1 Monday, 3 May 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.00 a.m.
5 JUDGE MOLOTO: Good morning to everybody in and around the
7 Mr. Registrar, will you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning,
9 everyone in and around the courtroom. This is case number IT-04-81-T,
10 the Prosecutor versus Momcilo Perisic. Thank you.
11 JUDGE MOLOTO: Thank you so much.
12 Could we have the appearances for the day starting with the
13 Prosecution, please.
14 MR. SAXON: Good morning, Your Honours, Dan Saxon, Barney Thomas,
15 and Carmela Javier for the Prosecution.
16 JUDGE MOLOTO: Thank you very much.
17 And for the Defence.
18 MR. LUKIC: [Interpretation] Good morning, Your Honours.
19 Mr. Perisic is represented here today by Tina Drolec, Boris Zorko,
20 Gregor Guy-Smith, and Novak Lukic.
21 JUDGE MOLOTO: Thank you so much.
22 May the record show that the Chamber is sitting pursuant to Rule
23 15 bis in Judge David's absence.
24 Are we able to know where we are now? I guess I must ask Defence
25 to start because this was at your request.
1 MR. GUY-SMITH: Yes, Your Honour. With the Chamber's indulgence,
2 I will proceed.
3 JUDGE MOLOTO: The Chamber, in fact, is asking you to proceed,
4 except that Mr. Dan Saxon is on his feet, and let's hear what he's about
5 to say first.
6 MR. SAXON: Your Honour, when we proceed, may we proceed in
7 private session?
8 MR. GUY-SMITH: I don't believe there's any necessity to do that.
9 Initially we may come to a point where we need to do that. At that point
10 in time I will alert the Chamber.
11 JUDGE MOLOTO: I don't know what is going to be said, so I'm not
12 able to rule on your request.
13 MR. SAXON: Well, Your Honour, if we are able to proceed without
14 being able -- without identifying the nature of the materials we are
15 discussing, then that will be fine with the Prosecution.
16 JUDGE MOLOTO: We don't need to do. We already know the nature
17 of the material we are discussing.
18 MR. SAXON: Very well, Your Honour.
19 JUDGE MOLOTO: Thank you.
20 Mr. Guy-Smith.
21 MR. GUY-SMITH: Thank you, Your Honour.
22 As I believe the Chamber is well aware, early last week we
23 requested a conference because after the examination that had been done
24 of the materials that we're discussing, it became evident that there were
25 a number of structural and important obstacles and difficulties
1 surrounding these materials. I'm not sure whether or not the Chamber
2 wishes for initially me to give you an explanation similar to the
3 explanation that was given at what I would call the informal 65 ter
4 Conference with regard to the methodology that is presently being used up
5 to today's date for purposes of translating these materials into English.
6 And if the Chamber is of the need of that, I shall do that because it
7 calls into question the initial problems and obstacles that we've been
9 JUDGE MOLOTO: So that the full story is put on record, may
10 you -- you may proceed.
11 MR. GUY-SMITH: Very well.
12 As the Chamber's aware, a while ago material was delivered to the
13 Office of the Prosecutor which was deemed by them sufficiently important
14 and critical that from my understanding the Prosecution's office deviated
15 from the normal procedure and immediately supplied the information to the
16 Defence. This was a good thing, and I commend them for having done so.
17 The information that was supplied is information that is in the
18 Cyrillic language, it is handwritten, and it needed to be translated.
19 Apart from it needing to be translated, it also needed to be reviewed by
20 those members of our team who were in a position to read Cyrillic so that
21 they could at least, at a minimum, make some kind of cursory
22 determination of the importance of any particular part of that
23 information or the information in its entirety.
24 This event, that is, the event of the reception of this material,
25 both by the Prosecution as well as by the Defence, was totally outside of
1 the control of either parties. And that, I think, is important because
2 without any doubt both sides, from what I can tell thus far, have engaged
3 in due diligence in attempting to put this information into a format that
4 allows for the most expeditious way of understanding as well as dealing
5 with those materials.
6 With regard to the methodology that is being used in
7 consideration of some of the discussion that we had the last time that we
8 met, I think it's important for the Chamber to understand the following.
