Tribunal Criminal Tribunal for the Former Yugoslavia

Page 571

1 Wednesday, 29 November 2006

2 [Status Conference]

3 --- Upon commencing at 11.37 a.m.

4 JUDGE HOEPFEL: Good morning, everybody. May the registrar please

5 call the case.

6 THE REGISTRAR: Thank you, Your Honour.

7 Your Honour, good morning. This is the case number IT-03-69-PT,

8 the Prosecutor versus Jovica Stanisic and Franko Simatovic.

9 JUDGE HOEPFEL: Thank you. And may I have the appearances,

10 please.

11 MR. RE: Good morning, Your Honour. For the Prosecution, David Re

12 accompanied by Rachel Riedman, legal officer, and case managers Carmela

13 Javier and Mr. Crispian Smith.

14 MR. JORDASH: For Mr. Stanisic, myself Wayne Jordash. Good

15 morning.

16 JUDGE HOEPFEL: Good morning, Mr. Jordash.

17 MR. JOVANOVIC: [Interpretation] Good morning, Your Honour. I am

18 Zoran Jovanovic, attorney from Belgrade, and I represent Franko Simatovic.

19 JUDGE HOEPFEL: Thank you. Good morning, Mr. Jovanovic.

20 We had -- or our Senior Legal Officer Linda Murnane was so kind to

21 hold a 65 ter meeting yesterday which, as I appreciate, has done a lot for

22 the preparation of this meeting and clarified things or things were

23 clarified in the meantime, maybe.

24 Our last Status Conference here was in August, on the 14th of

25 August. It was necessary to find a date for the new Status Conference

Page 572

1 within 120 days and so originally we had scheduled this meeting for next

2 week but it turned out it was conflicting with other assignments of one of

3 the counsel and so we rescheduled it to today.

4 The agenda I would like to discuss would be, first, pending

5 motions; and then disclosure issues as a second point; and then

6 preparations for pre-trial and for trial phase; and other matters.

7 As for the first issue of pending motions, we have to address a

8 Defence motion on modification of conditions for provisional release of

9 one of the accused. I would like to ask about the health of both accused

10 and, therefore, may we here move into private session, please.

11 [Private session]

12 (redacted)

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16 (redacted)

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11 Pages 573-577 redacted. Private session















Page 578

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 [Open session]

7 THE REGISTRAR: Your Honour, we are back in open session.

8 JUDGE HOEPFEL: Thank you.

9 So the other pending motion concerns the review of the Registrar's

10 decision pursuant to Article 13(B) of the practice direction on the

11 assignment of counsel which was filed confidentially on the 13th of

12 September, 2006. As was explained by the -- our Senior Legal Officer at

13 yesterday's 65 ter conference, the Trial Chamber will be able to issue a

14 decision in January. The Trial Chamber is very aware of the practical

15 importance of this decision for the Stanisic Defence counsel.

16 Regarding a further extension of the deadline for further

17 arguments on this matter, as was explained during aforementioned 65 ter

18 conference, the deadline for further arguments was extended during the

19 last Status Conference and will not be extended again.

20 May I now move to another topic, if no comment is being wished on

21 this one. Please.

22 MR. JORDASH: No, thank you.


24 MR. RE: No, the Prosecution takes no view on this at all, Your

25 Honour.

Page 579

1 JUDGE HOEPFEL: Thank you. So now as to the disclosure issue.

2 First, regarding Rule 66(A)(i) about supporting material to the

3 indictment and, (ii), witness statements as well as Rule 68 mitigating and

4 exculpatory material, Rule 66(B) inspection of Prosecution books, photos,

5 and other tangible objects. I would like to say the following or to ask

6 the following: During yesterday's 65 ter conference, the Prosecution

7 responded that the disclosure of documents from these VRS archives to the

8 Defence can be completed during the next month. Is that still the

9 Prosecution's position?

10 MR. RE: Yes, the decision to put on the -- in the Status

11 Conference is the Prosecution has finally gained access to the VRS archive

12 and has been there twice and has selected a number of documents of

13 potential relevance to this case. We have taken several hundred

14 documents. We are currently reviewing them. Within the next month, we

15 should be able to make a final decision as to whether or not we would use

16 them at trial and will disclose them to the Defence by the end of

17 December. That's the VRS archive ones.

18 JUDGE HOEPFEL: Thank you very much.

19 Then as to translations of documents, we have to clarify the

20 following: During yesterday's 65 ter conference, the Prosecution

21 indicated that 33 translations have been disclosed but that 20

22 translations were still pending; is that correct?

