Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14

 1                           Thursday, 10 November 2011

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 3.01 p.m.

 6             JUDGE DELVOIE:  I'm sorry.  Madam Registrar, could you call the

 7     case.

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

 9     IT-04-75-PT, the Prosecutor versus Goran Hadzic.

10             JUDGE DELVOIE:  Thank you very much.  Good afternoon to you all.

11             May we have the appearances, please, starting with the

12     Prosecutor.

13             MR. STRINGER:  Good afternoon, Your Honour.  My name is

14     Douglas Stringer.  I'm appearing on behalf of the Office of the

15     Prosecutor.  With me today is Laurel Baig, who's an attorney with our

16     office, as well as Case Manager Thomas Laugel.

17             JUDGE DELVOIE:  Thank you.

18             MR. ZIVANOVIC:  Good afternoon, Your Honour.  For Defence of

19     Mr. Goran Hadzic, Zoran Zivanovic, lead counsel.  Thank you.

20             JUDGE DELVOIE:  Thank you.

21             May I confirm with Mr. Hadzic that he can follow the proceedings

22     in a language he understands?

23             THE ACCUSED: [Interpretation] Yes, it's fine.

24             JUDGE DELVOIE:  Thank you.

25             So this is the first Status Conference in this case.  The purpose

Page 15

 1     of this conference, pursuant to Rule 65 bis (A) is to organise exchanges

 2     between the parties so as to ensure the expeditious preparation for

 3     trial.  It is also to allow Mr. Hadzic the opportunity to raise any

 4     issues in relation to the mental and physical condition in detention.

 5             There was a Rule 65 ter Conference held last week on the

 6     4th of November at which the parties and the Legal Officer of the Chamber

 7     discussed various issues related to the pre-trial preparation of the

 8     case.  The Chamber has been informed of what transpired at that meeting

 9     and it wishes to thank the parties for their participation in that

10     Rule 65 ter Conference.  I also commend them for the spirit of

11     co-operation that was demonstrated at that conference.

12             In relation to pre-trial preparation, I note first that all of

13     the materials supporting the indictment has now been disclosed to the

14     Defence.  I also note that the briefing has been completed for the

15     Defence's motion alleging defects in the form of the indictment.  And I

16     am very grateful to the parties for adhering to the deadlines for that

17     matter.  And the Chamber will issue this -- its decision on the motion,

18     very soon, probably today.

19             I acknowledge receipt of the Prosecution's letter of the

20     2nd of November about disclosure.  The information contained therein is

21     useful, too, for pre-trial preparations.  The Prosecution has agreed that

22     it will file on a monthly basis a report along the lines of the letter

23     detailing its progress and variety of tasks that it must complete.

24             If necessary, that report may be filed confidentially, for

25     example, if there is discussion of Rule 70 material.  But I would

Page 16

 1     encourage both the Prosecution and the Defence to make as much material

 2     as possible available to the public, and only to designate filings as

 3     confidential when it is strictly necessary so that the proceedings can be

 4     transparent and open to the public to the greatest extent.

 5             I note that the Prosecution filed its first of such reports

 6     yesterday and did so publicly.  I would now ask the Prosecution to report

 7     on the state of Rule 68(i) discloser.

 8             Mr. Stringer.

 9             MR. STRINGER:  Thank you, Your Honour.

10             As indicated in the report that was filed yesterday and in our

11     earlier letter to the Trial Chamber, we've been in consultation with the

12     Defence about issues that might assist in the identification of Rule 68

13     material so that we can disclose it to the Defence as -- as quickly as

14     possible, as well as identify it.

15             Along those lines, the parties have agreed that a number of prior

16     cases here at the Tribunal serve as a basis for disclosure generally, not

17     just Rule 68, but certainly including Rule 68.  Along those lines -- or,

18     I should say, in addition to looking to the prior cases, the Prosecution,

19     as indicated in our report, has already completed one of the database

20     searches that we intend to undertake during the pre-trial phase, a

21     database search intended to hit documents that -- that bear the name of

22     this accused.  And that search was undertaken.  It is still in the

23     process of being reviewed, but it has been reviewed at this point to

24     enable us to identify what materials are confidential versus what

25     materials are not confidential.

Page 17

 1             All of the non-confidential materials have been disclosed to the

 2     Defence already.  That was done last week, I think, on the 4th, on the

 3     day of the 65 ter meeting.  So all of those documents have been made

 4     available to the Defence.  Now, that includes anything that might be

 5     Rule 68 material, but it's certainly all relevant material, in that all

 6     of these documents are going to contain the names Goran Hadzic or

 7     President Hadzic.  So that's the first disclosure batch that has

 8     occurred, and that process is going to continue.