9 The Office of the Prosecutor has individuals who read these materials in
10 their Cyrillic, handwritten form, and transcribe them into Latinised
11 script. There is obviously an interpretive process that goes on with
12 that and how long it takes for them to do that job is something that we
13 have no information about. We do know that the Office of the Prosecutor
14 has, through Mr. Saxon, directed that those translations that are done
15 for any Prosecution team that requests translation with regard to these
16 materials are sent to us. And we thank him for that direction.
17 What that means is the following, Your Honour. These materials
18 are of Tribunal-wide concern, as I mentioned the last time we were
19 together. They --
20 JUDGE MOLOTO: Just a second, Mr. Guy-Smith.
21 You say, "we do know that the Office of the Prosecutor has,
22 through Mr. Saxon, directed that those translations that are done for any
23 Prosecution team that requests translation with regard to these materials
24 are sent to us."
25 I don't understand that sentence.
1 MR. GUY-SMITH: Let me say it again in a way that you do
2 understand since I apparently have spoken poorly. Let me try again.
3 These materials are of Tribunal-wide concern. They impact on
4 each of the cases that is presently in trial, I think, but for perhaps
5 one, and I may be being bold when I make that statement. As a result, it
6 is my understanding that individual Prosecution teams are reviewing those
7 materials, and having those excerpts translated they believe are the most
8 relevant for their particular proceedings at this particular time because
9 everybody is in a position where we're trying to get this done in the
10 most efficient and the most rapid fashion possible.
11 It is my understanding that Mr. Saxon has made a direction that
12 irrespective of which Prosecution team ask for translations, whether it
13 be in our case or it be in another case, the Stanisic case or the
14 Karadzic case or whatever other case it may be, that when those excerpts
15 are translated they are similarly to be sent to us. And we thank him for
16 that because obviously it begins to take entire body of information of
17 which various excerpts are being pulled and make it a complete document.
18 Obviously one of the problems here and one of the things that I
19 discussed previously is something I have also discussed with the
20 Prosecution, is that because of the importance of these materials it
21 would seem prudent that there is a uniform, consistent, objective
22 approach that is taken with regard to these documents so that they are
23 not being produced for the Prosecution, for the Defence, and ultimately
24 for you, the Trial Chamber, in a piecemeal fashion. This will take some
25 period of time, but we'll deal with the time issue in a moment.
1 Going back to the methodology, once individuals in the
2 Prosecution's office have transcribed the information, which as I said
3 before involves an interpretive process, the people at CLSS with those
4 Latinised transcripts then begin the process of translation. And they
5 translate those excerpts they've been given. When last we met the
6 thought was that what would occur would be the Prosecution would submit
7 those excerpts they felt are deemed to be relevant and important,
8 especially for the immediate witness that was coming up at the time,
9 Mr. Skribic and similarly, we would submit to CLSS those excerpts that we
10 determined and deemed to be relevant for those purposes. Unfortunately,
11 that did not occur. It's not Trbic, it's Skribic at line 9.
12 The reason that did not occur was that CLSS informed us that
13 under no uncertain terms they would not translate any excerpts that we
14 submitted to them and would only translate excerpts that were submitted
15 to them through the Office of the Prosecutor, which is indeed one of the
16 reasons why we requested the meeting of last week.
17 Once again I'm attributing no blame at all to anyone. There's a
18 problem here, a systemic problem, and it has created difficulties, I
19 think, for all the parties that are involved.
20 Now, the issue of whether or not the manner in which CLSS has
21 chosen to perform its function here may well raise issues with regard to
22 equality of arms under Article 21 of the Statute as well as the ICCPR and
23 the ICHR
24 that I raised at the last meeting we had. It's an issue that I raise
25 again now in passing because it is a consideration but not necessarily
1 something that we need to dwell on.
2 What we have understood from conversations with CLSS - and those
3 are conversations I've had personally with them - as well as the
4 gentleman who was with us at the last meeting whose last name just
5 escapes me for the moment - was --
6 MR. SAXON: The gentleman's name, I'm sorry to interrupt, was
7 Mr. Philip Burton.
8 THE REGISTRAR: Excuse me, one correction for the transcript.
9 It's Mr. Philip Hepburn. Thank you.
10 MR. GUY-SMITH: Hepburn, yes. I remembered Philip and I was
11 calling him Philip and -- obviously -- wanted to give him the right term,
12 his last name. He mentioned a couple of things to us when we explained
13 during the meeting what we were doing from the standpoint of the efforts
14 of translation, and he indicated that what we were doing, the manner in
15 which we were translating the information, although commendable was
16 absolutely inefficient and suffered a series of translation problems.