23 MR. RE: Not quite. It's actually 18. We have reviewed our

24 records. We have 18 pending translations. I can't, unfortunately, give a

25 date for the --

Page 580

1 JUDGE HOEPFEL: Of course.

2 MR. RE: Because they are in the translation queue.

3 JUDGE HOEPFEL: Thank you. But let's monitor that.

4 And then yesterday also the matter of this Mijovic audio tape was

5 apparently raised. Has the audible copy which was needed of the audio

6 tape now been provided to the Defence?

7 MR. RE: Yes, it's now in the hands of both Mr. Jovanovic and

8 Mr. Jordash who have them with them at the moment.

9 JUDGE HOEPFEL: Can you confirm that?

10 Mr. Jovanovic.

11 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. The Prosecution

12 has disclosed to the Defence the CD with the interview which is

13 technically sound now, I believe, so that's fine.

14 Thank you.

15 JUDGE HOEPFEL: Thank you.

16 Mr. Jordash.

17 MR. JORDASH: The same.

18 JUDGE HOEPFEL: Thank you.

19 Now next is the disclosure of certain letters used in the

20 Milosevic case. This disclosure is awaiting Rule 70 permission. Does the

21 Prosecution have an indication when that permission will arrive, as this

22 issue has been pending for quite some time now?

23 MR. RE: There are two letters. We have communicated with

24 Mr. Stanisic's lawyers. The first lawyer isn't a Rule 71 and the

25 information is public; we've communicated that to them. The second letter

Page 581

1 which counsel for Mr. Stanisic has indicated that he has seen and is aware

2 of the information in the Milosevic letter, several months ago we

3 sought -- in September, we sought Rule 70 clearance from the relevant

4 providing government. We're still awaiting that. It's always difficult

5 to know. We can send a reminder letter but that doesn't mean it will

6 speed things up because they have to go through government clearance

7 processes.

8 We are just simply asking for the same clearance that was provided

9 to Mr. Milosevic, Slobodan Milosevic, be provided to counsel for

10 Mr. Stanisic and Mr. Simatovic, if necessary, but I just can't give you a

11 date.

12 JUDGE HOEPFEL: Thank you very much for this clarification. Then

13 the Prosecution has indicated that as to further matters which might arise

14 under these rules pertaining to the duty to disclosure, there are

15 statements currently being produced concerning testimony before the

16 Belgrade court which are being made available to counsel on CD-ROM.

17 Counsel for Mr. Simatovic indicated he already had this testimony. Yes?

18 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. The Defence of

19 Mr. Simatovic is following the trial and it is thanks to the Court, or,

20 rather, the district court for war crimes in Belgrade. These transcripts

21 are being sent on a regular basis, and the Prosecution also sent us in the

22 transcripts from that trial that it considers to be relevant, so I think

23 that that issue has been resolved as well.

24 Thank you.

25 JUDGE HOEPFEL: Thank you very much.

Page 582

1 And Mr. Jordash.

2 MR. JORDASH: We would like disclosure from the Prosecution. I

3 know we have been following the trial to a degree, but we would like

4 disclosure, please.

5 JUDGE HOEPFEL: That makes sense, doesn't it, Mr. Re?

6 MR. RE: Well, I can happily report that Mr. Jovanovic now has two

7 copies of the transcript and Mr. Jordash has one. We have provided them

8 with -- on CD today with the entirety of the transcript that we have of

9 the proceedings in Belgrade. Now we're obtaining this on a sporadic basis

10 as it's updated, and we will, of course, give it to them.

11 Now, some of that does contain statements which would be relevant

12 under Rule 66(B) of intended Prosecution witnesses in the Trnovo component

13 of this indictment. They are of course not translated into English, they

14 are in their original, and that's all we can do for the moment. We have

15 no immediate plans to translate it. But if anything is relevant, we will

16 do so in the future, once we've identified it.

