Tribunal Criminal Tribunal for the Former Yugoslavia

Page 88

 1                           Tuesday, 16 December 2008

 2                           [Pre-Trial Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.18 p.m.

 6             JUDGE PARKER:  Good afternoon.

 7             I would ask the Registrar to call the case, please.

 8             THE REGISTRAR:  Good afternoon, Your Honours.

 9             This is case number IT-05-87/1-PT, the Prosecutor versus

10     Vlastimir Djordjevic.

11             JUDGE PARKER:  Thank you very much.

12             We have assembled today for the pre-trial conference in this

13     matter.  I would ask first, then, for appearances.

14             Mr. Hannis, unexpectedly I see you.

15             MR. HANNIS:  Good afternoon, Mr. President, Your Honours.

16             I am Tom Hannis.  I'm the senior trial attorney on behalf of the

17     Office of the Prosecutor.  I'm joined today on my right by Line Pedersen,

18     who is our case manager, and on my left is trial attorney,

19     Daniela Kravetz.

20             I would indicate, Your Honour, that I'm standing in for the

21     assigned senior trial attorney, Mr. Stamp, who unfortunately could not be

22     with us this week, due to a personal matter; and I am here, but I'm going

23     to be relying heavily on Ms. Kravetz, who is more familiar with the case

24     and more up to speed than I am, and probably will be more help to you on

25     substantive matters today.

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 1             JUDGE PARKER:  Well, thank you, Mr. Hannis, although we won't let

 2     you off too lightly, because I've noticed your name on a whole number of

 3     earlier filings.

 4             MR. HANNIS:  Understood.

 5             JUDGE PARKER:  Thank you, indeed.

 6             Now, Mr. Djordjevic.

 7             MR. DJORDJEVIC:  Good afternoon, Mr. President, Your Honours.

 8             I am Dragoljub Djordjevic, lead counsel for the accused

 9     Djordjevic, and together with me today is my co-counsel,

10     Mr. Veljko Djurdjic, and my legal associate, Marie O'Leary.

11             JUDGE PARKER:  Thank you, and we're pleased to see you, and we

12     welcome all counsel.  And we look forward over the coming time, I'll call

13     it months, to our association.

14             And I see now in the court Mr. Djordjevic, himself.  I welcome

15     you, sir, and I ask whether you are receiving the broadcast in a language

16     you understand of what is happening in the courtroom.

17             You are; is that correct?

18             THE ACCUSED: [Interpretation] Good afternoon.  Yes, I can hear

19     it.  Thank you.

20             JUDGE PARKER:  Thank you very much, Mr. Djordjevic.

21             I'm sure the accused, Mr. Djordjevic, and counsel will be pleased

22     to know that only last week, on Thursday, a decision was made in New York

23     by the United Nations, appointing Judge Baird to join this Chamber to

24     enable this trial to proceed, and that, then, has enabled the completion

25     of this Trial Chamber.  Judge Flugge and Judge Baird will join me for the

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 1     conduct of the trial.  The appointment means that we are now able to

 2     proceed to the final stages of preparation and set trial dates, with a

 3     view to the trial proceeding at the earliest possible moment.  And I'm

 4     sure it's much to the relief of Mr. Djordjevic that at last the matter

 5     can be dealt with, and it will be possible to deal with the trial and

 6     reach a decision about the indictment at the earliest proper opportunity.

 7             Yesterday, the President assigned Judge Baird to Trial

 8     Chamber II, and this morning Judge Agius, the Presiding Judge of Trial

 9     Chamber II, assigned Judge Baird to this case.  I mention those two

10     orders because they will reach you in due course, but they have been

11     signed, and they complete the technical procedures for the assembling of

12     this trial section to deal with this case.

13             The pre-trial conference procedure is formally dealt with in

14     Rule 73 bis of the Rules, as you know, but in fact many of the matters

15     contemplated by that Rule have been under care by Judge Harhoff, who has

16     been the Pre-Trial Judge; and his work has enabled many aspects of what

17     would normally be done on this occasion to be treated as already

18     effectively completed.  We're grateful to Judge Harhoff for what he has

19     been able to do in this respect.

20             Under Rule 73 bis, for example, attention might properly be given

21     by this Trial Chamber to questions of the length and range of the matters

22     alleged in the indictment and to the questions of the witnesses who will

23     be called in support of the indictment by the Prosecution.  While we will

24     not treat the present position as finalised, the Chamber is not presently

25     of the mind that anything more needs to be done about the range of

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 1     matters alleged in the indictment.  In other words, it will treat the

 2     current version of the indictment as the indictment that will proceed to

 3     trial.

 4             This is the operative indictment that's I think the fourth

 5     amended indictment which was finalised and filed in July of this year, so

 6     that is the form of the indictment which we contemplate and upon which

 7     counsel have been working for some four and a half, five months now.

 8             With respect to the witnesses, it's evident that Judge Harhoff,

 9     as the Pre-Trial Judge, has spent some considerable time in looking at

10     the witnesses which the Prosecution intend to call.  In this respect, we

11     note that on Friday of last week, the Prosecution filed a final amendment

12     of its list originally filed some months ago in which it proposes now

13     that it will call some or lead evidence from some 114 witnesses, which is

14     a substantial reduction from the number originally proposed.  And of

15     those 114 witnesses, the Prosecution presently has moved for orders that

16     would allow it to lead the evidence from 31 of those 114 witnesses in the

17     form of a written statement pursuant to Rule 92 bis, and for 4 other of

18     the 114 witnesses in the form of a written statement pursuant to

19     Rule 92 quater.

20             The reduction of the total number of witnesses has been the

21     subject of a procedural order by Judge Harhoff which allows the Defence

22     an opportunity to put submissions as to whether it has a concern

23     primarily, I would think, as to whether any of the deleted witnesses

24     ought to be called by the Prosecution, even though they propose in their

25     latest amended list not to call them.  Now, the time contemplated for

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 1     that order was until the 26th of January.  We would indicate that we

 2     would not see that as a matter that must be finalised before the trial

 3     commences.  The trial can commence without that matter being finalised,

 4     but that if the Defence is in a position to file its position earlier, it

 5     would enable the Chamber to reach a decision, if there is any difficulty

 6     in submission, and so enable both the Prosecution and the Defence to

 7     proceed with their planning and conduct of the case with greater

 8     certainty.  So we would encourage the Defence, if it is practical, to

 9     bring forward any submission they wish to make about the reduction in the

10     Prosecution list to 114 witnesses earlier than the 26th of January, if

11     that is feasible.