17 It's a form of translating which he called sight translation.
18 During our conversations, the issue obviously came up which
19 was --
20 JUDGE MOLOTO: I'm sorry, what is sight translation?
21 MR. GUY-SMITH: Apparently a sight translation is something to
22 the effect of what N ovak -- I'm sorry, Mr. Lukic and I have been doing
23 since last we met, which is we sit down in a room either by the computer
24 or with a hard copy, and Mr. Lukic will read to me a particular section
25 of the diary and he will, as he's reading it in B/C/S, Cyrillic, he will
1 then translate it to me. And while he's translating it to me -- I'm
2 sorry, I've moved away from the microphone. My apologies. While he's
3 translating it to me, he also will be interpreting what is being -- what
4 is being said on the written page, and we have somebody who's trying to
5 write it down in English at the same time. It's apparently -- it's what
6 we found to be the most efficient way of doing things, but we have been
7 told from the standpoint of translation, it is an inefficient fashion;
8 it's not the way to do it. Whether or not that makes any difference in
9 terms of a short kind of situation, short translation project, may or may
10 not be of moment. With regard to this particular issue, it is of great
11 moment, as I think the Chamber is aware, there is approximately 3500
12 pages, give or take, of handwritten in associated documentary evidence
13 with regard to this particular disclosure from the Prosecution.
14 Now, we have taken, as the Defence, the following position, which
15 is we need this information translated, one. We have no control over
16 when it would be translated. That is totally outside of our camp, and by
17 "information translated," even upon further review by Mr. Lukic as well
18 as Mr. Zorko and Ms. Drolec who reads Latinised script, so to the extent
19 we've received Latinised excerpts from the Prosecution, we have engaged
20 in a project with Ms. Drolec in terms of having those portions
21 translated. It is absolutely clear that these materials impact upon the
22 entirety of the case in general, most of our witnesses in specific and
23 deal with both direct as well as circumstantial evidence that affects the
24 two major theoretical bases under which Mr. Perisic is charged under 7(1)
25 and 7(3).
1 We have been informed, and we believe that the information that
2 we have is accurate because we have no reason to believe that it's not,
3 that it will take some period of time for this information to be
4 translated fully. We have been given a tentative completion date of the
5 end of June. At one point the date mentioned in our meeting was the 28th
6 of June. Whether or not that's an accurate date or not I'm not in a
7 position to tell you because, as I said, we have no control over the flow
8 of the information, the flow of the translation, or the days that people
9 are working on this particular information or the number of people that
10 have been committed to this particular project. Obviously, if this is a
11 matter which is of concern to the Tribunal and to the entirety of the
12 Tribunal and all of the cases, perhaps it could be expedited, perhaps
13 not. I don't know.
14 We have been told or -- that there is some kind of scheduling
15 with regard to the manner in which the translations are prioritised. How
16 that is being done, we do not know. What takes priority, we have no way
17 of knowing about. We assume that there is some tentative scheduling of
18 these translations because we receive them in what could be called
19 folders, so there's a folder, for example, 28, folder 29, folder 30,
20 folder 31. So one could assume that there's some manner in which there
21 has been a discussion or an agreement at least tentatively with regard to
22 when this information will be completed in its translated form.
23 This information covers the entire period of this indictment. So
24 chronologically without regard to the issue of the kinds of informations
25 contained within this document, it would be fair to say that at first
1 blush it would be highly relevant without an explication any further with
2 regard to the types of things that are discussed which I will reach in a
4 We don't come to you easily with this request, and part of the
5 reason for that is we recognise the -- some people call it a spectre,
6 other people call it a reality, other people call it a condition,
7 whatever it's called, I'm referring to the completion strategy. And to
8 the extent that the Tribunal itself or any particular trial in process
9 could be criticised for taking time in potentially jeopardising the
10 completion strategy, we understand that is a consideration, it always has
11 been -- hasn't always been a consideration since I've been here, but for
12 the most part is something that crops up now and again. But recognising
13 that issue, we don't believe that there's a legally cognisable basis to
14 deny our request for an adjournment for whatever period of time the
15 Chamber deems based on the desire to end these trials, based on the
16 desire to deal with the completion strategy.
