21     was clear about those matters, that there was a dispute where we could

22     not reach an agreement.  I'm curious as to whether or not you wish for us

23     to take the same kind of procedure here or file a written objection for

24     purposes of a record or be more informal.  I'm happy to do it in whatever

25     way you feel appropriate.  There were some occasions when there was some

Page 290

 1     formality with regard to very specific issues that were of great import,

 2     but lots of the time it was dealt with in a more informal fashion.  I

 3     just don't know how you wish to deal with that, and I'm asking the

 4     question because I think it's one more -- it's just a practical question,

 5     really, a question in terms of the general idea.

 6             JUDGE MOLOTO:  Thank you.

 7                           [Trial Chamber and Legal Officer confer]

 8             JUDGE MOLOTO:  Thanks.  You'll recall, Mr. Guy-Smith, that the

 9     very last sentence was the Chamber expects that the parties will narrow

10     any differences, and where the Defence does indeed object, the Chamber

11     will hear from the parties briefly on the record before issuing an oral

12     ruling.  By that, the Court is indicating an inclination towards, one, an

13     informal handling of the situation when it does arise, if it should

14     arise.  I am particularly not inclined to communicate with parties

15     through e-mail.  It just denies the record that part that is in the

16     e-mail, which actually should be forming part of the record, so I would

17     rather go along with brief oral arguments.  It doesn't have to be on

18     paper.  And if it's something that the Trial Chamber can decide there and

19     then orally, the Chamber will do so.  If not, the Chamber will retire to

20     consider and come back with its decision.

21             MR. GUY-SMITH:  Excellent, and I thank you for your guidance in

22     that regard.  I would rather only try one case as opposed to three.  I'd

23     rather not try an e-mail case, but ...

24             JUDGE MOLOTO:  Indeed, I'm with you on that one.  Thank you very

25     much.

Page 291

 1             Mr. Harmon, have you commented on the correctness or otherwise of

 2     the arrangement as I've tried to summarize it in my understanding?

 3             MR. HARMON:  I think, Your Honour, that is correct, and I

 4     would -- obviously, we will refine the details --

 5             JUDGE MOLOTO:  Sure.

 6             MR. HARMON:  -- with discussions with Defence counsel.

 7             JUDGE MOLOTO:  Right.  And may I say, as we also refine those

 8     details, can we think of making a proposal to put the final result of the

 9     detail into the guidelines?

10             MR. HARMON:  Yes, Your Honour, that would be very clear.

11             JUDGE MOLOTO:  Thank you.

12             And may I just, in addition to what I've just said, to say the

13     parties are invited to submit, at this time or at the pre-trial

14     conference, or at any other time, any questions or proposals on how this

15     Chamber should operate at trial, in terms of case presentation,

16     especially as it relates to receipt of documentary material.  Again, it

17     could go into the guidelines.

18             Okay.  While we are at this stage, something that occurs to my

19     mind is the fact that there might be a need maybe to request the Registry

20     to organise a trial management meeting.  I'm not quite sure how many of

21     counsel here -- and who am I to talk?  I find you here, all of you, but I

22     am the green-horned one here, but how many of you are familiar with

23     e-court and how to deal with the uploading of exhibits and all those

24     things, documentary evidence?

25             I see the Court Officer wants to say something.

Page 292

 1                           [Trial Chamber and Registrar confer]

 2             JUDGE MOLOTO:  Thank you very much.  The Court Officer advises me

 3     that, in fact, the parties and the Registry are already in discussion

 4     about the matter.  Is it okay to say it is in good hands and leave it at

 5     that or is there anything that anybody would like to say?  Nothing.  I

 6     see both counsel are nodding their heads.  For the record, their nod is

 7     interpreted to mean, "No, we have nothing to say."

 8             Okay.  That then wraps up the question of guidelines.  Can we

 9     then move on to the Prosecution's length -- or the length of the

10     Prosecution's case?

11             MR. HARMON:  In respect of guidelines, Your Honour, I'd like to

12     raise one issue.

13             JUDGE MOLOTO:  Please, by all means.

14             MR. HARMON:  And it's a question that deals with the fundamental

15     approach on how we litigate cases in this institution and what the public

16     needs to know.

17             We have been under inexorable pressure to reduce the size of our

18     cases, and we have made -- obviously have done so through a series of

19     procedural motions and applications to have 92 bis evidence, 92 ter

20     evidence and the like.  The Court is fully aware of our efforts to reduce

21     the size of our case.

