Tribunal Criminal Tribunal for the Former Yugoslavia

Page 194

1 Monday, 10 December 2001

2 [Status Conference]

3 [The accused entered court]

4 --- Upon commencing at 2.30 p.m.

5 JUDGE MAY: Let the registrar call the case.

6 THE REGISTRAR: Case number IT-00-39 & 40-PT, the Prosecutor

7 versus Momcilo Krajisnik and Biljana Plavsic.

8 JUDGE MAY: The appearances, please.

9 MR. HARMON: Good morning, Judge May, Judge Kwon. My name is Mark

10 Harmon. Appearing with me is Mr. Tieger from the Prosecution.

11 MR. BRASHICH: Good afternoon, Your Honours. Deyan Brashich with

12 Nikola Kostich for the Krajisnik Defence.

13 MR. PAVICH: Good afternoon, Your Honours. Robert Pavich with

14 Eugene O'Sullivan and Peter Murphy for the Plavsic Defence.

15 JUDGE MAY: The purpose of this hearing is a Status Conference in

16 this case in which a number of matters have to be dealt with, chiefly to

17 establish a timetable for the trial.

18 Mr. Harmon, it may be that you can assist in that. A number of

19 matters were dealt with at the meeting which I held with the parties.

20 Perhaps you can give an update on the various matters.

21 MR. HARMON: Judge May, I'd be glad to. The first item that we

22 discussed in the meeting last month was the issue of 92 bis statements.

23 We are prepared today to -- tomorrow to turn over to the Defence 62 of

24 those 92 bis statements with attestations, and I am in the process of

25 checking with my investigators as to the remaining number. Should there

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1 be remaining 150 bis attestations that were completed on the most recent

2 mission, it's my desire to turn those over forthwith to the Defence.

3 The second point that we discussed at the meeting was the issue of

4 expert reports. To summarise, the Defence was in need of a Defence expert

5 and needed an expert appointed by OLAD to assist them in reviewing the

6 exhumation reports, and it was agreed that within 30 days of the

7 appointment of that expert, the Defence would get back to the Prosecution

8 and inform the Prosecution whether they accepted the statement of the

9 expert.

10 It is my understanding that on the 6th of December, a request for

11 the appointment of an expert was made to OLAD. So we await the decision

12 by OLAD as to the appointment of that expert and then matters can progress

13 in the manner which I have outlined.

14 The third issue that we discussed was the issue of adjudicated

15 facts, and at the last meeting, the parties had agreed to identify

16 adjudicated facts for consideration under Rule 94(B) by the 31st of

17 January, 2002, and we undertook to attempt to reach an agreement on some

18 or all of those by the 1st of March, 2002. I can report to the Court that

19 we have prepared today a submission of adjudicated facts that we have

20 identified. These adjudicated facts are facts that have been identified

21 from the various decisions that take us up to today's date. I suspect

22 there may be some additional adjudicated facts but I'm confident that the

23 majority of those facts that we believe have been adjudicated and we have

24 identified we will give over to the Defence today. So we're ahead of

25 schedule, considerably ahead of schedule, on that project.

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1 The issue of the untranslated documents, it is my understanding

2 that -- and I will defer to my colleague Mr. Tieger in just a moment.

3 He's been principally dealing with that issue. It's my understanding that

4 there is a new regime, so to say, as to who controls the documents and the

5 rate of production of translation of those documents that will soon be

6 undertaken. Mr. Tieger can address that issue in just a moment with Your

7 Honours.

8 The next issue that we raised at the --

9 JUDGE MAY: Shall we deal with the untranslated documents while

10 we're still on it?

11 MR. HARMON: I will be glad to defer to my colleague Mr. Tieger.

12 JUDGE MAY: Yes. Mr. Tieger, if you would tell us what the

13 position is.

14 MR. TIEGER: Your Honour. Mr. President and Your Honour, as you

15 will recall, we were previously operating on the basis of two translation

16 schedules. The original one, for a period of time, envisioned

17 approximately 1.000 pages a month. The latter schedule, which was

18 reported in our last meeting, appeared to be 700 a month. It's my

19 understanding, and I don't wish to pre-empt any clarification by the

20 Registry on an issue which I understand they are grappling with seriously,

21 that an institution-wide regime is about to be implemented which will --

22 which may result in changes to the individual allocations to particular

23 cases.

