International Criminal Tribunal for the Former Yugoslavia

Page 1396

1 Wednesday, 14 November 2001

2 [Status Conference]

3 [Open Session]

4 --- Upon commencing at 10.04 a.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] Dr. Stakic, please be seated.

7 Good morning, everybody. Good morning to the technical booth, to

8 the interpreters, to the registrar and to the parties.

9 Madam Registrar, can you please call the case.

10 THE REGISTRAR: Good morning, Your Honour. Case number

11 IT-97-24-PT, the Prosecutor versus Milomir Stakic.

12 JUDGE RODRIGUES: [Interpretation] Madam Somers, can we have the

13 appearances for the Prosecution.

14 MS. SOMERS: Thank you, Your Honour. Susan L. Somers, lead

15 counsel for the Prosecution. To my right, Miss Ruth Karper, Mr. Kapila

16 Waidyaratne; to my left, Mr. Massimo Scaliotti; and behind me, Mr. Morten

17 Bergsmo and Mr. Michael McVicker.

18 JUDGE RODRIGUES: [Interpretation] Thank you very much. For the

19 Defence.

20 MR. LUKIC: Your Honour, Branko Lukic for Mr. Stakic.

21 JUDGE RODRIGUES: [Interpretation] Well, we are going to hold a

22 Status Conference today. As you know, this is under Rule 65 ter (E),

23 according to which, once the disclosure of evidence has been completed

24 under Rule 66 and 68, and once all preliminary motions have been settled

25 under the deadline provided for under Rule 72, the Pre-Trial Judge has to

Page 1397

1 do something. This is the reason why we are convened today.

2 Two conditions have to be ascertained before we proceed today.

3 First of all, we have to see whether the disclosure of exhibits has been

4 completed in keeping with Rules 66 and 68. Madam Somers, has this been

5 done, has the disclosure been completed?

6 MS. SOMERS: Your Honour, my transcript reads it's disclosure of

7 exhibits, but if I'm correct, it would be of statements or other

8 possible -- under 68 it would include exhibits but the 66 would be

9 exhibits [sic]. We have -- we are mindful of our ongoing 68 obligations

10 so, as we find anything that falls into it, that is being forwarded.

11 The 66 obligations that were required for this stage are complete.

12 JUDGE RODRIGUES: [Interpretation] Very well. The other conditions

13 mentioned in the Rule is that all preliminary motions would have been

14 dealt with.

15 You may have received a decision issued by the Chamber

16 regarding the preliminary motion raised by the Defence. We take into

17 account the fact that there is one aspect that has been appealed; however,

18 we believe that the decision that may be taken by the Appeals Chamber does

19 not prevent us from proceeding and getting the case trial ready. And

20 anyway, I would like to seek your view, Mr. Lukic, and then I'll ask the

21 Prosecutor's view.

22 Mr. Lukic, as to this reservation, what do you think?

23 MR. LUKIC: Whatever this Honorable Judge thinks appropriate,

24 we'll follow your orders and your rulings, so if you think it's

25 appropriate to follow with this Status Conference and with the pre-trial

Page 1398

1 arrangements, we'll try to fit in.

2 JUDGE RODRIGUES: [Interpretation] Madam Somers.

3 MS. SOMERS: Your Honour, I have just taken a moment to speak with

4 Mr. Bergsmo on the issue which he has been handling. I don't know if

5 there's any particular point he might like to address to the court, but

6 from the respect of moving forward, I don't think that there would be any

7 barrier to move forward. I think that, hopefully, the Appeals Chamber

8 will act quickly. Thank you.

9 JUDGE RODRIGUES: [Interpretation] Fine. We can therefore move on

10 to the Status Conference proper.

11 I'm not going to bother you with a series of ideas that I've

12 already set out somewhere else as to my view of how a Status Conference or

13 the pre-trial stage should be. Today, taking into account everything that

14 has been mentioned already, we are going to structure a plan for the

15 pre-trial stage. What does that involve and entail?

16 We have to first clarify the objectives of such a plan. On the

17 other hand, we also have to establish a working programme in which the

18 various objectives are going to be expressed, together with a timetable.

19 If you read Rule 65 ter (E), you know that there are basically

20 three main objectives pertaining to such a plan. First of all, we have to

21 reach an agreement as to possible disagreements regarding the key issues

22 to be dealt with in this case.

23 The second objective, second partial objective is to draw up the

24 list of witnesses. The third objective, draw up a list of exhibits.

25 Presently, we are preparing the Prosecution case, we are aware of

Page 1399

1 that. The Defence will, however, also already be involved. The type of

2 involvement on the part of the Defence is specified in subparagraph (F) of

3 Rule 65 ter. I think you understand this. There is a logic to these

4 three objectives. If you allow me to do so, I would like to draw your

5 attention to this particular aspect. I do believe that it is essential to

6 define clearly the work that lies ahead.

7 As soon as we have agreed as to the points of disagreement, we

8 have defined what the discussion is going to focus on. Once the purpose

9 of the discussion has been established, we have to know what is the

10 evidence to be adduced in support of the gap between the two parties of

11 that which they don't agree upon, and in this respect, we start with the

12 list of witnesses.