17 JUDGE HOEPFEL: Thank you very much, Mr. Re.

18 I would now like to go to the expert reports under Rule 94 bis.

19 Have the translations of the Strinovic exhumation reports been disclosed

20 already? That is pending already since spring 2005, I think, isn't it?

21 Please, Mr. Re.

22 MR. RE: They still are -- there is a difficulty here. They were

23 tendered in totality in the Milosevic case and they were accepted in the

24 original B/C/S in the Milosevic case. They're basically exhumation

25 reports. The Court granted the Prosecution some leeway in not having them

Page 583

1 translated. They are still pending. They are still in the queue but

2 there is no priority for that.

3 This is very much an issue which, in our submission, the Defence

4 could look at those and decide whether they really want them translated

5 into English for the purposes of tendering because it's something which

6 can be stipulated because they relate to the fact of death and the

7 circumstances, and it probably won't be an issue when it comes to the

8 trial. So that may be an issue for further discussion, rather than having

9 the CLSS translate things which may not need to be translated.

10 JUDGE HOEPFEL: Yes. Thank you. I understand.

11 What would you say? Wouldn't that be an approach possible saving

12 resources?

13 MR. JORDASH: It seems very reasonable to me, and we will look at

14 them and if, as expected, there will be no dispute on them, then we can

15 agree and save translation resources.

16 JUDGE HOEPFEL: Thank you very much.

17 Would you also agree?

18 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. Yes, I do

19 agree. And the Defence, in conformity with what we were discussing

20 earlier on at the previous Status Conference and with respect to 65 ter,

21 we are expecting the Prosecution to provide us with a proposal for

22 adjudicated, or agreed facts, rather, and in that sense, that will be --

23 those will be the certificates, death certificates, and when we receive

24 the proposal, I think it will suffice to be in English and need not be

25 translated.

Page 584

1 JUDGE HOEPFEL: Well, these were not in English but in B/C/S.

2 Mr. Re?

3 MR. JOVANOVIC: [Interpretation] Yes, I do apologise, Your Honour.

4 So it is agreed facts, and I think the Prosecution said that it would

5 formulate a proposal, and in keeping with what was decided at the previous

6 Status Conference and at the 65 ter meeting, I think that proposal

7 incorporates these death certificates and the component parts of the

8 expertise, that is what the Defence is expecting but we don't have to have

9 it translated into the B/C/S language.

10 JUDGE HOEPFEL: Thank you very much, Mr. Jovanovic.

11 I think this would be a very good solution, on the one hand to

12 save resources, and on the other hand, already go into the agreed facts

13 matter which we will touch upon later in this meeting.

14 Anything further to that translations issue?

15 MR. RE: Just there might be a slight confusion. My understanding

16 is the autopsy report is almost the same thing as the death certificate

17 for the purposes of the stipulation but -- we'll certainly work on it.

18 JUDGE HOEPFEL: Yes, please. Usually these are two different

19 documents but they are, of course, related closely.

20 So now for further pre-trial preparation. I would like to address

21 the following. First as to the possible use of Rule 92 bis and 89(F)

22 evidence. How far is the Prosecution in preparing that packages,

23 according to 89(F) and 92 ter, as this has a direct impact on the

24 Prosecution's readiness for the trial, doesn't it?

25 MR. RE: As I indicated at the last Status Conference, our

Page 585

1 intention is to prepare 89(F) Rule 89(F) packages or Rule 92 quater

2 packages as it now will be in relation to every witnesses. The

3 Prosecution has commenced it. We are about one-quarter of the way

4 through. However, we do have some resource issues in that our legal

5 resources are being deployed into trials which are immediately listed for

6 trial or in trial, so it is slightly slower than we had anticipated.

7 However, the Defence of course has all the information which will

8 be in these packages, that is the statements of the witnesses, any

9 exhibits, and the testimony in related cases. All we are doing is putting

10 them into one package to make it easier for all parties in the court when

11 we actually get to trial. We are not quite in the position to start

12 handing them over, but once we're a little bit more further advanced, we

13 can certainly disclose them with a view to seeking some sort of pre-trial

14 agreement. But we would be doing that closer to trial when we have a

15 better view of when the trial will be and the final witness list.

