Tribunal Criminal Tribunal for the Former Yugoslavia

Page 22

 1                           Thursday, 9 June 2011

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused not present]

 5                           --- Upon commencing at 3.02 p.m.

 6             JUDGE MORRISON:  Can we have the case called on, please.

 7             THE REGISTRAR:  Good afternoon, Your Honour.  This is case number

 8     IT-98-32/1-R77.2, The Prosecutor versus Jelena Rasic.

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

10     please.

11             MR. WOOD:  Good afternoon, Your Honour.  Kyle Wood and

12     Aditya Menon for the Prosecution, along with our Case Manager,

13     Jasmina Bosnjakovic.

14             MS. TAPUSKOVIC: [Interpretation] Good afternoon, Your Honour.

15     Defence counsel, Mira Tapuskovic, Defence counsel for Jelena Rasic, and

16     my assistant --

17             THE INTERPRETER:  The interpreters didn't catch the name.

18             JUDGE MORRISON:  Thank you.  And we all know that the accused is

19     not present and excused from being present.

20             While I'm dealing with that, I'd simply like to orally deal with

21     the Defence motion for modifications on the conditions under which she is

22     under provision release.  Pursuant to the decision of the

23     12th of November, 2010, she was to reside in the home of her parents in

24     Belgrade, remain within the confines of the city of Belgrade and report

25     to the local police station.  The Defence sought through their motion to

Page 23

 1     have those three conditions modified to allow for the accused to travel,

 2     along with her parents, to their country home in Cerovac village, in the

 3     municipal of Smederevska Palanka, to reside and remain within that

 4     jurisdiction for the duration of her parents' visits, and to report to

 5     the designated local police station every Monday and Friday.  And the

 6     accused additionally undertook to inform local police stations, both in

 7     Belgrade and in the municipality in advance of travel.  The Prosecution

 8     does not object to the request and agrees that the supplementary measure

 9     will provide an additional safe-guard.  In consequence, the Trial Chamber

10     grants the motion as requested and, in addition, orders the accused to

11     report to the designated local police station in the municipality of

12     Smederevska Palanka upon arrival.

13             And a written decision will follow.

14             Do all parties have the proposed agenda for today's conference?

15             MR. WOOD:  Yes, Your Honour.

16             MS. TAPUSKOVIC: [Interpretation] Yes, Your Honour.

17             JUDGE MORRISON:  Let's go through it.

18             First of all, the pending motion which was to amend the

19     indictment, it struck me that the Prosecution now having filed a

20     pre-trial brief which extensively amplifies the indictment, is there

21     anything now of worth remaining in the preliminary motion to amend the

22     indictment, or can that be subsumed into the pre-trial brief?

23             MS. TAPUSKOVIC: [Interpretation] Thank you, Your Honour.

24             The Defence's view is that it should be acted upon the

25     guide-lines and instructions issued by you at the Status Conference held

Page 24

 1     on 4th of February this year, and in them, you indicated in what way the

 2     indictment should be amended by specifying exactly which wording should

 3     be used and which paragraphs and which counts of the indictment should be

 4     subject to amendment.

 5             The Defence believes that it could be properly discussed about

 6     the knowledge of the accused in terms of her providing false testimony

 7     [as interpreted], only if the -- she is questioned in accordance with the

 8     guide-lines issued by you on the 4th of February.

 9             JUDGE MORRISON:  Thank you.  Yes, OTP.

10             MR. WOOD:  Well, the Prosecution stands by what it has said in

11     its response to that motion and agree with Your Honour.  At the last

12     Status Conference you said that you believed the indictment does plead a

13     prima facie case, and the Prosecution mentioned at the last

14     Status Conference that we would be filing a pre-trial brief that would,

15     in fact, as you say, amplify these points.

16             I think the Prosecution has done that.  The accused is certainly

17     on notice of the case to which she has to answer.  And, in particular,

18     paragraphs 56, 61, 66, 71, and 76 of the pre-trial brief, I think,

19     sufficiently answer the concerns of the Defence.

20             JUDGE MORRISON:  Well the amendments that I suggested at the last

21     Status Conference are very small, and I can't, for myself, see any great

22     difficulty incorporating them into the indictment.  I don't want to

23     generate unnecessary work.

24             In reality, is there any part of the Prosecution's case now that

25     the Defence do not understand, i.e., that any part of the allegations

Page 25

 1     that -- in the Defence case that means that the defendant doesn't know

 2     which the -- the accused doesn't know what the case is that she has to

 3     meet?

