Tribunal Criminal Tribunal for the Former Yugoslavia

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1 Tuesday, 20 January 2004

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.12 p.m.

6 JUDGE KWON: Good afternoon. Could the Registrar please call the

7 case.

8 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honour.

9 Case Number IT-03-69-PT, The Prosecutor versus Jovica Stanisic and Franko

10 Simatovic.

11 JUDGE KWON: Thank you. Will both parties make their

12 appearances.

13 MR. GROOME: Good afternoon, Your Honour. For the Prosecution,

14 Dermot Groome and with me is case manager Skye Winner.

15 JUDGE KWON: Thank you, Mr. Groome. And for the Defence, please.

16 MR. KNOOPS: Good afternoon, Your Honour. For the Defence in the

17 case of Mr. Stanisic, Mr. Knoops, attorney-at-law in Amsterdam.

18 MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honours.

19 I'm Zoran Jovanovic, attorney-at-law from Belgrade defending

20 Mr. Simatovic.

21 JUDGE KWON: Thank you, Mr. Knoops and Mr. Jovanovic. Before we

22 begin, first of all, I'd like to wish everyone here a very Happy New

23 Year. This is the second Status Conference in this case. And prior to

24 this Status Conference, there have been two Rule 65 ter conferences

25 convened by Ms. Yvonne Featherstone, the Senior Legal Officer of this

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1 Chamber. And she has been informing me of the substantive content of

2 those conferences.

3 And let me deal -- start by dealing with a couple of outstanding

4 motions. Since the last Status Conference, the Chamber issued a decision

5 on 14th of November on the parties' preliminary motions on the form of

6 indictment. In that decision, the Chamber ordered the Prosecution to

7 submit an amended indictment to which the Prosecution complied on 9th of

8 December of last year. While the Trial Chamber has not yet issued a

9 decision on the submitted amended indictment, both of the Defence teams

10 filed a motion concerning an alleged defect in the amended indictment.

11 And the Prosecution has filed a joint response to these motions. And the

12 Chamber will render its decision in due course.

13 And for the next matter concerning a confidential filing, shall

14 we briefly go into private session.

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6 [Open session]

7 JUDGE KWON: Now, I'd like to turn to the issue of disclosure.

8 I understand that Rule 66(A)(i) disclosure is complete, but Rule 66(A)(ii)

9 disclosures are still outstanding. Can I hear the status of that from

10 Mr. Groome.

11 MR. GROOME: That is correct, Your Honour. Rule 66(A)(i) is

12 complete, and we are in the process and plan to imminently commence the

13 process of meeting our disclosure obligations under both 66(A)(ii) and 68,

14 and Rule 68. If I may, if it pleases the Court, I would explain the

15 proposal of the schedule that the Prosecution -- the schedule that the

16 Prosecution would propose for completion of that disclosure.

17 JUDGE KWON: Yes.

18 MR. GROOME: The Court may or may not know, since the last Status

19 Conference the Prosecution has -- the Prosecution team on the Stanisic

20 case has lost four professional staff and two legal interns. So we are

21 in the process of reconstituting the team. I expect in the near future

22 we will have a full complement of attorneys and other necessary staff,

23 but it has caused some problems in getting off to a start with our

24 disclosure obligations.

25 What the Prosecution is proposing, Your Honour, is that

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1 commencing in February we begin disclosure both of Rule 66(A)(ii) and Rule

2 68, and for every month thereafter continue to make a disclosure once a

3 month of both Rules 66(A)(ii) and Rule 68. We estimate that proceeding in

4 that way, we would be able to complete all of the disclosure under Rule

5 68 and Rule 66(A)(ii) --

6 THE INTERPRETER: Could you please slow down a little.

7 MR. GROOME: My apologies. That we would be able to complete all

8 of the disclosure for both 66 and 68 by July, before the summer break.

9 Prosecution also has a proposal with respect to the mechanics of some of

10 this disclosure. I don't know if the Chamber would like me to address

11 that now or to address it separately.

12 JUDGE KWON: What do you mean by mechanics? Yes, if you can

13 address that matter now.

14 MR. GROOME: Wherever possible, Your Honour, we will be

15 disclosing electronically. We will be providing compact disks with

16 search engines so the Defence may search whatever is disclosed to them.

17 In a case of material that is available either in the disclosure suite or

18 on the ICTY website -- for example, open session testimony of witnesses

19 in other proceedings -- what the Prosecution would propose to do is the

20 following: To meet our disclosure obligation by identifying the relevant

21 testimony or the relevant document to the Defence and allowing them to

22 download that material at their convenience directly from the source. So

23 it's a matter -- it's our position that there would be no tangible

24 difference between downloading it from a CD or downloading it from the

25 website. Of course, we'll be guided by the Chamber's views on this. But

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1 proceeding in that way would permit us to expedite the disclosure

2 process.

