1 Wednesday, 5 September 2001
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3 p.m.
6 JUDGE MAY: Let the Registrar call the case.
7 THE REGISTRAR: Good afternoon, Your Honour. Case Number IT-00-39
8 and 40-PT, the Prosecutor versus Momcilo Krajisnik and Biljana Plavsic.
9 JUDGE MAY: Yes. I'll have the appearances.
10 MR. TIEGER: Good afternoon, Mr. President. My name is Alan
11 Tieger. I appear with Mr. Fergal Gaynor on behalf of the Prosecution.
12 MR. BRASHICH: Good afternoon, Your Honour. Dan Brashich for the
13 Krajisnik Defence.
14 MR. O'SULLIVAN: Good afternoon, Your Honour. Eugene O'Sullivan
15 along with Igor Sikavica appearing on behalf of Biljana Plavsic.
16 JUDGE MAY: The purpose of this hearing is a Status Conference to
17 review the progress of this case, and I will begin with the Prosecution.
18 Mr. Tieger, you filed your provisional brief. We have it. You
19 filed your provisional list of witnesses. You've asked for leave to file
20 a further list, supplementary provisional witness list, that is because
21 some were overlooked.
22 MR. TIEGER: That's correct, Your Honour. That was a mechanical
24 JUDGE MAY: Very well. You can have leave to do that. But in
25 addition, what you must do to assist the Trial Chamber, in fact everybody
1 who has connection with the case, is to provide, if you would, a list of
2 your witnesses. It may be helpful to number them "1" to whatever the
3 total number is, and add any details in the schedule, whether they are
4 available to give evidence or not, whether you propose to use Rule 92 bis
5 against them, and it will make things much easier for everybody if you
6 would do that. And perhaps you could let us have that within two weeks.
7 MR. TIEGER: Absolutely, Your Honour.
8 JUDGE MAY: Thank you very much.
9 Now, the final brief is due on the 31st of October. What I think
10 we need to know is how much more you anticipate being in the brief. Can
11 you give us some idea of that?
12 MR. TIEGER: Let me begin by saying, Your Honour, I want to
13 balance the desire to be as forthcoming with the Court and give the Court
14 as much information as possible against the risk of basing that assessment
15 on incomplete information.
16 As the Court is aware, there are a considerable number of
17 documents that await translation. The Prosecution has been attempting to
18 prioritise those documents for two purposes: Number 1, to ensure that
19 insofar as possible, relevant documents indeed make it through the
20 translation process in time for the October 31st deadline; and Number 2,
21 insofar as possible, to minimise the number of additional documents that
22 are appended to our exhibit list.
23 So in order to give the Court some insight into the possible
24 number of additional exhibits, I think it's necessary for me to stress the
25 large number of documents with which we are currently dealing and which
1 currently await translation. And those documents, as the Court is aware
2 from our previous submissions, equal or exceed the number currently on the
3 list. Now, I am not in a position to assert that our final list will
4 include all or a particular percentage of those. As I indicated, we are
5 making every effort to focus carefully on those documents and establish a
6 priority regime which makes the process as painless as possible. I wish I
7 could give the Court raw data and hard numbers. I think that would be
8 speculative and foolhardy and I don't think would advance our effort
9 here. Again, it's appropriate, I think, to stress the large number of
10 documents with which we are dealing and with which, I believe, the Court
11 was already familiar to give the Court or remind the Court of the
12 potential for that list to grow. But beyond that, I think we're dealing
13 in an area of speculation.
14 I will say that as we reassured both the senior trial officer and
15 the Defence earlier we will be submitting documents on a virtually daily
16 basis, or at least as they are received from now until the 31st, rather
17 than submitting them in bulk at the end, to facilitate this process and
18 reduce the burden on the Defence and on the Court.
19 JUDGE MAY: Well, remind me why you're so slow and late with all
20 this. Is there any real excuse for this other than mismanagement earlier
22 MR. TIEGER: There are a variety of factors which enter into this
23 equation, Your Honour, some of which are belatedly discovered documents,
24 some of which are documents which have not been made available, some part
25 of which are earlier priorities for cases that were going to trial. And I
1 dare say that if we had this process to revisit, we would handle the
2 submission of documents in a different way. But I need to emphasise the
3 fact that there are a number of collections which were only made available
4 to us recently, and also the situation on the ground has changed
5 considerably in the last six months to one year. There are many
6 circumstances which are different than they were merely months or a year
8 JUDGE MAY: Remind me of the sort of bulk of documents that have
9 been recently disclosed to you.
10 MR. TIEGER: I don't have the raw numbers in front of me, Your
11 Honour. I know that they represent some -- again, I don't want to
12 speculate for the Court, and I don't have those raw figures available to
13 me. Let me, if I may, emphasise again that, with respect to all of those
14 documents, we have instituted an extremely intensive prioritisation
15 regime, which is intended to reduce or eliminate the burden on translation
16 and then ultimately the submission burden to the Defence and the Court.
17 JUDGE MAY: Well, what we are concerned with is having this case
18 ready for trial as soon as possible, bearing in mind that one of the
19 accused has now been in custody since April of last year. And I don't
20 mean to criticise you personally, of course, or anybody here, because I
21 know that you have taken over the matter fairly recently, but it really
22 must be brought to trial, and we will discuss that.