 4             MS. TAPUSKOVIC: [Interpretation] Your Honour, before I answer

 5     your question, I would like to make a small correction.  On page 3, in

 6     the transcript, line 2, it says her providing false testimony.  It should

 7     read her providing false statements.

 8             Now, Your Honour, if I may respond to your question.

 9             The Defence fully understand the indictment, and we see in which

10     direction it is going and in what way it is determining the mens rea of

11     the defendant.  We believe that the suggestion that you have made was not

12     a big job for the Prosecution to do in terms of adjusting the indictment

13     since the last Status Conference of the 4th of February.

14             If the Trial Chamber believes that they can be satisfied with the

15     amendment such amended, that is to say, the knowledge about the acts that

16     she undertook and her knowledge about the witness statement being false,

17     then the Defence will not cause any problems in that respect either, and

18     I repeat, provided you are satisfied that this meets the standards and

19     the jurisprudence of this Tribunal in terms of the mens rea of the

20     accused and the comparison with the deeds that they are accused of having

21     committed.

22             JUDGE MORRISON:  Well, it is self-evident that I do, because I

23     confirm that the indictment set out a prima facie case.  The prima facie

24     case is not an exhaustive definition of the liability or the allegations.

25     But if you couple that indictment together with the Prosecution pre-trial

Page 26

 1     brief, it's abundantly plain what the case is that the accused has to

 2     meet.  It is abundantly plain what is being said against her, and the

 3     elements of mens rea which the Prosecution need to prove, along with the

 4     actus reus, so I think we can safely leave the indictment as it is.  And

 5     the easiest thing, therefore, probably is if the Defence withdraw their

 6     preliminary motion, being satisfied that the Trial Chamber is satisfied

 7     that all necessary matters are now in the public domain.

 8             MS. TAPUSKOVIC: [Interpretation] Your Honour, the Defence is

 9     going to act accordingly.  Thank you.

10             JUDGE MORRISON:  Thank you very much.  Let's move on to pre-trial

11     preparation.  Rule 66(A)(ii), what is the position on that?

12             MR. WOOD:  Rule 66(A)(ii) disclosure is complete, Your Honour,

13     but for two witnesses that are subject to a pending motion.

14             JUDGE MORRISON:  [Microphone not activated] ... so that motion

15     needs to be addressed.

16             Any observations as to that, Ms. Tapuskovic?

17             MS. TAPUSKOVIC: [Interpretation] No, Your Honour.  I can only

18     confirm what the representative of the Prosecution has already said,

19     i.e., that everything cited so far will be used during trial, pursuant to

20     Rule 66(A)(ii), disclosed to the Defence in the language understood by

21     the defendant.  However, we are maintaining constant contact with the

22     Prosecution, and this is going to be, as we understand, disclosed to the

23     Defence in the shortest possible term.

24             JUDGE MORRISON:  Thank you.  Prosecution to file its motion for

25     admission of 92 bis and 92 ter according to the pre-trial witness list.

Page 27

 1     That's in hand, I presume.

 2             MR. WOOD:  Yes, Your Honour, the Prosecution is prepared to file

 3     those motions.

 4             JUDGE MORRISON:  Can that be done, please, by -- bearing in mind

 5     that there is no way that we are going to be able to have this case

 6     listed for trial before the recess, can that be done by the 1st of July?

 7             MR. WOOD:  Yes, Your Honour.

 8             JUDGE MORRISON:  And also motion to file -- or notice for

 9     protective measures for any, if any, by the 1st of July?

10             MR. WOOD:  Yes, Your Honour, the Prosecution is in the process of

11     investigating that right now.

12             I should mention going back to the 92 bis motion, of course,

13     there are witnesses, the two witnesses I mentioned earlier subject to

14     that as well.  So barring that, we can meet the 1 July deadline.

15             JUDGE MORRISON:  Thank you.  There has been no objection from the

16     Defence, as I see it, as to the Prosecution expert report under

17     Rule 94 bis.  Is that going to remain the same position?

18             MS. TAPUSKOVIC: [Interpretation] Yes, Your Honour.  The situation

19     is such that the Defence has not filed a notice to the Trial Chamber,

20     pursuant to Rule 94 bis, due to the fact that we had agreed with the

21     Prosecution on the 2nd of May of this year for the expert report to be

22     included into agreed facts.  And we have taken that as an irrefutable

23     piece of evidence, and it is, I think -- that is an irrefutable piece of

24     evidence, number 5, and the Defence believe that the Trial Chamber has

25     been notified about that, and that they will take this as a notice from

Page 28

 1     the Defence, indicating that they have no need to question the expert

 2     witness.