16 JUDGE HOEPFEL: Thank you. Well, one thing depends on the other,

17 doesn't it? We will address that issue of the hopefully soon possible

18 start of the trial. But therefore, it would assist a lot if the

19 Prosecution would focus on that issue.

20 As to Rule 92 bis evidence, everything has been already said

21 yesterday, I suppose. Are there any submissions here?

22 MR. RE: The only thing which I would repeat so that it's in the

23 Status Conference and on the public record is that the Prosecution's view,

24 which we have expressed before, is that it's more appropriate to deal with

25 who the 92 bis witnesses are immediately before trial or when a Trial

Page 586

1 Chamber has been assigned. The most recent difficulties in pre-trial

2 Chambers making decisions have been in the Prlic case and the Seselj case

3 where the Trial Chamber is now reviewing its original 92 bis decisions.

4 So we very much want to be in the position that we have a Trial Chamber

5 before we make the ultimate decision, which of course is the Trial

6 Chamber's, and don't deploy resources in going down to take the statements

7 in the former Yugoslavia, which is why we are preferring the 89(F) package

8 from which a decision can be made in consultation with the Trial Chamber

9 and the Defence.

10 JUDGE HOEPFEL: Yes, I understand. Thank you.

11 Now to the agreed facts and adjudicated facts and stipulations on

12 the indictment.

13 First, as to the agreed facts. It was suggested several times by

14 Defence counsel during the last two 65 ter conferences, and it is

15 suggested now that the Prosecution act on Mr. Jovanovic's request

16 regarding a proposal for an agreement on some basic issues such as the

17 mentioned death certificates. Therefore, it is suggested that this will

18 be now done before the next Status Conference. Is that possible?

19 MR. RE: That certainly is. The -- on the Trial Chamber's orders

20 last year, we filed our proposed agreed facts. It was on the 8th of

21 August last year, and Defence for Mr. Stanisic responded and has filed

22 their counter-proposal. So there is something out there, but we'll

23 certainly work on getting something more to the Defence before then. But

24 of course the Defence could also, we suggest, respectfully, provide us

25 with their own suggestions.

Page 587

1 JUDGE HOEPFEL: Thank you. That indeed would help, wouldn't it?

2 Mr. Jordash.

3 MR. JORDASH: Could I suggest that it would be more effective if

4 we look at this more closely when the Prosecution serve the revised

5 pre-trial brief? There is much we potentially don't know about the

6 Prosecution case so far, whether it's 1.000 exhibits from Serbia,

7 potentially, whether it's the VRS archives and what's coming from them,

8 whether it's a change to the way they put their case in the revised

9 pre-trial brief, and I would be uncomfortable sitting down to agree

10 finally, although there can be movement, I think there can be

11 understandings reached through exchange of proposals which I think has

12 happened thus far, but I would be uncomfortable with meeting any final

13 agreement until we've reached the point of understanding precisely what

14 constitutes the Prosecution case.

15 We understand what the Prosecution's proposals are. We have

16 looked at them and I can certainly suggest that as soon as we're in a

17 position to know the Prosecution case we would work hard to reach

18 agreements to expedite the final trial.

19 That's our position, Your Honour.

20 JUDGE HOEPFEL: Thank you very much.

21 [Trial Chamber and legal officer confer]

22 JUDGE HOEPFEL: Yes. Now, please, Mr. Jovanovic, what's your

23 point of view?

24 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

25 It is true that the Prosecution sent in a list of facts offered to

Page 588

1 the Defence for adoption and Mr. Stanisic's Defence responded to that, but

2 I think that the evaluation made by Judge Kwon, the other Pre-Trial Judge,

3 that it was an over-ambitious attempt on the part of the Prosecution,

4 perhaps, and that to start off, we should concentrate on, if I can put it

5 this way, less important facts, such as confirmation of death, autopsy

6 reports and so on, so that we are expecting a reformulated proposal from

7 the Prosecution to begin with. And then in a short -- that is something

8 that we can respond to in a short space of time. Otherwise we fully agree

9 with what my learned friend Mr. Jordash has just put forward.