3 JUDGE KWON: As long as they consent to that method of

4 disclosure.

5 MR. GROOME: Yes, Your Honour. I will discuss it then --

6 JUDGE KWON: Let's set aside the Rule 68 disclosure a moment, and

7 let's concentrate on 66(A)(ii) disclosure. Is there any observation from

8 the Defence team on the -- regarding the method of disclosure Mr. Groome

9 just mentioned?

10 MR. KNOOPS: Not on behalf of the Defence of Mr. Stanisic. Thank

11 you.

12 JUDGE KWON: Mr. Jovanovic.

13 MR. JOVANOVIC: [Interpretation] Thank You, Your Honour. We had

14 discussed this issue with at the 65 ter meeting so I suppose you are

15 familiar with the result. As for the disclosure method suggested by

16 Mr. Groome, we do, indeed, have access to this website of the Tribunal,

17 and the Defence does not need to be advised specially of which witnesses

18 these are. However, I believe that the transcripts available on the site

19 of the Tribunal are not sufficient in themselves. We cannot analyse the

20 testimony of one witness without having received his witness statements

21 in advance. I have nothing against following the website of the ICTY,

22 but I believe it is slightly unusual for the Prosecution to not deliver

23 everything that concerns a particular witness, and leave the Defence

24 teams only with what is available on the website. I believe, therefore,

25 the Prosecution should make an effort to identify the witnesses as

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1 suggested by Mr. Groome, but also disclose everything available in

2 connection with those witnesses.

3 JUDGE KWON: Yes, Mr. Groome.

4 MR. GROOME: Your Honour, I apologise if I wasn't clear enough.

5 Obviously 66(A)(ii), my obligations under that encompass far more than

6 simply what's available publicly on the website. We will, of course,

7 then, be providing electronic copies of witness statements and any other

8 material that would be covered by Rule 66(A)(ii), without question.

9 JUDGE KWON: So the list or index you're proposing to disclose

10 is -- will work as a kind of search tool or courtesy tool for the

11 Defence, and the full disclosure will follow. Am I correct in

12 understanding so?

13 MR. GROOME: I'm not sure, Your Honour. Perhaps if I can put it

14 in other words. Let's say there's Witness A, and Witness A perhaps has

15 testified in the Milosevic trial. What we will be providing to Defence

16 counsel as soon as we are able is a list that says "Witness A testified

17 on this date and his testimony is publicly available." And then as soon

18 as we are able, we will be providing Witness A's statement and any other

19 disclosable material in electric form which is not readily available from

20 the website.

21 JUDGE KWON: Is there any objection from the Defence in receiving

22 the statement in electronic form?

23 MR. JOVANOVIC: [Interpretation] Your Honour, none whatsoever as

24 far as the form of disclosure is concerned, whether electronic or

25 otherwise. The only thing that matters to the Defence is that we cannot

Page 46

1 do with the transcripts available only on the website. It is something

2 for the public domain, but that is not sufficient for preparing our case.

3 Of course, we have nothing against receiving documents in electronic

4 form.

5 JUDGE KWON: My understanding is that is exactly what the

6 Prosecution plans to do. And let's call it the offering the list or

7 index of first disclosure, when do you think the first disclosure can be

8 done?

9 MR. GROOME: Proposing to begin in February, Your Honour, and

10 then continuing every month thereafter.

11 JUDGE KWON: Mm-hmm. And --

12 MR. GROOME: Your Honour, if I may just --

13 JUDGE KWON: In all, it will be complete by the end of July.

14 MR. GROOME: Yes, Your Honour. If I could just add the following

15 observation: One of the reasons why I decided upon this is it allows us

16 to commence disclosure as soon as possible given the circumstances that

17 we face, and ensures that the Defence receives a steady stream of

18 documents rather than receiving an overwhelming number on a date

19 determined by the Chamber, but that they receive a steady stream of

20 documents so they can work in preparing their Defence.

21 JUDGE KWON: And there must be some sensitive statements or

22 security-concerned statements the Prosecution is seeking for protective

23 measures.

24 MR. GROOME: That is correct, Your Honour. And the Prosecution

25 would ask or would plan, again, trying to balance -- is planning, my

Page 47

1 apologies, is planning to file a protective measures' motion that would

2 encompass nearly all of the witnesses or all of the witnesses that we

3 presently know about and intend to call by the middle of April. And we

4 are calculating that from the time that we believe our obligations in the

5 Milosevic have receded a bit and gives us about four weeks to make our

6 final contacts with the witnesses and to put together a comprehensive

7 application for protective measures. That, also, Your Honour, I believe

8 would give -- taking into account the time the Chamber would need to

9 decide that motion, would still allow us to complete the disclosure,

10 according to what I've proposed, on schedule.