12             The Prosecution has contemplated, as I've indicated, that a

13     number of witnesses, instead of being called viva voce, their evidence

14     should be received in the form of a written statement pursuant to

15     Rule 92 bis.  It has moved for that to occur in, on my count, four

16     motions that are before the Chamber.  Three of them are strictly 92 bis,

17     and the fourth is 92 quater.  The Defence has responded to those motions

18     on the 11th of November.  Now that the Trial Chamber has been appointed,

19     it will be possible for a decision to be given about those evidentiary

20     matters.

21             I have not yet analysed whether any of the witnesses that were

22     subject to Rule 92 bis motions are among those to be deleted in the

23     proposed Prosecution list.  If that is the case, when we come to look at

24     the matter, we will simply put aside those particular witnesses for the

25     present time, at least, and deal with those witnesses who are on the

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 1     Prosecution's proposed list of 114 who are subject to a motion by the

 2     Prosecution under Rule 92 bis.

 3             There was, on the 13th of November, as I read the transcript, an

 4     invitation by the Pre-Trial Judge which would allow the Defence, if it

 5     wished, to supplement its response to the Rule 92 bis motions, and it was

 6     asked to do this by January of next year.

 7             Could I inquire, Mr. Djordjevic, whether it is intended to

 8     advance any further submissions in opposition to the motions for evidence

 9     to be received by written statement under Rule 92 bis.

10             MR. DJORDJEVIC:  Mr. President, Your Honours, I will continue now

11     in Serbian.

12             [Interpretation] Our Defence team, primarily for practical

13     reasons, will be unable to submit its response by the 26th for two

14     reasons, namely.  I have said this to the Pre-Trial Judge, His Honour,

15     Judge Harhoff, and I want to repeat it before this Trial Chamber.

16             The team working with me, in view of the volume of the material

17     we have to review, and the reasons preferred by the Prosecution for

18     admitting testimony under 92 bis, ter and quater, and in view of the fact

19     that we have been awarded the second level of complexity, which is

20     incomprehensible to me, and in view of the fact that this accused had

21     been co-accused with Milutinovic et al, who had a third level of

22     complexity, we owe a high-quality defence to this accused.

23             I notice the matter for the Registrar, not the Trial Chamber, but

24     we are not able to provide a response before the 3rd of January.  If we

25     are required, however, to do it by the 26th or at any time earlier than

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 1     the 3rd of January, we would waive that right.  Therefore, we plan to

 2     submit a response to this Trial Chamber by the 3rd of January.

 3             JUDGE PARKER:  I'm a little confused, Mr. Djordjevic.  You're

 4     mentioning 3rd of January and the 26th of January.  That was the

 5     interpretation we received.

 6             The order, as we understand it, of Judge Harhoff is for the 26th

 7     of January.

 8             MR. DJORDJEVIC: [Interpretation] I'm sorry.  We're talking about

 9     the 26th, the 26th of January, 2009.

10             JUDGE PARKER:  Yes, thank you.

11             And I understand, from what you say, that you will -- [French on

12     English channel].  Thank you.

13             The interpretation apparently overlapped with French.  What I was

14     saying is that we understand that the Defence will put its submissions in

15     this matter by the 26th of January, and Mr. Djordjevic agreed with that.

16             There are then two distinct matters, if I can make it clear.  One

17     is the matter whether any witness whom the Prosecution does not propose

18     to call in its new amended list for 114 witnesses, whether the Defence

19     objects to the failure to call any other witnesses who are not among the

20     114.  Now, that's one matter.  The second matter is whether the

21     Prosecution should or should not be given leave to advance its evidence

22     of any of the witnesses which it calls in the form of a written statement

23     under Rule 92 bis, and that's a separate issue.

24             Under Rule 92 bis, the witness may -- his evidence or her

25     evidence may be received entirely in a written form, and the witness does

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 1     not attend in the court at all, or it is possible that the witness's

 2     evidence-in-chief will be received in written form, but the witness will

 3     be required to attend for cross-examination.  There are two options, and

 4     that second option directly overlaps with Rule 92 ter, which provides

 5     expressly for a witness's evidence to be given in a written form

 6     in-chief, but who will be cross-examined in court in the ordinary way.

 7             If it is in its submissions that the Defence, in particular,

 8     wishes to cross-examine one of the witnesses that the Prosecution

 9     proposes under Rule 92 bis, could we make it clear that we will be

10     looking for the particular reason which the Defence advances, why it is

11     that it wishes to cross-examine that witness.

12             There are two positions:  The general principle whether the

13     witness should give all the evidence orally, that's one general

14     submission that we might anticipate.  The second is if it is the

15     circumstances could justify the evidence being given in a written form,

16     whether there is a particular reason why, in the interests of justice,

17     cross-examination of that witness should be ordered.

18             So I trust, Mr. Djordjevic, that you will be dealing with those

19     matters in the course of your submissions.

20             Thank you.  I see you nod your acceptance.

21             MR. DJORDJEVIC: [Interpretation] I would like just to make an

22     observation in this connection.

23             Although I come from a system where the adversarial practice is

24     not prevailing, I understand very well the provisions and the basic

25     principles of the adversarial system.  We have already made our

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 1     submissions to the OTP concerning the witnesses we would like to

 2     cross-examine.