13 As you know, in this respect, we do have to take into account the

14 various ways in which testimony can be adduced. There are, as it were,

15 general witnesses. In any case, in this one or in other cases, there are

16 the main witnesses, those that have a general view of the case.

17 Thereafter, you have witnesses that deal with specific aspects of the

18 case.

19 There are also the fact witnesses, those that were witnesses to

20 the events. There are expert witnesses as well, and within this wider

21 category of factual witnesses, you can see who among them has to be

22 called. Indeed, they are going to testify to facts that have to do with

23 the responsibilities of the accused. Of course, there are always

24 background witnesses. Those can be called, of course, but rather through

25 the positions with a presiding officer, and this is under Rule 92 bis, or

Page 1400

1 else possibly through video conference.

2 Therefore, once the actual case has been defined, we are in a

3 position to select the evidence that has to be introduced in the most

4 economical way possible from the point of view of the case and also in

5 order to save resources assigned to us by the International Community in

6 our mission here.

7 Once the list of witnesses has been established and the conditions

8 I have now set out in a general way, we can look at the list of exhibits.

9 In this respect, I insist on the fact that the Defence has to express its

10 own view also on the Prosecution's exhibits from the point of view of

11 authenticity - let me explain this - which is the evidence, which are the

12 exhibits presented by the Prosecution that are challenged by the Defence

13 for reasons of authenticity. You can understand how relevant this is.

14 Why so? If there is no challenge by the Defence of the Prosecution list

15 of exhibits, we can take this list and, together with the registry, we can

16 straight away set up a case file which can indeed be submitted and by the

17 Trial Chamber. Why so? The system in this Tribunal when it comes to

18 exhibits, as you know very well, is a wholesome system. What do I mean by

19 that? I mean that the exhibits have to be viewed within the wider context

20 of evidence.

21 Exhibits are admitted, but the probative value which is going to

22 be granted or not granted to them by the Trial Chamber is defined by the

23 case within the wider range of the evidence adduced. You know very well

24 that we are not in a purely common law system where, before each document

25 is admitted, it has to be discussed as to its probative value. Because in

Page 1401

1 that system, there is a jury and the jury is made up of non-professionals,

2 whilst here, we really are in a different system; not every single piece

3 of evidence has to be defined.

4 Here, we are in a holistic system in which the probative value of

5 a document has to be sought in all of the documents introduced. So

6 failing the need by the Defence to challenge the authenticity of a

7 document, we can prepare a list of exhibits that has to be submitted to

8 and possibly admitted by the Trial Chamber because there would be nothing

9 else to discuss further. So we would be in a situation where the

10 documents, the exhibits, speak for themselves. If there is any point of

11 challenge as to the authenticity, then of course, the document or the

12 exhibit has to be discussed and we have to present arguments from either

13 side.

14 Do not forget that, to some extent, the Defence, when challenging

15 the authenticity of a document, should also reason that challenge in order

16 to move the discussion ahead.

17 Well, I think that we have now, as it were, established the main

18 objectives of our working programme. However, still dealing with

19 exhibits, let me draw the attention of the parties to another point, that

20 of translation of documents. As you know, this is a permanent problem. I

21 think that today -- but in a way, what I'm going to tell you is a

22 suggestion, a proposal that I make to parties so as to cooperate. I think

23 it is always useful for parties to cooperate.

24 You know that we have case law, that we have decisions issued by

25 this Tribunal that say that the accused is entitled to receive all in a

Page 1402

1 language that he or she understands. We have reached a stage, I believe,

2 -- well, this has -- might have to be looked anew, however, I believe

3 that we have reached a stage when the accused is entitled to receive all

4 the documents in his own language, but only with regard to those documents

5 that are really the underlying factual basis for the charges against him.

6 Of course, we have Rule 66. We have two subparagraphs in this

7 Rule that deal with a common requirement, that is, that the Prosecutor

8 discloses to the Defence in a language understood by the accused, and then

9 we've got (i) and (ii). But practically speaking, given the rights of the

10 accused and given the need to have a fair and equitable trial, if we

11 believe that there are a host of documents that both Prosecution and

12 Defence counsel can receive. For instance, the Prosecution can receive

13 documents in B/C/S, and normally speaking, more often than not, the

14 Defence will receive documents in English.

15 So now we have to raise the issue of languages. As you know, the

16 Defence always has to be -- the Defence bench, that is, has to be made up

17 of at least two people or more, but one who would speak the language of

18 the -- one of the languages of the Tribunal. Defence counsel may be

19 assigned without having one of the official languages, then in that case,

20 the co-counsel has to be able to speak either B/C/S or one of those

21 languages.

22 If the Defence counsel were to send documents in B/C/S, it could

23 be said that there are many people within the OTP who do have a good

24 understanding of B/C/S. If you look at the situation in concrete terms,

25 the situation may well arise where the Prosecutor discloses to the Defence

Page 1403

1 a book that is 300 pages long. However, out of the 300 pages, the

2 Prosecutor intends to use only two or three pages. And I really put this

3 question to the parties, notably to the Defence: Why should we have 300

4 pages translated if the Prosecutor says that only two pages are going to

5 be used?