22             Now, the problem that is confronted by the public, when we call a

23     witness who, for example, is an expert witness and we're going to

24     introduce the expert's written report under Rule 94, but we're going to

25     utilise a procedure under 92 ter wherein a witness will submit his

Page 293

 1     written report as his written evidence and then, to use the most extreme

 2     example, I call an expert, I put the expert on the stand, he takes the

 3     oath, I submit his written reports, I say, "Mr. Expert Witness, is this

 4     your written statement?"  "It is."  I have no further questions.  Defence

 5     please cross-examine.  The Court will have the benefit of reading the

 6     reports.  The public, if they're so interested, can ask the Registrar to

 7     provide copies of those written reports for their own reading, but the

 8     public doesn't have a clue as to what this witness's written evidence is.

 9     Obviously, in order to best inform the public of what's happening in a

10     trial that is using these procedural devices that are non-oral, we need

11     to be able to summarize for the public what's happening -- what the

12     written evidence is.

13             What I would like the Court to consider is a proposal -- or when

14     we lead such evidence, 92 ter or 94/92 evidence, that the Prosecution,

15     and the Defence as well, be permitted to give a summary of what is

16     contained in the written evidence, and that would fully inform the

17     public, in summary form, of what that evidence is that's before the

18     Trial Chamber.

19             My second request for the Court's consideration:  Of course,

20     these summaries will not be long, but given the limited amount of time

21     that's available to the parties to present their case, my second request

22     is that those summaries not be deducted from the time the parties have to

23     present their particular cases.  Every minute is precious, Your Honour.

24             Those are my requests for the Court to consider, and I would

25     appreciate any guidance you can furnish us in that respect.

Page 294

 1             Thank you.

 2             JUDGE MOLOTO:  Let me start with your last point, Mr. Harmon.

 3             You know, I appreciate that every minute is precious.  I

 4     appreciate that every minute is precious to the party leading the

 5     witness, because you want to put in as much as you can into that time

 6     from that witness.  But it is also precious to the Trial Chamber.  It is

 7     precious to this institution.  The whole purpose of trying to limit

 8     parties in time is not actually to deny you time to present your case,

 9     but it is to complete the business of this institution as soon as

10     possible.  Not deducting it does not deduct it from the time that is used

11     by this institution to complete its business.  You --

12             MR. HARMON:  I understand.

13             JUDGE MOLOTO:  You understand?

14             MR. HARMON:  I fully understand, Your Honour.

15             JUDGE MOLOTO:  Good, you fully understand that.

16             So the whole concept of the expeditiousness of the trial, to the

17     extent that those minutes aren't used anyway, to that extent is

18     undermined, but you understood what I'm saying.

19             MR. HARMON:  I do, Your Honour.  I --

20             JUDGE MOLOTO:  Going to your first point, I have sympathy with

21     what you say.  I'm not sure -- and you said that those summaries would

22     not be long.  I'm not quite sure how not long a summary of a thousand

23     pages can be as compared, for instance, to a summary of 20 pages.  I

24     would expect that the former would be much longer -- might even be longer

25     than the 20 pages, and are we not running the risk here of undermining

Page 295

 1     the very purpose of 92 ter?

 2             MR. HARMON:  Your Honour, there's competing interests.

 3             JUDGE MOLOTO:  Indeed.

 4             MR. HARMON:  And I'm only addressing a solution for one of those

 5     competing interests; that is, the purpose of letting the public know what

 6     the witness's evidence is.  Obviously, that has to be balanced against

 7     other competing interests.

 8             In respect of the -- in respect of the statements and the

 9     summaries, Your Honour, I say they'll be short.  Obviously, that's a

10     challenge for each counsel, in preparing a summary, to do it fairly and

11     concisely.

12             JUDGE MOLOTO:  Without denying the public the information.

13             MR. HARMON:  That's correct.

14             JUDGE MOLOTO:  That's true, but you've been asked by me to assist

15     this Chamber to balance the interest that you are pursuing with the other

16     interests.  This is the job of counsel, to help the Judge decide, because

17     the Judge comes there with a tabula rasa.  So all I'm saying is I'm

18     raising this issue that I'm raising not because I'm unsympathetic to what

19     you're saying, but simply because what you raised touches on other

20     interests, and I'm saying:  How do you propose we balance these

21     interests?

22             MR. HARMON:  Well, Your Honour, as I said, it may be that we take

23     small steps in this regard.  It may be that we experiment with one or two

24     summaries, and as we evolve in the practice, there's lessons to be

25     learned and the Court can give us additional guidance in respect of that.