 3             I would also wish to say, although the Trial Chamber is aware of

 4     it, that we have also filed another submission which reflects the

 5     position of the Defence that it is necessary to cross-examine witnesses,

 6     which emanates from the basic Rule, and what the Pre-Trial Judge,

 7     Judge Harhoff, said at an earlier meeting is that he wanted to know the

 8     reasons why the Defence wished to cross-examine a witness rather than

 9     accept his evidence under 92 bis.  Therefore, we have already agreed to

10     what you are suggesting.

11             JUDGE PARKER:  I am perhaps repeating things that Judge Harhoff

12     has said, but we want to be sure that it is clear, in everybody's mind,

13     what is expected, because we think it is in the interests of everybody to

14     get this matter finalised as soon as possible, so that if we get

15     submissions that deal with each issue that has to be looked at, advances

16     reasons for cross-examine, et cetera, we will then be in a position to

17     give a decision quite promptly, which will enable everybody to proceed

18     with certainty as the case progresses.

19             Now, can I mention also the proposal with respect to expert

20     witnesses, Rule 94 bis.  Notice was given in respect of seven proposed

21     expert witnesses by the Prosecution in March of this year.  The Defence

22     responded in May, and in the course of that, it indicated two things;

23     first, that it wished to cross-examine all experts, and that, of course,

24     means that the Prosecution must prepare on the basis that each one of

25     their proposed experts must be present to give evidence orally.  The

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 1     second issue raised by the Defence is in respect of two of the seven

 2     proposed expert witnesses, Witnesses Coo and Ball, and the Defence

 3     indicated that it objected to the expertise of those two.

 4             Now, in its notice of objection, the Defence set out the reasons

 5     why it was not prepared to accept each of those as experts.  I assume

 6     that is the submission of the Defence in that respect.  If that is so, we

 7     would need to have a response from the Prosecution dealing with its

 8     contention that each of those people are properly to be treated as expert

 9     witnesses.

10             Mr. Hannis, is that a matter that can be dealt with imminently or

11     would you like until, say, the 12th of January to deal with that?

12             MR. HANNIS:  Your Honour, given the date we find ourselves in and

13     the limited availability of my staff, I would ask for the later date in

14     January.  Thank you.

15             JUDGE PARKER:  Very well.

16                           [Trial Chamber confers]

17             JUDGE PARKER:  We will then order that the Prosecution's response

18     to the Defence's notice of objection to those two experts should be filed

19     by Monday, the 12th of January, and the Chamber will then be in a

20     position to reach a decision about those two proposed expert witnesses.

21             Now, the Prosecution, in its notice filed last Friday, the

22     reduced list of witnesses, has indicated, in respect of a number of

23     witnesses, that their evidence will be given either live or pursuant to

24     Rule 92 ter.  As far as I've discovered, there has been no Rule 92 ter

25     motion presented by the Prosecution, and if I understand the position

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 1     correctly, it's apparent that there is an immediate need for a

 2     Rule 92 ter motion.

 3             We take it from the witness list that the Prosecution has

 4     identified those witnesses it would propose should be called or whose

 5     evidence should be led pursuant to Rule 92 ter, which expressly

 6     contemplates the evidence-in-chief being led, in whole or part, in

 7     written form, but that the witness will be present in court for

 8     cross-examination.

 9             Do I correctly understand the position, then, Mr. Hannis, that

10     there will be a Rule 92 ter motion about these witnesses?

11             MS. KRAVETZ:  Good afternoon, Your Honour.

12             Yes, we do anticipate filing a Rule 92 ter motion.  The reason it

13     hadn't been done until this stage was simply because it was considered by

14     the Pre-Trial Judge to be a matter for the Trial Chamber.  So he had

15     ordered us to file all our 92 bis and quater motions, but the 92 ter

16     motion was left pending to be dealt with by the Trial Chamber.

17             JUDGE PARKER:  Thank you for that, Ms. Kravetz.

18             Now I would ask, if I can be so direct, how quick can the 92 ter

19     motion be filed?

20             MS. KRAVETZ:  Well, I presume that's going to depend on the

21     anticipated date of start of trial.  We could file it sometime towards

22     the end of January, for example.  We have a large number of 92 ter

23     witnesses on our witness list.  I mean, we have 21 witnesses who are only

24     92 ter witnesses, and then we have some that we've designated as live

25     92 ter, and those are 44 witnesses.  So it is going to be -- take us some

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 1     time to prepare that motion, especially, as Mr. Hannis has indicated,

 2     given the fact that staff is now going off on Christmas leave and won't

 3     be back until early January.

 4             JUDGE PARKER:  Can the Chamber make it very clear, this trial is

 5     expected to start in January.

 6             MS. KRAVETZ:  Well --

 7             JUDGE PARKER:  So what about the 12th of January?

 8             MS. KRAVETZ:  We'll do our best, Your Honour, to have the motion

 9     ready for the 12th of January.

10             JUDGE PARKER:  I think we're going to need to be a little more

11     determined than "do our best."

12             MS. KRAVETZ:  Yes.  We will comply with the deadlines that are

13     set by the Trial Chamber.

14             JUDGE PARKER:  Well, we don't want to be unreasonable in our

15     deadlines, but nor are we going to be put off with suggestions, "Well,

16     it's a bit difficult, and we'd really like to have a more comfortable

17     time."  You understand?  We want very much, in the interests of the

18     Tribunal, the accused, to have this trial underway efficiently and

19     quickly, and therefore the question is:  Is it feasible or are we being

20     unreasonable to expect the 92 ter motion by the 12th of January?

21             MS. KRAVETZ:  Your Honour, I think it's going to be feasible for

22     the team to do so, to comply with that.

23             JUDGE PARKER:  I'm grateful.  Thank you, Ms. Kravetz.

24             That, indeed, then will be the order, that the Prosecution file

25     its 92 ter motion by the 12th of January.