6 As far as I can see, it would be only reasonable to demand from

7 the accused or from the Defence counsel that they should receive those two

8 pages in English without having a translation. Why so? Because within

9 the Defence, there's always one lawyer who understands the language, who

10 can read those two pages, who can discuss these two pages and the contents

11 of the book with the accused, who can then receive the instructions from

12 the accused. Even further than that, if the Defence or Prosecution

13 counsel has problems as far as the background is concerned, he may say,

14 "Okay, I have received these two pages but I want to know their

15 background, the context in which they are to be found."

16 When you have within the Defence team somebody who reads and

17 understands the language, and on the Prosecution side you always have

18 somebody who reads and understands B/C/S and can inform the Prosecution

19 counsel as to the context. We can't complain about shortcomings from the

20 translation services if we overload them with unnecessary work.

21 Therefore, if we can save resources, if we really want to move

22 swiftly, if we fail to accept this modus operandi, I think that we

23 have to confess, frankly, that we do not want to move quickly. We have to

24 confess that we want to wait for the translation services to operate in

25 conditions where they can't meet the demand.

Page 1404

1 So this is it; I think it is very much possible and reasonable to

2 act in this way. This is no offence made to the rights of the accused, no

3 violation of the rights of the Defence to agree, for instance, to this

4 practical solution.

5 Now, you could wonder, how do we go about translating those two

6 very pages? I told you already. If the preparation of a

7 cross-examination, that's not necessary, given the conditions I've set

8 out, but here in the courtroom, all you have to do is put that document,

9 those two pages, on the ELMO, read the relevant portions thereof. You

10 have the interpreters in the courtroom, they can translate. Well, of

11 course, to make the interpreter's task easier, before you give this

12 document to the parties, you can give them the -- the document to the

13 interpreters as well so that it will make their work and lives easier. In

14 proceeding in this way, we'll have the entire translation of the relevant

15 part in the transcript.

16 I would like to seek your reactions to this suggestion before I

17 move on because this is a practical suggestion which, in my view, is very

18 much in keeping with the rights of the accused. This is no violation of

19 their rights. But as you know, this Chamber is not going to be hearing

20 this case so I'd like to know what the Defence thinks about that, but

21 first of all, let's ask Mrs. Somers about her views. Thank you.

22 MS. SOMERS: Thank you, Your Honour.

23 I have, for a long time, adopted a number of the suggestions that

24 Your Honour has just made, and I favour many of them. I think that they

25 can be great assets in an overly resource-taxed setting such as the one

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Page 1406

1 that Your Honour has just commented on. In particular, the use of limited

2 pages with the ELMO and the very, very outstanding assistance of our

3 wonderful interpreters has been a godsend in many of the

4 cross-examinations that we've had to conduct where, because a document has

5 come to us very late, we have had no choice but to follow the course which

6 Your Honour has just set out.

7 I say this with a caution that it may not be a appropriate in all

8 circumstances and I believe it should be, although a tool that we should

9 avail ourselves of, there may be instances where it may not work because

10 context could be important. But again, perhaps case by case.

11 I want to impress upon the Chamber a fact which I know it knows,

12 but when Your Honour speaks of having B/C/S speakers, there is actually a

13 difference in the way the OTP has its staffing as opposed to the Defence,

14 which is fortunate to have persons of -- Mr. Lukic's English is really

15 near perfect and his B/C/S obviously is native, and if there is co-counsel

16 or a legal assistant, certainly the B/C/S aspect is covered with native

17 speakers.

18 The OTP, of course, does not have that good fortune in the sense

19 that we may have a limited number of persons who cover, literally, entire

20 teams and many teams are sharing already stretched resources, so we don't

21 have a permanently attached native B/C/S speaker or a person whose B/C/S

22 is sufficient to cover some aspects of complexity. So from our

23 perspective, it's often harder to have the ability to use a document that

24 is not readily available in English or perhaps in French.

25 Having said that, there are times where we do try to work, usually

Page 1407

1 in a last-minute capacity, we try to accept the document and work with it.

2 Particularly in the Defence case, if Your Honour recalls, in many times in

3 the Kvocka case, not the Kvocka Defence, documents were submitted and

4 there was no opportunity to have a translation, and we did try to work

5 with the resources we have, and our efforts were in good faith and will

6 always continue to be so, but we have that limitation. We don't have a

7 permanent team person assigned who can do really what the Defence is

8 fortunate enough to be able to do.

9 In terms of the use of translations across the board into a

10 language understood by the accused, there are some instances where I'd

11 like to call to the Chamber's attention maybe some problems. For example,

12 if, from the International Community, documents such as sitreps or ECMM or

13 UNPROFOR type reports were used, those are in a format -- those

14 traditionally come out in the English language and have not necessarily

15 been subject to the need for translation. We would ask the Chamber,

16 whichever Chamber ultimately hears this case, to consider that perhaps

17 there are exceptions to that need and to assist us so that those very

18 technical documents which would take an awful lot of time to translate may

19 not be the proper subject of that particular aspect.