17 Essentially, since it's forecasted at a minimum a number of
18 cases, including the Karadzic case, the Tolimir case, and another series
19 of cases will be in trial for at least until 2011. I was reviewing the
20 other night the completion strategy report and -- as well as the annual
21 report, and noted that among other cases the, for example, Gotovina case
22 is a case that was to have been completed. And I think judgement was
23 contemplated to be rendered sometime in early spring of 2010. The reason
24 I raise this is because, as the Chamber may be well aware, last week it
25 was announced at the weekly briefing by the Office of the Prosecutor that
1 their motion to re-open the Prosecution case in Gotovina had been
2 granted. Specific reasons for that I don't know why, but there is a case
3 that had reached completion and the motion had been granted. I can tell
4 you this because this much I know is that it is contemplated that there
5 will be substantial litigation over that particular issue, that is, the
6 re-opening of the case, all of which will take time, irrespective once
7 again of whatever the success or outcome of that litigation may be.
8 We are in a unique position. We are in -- and I believe there
9 may be one other case that is -- has somewhat of a defence left, but we
10 are in the unique position of being in the Defence case. And one of the
11 things that I did not discuss at the last meeting which came to mind
12 after the meeting - and I do apologise to the Legal Officers for not
13 raising it at the time - was that one of the things that we have seen
14 recently is the use of those documents that are called XN documents. And
15 we have been having, I think it would be fair to say, continuous and
16 robust discussions with regard to the ability of the Prosecution to use
17 these documents for purposes of either, one, impeachment; or two, for
18 purposes of fresh evidence.
19 Now, I think that if we are to forecast into the future of the
20 defence, it will not only be inevitable, but there will be some success
21 that if the Prosecution chooses - and I do believe that it will be
22 inevitable that they will - to use these documents for not only purposes
23 of cross-examination but also for purposes of fresh evidence that the
24 Chamber will give it due consideration and may well grant such a motion.
25 They certainly will be in a position to argue, and argue successfully,
1 that this is information which has come to the fore newly. It is
2 information which is critical to their side of the case.
3 Now, if I were to obtain - and I say this on behalf of the
4 Perisic Defence - an undertaking from the Prosecution that they will not
5 use this information for any purpose whatsoever, my position with regard
6 to the need for this particular adjournment would still not vary because
7 the information is critical for purposes of the presentation itself of
8 the Defence.
9 The information that is contained that we've been able to
10 identify thus far concerns a number of different areas. The author
11 discusses -- and I think it would be appropriate now to go into private
13 JUDGE MOLOTO: May the Chamber please move into private session.
14 [Private session]
11 Pages 11507-11508 redacted. Private session.
3 [Open session]
4 THE REGISTRAR: We're back in open session, Your Honours.
5 JUDGE MOLOTO: Thank you.
6 MR. GUY-SMITH: Thank you, Your Honour.
7 Perhaps there is some specific questions that the Chamber has of
8 the Defence --
9 JUDGE MOLOTO: Indeed, and if you haven't got anything else to
10 say, indeed I do have questions that I would like to raise,
11 Mr. Guy-Smith --
12 MR. GUY-SMITH: There's one last matter, and then I think that
13 may be --
14 JUDGE MOLOTO: Okay.
15 MR. GUY-SMITH: -- moving right into where you're going.
16 The Defence has given a fair amount of consideration to the
17 issues concerning time management and believe that we will be able to
18 reduce the amount of witnesses that would actually be required to be
19 called as live -- as live witnesses, which will then I think take care of
20 some of the passage of time issues.
21 And with that I'm going to stop for the moment because I can tell
22 you're quite eager to ask me a series of questions and have been patient
23 with me, and we do appreciate that.