10 JUDGE HOEPFEL: Thank you very much, Mr. Jovanovic.

11 Now, I will turn to the adjudicated facts issue. As there are no

12 Prosecution motions regarding these adjudicated facts, and there are

13 references in Prosecution filings that there will be such requests, I

14 might mention during yesterday's 65 ter conference with our Senior Legal

15 Officer, Prosecution suggested it didn't want to bother the Trial Chamber

16 with a motion on adjudicated facts. It made the analogy with 92 bis

17 evidence on which maybe some Judges are reluctant to decide, as you

18 referred to in this pre-trial phase, but the Chamber would like to invite

19 Prosecution to file with the Court a proposal on adjudicated facts that --

20 the proposal that they submitted to the Defence in March 2006. Then the

21 Defence can respond to this motion and the Court will want to rule on as

22 many facts as it can during the pre-trial phase.

23 Is that reasonable to you?

24 MR. RE: It is certainly not unreasonable. As we explained in the

25 Rule 65 ter conference yesterday, the Prosecution, on the 15th of March

Page 589

1 this year, forwarded a 47-page proposal on adjudicated facts with 288

2 suggested adjudicated facts to the Defence listing the source of the

3 adjudicated fact and where it had been admitted in previous cases.

4 I mean, the document is certainly in a file-able form. Before

5 doing -- before filing it, we would wish to review the Simic and Brdjanin

6 Appeals Chamber decisions which may be relevant. Simic is certainly

7 relevant because there's an overlapping crime base in the Bosanski Samac

8 crime base.

9 When Your Honour a moment ago mentioned -- my submissions

10 yesterday that we didn't want to bother the Trial Chamber, that's quite

11 correct. Our view is I think burden is a better way of expressing it from

12 our view-point that we took the view that it was better to do this

13 inter partes and try and reach some sort of agreement before we came back

14 to the Trial Chamber or Pre-Trial Chamber, because we didn't want to file

15 something that was just waiting in cyberspace, so to speak, it being only

16 of information for the Pre-Trial Chamber that we had exchanged suggestions

17 for adjudicated facts with the difficulty that the Trial Chamber would not

18 or may not consider itself bound by anything the Pre-Trial Chamber decides

19 in relation to this.

20 So that was the reason why we sent it by letter, but we're

21 certainly happy to file it as information rather than, I would

22 respectfully submit, a motion for a decision on adjudicated facts.

23 JUDGE HOEPFEL: Yes. Thank you.

24 Please, Mr. Jordash.

25 MR. JORDASH: Certainly in regard to Mr. Re's suggestion that it's

Page 590

1 filed as information, then I would have no issue with that.

2 As a motion, I would simply reiterate what I said a moment ago,

3 which is that in terms of making sensible decisions the Defence are not in

4 a position to, until we know what the Prosecution case is. But in terms

5 of filing it as information, and I would have, as I say, no problem with

6 that.

7 JUDGE HOEPFEL: Yeah. This, of course, is true, I think. One

8 cannot put the horse before the -- the cart before the horse, you know.

9 I would again like to draw your attention to the decision of the

10 Karemera Appeals Chamber which the Senior Legal Officer drew your

11 attention to yesterday. The Appeals Chamber decision of the 16th of June,

12 2006. The reason to look at this decision is because it constitutes a

13 turning point in the Appeals Chamber jurisprudence and as to the legal

14 qualifications of facts.

15 I also would like to draw your attention to what the Prlic Trial

16 Chamber recently decided in this regard. The latest decision of -- on

17 adjudicated facts of the Prlic Chamber of 7th of September, 2006.

18 These are all means to streamline the case and to balance between

19 the fairness and the expeditiousness of the trial and of the whole

20 process, and therefore one has to do with the other. But I would like to

21 address now as an extra point the anticipated length of this trial. The

22 issue has been discussed yesterday at length, apparently. The Stanisic

23 Defence believed that the position of the Prosecution that their case will

24 take about six months was overly optimistic and the Chamber will take note

25 of that position.

Page 591

1 Is there anything else the party would like to add, please?

2 MR. JORDASH: Could I just clarify what I was suggesting

3 yesterday?

4 JUDGE HOEPFEL: Yes, please.

5 MR. JORDASH: I understood that the six-month estimation was for

6 the whole trial. That's what I was regarding as overly optimistic. Six

7 months for the Prosecution case, that would appear to be certainly an

8 estimate which I wouldn't disagree with and couldn't, as long as obviously

9 sensible decisions are made about agreed facts and so on and so forth. So

10 six months I don't have an issue with.