20 Because of the severely taxed resources of the CLSS, we find

21 ourselves having to cling to Rule 66 as limitations about what needs to be

22 in the language of the accused, and if we have, in the future, to raise

23 that, we do so not in any spirit other than understanding that certain

24 things just constrain us from asking for translations. So I have to -- in

25 other words, there are outside-of-the-rules requirements and we would only

Page 1408

1 invoke that if it really were a huge problem. I want to mention my

2 gratification to the Chamber for raising this translation issue.

3 It seemed, in a number of trials, there has been a tendency to

4 cast blame. The volume is so heavy on the translation services, we are

5 aware of it, and one of the discussions I had recently with counsel in our

6 meeting to try to discuss it, concerned me as well, about the number of

7 documents that counsel will possibly seek to put on the translation

8 section.

9 I see it as an issue that is not necessarily susceptible of

10 permanent resolution but I want to assure the Chamber that we will

11 cooperate in any way that will not prejudice the Prosecution or the

12 Defence or the administration of the justice of this case, and I thank you

13 for bringing this up.

14 JUDGE RODRIGUES: [Interpretation] Before I ask Mr. Lukic to

15 express himself, let me take up two points for Mr. Lukic to react to

16 them when he takes the floor. You raised a question, Mrs. Somers, which

17 I think is extremely relevant: What are the documents that really have to

18 be translated?

19 I think that the answer can be defined together with the Defence,

20 can be discussed with the Defence already now. You are in a position to

21 achieve some degree of cooperation with the Defence, and thereafter, when

22 it comes to the Defence case, then the Prosecutor and the Defence can

23 agree as to the essential documents that really have to be translated.

24 This brings me to a second remark. You mentioned the Kvocka

25 experience. We are very lucky to have two people on -- one on either side

Page 1409

1 that have this experience too. I really believe that this is a different

2 case from the Kvocka case, and a better situation for us. We always

3 sought cooperation in the Kvocka case, but in that case, we had five

4 Defence counsel with the added difficulty that it was difficult to reach

5 agreement with five people.

6 Here, in this case, things could be easier or more difficult.

7 Anyway, I think it's important to launch a dialogue, and when you want to

8 have a dialogue, it's always easier with one person rather than with five

9 people. If you want to reach an agreement with five different

10 individuals, five different type of interests, it is, generally speaking,

11 more difficult than when you try to reach the same result with one person.

12 I experienced that personally, too, and my feeling is that, in

13 this case, your work will be made easier, the dialogue will be more easily

14 launched between the parties because you are dealing with a more limited,

15 better-defined case.

16 Good, I think we're coming to the end of the general

17 questions. We're going to move to specific issues soon but before doing

18 so, I will give the floor to Mr. Lukic with regard to the points we've

19 just raised.

20 MR. LUKIC: Your Honour, thank you for giving me the floor and, as

21 you know, this Defence always tried to utilise its knowledge of B/C/S

22 language and to speed up the proceedings.

23 Second, I think that also you know, and I think that my learned

24 colleague will agree with me, we have excellent cooperation with each

25 other and I think that we can clarify what is important and what is not.

Page 1410

1 So by that way, we can speed up the proceedings the way you proposed.

2 The only concern I have is that the interests of my client won't

3 be hurt by this procedure, so we only want to reserve the right to ask the

4 Prosecution to give us whatever we ask them and whatever we think that

5 it's necessary translated into B/C/S. Otherwise, we are ready to discuss

6 with them everything about exhibits.

7 JUDGE RODRIGUES: [Interpretation] Very well, Mr. Lukic. So

8 obviously, a strategy of cooperation does not aim at hurting the interests

9 of anybody. You know how much this Tribunal and this Chamber respect the

10 rights of the accused. We are extremely demanding in this respect.

11 However, when I mentioned the issue of cooperation, I do not have in mind

12 that you should give away. What I have in mind is a strategy that is

13 generally accepted by and known to management. This is a win-win

14 management. I don't know whether you are aware of this strategy. We are

15 not talking about competition where, inevitably, you have a win-lose

16 situation, where you win because the other one loses.

17 The cooperation strategy is totally different. It is one where

18 both parties defend their respective interests but they both win at the

19 same time. But in a way, both parties win more than would one party win

20 in a competition strategy.

21 Well, I don't want to lead you along the garden path. I do not

22 mean that the Defence has to relinquish its own interests because we do

23 have foremost in our minds the need for an equitable trial. Of course,

24 this is not a matter of you, as the Defence, giving away your rights. We

25 are always concerned by both aspects. We want always to reach a balance

Page 1411

1 between the two major issues in a trial, the fair and speedy trial.

2 So we can very well cooperate without in any way causing prejudice

3 to the rights of the Defence, but also it is the duty of Prosecution in

4 the very name of those principles. So this was but a comment which I

5 wanted to convey to you to make things clear.

6 I can see that Mrs. Somers wants to tell us something.

7 MS. SOMERS: I would, Your Honour. I want -- I apologise for not

8 raising this earlier, it skipped my mind and Mr. McVicker reminded me.