Page 296

 1     I think we won't know until we actually get to some of the summaries.

 2             JUDGE MOLOTO:  Fine.  If I may make a suggestion, in the light of

 3     what I suggested about the guidelines, that parties are invited to think

 4     of other issues that they think need to be put on the guidelines.  Do you

 5     think you can think about that, engage your colleagues on the opposite

 6     side on how you can make a proposal of that nature, that we put it into

 7     the guidelines.

 8             MR. HARMON:  Thank you.

 9             JUDGE MOLOTO:  Thank you very much.

10             Any contribution to this discussion from the Defence side?

11             MR. LUKIC: [No interpretation]

12             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.

13             MR. LUKIC: [Interpretation] Nothing for the time being,

14     Your Honour.

15             JUDGE MOLOTO:  Thank you very much.

16             Anything still on the guidelines?  We're done with the

17     guidelines, Mr. Harmon?

18             MR. HARMON:  There's nothing, Your Honour.

19             JUDGE MOLOTO:  Defence, nothing.

20             Well, the length of the Prosecution case.

21             On the 27th of June, 2008, the Chamber issued its ruling in

22     relation to a report on reduction of length of the Prosecution case.  In

23     doing so, the Prosecution was enjoined to continue identifying means of

24     reducing the length of its case.  I am aware of two meetings, on the 19th

25     of June and the 24th of July, 2008, in which the parties met informally

Page 297

 1     with the senior legal officer to discuss ways to reduce the length of the

 2     case, among other things.  From those meetings, I'm informed that the

 3     Prosecution continues to reduce its case from 480 hours of

 4     examination-in-chief of its witnesses to an amount no higher than 320

 5     hours.  Several of the motions pending before the Chamber reflect an

 6     effort to reduce the case, and the Chamber is aware of this.

 7             In this regard, the Chamber will very soon require that the

 8     Prosecution submit a revised witness list which shows the redactions, and

 9     of course, these redactions, I suppose, the Chamber has been expecting.

10             Mr. Harmon, any comment, any update?  You can rest assured the

11     Chamber is aware of the motions before court that have this effect.  You

12     don't have to talk about those.  Any other further measures?

13             MR. HARMON:  No, Your Honour.  We're still working on it.

14             JUDGE MOLOTO:  Still working on it?

15             MR. HARMON:  Yes.

16             JUDGE MOLOTO:  What are you working on?

17             MR. HARMON:  The reduction of this case to 320 hours.

18             JUDGE MOLOTO:  You're still thinking of other ways of doing it?

19             MR. HARMON:  Yes.

20             JUDGE MOLOTO:  You haven't come up with them.  Okay.  Thank you

21     very much.

22             I see again your body language, Mr. Lukic, says you have nothing

23     to say on this point.

24             MR. LUKIC: [Interpretation] This is a subject that only has to do

25     with the OTP.  Therefore, we can hardly have a position on this.

Page 298

 1             JUDGE MOLOTO:  Thank you very much.  Do remember your turn will

 2     come, and you better make sure you have a position on it.

 3             Okay.  The very final item that I would then like to raise, if we

 4     have nothing else to say on this point, is an item I would like to call

 5     "general," any issue that might have escaped the Chamber in drafting the

 6     agenda that any of the parties would like to raise, starting with the

 7     Prosecution.

 8             Mr. Harmon, anything that we have missed out?

 9             MR. HARMON:  Nothing, Your Honour.  Thank you.

10             JUDGE MOLOTO:  Mr. Lukic?

11             MR. LUKIC: [Interpretation] Nothing for the time being.  Thank

12     you.

13             JUDGE MOLOTO:  Thank you very much.

14             As I sit here, just out of the top of my head, Mr. Lukic, your

15     Rule 68 disclosures, you are happy with them?  That's Rule 68, Rule 66.

16             MR. LUKIC: [Interpretation] I must admit that over the more

17     recent period, I have been focusing on the 65 ter list and Rule 66(A)(2)

18     disclosure.  I also must admit that Mr. Perisic has been telling me about

19     his dissatisfaction to do with the Rule 68 disclosure, but I must go back

20     to him, talk to him, see what exactly is questionable, if anything.  I'll

21     be getting back to you.

22             For the time being, I can't provide the Chamber with a more

23     specific answer.

24             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.

25             Now, if anybody doesn't have anything else to raise under

Page 299

 1     "general," this brings us to the end of this status conference.

 2             Court adjourned.

 3                           ---Whereupon the Status Conference adjourned

 4                           at 5.35 p.m.