24 Essentially, that means that we cannot report a fixed number of

25 pages per month on which to base estimations of the completion of our

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1 untranslated documents. Obviously, we will be working as closely as

2 possible with whatever instrument is formed to allocate particular pages

3 to particular cases, whether that's a committee or otherwise, but I think

4 it's fair to report our present understanding that the assurance of 700

5 pages upon which we previously relied should no longer be taken for

6 granted.

7 JUDGE MAY: What effect is that going to have on the preparation

8 of this case?

9 MR. TIEGER: Well, I think it's difficult to say. I don't know

10 whether or not an institution-wide regime will result in any dramatic

11 change in the number of pages we can expect a month. Obviously, we hope

12 not. In addition, during meetings with the Defence, we have discussed or

13 begun discussing possible ways to reduce the number of pages needed for

14 translation through agreements between the parties.

15 Just to say two things: Number one, we haven't received

16 estimations yet which tell us with any certainty whether or not the

17 previous projections will be reduced or increased, and if it turns out

18 that we are receiving fewer pages per month, we would like to work as

19 creatively and as energetically as possible to adopt procedures which will

20 reduce our own need for -- within the case for translated pages. At the

21 same time, unilaterally, we will continue to look at our exhibits to see

22 if that can be culled in such a way to reduce the number of necessary

23 translations.

24 JUDGE MAY: Clearly, if it's possible one way or another to reduce

25 this backlog, it's going to help the readiness of the case. So I for one

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1 would encourage very much agreement between the parties as to the

2 disclosure of untranslated documents or whatever other regime can be put

3 into place.

4 MR. TIEGER: We will certainly take those words to heart, Your

5 Honour. And as you know, we have been successful to date in our efforts

6 to achieve consensus between the Defence and the Prosecution. I am

7 optimistic we can continue to do so and those efforts will certainly be

8 made.

9 JUDGE MAY: Thank you. Yes, Mr. Harmon.

10 MR. HARMON: I will continue then with the discussion about what

11 occurred at the last conference and where we are in respect of each of

12 those items.

13 We had agreed as well to provide the Defence with untranslated

14 documents as soon as possible, approximately 12.000, and we are prepared

15 at this point to provide to the Defence, on a disk, 500 copies of

16 documents. In addition, we will provide to the Defence, by the 22nd of

17 December of this year, an additional 2.000 documents. Those documents

18 will be in B/C/S and in English translation.

19 That brings me to a related issue, and that is that we had

20 undertaken to provide to the Defence a copy of all of our discovery

21 materials on a disk, with a more powerful search engine, Zy 4, and that

22 was at the last conference a procedure that was being tested by the

23 technical people of this organisation. I am told that there are

24 difficulties in terms of absorbing these materials onto a disk in a very

25 quick fashion. I have discussed this. I've raised the issue with the

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1 Defence today. We're prepared, in the alternative, to provide hard copies

2 of all of those pages to the Defence. So we have given the Defence a

3 choice, and the choice is wait for those documents to be copied on a

4 disk.

5 I was asked when I thought the completion of the burning of those

6 documents onto a disk would be done. I didn't have an answer for them

7 this afternoon. I'm endeavouring to get an answer for them, but the

8 alternative choice for the Defence is to receive hard copies, and we're

9 able to furnish hard copies very quickly of those outstanding documents.

10 JUDGE MAY: Let me see if I have it right. 500 copied documents

11 today on a disk.

12 MR. HARMON: Correct.

13 JUDGE MAY: 2.000 documents in translated form on the 22nd of

14 December.

15 MR. HARMON: That's correct. In B/C/S and in translated form.

16 Which leaves us with a remainder, and that's where the problem develops.

17 And I have explained the problem to the Defence and given them a choice,

18 and they will get back to me as to whether they want the remaining

19 documents in hard copy or they want to wait until they can be burned on to

20 a disk, and I owe them the answer of when I can best estimate the

21 technical process of burning those on to a disk will be completed. I

22 expect to get that information after today's status conference.

23 JUDGE MAY: So that would be hard copy in B/C/S.

24 MR. HARMON: That's correct.

25 JUDGE MAY: Now, or within a reasonable time.

Page 200

1 MR. HARMON: Yes, Your Honour.

2 JUDGE MAY: And that would be all the disclosure material

3 disclosed.