11 JUDGE KWON: If the Registrar has the calendar with her right

12 now? Or... I note the 20th of July is -- I'm sorry. 19th of July is

13 Monday.

14 So Mr. Groome, what do you think about my ordering that 19th of

15 July is the deadline for 66(A)(ii) disclosure?

16 MR. GROOME: The Prosecution is grateful for that amount of time,

17 and we'll do our best to comply with it.

18 JUDGE KWON: Let's think about the -- I understand there's an

19 (Redacted)

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21 MR. GROOME: Your Honour, my learned friend Mr. Jovanovic had

22 asked that we deal with this matter in private session. I don't know if

23 Mr. Jovanovic wants to be heard on it first.

24 JUDGE KWON: Very well. Then let's go into private session,

25 please.

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22 [Open session]

23 JUDGE KWON: Thank you.

24 Do you think you can complete this disclosure earlier than the

25 66(A)(ii) disclosure, or you're suggesting to complete this at the same

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1 time?

2 MR. GROOME: I'm suggesting that it be put on the same schedule,

3 Your Honour, but I have a query that I would put to my colleagues that

4 may help us expedite this process. We've provided the Defence with

5 search terms that we believe will assist us in locating and identifying

6 Rule 68 material in our collection. Many of those search terms are the

7 same search terms that were used in the Milosevic case. If the Defence

8 agrees to accept the results of those search terms without a separate

9 review, the disclosure of Rule 68 material can begin sooner.

10 The difference in what they will receive is that they perhaps may

11 receive a few additional documents. There is material that may be Rule

12 68 in the Milosevic case that would not be Rule 68 material in this

13 particular case. I cannot imagine a situation where the reverse of that

14 is true. So if the Defence are willing to accept the results of our

15 search terms for the Milosevic case, we can begin almost immediately to

16 turn over a large portion of that Rule 68 material.

17 JUDGE KWON: I would very much encourage the cooperation in that

18 matter from the Defence. But is there any comment from the Defence on

19 this issue?

20 MR. KNOOPS: Your Honour, thank you for this opportunity to

21 remark.

22 At this moment, the Defence has no additional search terms

23 provided to the Prosecution. We cannot exclude, of course, that these

24 terms could emerge during the disclosure process. So we have to reserve

25 our right to file additional search terms. We did file, the Defence for

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1 Mr. Stanisic, did file a preliminary list with agreed and disputed facts.

2 Therefore, they could potentially enhire [sic] several search

3 terms. But at this stage, we have no additional remarks for the search

4 list.

5 JUDGE KWON: Thank you very much. Then, the same date will be

6 ordered as the deadline for the exculpatory material.

7 And then I'd like to hear any comments, report on expert reports

8 in this case.

9 MR. GROOME: Your Honour, just prior to the proceedings beginning

10 today, the Prosecution turned over the materials with respect to three of

11 the experts. We are in the process of completing the work with the

12 experts, the other experts.

13 JUDGE KWON: How many in all? I'm sorry to interrupt you.

14 MR. GROOME: We anticipate five experts all together,

15 Your Honour. So that would leave two. Not only have we provided today

16 the expert reports, but we've provided CDs with all of the underlying

17 documents that were relied on by some of the experts. I'm sorry, one of

18 the experts. All of the underlying that that expert relied upon. It's

19 our intention to disclose the others as soon as they come available. I'm

20 unable at this time to give the Court a definitive date as to when the

21 other two reports will be completed.

22 JUDGE KWON: Can it be safe if I order the same date for the

23 deadline of the expert also?

24 MR. GROOME: Certainly, Your Honour.

25 JUDGE KWON: I think I dealt with most of the important issues

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1 related to the disclosure. Are there any matters the parties wish to

2 raise at this moment?

3 MR. KNOOPS: There's one additional matter, Your Honour, the

4 Defence wants to point to, and I think it belongs to the confidentiality

5 of the provisional release motion, so I would respectfully request to go

6 to private --

7 JUDGE KWON: Let's go into private session.

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15 [Open session]

16 JUDGE KWON: Yes, Mr. Jovanovic.

17 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. Just a

18 brief comment with respect to disclosure pursuant to Rule 68. I consider

19 that something that can be brought under Rule 68 in this case does not

20 automatically mean that it can come under the same rule in a different

21 case, in the Milosevic case, for example. So I don't think any

22 automation ought to be applied. It oughtn't to be automatic.