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 1             The Defence will then need time to deal with that.  The normal

 2     time would be 14 days, which would again take you to the 26th of January,

 3     Mr. Djordjevic.

 4             MR. DJORDJEVIC: [Interpretation] Your Honour, by the 26th of

 5     January, we shall deal with the issue of witnesses in general, including

 6     this issue as well.  But as I already said, my team is not staffed to the

 7     extent that we believe should be required to be able to work on this

 8     case.  I will, therefore, ask you for an extension of time; that is to

 9     say, a few days after the 26th January.  Now, speaking what would be

10     reasonable, we think that about a week after the 26th would be the 1st or

11     the 2nd of February.

12             JUDGE PARKER:  You will realise, Mr. Djordjevic, that the level

13     of complexity in a case for legal aid purposes is a matter for the

14     Registrar, not for this Trial Chamber.  It occurs to me, not having

15     considered the matter in depth, that the Registrar might well have seen a

16     significant difference between a trial with six or seven or eight accused

17     than a trial with one accused, even though the trial would otherwise be

18     dealing with substantially the same matters, so that might be the

19     explanation.  I just offer that for your assistance.

20             Are you suggesting it would not be practical for you to respond

21     to 92 ter by the 26th of January?

22             MR. DJORDJEVIC: [Interpretation] Your Honour, we have been making

23     plans and timetables in accordance with what was instructed to us by

24     Judge Harhoff.  As far as 92 ter was concerned, Judge Harhoff decided to

25     leave this matter in the hands of the Trial Chamber, with which I agree,

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 1     because it is in line with the Rules of Procedure.  Therefore, we are

 2     going to receive this motion only on the 12th of January.  In the

 3     meantime, we already have to set out our plan of work, and to resolve the

 4     crucial matters relating to witnesses, and to provide reasons, as this

 5     Trial Chamber has required, and that is the sole purpose of our request

 6     for an extension of time for one week only.

 7             JUDGE PARKER:  Thank you.

 8                           [Trial Chamber confers]

 9             JUDGE PARKER:  You'll be pleased to know, Mr. Djordjevic, that

10     the festive season is upon the Trial Chamber as well, so your request to

11     have an additional week to respond to Rule 92 ter is granted.

12             MR. DJORDJEVIC: [Interpretation] Thank you, Your Honour.

13             JUDGE PARKER:  That will take you to Monday, the 2nd of February.

14             Mr. Hannis, I'm sorry.

15             MR. HANNIS:  I'm sorry, Your Honour.

16             In light of that, maybe my intended remarks change a little.  You

17     had mentioned hoping to start this trial in January, and I find myself in

18     a somewhat awkward position, because I'm standing in for Mr. Stamp, who

19     will probably have to carry the consequences of whatever decision you

20     make about a trial date more than I will.  So it would be easy for me to

21     sit here today and say, "Fine, set it whenever you want, January 5th is

22     fine," because I may not have to deal with that, but because up until

23     about two weeks ago, the parties on both sides had a reasonable

24     expectation that the trial wasn't going to start until February, at

25     least, because we had a 65 ter scheduled for the 29th of January, and

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 1     that has had some impact on us.  And now that we are in the holiday

 2     season and find it may start earlier than that, many people have already

 3     left and are leaving, and it does put us in a difficult position.  I felt

 4     I needed to put that on the record.

 5             I understand that you all are fresh and ready and eager to go,

 6     and I commend that, but I would ask you to bear that in mind, and that if

 7     we do ask for an extra week or two regarding the beginning of the trial

 8     date, I think, based on my work experience with Mr. Djordjevic, the trial

 9     attorney across the aisle so far to date, leads me to believe that any

10     credit you give us on the front end of this, if you give us a week or two

11     extra before the start of the trial, it will pay benefits later on during

12     the trial, because we will be better organised, better prepared, and the

13     trial will go more swiftly and efficiently.

14             Thank you.

15             JUDGE PARKER:  I would say I should get that in writing from you,

16     Mr. Hannis.

17             MR. HANNIS:  I hope that's not personal, Your Honour, but

18     directed towards lawyers in general.

19             JUDGE PARKER:  The Chamber is well aware that counsel may feel

20     that they have to step up the pace of their preparation unexpectedly, and

21     it's for that reason, in part, that we're being more generous than some

22     would expect about these matters.

23             Mr. Djordjevic, is there something else you wanted to say?

24             MR. DJORDJEVIC: [Interpretation] Just briefly.

25             Your Honour, you have grey hair, just like I do, and you are well

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 1     aware that it seldom happens that the Prosecution and the Defence see eye

 2     to eye to certain matters.  However, one matter that we are going to see

 3     eye to eye is the commencement of this trial, regardless of whether we

 4     are more or less prepared or not.

 5             Quite simply, we do need time at this point, because you know

 6     very well that this is an ad hoc tribunal, that many Defence lawyers come

 7     from other countries, and we have just been -- started to organise

 8     ourselves.  We have found an office here in The Hague.  We have to rent

 9     flats where we are going to live, because we are expected to stay here,

10     according to the plan, for at least one year.  So, frankly speaking, it

11     would be only reasonable to expect this trial not to begin before the 1st

12     of February or even a day or two later.

13             Of course, it is in the interests of the Defence team and our

14     client for this trial to commence as soon as possible, but any

15     postponement of one or two weeks will not harm anybody and will

16     contribute to the efficiency of these proceedings.

17             That would be [indiscernible].

18             JUDGE PARKER:  Thank you, Mr. Djordjevic.  We certainly have in

19     mind the complexities of preparation.  Each Judge sitting here is a Judge

20     that has spent their professional lives in courtrooms.  We know very much

21     what you are talking about.  And we may be young Judges.  We're only

22     grey-haired because we've spent some time in court, you see.

23             MR. DJORDJEVIC: [Interpretation] Your Honour, I was only

24     referring to experience, not age.  I do not feel myself to be an old man.

25             JUDGE PARKER:  Mr. Hannis, I wasn't sure whether there was a

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 1     particular point to what you said.  Are you anxious about the date of the

 2     12th of January for your 92 ter motion?

 3             MR. HANNIS:  Well, Your Honour, perhaps if -- I know you gave the

 4     Defence an extra week.  If I ask for an extra week now, then he may need

 5     an extra week.