23 One matter is this: That there was an order that you disclose the
24 remaining 400 core documents. If you'll refer to earlier transcripts, you
25 will see Mr. Harmon - it may have been at the request of the Court, I
1 forget - but Mr. Harmon identified core documents, that is the crucial
2 documents on which the Prosecution might depend, and identified -- said
3 that he had identified 800 of them; 400 of them had been disclosed, and we
4 have ordered the disclosure of the remainder. Now, that must receive
6 MR. TIEGER: Yes, Your Honour. And it's certainly our intention
7 to ensure that all documents upon which the Prosecution intends to rely
8 are submitted at the earliest possible moment. If I may, I want to
9 address briefly or just touch briefly upon the concept of core documents,
10 to ensure that I'm not inadvertently talking at cross-purposes with the
11 Court or even with Defence counsel. I noted in earlier meeting that
12 Mr. O'Sullivan raised the issue of some potential ambiguities or
13 confusions concerning that term. It's my understanding, Your Honour, that
14 that term "core documents" did not refer to a discrete body of documents
15 which could be found in a particular place, but was a reference term
16 designed, for important housekeeping purposes, to indicate to the Court
17 the number of documents upon which the Prosecution anticipated it would be
18 focusing its case during trial. And as I understand it, that began at a
19 time when there were many, many thousands of documents that had been
20 disclosed to the Defence, and the Court was trying to identify the
21 approximate number from within that larger body that the Defence would
22 ultimately need to focus its attention on.
23 If I recall correctly, I think Mr. Harmon was at some pains to
24 indicate that that number, which I think he inherited, could go up and
25 could go down. But again, rather than referring to a discrete volume of
1 materials, it intended to indicate the -- where this huge volume of
2 disclosed materials might ultimately end up, how they would be winnowed
3 down into what sort of figure.
4 JUDGE MAY: Mr. Tieger, I think you have the point. Yes, it is
5 the documents which at this stage you anticipate are going to form the
6 core of the Prosecution case. In any trial, particularly trials here, a
7 very large number of documents are produced. When it comes down to it,
8 those that are really important are a core, a tenth it may be, of all
9 those that are produced, and what the Court encourages parties to do is to
10 identify the really important ones, the core. They are not a discrete
11 group, but it's merely identifying what's important and what may be rather
12 less important. Yes.
13 Can I take it, so that we can try and plan ahead, that by the 31st
14 of October, that as far as possible - and, of course, I accept that there
15 may be unexpected disclosure, unexpected circumstances - but allowing for
16 that, allowing for the unexpected, the Prosecution will produce the
17 material which they are required to produce and on which they are going to
18 rely essentially for trial, by that date?
19 MR. TIEGER: Your Honour, we understood that to be the Court's
20 intention. We are endeavouring to fulfil that obligation.
21 JUDGE MAY: Just a moment, Mr. Brashich.
22 And can I take it, then, that the Prosecution would be ready for
23 trial as soon after the 31st of October as the Court can list it?
24 MR. TIEGER: I think our readiness for trial depends on factors
25 other than the documents. We have been working toward the trial date that
1 the Court identified loosely earlier, in fact working very intensively
2 toward that date, and that is our objective.
3 JUDGE MAY: So that would be a date sometime in February of next
5 MR. TIEGER: That was our understanding, Your Honour, and we are
6 doing everything humanly possible to meet that goal.
7 JUDGE MAY: Very well. You will obviously be looking at your
8 witnesses to identify the -- those for whom statements can be served under
9 Rule 92 bis and other ways in which you can avoid the necessity of calling
10 a large number of live witnesses.
11 MR. TIEGER: Yes, Your Honour. We have made that identification.
12 I -- which I believe is contained or referred to in the witness
13 summaries. And I have some figures available to the Court at the moment,
14 in fact. I believe we have identified, and I note that these -- what we
15 attempted to assemble these figures for the benefit of the Court at this
16 hearing, so I ask not to be held to the precise numbers, but what my
17 figures show are 179 viva voce witnesses and 156 92 bis witnesses.
18 JUDGE MAY: Thank you. Now, of those witnesses, clearly the
19 process of obtaining statements and having them verified under 92 bis is a
20 time-consuming one, so you will be encouraged to put that into hand as
21 early as possible.
22 MR. TIEGER: Your Honour, our intention is as follows: Earlier
23 today in the informal Status Conference, we sought clarification of the
24 provisions of 92 bis (E), the notification provision within 92 bis, that
25 triggers the commencement of the period within which the Defence must
1 respond to the Prosecution's notice of intention to rely on 92 bis
2 evidence. We would like to complete that process before commencing the
3 massive logistical exercise of obtaining declarations, to ensure that we
4 are not obtaining those declarations, undertaking that effort, for
5 witnesses who turn out not to be acceptable to the Defence and the Court
6 as 92 bis witnesses.
7 Now, to the extent that that effort interferes with the ongoing
8 attempt to obtain declarations, we will be mindful of that, but I think as
9 a matter of procedure, that would be the most efficient way to proceed.
10 JUDGE MAY: Well, that's something we'll have to consider. But
11 what I would encourage you to do is to bear in mind how long it takes, and
12 if we are to be ready for trial early next year, it's got to be put under
14 Now, are there any matters which the Prosecution want to raise?
15 MR. TIEGER: None at this time, Your Honour.
16 JUDGE MAY: Thank you. In fact, there is one matter, Mr. Tieger,
17 I should have raised with you, which is the need for applications to be
18 made in relation to protected measures. If there are questions of
19 redaction, the sooner that that is put in hand and ruled on, the better.
20 MR. TIEGER: We anticipate the submission of those applications by
21 the end of this week, Your Honour.
22 JUDGE MAY: Mr. Brashich.
23 MR. BRASHICH: Good afternoon, Your Honour.
24 The Defence has some concerns, and I am not voicing them fully,