9 The standard for admission by the translation section has been a

10 fully-revised, complete translation, and I wanted to ask the Chamber - and

11 of course, if Defence counsel, as I address the Chamber could consider -

12 would there be an acceptable use for certain -- on certain occasions, of

13 draft translations? Particularly in these late or emergency-type settings

14 or last minute or where it's just critical to get it in and we find

15 ourselves as number 5.000 in a line of many translations to be made with

16 CLSS, would the use of a draft translation for purposes of the immediate

17 issue be considered? And again, I am not asking the Chamber necessarily

18 to rule today but to consider that as a possibility, and then should an

19 issue of serious dispute arise, we can proceed. But should we simply need

20 a document or a statement ready for a specific occasion or a specific

21 deadline, this may be an option subject to being finalised and revised

22 before the close of the respective case.

23 JUDGE RODRIGUES: [Interpretation] Well, I think this is an issue

24 that the parties can discuss among themselves. If there is an agreement,

25 there will never be a problem. At any rate, if I can give you my opinion

Page 1412

1 on that - this is not a decision - but I believe that we have counsel who

2 speak both B/C/S and English or do understand both languages rather well

3 so this is quite feasible, I believe. We've had this experience. You

4 remember the Kvocka trial, we did come up with translation problems that

5 were raised in the courtroom. So we could very well work on draft

6 translations, and if a problem crops up, then we can raise it here in the

7 courtroom. We would save time if we were to go along those lines, but I

8 say this again, this question can be discussed between you and the

9 Defence.

10 And before we move on to the plan, I'll suggest this, following

11 your intervention: Let us avoid duplication of documents. When you

12 organise and draft those -- that list, remember the Kvocka experience. We

13 had this problem. We had one and the same document with two different

14 numbers. When the Defence receive exhibits, if the Prosecution has

15 already marked them for identification, use that number. Otherwise --

16 this is not a game, we don't want to have the same number of Defence

17 exhibits as Prosecution exhibits. A document has been established, has

18 been admitted for one party or the other. Let us pay attention to this

19 problem. As you know, there are documents that have already been used in

20 various cases, so make sure, before you ask for that document to be

21 translated, that it might already have been translated for another case.

22 That has happened before. We've had documents that had been -- or the

23 translation of which had been requested on several occasions and, once

24 again, it was put to the translation services for translation.

25 Maybe I wasn't that clear. Let me make my thinking a bit

Page 1413

1 clearer. It has happened in the past that a document was translated on

2 several times by the translation services. That has to be avoided in the

3 future. So make sure, before you request a translation, that you really

4 need that document. Does that really need to be translated in whole or in

5 part? Make sure that it has not been translated before, and if indeed it

6 has not been translated before, agree with the Defence as to whether a

7 draft could do or not. So this is just to sum up this issue of

8 translation.

9 If you agree with the objectives of the plan, fine, I'm not going

10 to put that question to you because that is part of the Rules anyway, but

11 my reading of Rule 65 ter I think has been accepted by the parties. We

12 can now move on to the programme. It is up to the Pre-Trial Judge to set

13 up a programme that can be carried out by the senior legal officer under

14 the supervision of the Pre-Trial Judge.

15 Why, at this stage of the proceedings, did I want to suggest this

16 working programme to you? You know that there are going to be changes in

17 the composition of the Trial Chamber, and it is but natural when, giving

18 the forthcoming changes, we need a time to prepare for them. This Chamber

19 is suggesting this working programme for you to start working already.

20 If you were to wait for a working programme, you would have wasted

21 a lot of time, and now we have dates, specific dates in the overall

22 working programme of the Tribunal as to the time when this case is going

23 to start. Given that we now have specific dates for the opening of this

24 case, we wanted to suggest to you a sort of countdown, taking into

25 account the deadline that has been established.

Page 1414

1 So let me give you some dates. This working programme is a tool

2 that will make it possible to reach the objectives I have mentioned.

3 Parties will have to meet to discuss the indictment. You know that this

4 Trial Chamber has issued a ruling on the preliminary motion raised by the

5 Defence and this means that the Prosecution will have to re-organise the

6 indictment. It is not a change to be made to the indictment, but it is a

7 modification, an amendment that will make the work of the Defence and the

8 work of the Trial Chamber much easier.

9 Once we have this -- or within the framework of this working

10 programme, we're going to ask the Prosecutor to issue a provisional

11 pre-trial brief which has to be ready by the 28th of November. Let me

12 tell you what my idea is about this. As you know, Rule 65 ter states that

13 the Pre-Trial Judge asks the Prosecutor to file in a time period

14 established by the Judge and before the Pre-Trial Conference various

15 things. You see various things; a list of witnesses, the list of

16 exhibits, and so on and so forth. What we did in other cases, or in

17 preparing other cases, we asked the pre-trial brief to be prepared by the

18 end of the pre-state phase because there will be several meetings between

19 the Prosecution and the Defence with the aim of reaching results that have

20 to be contained in the pre-trial brief.