 6             JUDGE PARKER:  He'll need another week, yes.

 7             MR. HANNIS:  But I was thinking if perhaps if we could have later

 8     in that same week instead of Monday, the 12th, if we could have perhaps

 9     Thursday, the 15th.  I see Mr. Djordjevic saying, "Okay."

10             JUDGE PARKER:  We were looking at Wednesday the 14th.

11             MR. HANNIS:  Every little bit helps, Your Honour.  We would

12     accept that.  Thank you.

13             JUDGE PARKER:  Very well.  This is just about the end of our

14     Christmas spirit, but Wednesday, the 14th, will be the date, then, for

15     the Prosecution's Rule 92 ter motion; and Monday, the 2nd of February,

16     will be the date for the Defence response to that motion.

17             I believe we have coped with the evidentiary issues.  Could I now

18     look at disclosure.

19             I see that some months ago, the disclosure under Rule 66(A) (1)

20     was dealt with.  There was, in October, a few items still to be concluded

21     under Rule 66(A)(2).  I raise it now to learn whether those matters have

22     now been dealt with and whether disclosure is complete.

23             MS. KRAVETZ:  Your Honour, it is my understanding that the

24     overwhelming majority of material to be disclosed under Rule 66(A)(2) has

25     already been disclosed.  I know there are a couple of pending B/C/S

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 1     translations.  There are around 15 or 18 of them that we're expecting to

 2     receive back sometime from here to mid-January.  Since this trial was

 3     still in the pre-trial stage, it has taken us some time to get the

 4     translations back from CLSS, so as we are receiving those, those are

 5     being disclosed to the Defence.  But that is all that remains to be

 6     disclosed.

 7             JUDGE PARKER:  It would be appreciated if we could indicate that

 8     it would be helpful if you were to communicate with those making the

 9     translations, with a view to trying to urge attention to them as quickly

10     as possible.

11             MS. KRAVETZ:  We did that just yesterday, in fact, we were in

12     contact with them.  And just to indicate, these are simply materials like

13     I would call secondary nature.  They are mostly OSCE and ICG statements

14     given by our witnesses; they're not ICTY statements.  They are not

15     materials that we intend to use during the course of these proceedings.

16             JUDGE PARKER:  Quite obviously, though, they need to be in the

17     hands of the Defence as soon as possible, so if you would give attention

18     to those, we would be grateful.

19             Is there any other matter about disclosure, Mr. Djordjevic, which

20     concerns the Defence?

21             MR. DJORDJEVIC:  My legal assistant will explain what's happening

22     on this.

23             MS. O'LEARY:  Thank you, Your Honour.

24             As I've said, the Prosecution, we've been working back and forth

25     on translation and Rule 66 and 68 materials, and we expect that to be

Page 106

 1     coming in in the next few weeks.  But there were four cases where we had

 2     material access to confidential case materials, Milosevic, the Kosovo

 3     portion of the trial, we believe, is completed now.  The Limaj materials

 4     we believe are completed now.  The Haradinaj materials we received

 5     yesterday, actually, the filings and exhibits.  We're still awaiting the

 6     transcripts from the Haradinaj case.  We also are receiving ongoing

 7     materials via motion practice from the Milutinovic Chamber, and those are

 8     the most relevant and important to this case.

 9             We have not received the materials from the last decision of 9

10     September.  That would be dating from July 9th, 2008, to September 9th,

11     2008, and those are some-what important to the case because they include

12     the full briefs of the final briefs and the final witnesses that were

13     heard in that case.  So as soon as we could possibly get those, that

14     would assist us greatly.

15             I think that there was some waiting on some redactions that the

16     Registry was waiting to hear back from the OTP, so whenever that would be

17     available, we would be grateful.

18             And that should complete all disclosures, other than any Rule 70

19     materials that we may not be aware of that would be coming in.

20             Thank you.

21             JUDGE PARKER:  Thank you very much for that detailed

22     amplification.  I'm sure notice has been taken of those by Ms. Kravetz,

23     and the communication that has been occurring that each of you have

24     mentioned between Prosecution and Defence, we encourage to continue and

25     to complete this process as quickly as possible in the interests of

Page 107

 1     everybody.

 2             MS. KRAVETZ:  Yes, Your Honour.

 3             I just wanted to point out one issue with regard to disclosure.

 4     There are a total of six witnesses who have been granted delayed

 5     disclosure in the Milutinovic case, and those protective measures follow

 6     through in this case, and those materials have not yet been disclosed to

 7     the Defence in unredacted form because the protective measure in place

 8     delayed disclosure 30 days prior to the start of trial.  So once the

 9     trial date is set, we will proceed to disclose those materials to the

10     Defence.

11             JUDGE PARKER:  Thank you very much, yes.

12             Well, we move now to the matter of agreed facts.  I see that it

13     was mentioned in September, at the Rule 65 ter hearing, that the parties

14     had been able to reach agreement on a number of facts and documents.

15     There hasn't yet been filed any joint submission which sets those out.

16     Is there a problem there or is this simply a matter which will now be

17     dealt with?

18             MS. KRAVETZ:  Well, we were actually waiting for direction from

19     the Trial Chamber in this respect, because the last we had heard was that

20     the Pre-Trial Judge was going to communicate the list of agreed documents

21     and agreed facts to the Trial Chamber.  And we didn't know if the

22     preference of this Chamber was that we just file a joint motion,

23     attaching this list that had been prepared by the Pre-Trial Chamber or if

24     there was another preferred course of action, so that's simply the reason

25     why we haven't filed a motion yet.

Page 108

 1             JUDGE PARKER:  I'm again a little confused.  Are you saying that

 2     there was a list given to the Pre-Trial Chamber?

 3             MS. KRAVETZ:  No.  There was a list complied by the Pre-Trial

 4     Judge, together with the senior legal officer that was working on the

 5     case.  We received both the list of agreed documents and agreed facts

 6     from the Trial Chamber after the series of 65 ter meetings took place in

 7     September and October, and we were told at the time that this was an

 8     unofficial list from Chambers.  And we're told that this list would be

 9     passed on to the Trial Chamber.