 3             JUDGE MORRISON:  Thank you.  Presumably no difficulty as to that.

 4             Any -- any suggestions or modifications?  I think we thought, if

 5     I recall rightly, that the trial was likely to take three working weeks.

 6     Have subsequent events altered either party's estimate for that length?

 7             MR. WOOD:  Well, it's has been a productive few months, I think,

 8     since the last Status Conference, Your Honour.  As you know, we have

 9     filed a set of agreed exhibits.  We have filed a set of agreed facts, 52.

10     Given that, the Prosecution has been able to whittle down its witness

11     list significantly, well, to a certain extent.  I think we reported

12     before perhaps 19 witnesses total.  We now anticipate perhaps 12 total,

13     and that includes among that the expert witness we just talked about.  So

14     presumably that wouldn't be required as well.  As you know, we've put

15     forward an estimate of 16 hours for our case in-chief.  This obviously

16     also depends on the outcome of the 92 bis and 92 ter motions.  That is

17     the status of the Prosecution's case at their prediction at this time,

18     Your Honour.

19             JUDGE MORRISON:  Which -- as we don't know at the moment whether

20     we're going -- how we're going to be able to accommodate the trial in

21     terms of days of sitting in a week, we probably can't take the actual

22     length of trial much further forward at the moment.

23             Any observations as to that from the Defence?

24             MS. TAPUSKOVIC: [Interpretation] Your Honour, immediately before

25     the beginning of this Status Conference, I had a conversation with my

Page 29

 1     learned friend from the Prosecution, in the hope of defining the schedule

 2     for this trial.

 3             In the last two months, we communicated almost on a daily basis

 4     by exchanging e-mailings, and we established a sort of co-operation

 5     regarding irrefutable facts and evidence.  And the Prosecution list of

 6     witnesses has been considerably reduce, particularly of those who are

 7     going to appear here and testify viva voce.  However, I still cannot say

 8     what the scope of the Defence case is going to be, because that depends

 9     on the Prosecution case.  But I do believe that the trial will be shorter

10     all together.  It may not require three weeks, but I don't think that it

11     can be shorter than two weeks.

12             Now, as I stand here, this is the best estimate I can give you at

13     the moment.

14             JUDGE MORRISON:  Well, thank you for that.  And I'm grateful for

15     the very mature collegiate co-operation between the parties.

16             We have a number of limiting factors as to being able to take any

17     fixing of the trial date forward at this moment.  It's limited in a

18     number of ways.  First of all, as the parties well know, the Haradinaj

19     trial is going to be fixed and the sitting -- sitting schedule for that

20     is going to be fixed.  And that trial involves a certain conflict between

21     Judges of this Trial Chamber and the Judges of that trial.  So the

22     different sitting options that one might not normally think about at the

23     moment are rather difficult to put into any concrete form.  I think the

24     best thing I can do is to say that that will be done by e-mail between

25     the parties as soon as practicable, between the Trial Chamber and the

Page 30

 1     parties, when we know better where we sit in terms of judicial

 2     availability and court availability.  It may be that we will have to be

 3     flexible in our sitting options three days a week, weeks on/weeks off,

 4     and things of that nature.  And that makes it more, I know, difficult for

 5     both parties in terms of witness availability and counsels' availability.

 6             Are there any absolute bars to availability on the part of

 7     witnesses or parties that can be disclosed at this stage; for instance,

 8     for the month of September?  Can I be told that, if that's possible.

 9             MR. WOOD:  Not from the Prosecution, Your Honour.  The only

10     scheduling concerns for the Prosecution are that Mr. Rogers, who is not

11     here today and asked for me to apologise for that.  He is in Courtroom I

12     right now in the Haradinaj case.  He is also on this case, as is my

13     colleague, Mr. Menon.  Considering the two other Judges are also on that

14     case, that is the -- that is the main consideration for the Prosecution.

15             JUDGE MORRISON:  Ms. Tapuskovic.

16             MS. TAPUSKOVIC: [Interpretation] Thank you, Your Honour.  The

17     Defence, even before having received the agenda for this

18     Status Conference, has undertaken all the steps in compliance with

19     e-mails sent by Ms. Featherstone to both the Defence and the Prosecution

20     to explore and investigate the possibilities of the best possible times

21     that are suitable to witnesses for them to appear.