24 JUDGE MOLOTO: Thank you.
25 Two points I'd like to raise. I'm not quite sure I understood
1 you correctly when you talked about the completion strategy; however,
2 what I do want to clarify so far as the completion strategy is concerned
3 is that we are not expected to say because the Karadzic case is going to
4 finish in 2013, therefore if the Perisic case could have finished in 2009
5 it's all very well if it finishes in 2012, which is what I thought I got
6 your argument to be saying. The expectations by the UN is that each case
7 be run as expeditiously as possible and be finalised as soon as possible,
8 and to the extent that personnel working in that case may not necessarily
9 be needed any longer within the Tribunal, that personnel must be
10 downsized or the personnel must be downsized by letting those go.
11 So I just want to make sure -- and I'm not suggesting you said
12 so, I'm saying that's what I thought I heard coming. But I just want to
13 make sure that if indeed that I'm right in my interpretation, the record
14 is made quite clear what is expected so far as the completion strategy is
16 MR. GUY-SMITH: If I might with regard to that --
17 JUDGE MOLOTO: If I might, let me speak --
18 MR. GUY-SMITH: I thought you were asking a question.
19 JUDGE MOLOTO: No, no.
20 MR. GUY-SMITH: Fine.
21 JUDGE MOLOTO: I'm just putting clarifying issues on the table.
22 With regard to the question of translations, I thought I heard
23 you say from the Office of the Prosecutor various teams from various
24 cases request translations of excerpts that are pertinent and relevant to
25 their cases. And Mr. Saxon has ordered that whenever that has been
1 translated they be passed on to you. And I think Mr. Saxon will have
2 something to say on this. At first blush I find that an inefficient way
3 of translating. If we have documents here which affect the entire
4 Tribunal or the now greatest number of cases in the Tribunal, I don't see
5 why various Prosecutors must submit to the CLSS for translation --
6 excerpts to be translated. CLSS must translate from point 1 to point 2
7 to the end of the thing, in the knowledge that this information is
8 required by all Courts. And we cannot afford as the Perisic trial, which
9 is in the Defence case, to be told that you as the Defence cannot make --
10 submit your own excerpts that you want that you see, and they're not
11 going to translate those but they're going to translate excerpts for
12 Prosecutors because other cases are in the Prosecution case, then we are
13 being prejudiced. And therefore, I think in fairness to all trials CLSS
14 must get the Cyrillic material as it came from wherever it came from and
15 work on the translation as fast as it can for the benefit of all cases in
16 the Tribunal. I certainly would not accept that your requests be
17 rejected simply because they come from the Defence and when the other
18 Prosecutors in the other cases material is being translated. That is --
19 that would not be acceptable. And I -- if CLSS has to be told that, I'm
20 prepared to do so.
21 And before I carry on, I would like to have confirmation from
22 Mr. Saxon that, in fact, my understanding of the situation -- this
23 particular situation is correct.
24 MR. SAXON: In part, Your Honour, it is correct.
25 JUDGE MOLOTO: What is the part that is wrong, sir?
1 MR. SAXON: You mentioned a few moments ago that what needs to
2 happen is that all of these materials need to be translated by CLSS from
3 point A to the end of the line, all of the materials. Your Honour, it is
4 my understanding that that is what is happening, that is absolutely what
5 is happening. And that is why, for example, when we had our meeting with
6 the Legal Officers last week, we informed them that that particular
7 process to its completion will last at least until the end of June, to
8 have the entire body of material translated into the English language.
9 What is -- what has been happening, Your Honour, is that, for
10 example, if a particular trial team - and I'm speaking solely for the
11 Prosecution obviously - needed a particular excerpt, they have, as I have
12 done, gone to CLSS and say, you know, please this may be urgent for our
13 case, will you please translate this as a priority.
14 It is also my understanding, Your Honour, as Mr. Guy-Smith said,
15 that CLSS has refused to accept requests for, if I can call them,
16 priority translation of a particular excerpt from the Defence. You are
17 correct in what you have said.
18 JUDGE MOLOTO: That is just what I'm not prepared to accept, sir.
19 I am not here on holiday, we are here to work, and to the extent that
20 certain Prosecutors can be given priority by CLSS, so should the Defence.
21 If not, I would insist that, in fact, the Prosecution must also not get
22 that preference, that, in fact, what should happen, they should take the
23 document from page 1 and translate it to page last and listen to nobody
24 else. Nobody must come for priority. If we can't get priority, why
25 should others get priority? I can't understand why the CLSS should have
1 this discriminatory position because it's supposed to serve the Tribunal,
2 and I would expect that the Defence is seen as part of the Tribunal.