10             I'm not aware of what happened after that.  This was done all

11     through e-mail communication by the senior legal officer.  So if the

12     preference of the Trial Chamber is that we file a joint motion, we're

13     more than happy to do so, because we would also like this matter to be

14     settled.

15             JUDGE PARKER:  Well, thank you.

16             I think clearly the matter should be dealt with by way of a

17     formal joint filing so that both sides and the Chamber have a clear

18     record of both any matters of fact and any documents which are the

19     subject of agreement between the parties.  Is that something that can be

20     dealt with by, shall we say, the 19th of January?

21             MS. KRAVETZ:  Yes, Your Honour, we can comply with that deadline.

22             JUDGE PARKER:  Thank you.

23             We'll ask, then, that the parties deal with that matter and file

24     their joint list by the 19th of January.

25             Can we turn now to a couple of relatively routine procedural

Page 109

 1     orders for the conduct of the trial.

 2             Experience suggests that it is a practical arrangement, if an

 3     order is made for the Prosecution to disclosure progressively during the

 4     trial, its coming witnesses, on the basis that for the witnesses the

 5     Prosecution intends to call in any given week of the trial, there should

 6     be a disclosed list of those witnesses two weeks before the commencement

 7     of that week; in other words, giving the Defence two weeks advance notice

 8     of the witnesses to be called in each week of the trial.

 9             Is there any submission about the practicality of that from

10     either Prosecution or Defence?

11             MS. KRAVETZ:  Your Honour, the practice that we followed in the

12     Milutinovic case was that we would file a monthly list of witnesses to be

13     expected in the next two coming months, and we would file our list of

14     witnesses for the following week every Thursday of each week.  So we

15     would give a week's notice of the witnesses that were to come and the

16     materials that were going to be tendered through the witnesses.

17             I don't know if this Chamber has a preference for that being a

18     two-week notice rather than a one-week notice period.  The problem that

19     we may run into is that witnesses usually travel to The Hague for their

20     testimony not long before, and sometimes there are new exhibits that come

21     up that need to be notified to the Defence.  So it may seem -- it may be

22     better to proceed on the basis of a one-week notice so that we don't have

23     to be later notifying or making amendments to the list that are filed

24     each Thursday.

25             JUDGE PARKER:  Do you mean to say you get witnesses here a

Page 110

 1     week -- over a week earlier than they are called?

 2             MS. KRAVETZ:  No, not generally, but --

 3             JUDGE PARKER:  That's something I've never known in five years

 4     here.

 5             MS. KRAVETZ:  No, I didn't mean to say that, but I just mean to

 6     say that if we proceed on a one-week notice, we have a better idea of the

 7     material that will be used, and that list may be subject to less change

 8     than if we proceed on a two-week notice.  But I'm just speaking on the

 9     basis of what had been our practice in the Milutinovic case.

10             JUDGE PARKER:  I think you are seeing two different approaches to

11     the same problem, each of which may have some merit and some demerit.

12             A month's notice, which you indicated was your basic, in my

13     experience would be prone to substantial modification as the month

14     progressed, and one week's notice would normally be quite short for the

15     Defence.  Two weeks would be a better time for their more detailed

16     preparation for the particular witnesses.

17                           [Trial Chamber confers]

18             JUDGE PARKER:  On the assumption that there's no specific further

19     submission, I think we will stick with what we have found to be a

20     reasonable balance of these competing issues; that is, two weeks' notice

21     of the witnesses to be called.

22             Now, we will all appreciate that there will be times when, for a

23     variety of possible reasons, there has to be some departure from that

24     list, but that should not, from experience, be a frequent occurrence.

25             Now, in our practice, Ms. Kravetz, could I mention that the

Page 111

 1     notice given, we found useful for that to include an estimate of the time

 2     the Prosecution anticipates to spend with that witness, and of course

 3     then it would make an allowance for the time needed for cross-examination

 4     in assessing the number of witnesses to be called in any particular week.

 5     So if the notice can include the time the Prosecution anticipates for

 6     evidence-in-chief, and that would be helpful.

 7             There is also the question of documents to be used during

 8     examination-in-chief and cross-examination.  There are two needs here:

 9     one, there must be time to allow the documents to be up-loaded into the

10     electronic court system so that they can be available when counsel calls

11     for them; and the other, of course, is to give notice to the other side

12     so that they can look at the document.  The practice that I found has

13     worked quite well would be for the Prosecution at the moment - it will be

14     the same for the Defence later, but for the moment we're dealing with

15     Prosecution - that the Prosecution will give notice to the Defence team

16     and to the Court Registry officer of the documents it intends to use with

17     each witness 48 hours before the witness is called to give evidence, two

18     days' notice to the Defence and the Registry.

19             For documents which the Defence proposes to use in

20     cross-examination for a witness, the practice I have found practical in

21     previous trials is for the Defence to give the court officer, the

22     Registry, 48 hours' notice of its intention to use the document in

23     cross-examination; for ordinary witnesses, 24 hours' notice to the

24     Prosecution of an intention to use a document, but in the case of expert

25     witnesses, 48 hours' notice of an intention to use the document.

Page 112

 1             Is there any submission about the practicality of those

 2     proposals?

 3             Ms. Kravetz?

 4             MS. KRAVETZ:  We have no problem with it.

 5             JUDGE PARKER:  Mr. --

 6             MR. DJORDJEVIC:  We agree also.

 7             JUDGE PARKER:  Thank you very much for that.

 8             So the orders will be as indicated, and I think we can indicate

 9     now that the same order will apply, but in reverse, when it comes to the

10     Defence case, so that you can understand that.  That's in respect of the

11     matters we've dealt with; that is, the disclosure of witnesses that are

12     coming, and then notice of documents to be used during

13     examination-in-chief, and notice of documents to be used in

14     cross-examination.