21 In our view, the pre-trial brief is the finalisation of the work

22 done during the pre-trial phase. We realise that if we had a provisional

23 pre-trial brief, really at the beginning of the pre-trial stage, it might

24 be a good thing. It might set a good working programme for the two

25 parties. It could be some kind of a code of communication between the

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Page 1416

1 parties. So this is what I put forward to the Prosecutor in this item.

2 I'm not asking for a detailed brief already.

3 I can tell you that the Trial Chamber plans to answer to the

4 Prosecution's request asking for leave to have more pages to the pre-trial

5 brief. I can tell you already that we're going to turn down that request,

6 that application, in a gentle way because we have a practice direction

7 that has taken into account exceptional reasons for filing longer motions

8 and briefs. Of course, all cases in this Tribunal are difficult and

9 complex ones. I think it's a good exercise for all of us to comply with

10 the demands as set out in the practice direction. We'll give our ruling

11 in writing.

12 The provisional pre-trial brief can be a tool and an important

13 working tool. After that, we'll have to schedule meetings with the senior

14 legal officer who is going to follow up the implementation of the working

15 programme, and also we have to plan meetings with the Pre-Trial Judge so

16 as to bring about possible changes depending on how the plan is

17 implemented. A working programme is a tool, is not an end in itself. So

18 with all this in mind, I want to give you this provisional schedule.

19 On the 27th of November, 2001, at the latest, the indictment

20 should be ready, taking into account the decision by the Chamber on the

21 Defence preliminary motion on defects to the indictment.

22 On the 5th of December, there will be a meeting between the

23 parties and the senior legal officer. Why? Well, the item or the agenda

24 would be to discuss the indictment item by item, point by point. Still,

25 before such a meeting, parties would have read the indictment together

Page 1417

1 already so as to gain a first impression as to possible points of

2 agreement or disagreement.

3 Also, by the 5th of December, a meeting will discuss also the list

4 of witnesses which will have to be ready, taking up various categories,

5 for instance, general witnesses, factual witnesses or fact witnesses,

6 witnesses as to the role played by Dr. Stakic, expert witnesses, witnesses

7 under Rule 71 that can be deposition witnesses or video conference

8 witnesses, and witnesses under Rule 92 bis.

9 The third item of the 5th of November [as interpreted] meeting,

10 discussion on the list of exhibits and possible challenges raised by the

11 Defence as to the authenticity of the exhibits.

12 On the 11th of December, 2001, a Status Conference will be

13 convened with the Pre-Trial Judge. The discussion will focus on the

14 following points: The Pre-Trial Judge will take notes of the agreement or

15 disagreement. The Pre-Trial Judge will discuss with the parties the list

16 of witnesses as suggested following the meeting with the senior legal

17 officer. The Pre-Trial Judge shall discuss with the parties the suggested

18 list of exhibits, and discuss with the senior legal officer. The

19 Pre-Trial Judge will ascertain whether the Defence intends to have an

20 opening statement following the Prosecution's opening statement, whether

21 the accused will make a statement under Rule 84 bis, or whether the

22 accused will testify as a witness.

23 On the 10th of January, 2002, there will be a meeting of the

24 parties with the senior legal officer so as to finalise the agreement, the

25 witness list, the exhibit list, and so as to have exchanges as to the

Page 1418

1 proceedings to be held before the Trial Chamber. You know what I mean by

2 finalising, of course. I mean that we will have taken into account all

3 the instructions given by the Pre-Trial Judge as he or she deems them

4 convenient towards finalisation.

5 On the 16th of January, that would be the date for the Prosecution

6 pre-trial brief to be filed together with the witness list and the

7 exhibits list. So that is the time or the date on which those documents

8 should be filed. That date is also the date when the agreements reached

9 between the parties should be filed by way of a common document signed by

10 both parties.

11 On the 6th of February, 2002, the Defence pre-trial brief should

12 be filed.

13 18th of February, this is the date for the Pre-Trial Conference.

14 25th of February, 2002, this is the date when the trial would

15 start.

16 Before I give you the floor, I must say this: We have somehow

17 negotiated this date of the 25th of February, but with great difficulty.

18 Indeed, within the overall plan of the Tribunal, this date should have

19 been forwarded by one week. This draft schedule of operation is the very

20 last resort. We can't do anything else. If you wanted to make any

21 changes to it, it's only to say yes to it. We can't postpone anything any

22 further. As I told you, normally, we should have started one week

23 earlier.

24 The entire Tribunal, the parties, have got to get used to this way

25 of doing, to having speedy pre-trial phases. A time has come for that

Page 1419

1 now, taking into account at least two things: When the Prosecutor draws

2 an indictment, gets it confirmed, the Prosecutor must then be trial ready

3 as soon as the accused has had his or her initial appearance.

4 Second condition, and this is more with regard to the Defence:

5 The Defence must take into account the fact that it first has to be ready

6 for cross-examination of Prosecution witnesses and possibly, after the

7 completion of the Prosecution case, the Defence may ask for some time to

8 prepare its own case and to present its own witnesses. So in practical

9 terms, the Defence must, in an initial stage, be ready to proceed to the

10 cross-examination of witnesses.