4 MR. HARMON: Yes.

5 JUDGE MAY: Yes, well, that will be a start.

6 MR. HARMON: Judge May, another issue was raised at the conference

7 that we had last month was the issue of video materials, and I had

8 outlined to Your Honour that there were some film clips that we had

9 disclosed to the Defence for which there were no translations, no

10 transcripts. And as I outlined to Your Honour at the last conference, it

11 was agreed by the parties that the Defence would prepare transcripts of

12 those for which there were no transcripts, and they would forward those to

13 us, and we would submit those to CLSS for translation. So I am waiting

14 for receipt of those transcripts from those video clips for which there is

15 no transcript. And upon receipt of those, I will submit those directly to

16 CLSS for translation.

17 JUDGE MAY: So the scheme is the Defence would provide B/C/S

18 transcripts.

19 MR. HARMON: That's correct.

20 JUDGE MAY: And you would have them translated.

21 MR. HARMON: Correct.

22 The next item was the issue of reciprocal discovery, and at the

23 last conference, I undertook to provide the Plavsic Defence with indexes

24 of materials they had requested by the 15th of November, 2001. And we

25 were delayed by one day. But with the consent of the Defence, I provided

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12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 202

1 those indexes to the Defence on the 16th of November, 2001.

2 Lastly, I can report to Your Honours that on the 26th of November

3 of this year, we produced a Rule 68 production to the Defence in which we

4 identified materials that fell possibly within the ambit of that rule.

5 And I do believe, Mr. President, that that concludes all of the items that

6 we had discussed.

7 In the interim time, I can report to Your Honours that there is an

8 additional matter, and that is that many of our witnesses that we have

9 identified in the course of these pre-trial proceedings have been

10 witnesses who testified in other cases. And we have approximately 500

11 audiotapes of previous ICTY testimony, and I have suggested to the Defence

12 a compromise position in that. I've given them an index. I've identified

13 a portion of those witnesses for whom we have transcripts of their

14 testimony. The Defence is in a position to review those transcripts, and

15 if they want the audio portion of the testimony of the witness in B/C/S,

16 then they will inform me that they want that audiotape, and we will copy

17 it for them and produce it to them. So I'm waiting to hear from the

18 Defence as to which of those previous testimonies in B/C/S they would like

19 us to copy on to tape.

20 The alternative is, of course, for us to copy 500 audiotapes per

21 accused, a total of 1.000 audiotapes, and I believe that that would be

22 essentially a waste of the Tribunal's resources. I don't think the

23 Defence will listen to 500 audiotapes in total. I think they will listen

24 to the audiotapes they want to hear. They will identify those to us. We

25 will copy those audiotapes and make them available to the Defence. So

Page 203

1 that is something that wasn't raised at the last conference but raised in

2 the interim time, and the -- we're working on the resolution of that

3 particular issue as well.

4 JUDGE MAY: Are these witnesses whose evidence you're going to

5 rely on or merely evidence which you think should be disclosed?

6 MR. HARMON: Evidence that we think should be disclosed and

7 evidence that we may rely on. So it falls under both categories.

8 JUDGE MAY: Will you be seeking, do you think, in due course to

9 put the transcripts in?

10 MR. HARMON: We may. Correct, Judge May.

11 JUDGE MAY: Two other matters. There was a motion -- I think

12 there's a motion from Mr. Brashich of the 28th of November to which you

13 have to respond within the next day or two.

14 MR. HARMON: I thought I had addressed all of the issues, but if

15 Your Honour has a copy of the transcript and can refer me to the page.

16 JUDGE MAY: It's a motion of the 28th of November for access to

17 some supporting material.

18 MR. HARMON: Judge May, I have a copy of that before me.

19 JUDGE MAY: And also, a further motion for production of

20 statements made by a co-accused.

21 MR. HARMON: We will be responding to that in due course. As to

22 the motion to receive statements of the co-accused -- Judge May, we will

23 be filing written responses in due course as to each of the motions raised

24 by Mr. Brashich.

25 JUDGE MAY: Very well. The final matter is the clarification of

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1 the indictment. You said at the meeting that you would probably provide

2 an amended indictment by the end of January.

3 MR. HARMON: Yes.

4 JUDGE MAY: But the matter was left over to the status

5 conference.

6 MR. HARMON: We intend to file an amended indictment by the 31st

7 of January. It is still our intention.

8 JUDGE MAY: Very well. Are there any orders which you seek?


10 JUDGE MAY: And perhaps I can put this to you: As things stand,

11 is this case on course or is it not on course for a hearing in the autumn

12 of next year? Is there any reason why it shouldn't be?