3 MR. SAXON: I'm not disagreeing with Your Honour.
4 JUDGE MOLOTO: I'm not saying you're disagreeing with me, sir,
5 but I'm saying I'm not quite sure where you say in part. I don't see the
6 part where you say I'm wrong in my interpretation of the situation
7 because you just seem to have confirmed exactly what I'm -- how I
8 understand the situation.
9 MR. SAXON: Simply, Your Honour, you made a comment or at least I
10 understood your comment --
11 JUDGE MOLOTO: When I said they must start from page 1 to the
12 last page, yes --
13 MR. SAXON: Yes, and that has happened --
14 JUDGE MOLOTO: Without regard for priority coming from various
15 people, they be the OTP or not. But you're saying to me that, in fact,
16 OTP does get preferential treatment and that's just what I'm taking issue
18 MR. SAXON: Your Honour, if I can speak with respect to this
19 trial, what we have done, for example, what the Prosecution team has done
20 is we have identified excerpts where the accused in this case is referred
21 to in these materials --
22 JUDGE MOLOTO: That may be so said, it is for the Defence to
23 identify that which they want to have translated on a priority basis and
24 it's not for the Prosecution to choose for the Defence what it is that
25 they think they might need. So the Defence must have the opportunity to
1 prosecute its defence just like the Prosecution had the opportunity to
2 prosecute its case, and it is not for the Prosecution to decide for the
3 Defence what may or may not be translated on an urgent basis.
4 MR. SAXON: Your Honour, I am not making the policy of CLSS. I'm
5 simply telling you what has happened.
6 JUDGE MOLOTO: Well, this Trial Chamber is going to make an order
7 finally. Part of the order is going to be that if CLSS does accept
8 documents from the Prosecution on a priority basis it must do so also
9 from the Defence. And I would like to see that, in fact, documents of
10 this Defence are not put at the bottom of the Prosecution priority
11 documents. We can't accept this. And I would like this to be taken back
12 to CLSS in the terms that I'm putting it, very strongly.
13 Having said that, to what date are you asking for a postponement,
14 Mr. Guy-Smith?
15 MR. GUY-SMITH: The date that we were asking for the matter to go
16 over to was the date that we understood that the translations were
17 tentatively to be completed, because we, to be perfectly honest, figured
18 there's some wiggle room here on the part of CLSS, meaning that they were
19 overextending the period of time it would take for them to complete it.
20 So we were requesting the date of the 28th of June, which is the date
21 that we were given that all translations would be completed by.
22 JUDGE MOLOTO: It does seem that CLSS has plenty of time on its
23 hands, it is translating from page 1 to the last page and accepting
24 priorities in between, they must be having plenty of staff who can do
25 this, and I think that they must reorganise themselves and make sure that
1 they put their effort on translating the entire document and as
2 expeditiously as possible. If all trials must wait, let all trials wait.
3 So we will be then asking -- we'll grant this postponement to the 1st of
4 June. Somewhere mid-May we would like to check --
5 MR. GUY-SMITH: A status report?
6 JUDGE MOLOTO: Yes.
7 MR. GUY-SMITH: Absolutely, Your Honour.
8 JUDGE MOLOTO: I'm not quite sure we're going to have a status
9 report or we're going to convene to get that report in court, but I guess
10 the parties would be advised. But I would like it to be -- I would like
11 the record of this morning's session to be passed on to CLSS, please,
12 because I would like CLSS to understand that this Chamber is not prepared
13 to wait and be the last -- the sort of step-child of this Tribunal. We
14 are a biological child of the Tribunal just like everybody else and we
15 are going to be treated as such.
16 Mr. Registrar, thank you.
17 [Trial Chamber confers]
18 JUDGE MOLOTO: In that event then, the matter is postponed to the
19 1st of June. Parties to give an interim report, status report, by the
20 15th of May. And we'll decide -- based on the report the Chamber will
21 decide whether to call a session or not.
22 Court adjourned.
23 --- Whereupon the hearing adjourned at 9.49 a.m.
24 to be reconvened on Tuesday, the 1st day of
25 June, 2010