11 JUDGE HOEPFEL: I have to admit that I also first misunderstood it

12 in the sense of six months for the overall duration of the trial, but it's

13 important to note that this is referring only to the Prosecution case.

14 Is that correct, Mr. Re?

15 MR. RE: Well, it's very difficult to make an estimate. When I

16 say six months, it's a best guesstimate, really, but that depends so much

17 on how many witnesses are called live, how much cross-examination there

18 is, agreed facts, stipulations, adjudicated facts, the length of

19 cross-examination, whether the accused testify, if so, for how long, how

20 much evidence, if any, the Defence call. I would hope it could be done in

21 six months, but it depends on so many factors that I can't -- I really

22 can't say any better than that at the moment. I apologise.

23 JUDGE HOEPFEL: No. No. Thank you. Nothing to apologise. And I

24 appreciate that -- I acknowledge that this is a difficult task. It's,

25 according to my short experience now, it seems to be like an art, to

Page 592

1 streamline these cases and still be representative and fair at the same

2 time. It's clear, whether we have limited resources, on the other hand,

3 we have absolute commandments for fairness, and therefore I appreciate

4 your efforts.

5 Well, these efforts now will also have to do with the start of the

6 trial. So may I ask the last point --

7 MR. JORDASH: Sorry, Your Honour, I meant to jump up. But I think

8 I might have stolen my co-accused's jump up.

9 There's still some confusion. We've now gone back to the issue of

10 six months relating to the whole trial. Mr. Re just referred to the

11 accused giving evidence, whether any Defence evidence is called and so on.

12 So --

13 JUDGE HOEPFEL: It was a little fuzzy, but I think, on the other

14 hand, Mr. Re referred to the Prosecution case only.

15 MR. JORDASH: Would he say so?

16 JUDGE HOEPFEL: Yes, your body language says something.

17 MR. RE: It may be; it may be not. It depends on how many

18 witnesses we can put on paper, whether the Defence is contesting the crime

19 base. If the Defence isn't contesting the crime base, it will be much

20 less. If it's a case concentrated on the linkage, and we call 20

21 witnesses, for example, it will take much less time. But if there's

22 contest to the crime base, it will take longer.

23 I just can't -- I can't give an estimate without some sort of

24 agreement or focus on where the Defence is coming from. So six months

25 could be the whole trial, or it could be the Prosecution case, depending

Page 593

1 upon that. But I don't think we're going to get an answer to that today.

2 JUDGE HOEPFEL: Mr. Jovanovic, please.

3 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

4 Well, it's still not clear, and I think it would be better for the

5 Prosecution to state its views as to how long their case will take,

6 regardless of whether the Defence will conduct cross-examination or not,

7 or what the accused's stand will be with respect to testimony or anything

8 else. It would be a good idea if we had a realistic assessment, as far as

9 that is possible, from the Prosecution about how long they intend to take

10 in order to present their case.

11 JUDGE HOEPFEL: Yes. Thank you very much. I think that doesn't

12 require any answer now. And we should now move to the trial preparations,

13 the possible deadline to commence trial.

14 During the last Status Conference, it was suggested that the

15 Prosecution would need some four to six months for it to be ready to go to

16 trial. This would mean the winter coming now, and yesterday at the 65 ter

17 meeting, the Senior Legal Officer suggested that the Chamber will want to

18 set up a work plan in order to be ready for trial in spring, around March,

19 she said, of 2007.

20 We have reviewed this position in light of clarifications of the

21 Defence's oral submissions during yesterday's 65 ter conference. The

22 Trial Chamber considers that the deadline should be extended, such that

23 this case needs to be ready to go to trial around mid-summer 2007. I

24 would say definitely before the summer recess and, if possible, early July

25 2007.

Page 594

1 The Trial Chamber will issue a written order regarding a work plan

2 to be ready by that date in the next month, to be ready for that date in

3 the next month. But before we do, we would like to once more hear

4 observations of the parties in this respect.