15             Is there any other particular matter that either Prosecution or

16     Defence wish to raise?  If not, we will move to the big issue; that is,

17     the commencement date of the trial.  But I give you an opportunity to

18     raise some other matter first.

19             MS. KRAVETZ:  Your Honour, I just wanted to correct the record

20     with respect to the number of witnesses we intend to call.  I notice

21     Your Honour was referring to 114.  There are, in fact, 115 witnesses.

22             I also wanted to alert Your Honours that we anticipate to file a

23     motion sometime in mid-January to add a couple of more witnesses due to

24     ongoing investigations and problems in contacting these witnesses, we

25     weren't able to include those witnesses in the list that was filed on

Page 113

 1     Friday, so we will probably be submitting that to Your Honours sometime

 2     towards mid-January.

 3             JUDGE PARKER:  These two additional witnesses, are not witnesses

 4     at present on any version of your Rule 65 ter list; is that correct?

 5             MS. KRAVETZ:  No, they haven't been witnesses included in those

 6     lists.

 7             JUDGE PARKER:  Very well.  Well, that will be dealt with, on its

 8     merits, when the motion is received.  The Defence will have time to

 9     reply, and then we'll deal with the matter.

10             The 114 was our count of the number.  You believe it's 115?

11             MS. KRAVETZ:  Yes, we were actually counting now, and we have

12     come up with 115, because --

13             JUDGE PARKER:  Well, we each are looking at the same list.  One

14     of us is probably more accurate than the other.

15             MS. KRAVETZ:  We initially had 132, and in the last list we

16     dropped or withdrew 17 witnesses.

17             JUDGE PARKER:  But I thought your 132 was modified to 131.

18             MS. KRAVETZ:  I don't believe so, Your Honour.

19             JUDGE PARKER:  That was my understanding.  Anyhow, it matters

20     not.  We have the presently-amended list, and that is it.  Whether it's

21     114 or 115 will not make or break the matter.

22             We come now, then, to what is probably the most significant

23     issue, what should be the start date for the trial.

24             The trial, of course, starts with an opening statement from the

25     Prosecution.  There may then be, if they wish, although it is perhaps not

Page 114

 1     usual, for the Defence to make an opening statement, and then we would

 2     proceed to the hearing of evidence, and that is something that, in a case

 3     like this, we would be substantially in the hands of the Prosecution as

 4     to the most practical point in the evidence at which to start in the

 5     introduction of evidence.

 6             The question of date is one which will be determined according to

 7     the competing interests of the anxiety for the trial to start at the

 8     earliest possible time, because that will enable it to conclude at the

 9     earliest possible time, which is what the accused wishes, no doubt; and

10     it is certainty what is in the interests of all other accused who are

11     waiting to have their trials.  The other competing interest is, of

12     course, fairness, and we have to balance those two considerations.

13             We're now in mid-December, and the question is when counsel can

14     be ready to commence the trial.  Now, that doesn't mean that they need to

15     have completed their preparation in respect to every issue and every

16     witness.  It means they must be in a reasonable state of readiness to

17     proceed in an orderly and effective manner through the trial, bearing in

18     mind that there will be time, as the trial progresses, for further

19     preparation.

20             We would hear submissions as to what counsel think would be their

21     preferred starting date at this stage, if counsel wish to put

22     submissions.

23             Mr. Hannis.

24             MR. HANNIS:  Your Honour, based on my brief discussions with

25     Mr. Stamp before he had to leave, I would like to ask the Court to

Page 115

 1     consider a starting date of 9 February.  I know that's a little farther

 2     along than you wanted, based on your earlier remarks about starting this

 3     trial in January.  I don't have a lot to add to what I said earlier about

 4     our concerns about when we would be able to start, but I think there is a

 5     need for perhaps a couple of weeks longer than you would have liked.  But

 6     as I indicated, if you can give us those two weeks longer before the

 7     start of the trial, I think it will pay benefits in the long run that

 8     will be equivalent to two weeks or more in terms of how long it takes to

 9     present the whole case.

10             Thank you.

11             JUDGE PARKER:  Thank you, Mr. Hannis.

12             It is troubling to hear that submission, in view of the fact that

13     this case really has been ready for trial, on the view of the Pre-Trial

14     Judge, for some weeks.  We're dealing -- we have today and are dealing

15     with the detailed evidentiary matters, but the idea that the Prosecution

16     might need now virtually another seven weeks to be ready to open its case

17     does seem unnecessarily generous.

18             MR. HANNIS:  Your Honour, I would indicated that three of those

19     weeks are basically the Christmas recess, and as I indicated before, the

20     parties had an expectation that I think we were reasonably relying on,

21     that the trial wouldn't start before probably -- at the earliest, the 2nd

22     of February, given that there was another 65 ter scheduled for the 29th

23     of January, and that's, in essence, the basis of my submission.

24             Thank you.

25             JUDGE PARKER:  Thank you.

Page 116

 1             Mr. Djordjevic.

 2             MR. DJORDJEVIC: [Interpretation] Your Honour -- Mr. President,

 3     Your Honours, the Defence team agrees with the proposal of the

 4     Prosecution; of course, not for the same reasons that I have already

 5     stated.  Despite the festive season, which applies to our country as

 6     well, we will have to use all of January to organise ourselves and

 7     prepare properly for this trial.  I think we will be able to be ready

 8     even a few days before the date proposed, but certainly by the 9th of

 9     February.

10             We are facing practical problems.  We have to settle down here,

11     find apartments, my colleague and I, find premises for our office, deal

12     with all that and then proceed to work in peace with due diligence as we,

13     of course, have to.

14             JUDGE PARKER:  Thank you.

15                           [Trial Chamber and legal officer confer]

16             MR. HANNIS:  I'm sorry, Your Honour.  Could I make one more

17     remark before -- I'm afraid you might make your final --

18             JUDGE PARKER:  Before we set things in --

19             MR. HANNIS:  Yes, if I may.

20             I want to suggest the possibility -- I don't know if you find

21     this helpful or not.  I would suggest the possibility that we might be

22     able to make the Prosecution's opening statement and have a Rule 84 bis

23     statement of the accused, if he so desired to make one, after our

24     opening, perhaps the week of the 26th of January, and then we will have

25     started the trial, in essence.  And then if we can have a brief recess at

Page 117

 1     that time and start the evidence on the 9th of February.