23 I understand the importance in the Milosevic case, of course, and

24 the Prosecution's attitude towards it, the database that can be used for

25 other trials as well, such as witness statements and other exhibits and

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1 evidence with respect to the circumstances and facts. But I just simply

2 believe that we can't apply the criteria automatically, those that hold

3 true in the Milosevic case and this case, too. One must take all the

4 elements into consideration.

5 And just one more point with respect to the problem that I -- a

6 problem I encountered, and I brought this up at a meeting we had. The

7 Trial Chamber and you, Your Honour, are a member of that Trial Chamber

8 made a ruling that I be allowed access to transcripts and evidence from

9 the Milosevic trial. However, after that ruling, I approached the

10 registry in November and again in December, and called them up several

11 times on the phone asking them for a list of exhibits and witnesses that

12 were produced during the Milosevic trial and which related to Bosnia and

13 Croatia. I have received no response to the present day. So you gave me

14 access. You allowed me to have insight into them, whereas the registry

15 simply does not wish to inform me what witnesses were heard during the

16 Milosevic trial and which exhibits were tendered.

17 So let me repeat: I consider that I cannot rely on the website

18 of the Tribunal alone or the televised trial of the Milosevic case in

19 order to gain access to things that are relevant to me. So quite simply,

20 I would ask the registry to allow me to have access to that matter. I

21 have made the same motion with respect to the Samac case. The

22 Prosecution has not yet responded. I am awaiting their response. Thank

23 you.

24 JUDGE KWON: Thank you. I will look into the second matter. And

25 the first issue will be noted by the Prosecution. Yes.

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1 MR. GROOME: I don't mean to interrupt the Chamber, I just want

2 to make an observation regarding the Rule 68.

3 JUDGE KWON: Please go ahead.

4 MR. GROOME: Of course our Rule 68 obligation is unique to this

5 case, and we undertake it with full vigour. What I'm simply speaking

6 about are those search terms which are identical. And perhaps it will

7 help Mr. Jovanovic if I give a concrete example. One of the terms that

8 was searched, was, let's say, Red Berets for the Milosevic case, and all

9 the documents that had that word in it were then read by trained people

10 to identify any material that was exculpatory, or Rule 68, for the

11 Milosevic case. That would include any material that because of the

12 legal theory of that case that would have exculpated either Mr. Stanisic

13 or Mr. Simatovic.

14 So what I have proposed is that if Mr. Jovanovic will accept

15 those documents that are now ready to be given, we are willing to do that

16 almost immediately. If Mr. Jovanovic would prefer that we go through

17 those documents again and pull out those documents that are only

18 exculpatory to Mr. Milosevic and not to his client, then that will take a

19 considerable amount of time and will slow down the process. That is all

20 I'm suggesting when I made that proposal.

21 JUDGE KWON: Very well. Then the last issue will be the next

22 Status Conference.

23 MR. KNOOPS: Your Honour.

24 JUDGE KWON: Yes, Mr. Knoops.

25 MR. KNOOPS: Would you allow me to ask my client if he has other

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1 issues to be made before you --

2 JUDGE KWON: Yes, please.

3 MR. KNOOPS: -- close the session with a next date.

4 JUDGE KWON: Yes, please.

5 MR. KNOOPS: Thank you.

6 [Defence counsel and accused confer]

7 MR. KNOOPS: Thank you for your time. And sorry for the

8 interruption. Mr. Stanisic has no additional comments and questions to

9 the Chamber or the Prosecution. Thank you.

10 JUDGE KWON: Before we set the date for the next Status

11 Conference, given that the Prosecution was given sufficient time to

12 complete its obligation for disclosure, is it possible for the

13 Prosecution to file its pre-trial brief at the same date, which means the

14 end of July?

15 MR. GROOME: Yes, Your Honour.

16 JUDGE KWON: So 19th of July.

17 MR. GROOME: Yes, Your Honour.

18 JUDGE KWON: So it will be so ordered. Then can I ask the

19 Defence how much time you need for the preparation of pre-trial brief on

20 the Defence side after you receive the Prosecution's pre-trial brief? If

21 I can -- but that can be dealt with at the next Status Conference, not

22 right now.

23 MR. KNOOPS: So you don't want an answer yet right now.

24 JUDGE KWON: If you can, please.

25 MR. KNOOPS: I think we will confer together with respect to the

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1 time, if you don't mind. Thank you.

2 JUDGE KWON: Then the next Status Conference should be held

3 before 19th of May this year. And I think that's the deadline. So a

4 scheduling order will be issued when the time approaches, around 19th of

5 May.

6 Unless there's anything, this hearing is adjourned.

7 --- Whereupon the Status Conference adjourned

8 at 4.03 p.m.

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