13 MR. HARMON: Realistically, we are making enormous steps toward a

14 trial that could commence in the fall. What is unknown to us is what this

15 new translation regime brings to us. We will be inquiring, as Mr. Tieger

16 said, as to whether this means we will have fewer documents translated or

17 more documents. At the same time, we will be working vigorously to try to

18 reduce the number of documents that need to be translated, in addition to

19 which we will be trying to narrow the focus of this indictment, which

20 could also result in this case hitting the mark of trial in the fall.

21 So I would say at this time, projecting ahead with those unknowns,

22 particularly the language translation, I would say that we are on course.

23 The Defence will have at least in untranslated form the majority of our

24 documents. When I say the majority, they will have all of the exhibits we

25 have identified now and the interim time. And if we continue to identify

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1 additional documents, we will turn those over to the Defence upon receipt

2 and upon proper identification.

3 JUDGE MAY: What is the date now for the pre-trial brief?

4 MR. HARMON: We have not selected a date for the pre-trial brief.

5 I would kindly request the Court to reserve fixing a date for the

6 pre-trial brief until the next status conference.

7 JUDGE MAY: Yes. I note that I said at the meeting that next

8 March would be a suitable date for a pre-trial brief. We will have to fix

9 a pre-trial conference obviously before then.

10 MR. HARMON: Judge May, it seems to me that the -- a March

11 pre-trial brief might be a little premature. When we amend the indictment

12 on the 31st of January, there may be some motions, although it's our hope

13 that there will be very few motions relating to the form of the

14 indictment, if any. But it's the translation backlog that causes us the

15 most concern in a sense that we don't quite have a firm handle on how far

16 advanced we're going to be on that issue. And that's a fundamental issue

17 that impacts on our ability to prepare properly a pre-trial brief and

18 impacts on the Defence's ability to understand the case against them.

19 They will have, of course, all of the documents at hand very soon,

20 but they will be untranslated. My suggestion, if the Court please, would

21 be to defer the fixing of a pre-trial brief. I think March is too early.

22 I tried to sketch out in this realm of speculation when we would have all

23 of the documents completed, a date for a filing of a pre-trial brief from

24 the Prosecutor. My date is the 30th of June with the Defence pre-trial

25 brief at the end of August. But those are dates that, again, I'm

Page 206

1 uncomfortable with, given the state of play with the translations.

2 I think those dates -- I defer to my colleagues from the Defence.

3 They are best able to comment on their views as to when our pre-trial

4 brief should be filed and when theirs should be filed. But I think the

5 problems that confront both sides are common. They relate to the

6 translation backlog. And if we are to file something that is useful,

7 intelligent, and helpful to the Court and to each side, then we have to

8 have a firm grasp of the documents in a language that we, the lawyers,

9 understand.

10 That is my suggestion, Judge May, if we could defer scheduling

11 that at this point in time. And if you could await -- if Your Honours

12 could await hearing from the parties further on as we progress through

13 these issues, I think that would be very helpful to both of us.

14 JUDGE MAY: I think that may well be a sensible course. But it

15 must be understood that this trial must come on sooner rather than later.

16 And next fall is the target date. If the translation problems are getting

17 in the way of that, then they must be resolved. So if there are further

18 difficulties, you can perhaps report them to the Court as soon as they

19 emerge and we'll have to consider them together.

20 MR. HARMON: We will do so. Thank you.

21 [Trial Chamber confers]

22 JUDGE MAY: Yes. I'll hear from the Defence. Mr. Brashich.

23 MR. BRASHICH: Good afternoon, Your Honour. The Defence really

24 has nothing further to add to Mr. Harmon's statements at this present

25 time, and we of course reserve our position.

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1 JUDGE MAY: Mr. Pavich.

2 MR. PAVICH: Nor does the Plavsic Defence, Your Honour. We have

3 an institutional problem and it requires institutional solutions, and I

4 think we're all working toward that end.

5 JUDGE MAY: The Court would obviously encourage cooperation

6 between counsel towards resolving these problems.

7 Now, it remains for me to fix a date for the next conference, but

8 before I do that, is there anything that anybody wants to raise in

9 relation to detention or matters of that sort?

10 Mr. Brashich, do you or your client want to add anything?

11 MR. BRASHICH: If I may have a moment, Your Honour.

12 JUDGE MAY: Yes.

13 [Defence counsel confer]

14 MR. BRASHICH: Nothing at this time, Your Honour.

15 JUDGE MAY: Thank you. We will fix the next Status Conference for

16 the 8th of March. Meanwhile, there will be meetings with the Senior Legal

17 Officer to ensure that progress continues.

18 The Court will rise.

19 --- Whereupon the Status Conference adjourned

20 at 3.03 p.m.