 2             For appearances sake, I don't know if that's helpful, but that's

 3     something I'd like to suggest to you.

 4             Thank you.

 5             JUDGE PARKER:  Every move closer to the 12th of January is

 6     helpful, Mr. Hannis.

 7                           [Trial Chamber confers]

 8             JUDGE PARKER:  We would like to thank counsel for their

 9     submissions with respect to the opening date, and to indicate the anxiety

10     of the Tribunal, of which we are but a part, to have this trial commence

11     at the earliest possible date, in the interests of this accused, of the

12     general efficiency of our operation, and of those other accused whose

13     trials will follow from this, because a delay in this proceeding will

14     delay others.

15             We are conscious that there may have been some impression in the

16     minds of counsel that the trial need not start until February.  Although

17     the date, the 29th of January, mentioned by Mr. Hannis, as we understand

18     it, was merely for a continuation of the consideration that was being

19     given to the various 92 bis witnesses, and that is an evidential matter

20     that, in the ordinary course, can be and usually is dealt with as in the

21     early stages of the trial and not before the trial commences.

22             We also take into account a matter that has not been mentioned by

23     counsel, and that is no criticism of counsel; that is, the availability

24     of courtrooms, because counsel will be aware we have but three

25     courtrooms.

Page 118

 1             Actually sitting at the moment, there are six trials, which means

 2     that, by and large, the courtrooms are fully occupied each week.  Now,

 3     that programme for the courtrooms has been pretty well established for

 4     most of January.  We are, though, in a position to obtain some sitting

 5     days in the last week of January and throughout February, but at least at

 6     the end of January and in the early stages of February, we would expect

 7     that we will have either three or four days a week, rather than five,

 8     available in a courtroom.

 9             As February progressing, one and then a little later a second

10     trial will complete evidence, and we will then be able to sit five days a

11     week.  But at the early stages, we anticipate we will only have three or

12     four days available.

13             That then -- the availability of courts is a factor we need to

14     take into account.  It's also a factor relevant to the degree of

15     preparation which is necessary.  If the sitting will only be for three or

16     four days, there will be more time for detailed preparation in the course

17     of what is a slower-than-usual start to the trial.

18             Taking those matters into consideration, the Chamber feels that

19     it would be wise, in view of the number of issues about evidence that

20     we've dealt with today, to arrange for a continuation of this pre-trial

21     hearing merely adjourned to continue for final tidying up on Monday, the

22     26th of January, for an opening statement to be listed for the following

23     day, Tuesday, the 27th; if necessary, that flowing over to the next day.

24     But we would then anticipate that the Prosecution should be prepared to

25     lead evidence in that last week of January and in the first week of

Page 119

 1     February, bearing in mind when the court programme is published, the

 2     number of days that are actually allocated to this trial.  So that rather

 3     than expecting evidence to be lead for each day of the first two weeks,

 4     when the programme for courts is published, the Prosecution and Defence

 5     will find that there are only three or four days, so the scale of

 6     evidence will be reduced accordingly.

 7             So, in short, we would commence on Monday, the 26th, with the

 8     finalisation of this pre-trial conference so that all matters then that

 9     are causing difficulty can be looked at and any corrective orders made.

10     Opening statements commence the following day.  They may conclude in the

11     one day, or they may go over to the following day, and then at a reduced

12     scale, evidence to be led in the weeks to follow by the Prosecution.

13             Now, we trust those arrangements, although they will, of course,

14     demand some special attention by counsel, put them under some pressure to

15     be ready.  Nevertheless, we trust that they will prove to be reasonable

16     and fair arrangements and will ensure that the trial can get underway in

17     an ordered and competent manner.  And as we've indicated, we expect that

18     the pace of the trial will pick up during February to a full five days a

19     week as other trials reach the end of their evidence.

20             If there is no other matter from either counsel ...

21             MR. HANNIS:  If I may, Judge, thank you for that.  That's

22     helpful.  I think we'll all be flexible, and I think we can work with

23     that.

24             I was looking at the calender for January, and I'd seen that most

25     of the courtrooms were full.  I saw the mysterious trial number 7

Page 120

 1     appearing on a Monday here and a Friday there.

 2             JUDGE PARKER:  It appeared first on the 12th of January, so you

 3     came here under that threat.

 4             MR. HANNIS:  Yes.  I had seen that trial number 7 on the calender

 5     for some time prior to now as well.

 6             Your Honour, I would note that if, in the first week or two, we

 7     may only be sitting on Mondays and Fridays, I would ask that we may need

 8     the Trial Chamber's help with victim witness [sic].  Depending on which

 9     witness we call earlier in the case, they sometimes have rules that they

10     don't want to bring witnesses more than five days before they testify and

11     they don't like them sitting here too long.  If they're not able to

12     finish a witness on Monday, then the issue is do they go back to the

13     region and then come back, those kinds of things I just bring to your

14     attention that we'll have to face.

15             JUDGE PARKER:  Thank you for that, Mr. Hannis.

16             I did indicate that the programme is being adjusted during the

17     last week of January.  The present indication is Monday and Friday, but

18     there will be more days available, and you will have to wait for the

19     amended programme to come out.  Similarly, in early February there will

20     be dates more available, and we will expect three or four days each of

21     those weeks.

22             Very well.  May we thank counsel for their assistance and all for

23     their attendance.

24             We wish you the compliments of the season, and we look forward to

25     proceedings of this adjourned pre-trial hearing on the 26th of January

Page 121

 1     and for the commencement of the trial itself on Tuesday, the 27th of

 2     January.

 3             That being so, we will now adjourn.  Thank you all.

 4                           --- Whereupon the Pre-Trial Conference adjourned

 5                           at 3.40 p.m.