22             The Defence witnesses said that they prefer that that be at the

23     beginning of September, and that is what the Defence is counting on; that

24     they can begin their case at that time.  However, we are going to try and

25     co-ordinate our schedule with all the commitments and scheduling of other

Page 31

 1     parties involved, but the Defence is ready to start by the beginning of

 2     September.

 3             JUDGE MORRISON:  Thank you.  It is obviously a matter of great

 4     importance for everybody, not least the accused, that the trial is

 5     conducted as expeditiously as possible.  Fortunately, she is not in

 6     custody, so the expedition is perhaps not quite as critical as it might

 7     otherwise have been.  But, nevertheless, we'll move ahead to fix a trial

 8     date and schedule as soon as practicable.

 9             Are there any other matters that we can usefully deal with now?

10             MR. WOOD:  Well, the Prosecution did wish to make a motion to

11     admit into evidence the agreed facts and agreed exhibits; that's 16

12     exhibits.  We thought we would make that motion orally and the Defence

13     could be heard from today.  I don't anticipate that there be an objection

14     to that.  But I thought that's one thing we can do to move things along

15     today.

16             JUDGE MORRISON:  Thank you.

17             Ms. Tapuskovic.

18             MS. TAPUSKOVIC: [Interpretation] As I already said, Your Honour,

19     we discussed this matter immediately before this Status Conference, and

20     this is something that was also the subject of the e-mails that I

21     exchanged with the Prosecution.

22             I absolutely agree that if it is possible for us to finalise this

23     matter and to see how these facts and the evidence in question is going

24     to be admitted into evidence.

25             JUDGE MORRISON:  Well, bearing in mind this is a matter which is

Page 32

 1     dealt with by agreement between the parties, I can't, for the life of me,

 2     imagine that there would be any judicial disagreement with that.

 3             So I'm going to take the radical step of granting the motion for

 4     admission and to accelerate the process as far as possible.

 5             My judicial colleagues will be informed.  No doubt, if there is

 6     outrage, I will be the first to know about it.

 7             Anything else that can usefully be dealt with?

 8             MR. WOOD:  Not from the Prosecution side, Your Honour.

 9             MS. TAPUSKOVIC: [Interpretation] I would just like to notify the

10     Chamber and Your Honour about one thing.

11             On the 26th of January, the Defence filed a motion in the

12     Lukic and Lukic case, to the Appellate Chamber, for disclosure of

13     confidential and ex parte material.  The Defence did not request full

14     access to ex parte and confidential material from the Lukic and Lukic

15     case but only to that portion that concerns the acts that the judgement

16     is mentioning in a number of paragraphs and number of footnotes.

17             Unfortunately, the Defence has not received any answer

18     whatsoever, since the 26th of January.  I believe that this disclosure

19     will not produce any drastic consequences which would force the Defence

20     to make some major steps during the trial.  I believe that we are going

21     to receive this from the Appellate Chamber before the summer recess.  And

22     before the trial starts, we hope that the Registry, in co-operation with

23     the Prosecution in the Lukic and Lukic case, will single out and select

24     the specific parts of the material to be disclosed to the Defence in

25     order to enable us to prepare ourselves for the beginning of the trial in

Page 33

 1     good time.

 2             We have this problem which is troubling the Defence, to a certain

 3     extent, but we do hope that this is going to be overcome because we have

 4     more than enough time, which is to say, more than two and a half months

 5     before the commencement of the trial.  Therefore, I believe that that

 6     problem can be solved within that period.  I only wanted to bring to your

 7     attention that this is a problem that the Defence expects to be resolved.

 8             JUDGE MORRISON:  Thank you for that.  I appreciate that there is

 9     a delay in that matter.  I hope it will be resolved, if -- if as we've --

10     get close to the recess, there is still no resolution, perhaps

11     Ms. Tapuskovic, you could remind the Chamber, and it may be that gentle

12     pressure might be applied.

13             MS. TAPUSKOVIC: [Interpretation] Thank you, Your Honour.

14             JUDGE MORRISON:  Anything else from the administrative point of

15     view?  No.  So be it.

16                           [Trial Chamber and Legal Officer confer]

17             JUDGE MORRISON:  Hopefully, we will not need another

18     Status Conference, but if we do, it will have to be before the -- on or

19     before the 7th of October of 2011 when the 120-day period expires.  I

20     think we'll just leave it at that for the moment, and be confident that

21     we won't need another Status Conference date.

22             Thank you very much.

23                           --- Whereupon the Status Conference adjourned

24                           at 3.28 p.m.