11 If we take into account time periods as stipulated by the Rules,

12 it is normal and reasonable to expect that a pre-trial stage, even in

13 complex cases, should be completed within six months. Two years, two and

14 a half years or even one year devoted to a pre-trial stage, that's

15 something that should become history in this Tribunal.

16 We have gathered enough experience here. We can now improve on

17 the way we have met the demand expressed by accused for a speedy and

18 equitable trial. So this is what I suggest to you in terms of schedule,

19 and I say that it's going to be very hard to change this at all.

20 MS. SOMERS: May I ask Your Honour for one moment of private

21 session?

22 JUDGE RODRIGUES: [Interpretation] Yes. We can move to closed

23 session for a few minutes.

24 [Private session]

25 [redacted]

Page 1420

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Page 1421

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2 [redacted]

3 --- Recess taken at 11.08 a.m.

4 --- On resuming at 11.42 a.m.

5 JUDGE RODRIGUES: [Interpretation] You may be seated.

6 We're now in public session.

7 [Open session]

8 JUDGE RODRIGUES: [Interpretation] I should like to hear the

9 response of the parties. Once again, I have to repeat what I already

10 said, that is the need of having adequate pre-trial stages, pre-trial

11 phases. You know that we now have ad litem judges. We also have our

12 senior legal officers who actively participate in pre-trial phases.

13 However, if such pre-trial phases are much too long, then our efforts at

14 speeding up the proceedings will be in vain. So we have to do our best

15 and try to reduce the time that we spend on these pre-trial stages of the

16 proceedings.

17 Having said that, I should like to give the floor to Ms. Somers

18 for the response.

19 MS. SOMERS: Your Honour, subject to the considerations raised

20 during the private session on some of the very early dates, the

21 Prosecution appreciates very much the Chamber's efforts to put a trial

22 date at a time when, I think -- although we all feel pressured, it

23 perhaps is the least of the pressures which makes the end of February.

24 I just remind the Chamber that we had tried earlier to request a date in

25 the second quarter; we understand that is not an option, but we very much

Page 1422

1 appreciate Your Honour's efforts to assist the parties and I'm sure I

2 speak for my co-counsel -- my learned counsel opposite as well.

3 The other dates will be, for us, firmly observed. We may have

4 some questions because of, perhaps, some issues on the -- I want to call

5 it a skeleton provisional brief, where it's more -- to put the parties and

6 the Chamber on notice as to the essential aspects of the brief, it will

7 not be fully fleshed out and I don't think the Chamber expects it, from

8 what I understand, and there may be some periodic requests for

9 consultation with the senior legal officer to assist us in some guidance

10 as to the format, and my entire team will put itself at the disposal for

11 any questions and we will fully cooperate with the new Chamber, of course.

12 I have, just as a matter of record, spoken with Mr. Lukic about

13 the request that I made, and he has no objection to whatever flexibility

14 the Chamber is able to give us. Thank you.

15 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.

16 Mr. Lukic.

17 MR. LUKIC: Your Honour, we are also aware that the 25th of

18 February is the best we can get, although we have to express our concerns

19 because only recently the Defence got in the possession of 100.000 pages

20 and we are trying to select and to utilise our time as best as possible.

21 The product of these 100.000 pages is 3.500 pages which are some kind of

22 an analysis of these pages which is making our work easier, but still we

23 are not sure that we'll be in capacity to go through all the documents.

24 We appreciate your proposal that we can get some time in between

25 the Prosecutor's case and our case and we hope that we'll be able, at

Page 1423

1 least, to finalise our work after the Prosecutor's case. So as you said,

2 all we can say is yes and accept your offer, so we'll try to fit in in

3 this pretty tight schedule. Thank you.

4 JUDGE RODRIGUES: [Interpretation] Very well. Thank you very much,

5 Mr. Lukic.

6 With this skeleton provisional brief that we have suggested to the

7 Prosecutor and which has been accepted by Ms. Somers, I think that you can

8 see your task facilitated because you will have the list of exhibits and

9 list of witnesses, and you should not forget the request of the Chamber

10 for the Prosecutor to re-organise its case. We fully understand the scope

11 of your task, Mr. Lukic, but I think that you will be helped, you will be

12 assisted by these suggestions.

13 As I told you at the beginning, it appeared reasonable and

14 convenient for this Chamber to give you a working plan and not to leave

15 you in limbo for a while. Since we have this target date, it was

16 essential that we also give you a working plan, a kind of timetable so

17 that you have something to work on. I think that you will have another

18 Pre-Trial Judge after I have left and it will be his duty to review that

19 working plan, possibly with the parties, in view of the circumstances as

20 might appear. But it was -- it has been so far my task and my

21 responsibility to provide you with some kind of working plan, some kind of

22 timetable which, in itself, is not an objective but is a useful tool to

23 work on. Anything can be modified in view of the circumstances, of

24 course, and the working plan or timetable will be reviewed by the

25 Pre-Trial Judge who will be appointed after my departure.

Page 1424

1 But be that as it may, I think that, with the assistance of the

2 senior legal officer, it is always possible for all of us to adapt

3 ourselves to the plan or to adapt the plan to the working requirements.