5 Would you like to make observations, Mr. Re?

6 MR. RE: The Prosecution, of course, will comply with any orders

7 the Trial Chamber makes. Yesterday in the Rule 65 ter conference, I

8 alerted the Defence and the Senior Legal Officer to the current work in

9 progress of the Prosecution, I repeat it now for the public and the Status

10 Conference.

11 Since the last Status Conference, the Prosecution has, pursuant to

12 high level agreements reached with the government of the Republic of

13 Serbia, managed to view categories of documents within archives held by

14 the Republic of Serbia. The agreement with the Republic of Serbia doesn't

15 allow us to copy documents in situ, we have to request the documents where

16 we have to first of all ask the archivist for the documents or to inspect

17 ledgers to try and find them, and then take a note of the documents we

18 want and then make a request for assistant from the Prosecutor's office to

19 the government of Serbia.

20 It's a different situation for the VRS and the government of

21 Bosnia where we can take copies in the archive of whatever we wanted.

22 Hence, the difference between the situation with the Serbian archives and

23 the Bosnian archives. With the VRS, we will be in a position to disclose

24 the material next month.

25 I have reviewed the records. We have currently requested some

Page 595

1 1500 or so documents based from the Republic of Serbia based upon our

2 review of ledgers and spot samples of documents in their archives. The

3 reason for the lateness of our doing this is it was not until earlier this

4 year that the Prosecution was granted access in any way to these archives

5 held by the Republic of Serbia, access to which had been the subject of

6 litigation over at least four years in the case of Prosecutor against

7 Slobodan Milosevic.

8 After Mr. Milosevic's death, the Prosecutor has entered into an

9 agreement with the Republic of Serbia allowing us finally to go to these

10 archives and, as a result, it takes some time to organise access and to

11 view them. We have made the requests, and we are awaiting receipt of

12 these documents.

13 We've also requested documents in the categories of ledgers which

14 would lead us to further documents, but again, we have to await the

15 Serbian government giving us those documents before we can actually

16 request the further documents. That's the problem.

17 So we simply ask the Trial Chamber to bear this in mind, the

18 difficulties we faced in the Republic of Serbia's compliance under

19 Article 29 and Rule 39 of the Statute and Rules, and the Prosecution's

20 dilemma in balancing the rights of the accused and the rights of the

21 international community in obtaining the evidence necessary.

22 Once we have it, we hope it will focus the trial or focus the

23 Prosecution and obviate the need to call oral evidence. We are very

24 hopeful of that but we have to have the documents in house, and once we

25 have them, it will take months, several months at least to review them,

Page 596

1 select those which we think are necessary, translate them and disclose

2 them.

3 JUDGE HOEPFEL: Thank you very much. That indeed is a complicated

4 situation and understandable that it will take several months to structure

5 these documents.

6 How is the position of that Defence as to the start of the trial?

7 MR. JORDASH: Well, it would appear that everything depends upon

8 this process, and with the best will in the world if the Prosecution

9 obtain the documents in January, the Defence are not getting them until

10 March or April, and it would take us a significant amount of time, if the

11 documents run into hundreds, to be able to assess and work out their

12 probative value, and from that work out what further investigations, if

13 any, had to be undertaken, a process which, I would imagine, is going to

14 be as long as the Prosecution's process of getting them and getting them

15 to us.

16 So whilst of course we would do everything to comply with any

17 order to be ready by July 2007, on the face of it, putting aside Defence

18 difficulties, it would appear to be quite a tight schedule. I would --

19 probably for Your Honour at this stage as well, the ill health of the

20 accused and the fact that that slows the whole process down from the

21 Defence preparation side of things.

22 So it perhaps may be somewhat ambitious, given all of these

23 issues.

24 JUDGE HOEPFEL: Of course it is ambitious, indeed, and will be

25 tight.

Page 597

1 What is your view, Mr. Jovanovic?

2 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

3 Well, I agree with what my learned colleague has just said. The

4 Defence will of course act in conformity with any ruling made by the

5 Court. But with respect to the amount and volume of material that the

6 Prosecution will be disclosing to the Defence, I think that the date that

7 you mentioned, or, rather, July 2007 is a little over-ambitious, perhaps,

8 as a deadline. But at all events, it will depend on how things proceed,

9 how much material the Prosecution is going to disclose after it makes its

10 selection, but I don't think this deadline would be sufficient for the

11 Defence to analyse the documents whilst they have been disclosed and then

12 to conduct its own investigations therein.

13 So the Defence is not insisting upon a speedy trial, especially as

14 the accused are on provisional release at present.

15 JUDGE HOEPFEL: Yes. Thank you very much.

16 We have, of course, when discussing a tentative deadline, to take

17 into account research on the side of the Defence.

18 What do you think, Mr. Re? Let's speak of these documents you

19 were just mentioning before. You would come across documents relevant to

20 this case. I suppose you would include also exculpatory material, if you

21 come across such material, or what would be your approach?

22 MR. RE: The broad categories of documents are things such as

23 reports, intercepts, ledgers, information we just haven't been able to

24 receive from the authorities in Serbia over the life-span of the Tribunal.

25 We are, of course, looking for inculpatory material, but if we

Page 598

1 find exculpatory material under Rule 68 of course we will disclose it and

2 disclose it as Rule 68 as we -- consistent with our obligations.

3 JUDGE HOEPFEL: Yes. I mean before disclosing it, you would ask

4 for that. You described the complicated procedure in Belgrade, and

5 therefore, you can only disclose what you have in possession. Therefore,

6 that was my question, if you would ask for that.

7 MR. RE: I'm not quite -- can you clarify that, please?

8 JUDGE HOEPFEL: How much efforts will be required then for the

9 Defence to go and see what there is in supporting -- in support of their

10 position and -- so therefore, I was asking myself: How would you behave?

11 Like you find this and that, and you would then order it to be copied for

12 you, and only then you would disclose it? It's a technical issue, but at

13 the same time it's related to the question of the objectivity or not by

14 the Prosecution.

15 MR. RE: The procedure is different with, for example, the VRS

16 archive searches and the Serbian ones. With the VRS, we collect the

17 documents on the spot and mark whether we consider anything we find to be

18 Rule 68 and then disclose it. So we can do it -- because we have the

19 documents in our hand we can basically assess them at the time.

20 With these documents, we have to request them, then receive them.

21 Now if we see anything that we think is Rule 68 while in the archives, we

22 also request that and provide that to the Defence. But we have to get it

23 back -- and review it. So that adds to the procedure. So of course if we

24 find anything in this -- in the process of searching, which we consider to

25 be Rule 68, we will request it and ask the -- and provide it to the

Page 599

1 Defence. If that's the question Your Honour is asking me, that ...

2 JUDGE HOEPFEL: Thank you for this valuable clarification.

3 Still it might require some effort, some investigative effort on

4 the side of the Defence after having received these documents.

5 MR. JORDASH: Yes. Well, it's clear that the Prosecution are

6 looking, as Mr. Re said, for inculpatory evidence. If they come across

7 exculpatory, they'll seize it, but our approach, of course, will be

8 completely the opposite.

9 JUDGE HOEPFEL: Your approach would be more comprehensive.

10 MR. JORDASH: Yes, we would look for obviously what was helpful.

11 So it may be that we ourselves have to search the archives once the

12 Prosecution are finished.

13 JUDGE HOEPFEL: Of course. So let's agree on the tentative

14 character of this potential deadline, and let's give it a try to come as

15 close as possible to that goal.

16 Do you want to add something?

17 MR. JORDASH: No. No, thank you.

18 JUDGE HOEPFEL: Mr. Jovanovic.

19 MR. JOVANOVIC: [Interpretation] No, thank you, Your Honour.

20 Nothing to add.

21 JUDGE HOEPFEL: So it's the question if there are any other

22 matters which might be raised?

23 Mr. Re.

24 MR. RE: Not from the Prosecution, no.

25 MR. JORDASH: No, thank you.

Page 600

1 MR. JOVANOVIC: [Interpretation] No, thank you, Your Honour.

2 JUDGE HOEPFEL: I wanted to add just a point that in combination

3 of all that issues, we will also have to view the possibilities of

4 pre-trial briefs, then that will be included in the work plan, and we will

5 set the dates as they same appropriate.

6 So this brings us to the end of this Status Conference, and I

7 would like to thank you, and also the interpreters again, of course, and

8 everybody. And so we will schedule the next Status Conference as ruled --

9 as regulated in the rules.

10 Thank you very much.

11 ---Whereupon the Status Conference adjourned at

12 12.49 p.m.