4 The Pre-Trial Judge has to provide you with some kind of working plan and

5 the senior legal officer is actively participating in this plan but he has

6 a certain amount of leeway to modify the plan in view of the

7 circumstances. Of course, the main guidelines are not going to be

8 changed, they can only be modified by the Pre-Trial Judge. We can always

9 contact our senior legal officer concerning the execution of this plan or

10 the Pre-Trial Judge, if you wish, to request a modification of the plan.

11 I think that it constitutes a good working basis.

12 I don't know whether you have anything you wish to raise. As far

13 as I am concerned, I don't have any suggestions or proposals to make. I

14 should like to hear you once again, if there's anything that you wish to

15 raise, anything that you deem to be appropriate and necessary to bring up

16 at this point of the pre-trial phase.

17 Ms. Somers, let us hear you.

18 MS. SOMERS: Your Honour, one of the other motions that we had

19 been directed in your scheduling order to address was the motion for

20 protective measures. I do not know if there is any particular aspect that

21 the Chamber had in mind. I wanted to emphasise, though, that the time

22 periods that we have sought are always in addition to any special

23 considerations where a delayed disclosure may be appropriate. I believe

24 the language covers it, but I want to emphasise that there may be

25 circumstances where we will seek delayed disclosure in deviation from the

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Page 1426

1 normal requests that we've made for 30 days prior to -- the normal

2 request, I won't go into the details. I think some of it was done -- may

3 have been a confidential filing.

4 Another aspect that I would like to bring to the Chamber's

5 attention is a certification that appears on, I think, 92 bis format,

6 which is at the end of the official part done, I believe, by the

7 certifying officer, be it registry or domestic official, which makes

8 reference to an address of the affiant or the person certifying. It

9 appears to be surplus language not required by the Rule, and I think for

10 reasons of security, we'd ask that it not be enforced and that its

11 non-enforcement, because it is not an essential part of the 92 bis

12 process, that it not be deemed defective as a result of it.

13 The issue has been raised or may be raised soon with the registry

14 officers but it does not seem to be required, could cause some problems

15 for both sides, for both the Defence witnesses and the Prosecution

16 witnesses, and we would not want to hesitate in using this Rule which I

17 think should be used wherever possible. I just wanted to make sure the

18 Chamber was aware of it and that it appears not to be any type of

19 mandatory language and perhaps should just be stricken. Thank you.

20 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.

21 Mr. Lukic, any other matters that you wish to raise?

22 MR. LUKIC: Nothing else, Your Honour. I just wanted to address

23 our motion objecting to this motion filed by the Prosecution. So if we

24 have to discuss it further, we are ready to proceed.

25 JUDGE RODRIGUES: [Interpretation] No, I don't think that this is

Page 1427

1 the right moment to do that. The Chamber will give the matter due

2 consideration.

3 What I can tell you at this point is that I don't think that we

4 will be able to address all of the issues that are still pending and need

5 further discussion. We take note, however, that there are still issues

6 that need to be considered by both parties and the decision on these

7 issues, in particular the motion for protective measures and the issue

8 dealing with Rule 92 bis and the objection that has been mentioned by

9 Mr. Lukic, all of these matters do fall under the scope of the pre-trial

10 phase of the proceedings and will be considered as priority by the Chamber

11 that is going to be appointed to the case.

12 However, we should not forget our senior legal officer, who will

13 also act as a liaison officer, at this point in time. I think that we

14 will be able to finish this pre-trial phase with his assistance and still

15 keep the target date for the start of the trial.

16 I think we can adjourn at this point. We have done our best and

17 this is as far as we can go.

18 However, I should like to avail myself of the opportunity of this

19 Status Conference and give the floor to Dr. Stakic so that we can hear him

20 on his detention conditions and conditions of his health and any other

21 matter that he wishes to raise at this point. Dr. Stakic.

22 THE ACCUSED: [Interpretation] Thank you, Your Honour. As far as

23 the general conditions in detention are concerned, I have no complaints,

24 but the mere fact that I am held in detention is something that I take

25 with great difficulty.

Page 1428

1 As far as other complaints and other matters are concerned, I have

2 nothing else to add, and since you have mentioned that you are about to

3 depart from the Tribunal, I would like to wish you all the best in your

4 future life and work.

5 JUDGE RODRIGUES: [Interpretation] Thank you very much,

6 Dr. Stakic. You may be seated. Thank you for your kind words.

7 As you can see, Dr. Stakic, we're really doing our best so that

8 your detention conditions can be ameliorated with the beginning of the

9 trial. We understand that the very fact of being able to participate in

10 one's own trial can sometimes give additional courage and -- courage to

11 the accused.

12 At the end of this session, at the end of this hearing, once

13 again, I should like to express my pleasure at having worked with you. I

14 wish you all the best in your future work and I also hope that you will be

15 able to retain this very good communication between the parties.

16 Let me also thank the interpreters and the technicians and all

17 other staff who have given their contribution to these proceedings. The

18 hearing is adjourned.

19 --- Whereupon the Status Conference adjourned

20 at 11.59 a.m.

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