 9             Now, in terms of the other prior cases, anything that was

10     previously disclosed in those cases as Rule 68(i) material is also going

11     to be disclosed to the Defence in this case as potential

12     Rule 68 material.  We're always a bit reluctant to make -- some materials

13     are readily identifiable as exculpatory or falling within the scope of

14     Rule 68.  Other materials might fall within the scope of Rule 68, but

15     it's not so to clear to us, because at this very early stage it's not

16     clear to us what the defences are and what issues might be of relevance

17     to the Defence for purposes of Rule 68.

18             I can assure the Trial Chamber that we're intending to take a

19     very broad view of disclosure.  It's going to be essentially an open-file

20     policy.  Anything that's relevant is going to be disclosed.  And

21     that's -- that's the principle that we're going to be following in the

22     coming months of the pre-trial phase.

23             So an initial disclosure has been made.  We expect that it would

24     contain Rule 68 material.  We are now going through those individual

25     documents ourselves and looking at each one.  And to the extent that

Page 18

 1     specific documents are identified which then would, in our view,

 2     constitute Rule 68 material, we will specifically identify those

 3     documents for the Defence.  And so he already has all of this initial

 4     batch of documents; that's not confidential.  We are now going to put our

 5     eyes on every one of those documents individually and direct the Defence

 6     to specific documents which, in our view, would fall within the scope of

 7     Rule 68, and it is our intention to continue to act along those lines on

 8     these database searches that we perform.

 9             It's time-intensive, as I indicated in the status report.

10     There's a tremendous amount of documentation and it takes a lot of time

11     to identify them and to look at each one and to make this determination.

12     I think that we are certainly going to continue to do that on documents

13     that are confidential, that is, documents that are not readily available

14     to the Defence, to ensure that there isn't anything that's confidential

15     that would contain Rule 68 material, so our focus is going on to be

16     non-confidential -- or, sorry, on the confidential materials to ensure

17     that everything that's not already available to the Defence has been

18     individually examined for purposes of Rule 68.

19             And so that is a general overview of our approach to Rule 68,

20     with some initial information about the disclosure that's been made thus

21     far.

22             JUDGE DELVOIE:  Thank you very much.  [Microphone not activated]

23             THE INTERPRETER:  Microphone, please.

24             JUDGE DELVOIE:  I'm sorry.

25             Thank you very much for this detailed report, Mr. Stringer.

Page 19

 1             Following the Chamber's decision on the preliminary motions of

 2     Defence, an order will be issued with deadlines for the following actions

 3     of the parties:  The Prosecution's witness and exhibit list; the

 4     Prosecution's disclosure of witness statements and transcripts, as well

 5     as exhibits; the Prosecution's pre-trial brief; the Prosecution's

 6     disclosure of expert reports; the Defence's notice of whether it intends

 7     to cross-examine these experts; the Defence pre-trial brief; any

 8     Rule 92 bis and quater motions from the Prosecution; and the Defence

 9     notice of any alibi of -- or special defences.

10             A date will be also be set for the Pre-Trial Conference and the

11     start of the trial.  In respect of the disclosure by the Prosecution of

12     witness statements and transcripts, I note that the Prosecution has

13     indicated that it is prepared to commence this disclosure subject to the

14     Chamber's decision on the Prosecution's second motion for protective

15     measures for victims and witnesses and documentary evidence which was

16     filed on the 1st of November.

17             The Chamber is awaiting the Defence's response to that motion and

18     will decide the matter as soon as possible so that this disclosure can

19     proceed the pace.

20             I would invite the Prosecution and the Defence to make any

21     comments they wish on the proposed pre-trial work-plan.

22             Mr. Stringer.

23             MR. STRINGER:  My only general comment at this stage,

24     Your Honour, would be that the Prosecution considers us to be in quite an

25     early stage of the case.  The arrival of this accused, who was a fugitive

Page 20

 1     for some seven years, I think just a few days short of seven years, is

 2     something that has obviously generated a tremendous amount of activity

 3     and work in our office and or pre-trial preparation.  However, having

 4     said that, it wasn't previewed when the accused would arrive, and if I

 5     may say, in an era of downsizing, this has presented specific challenges

 6     to us which we are addressing in our pre-trial preparation, in terms of

 7     staffing and otherwise.

 8             We will continue to prepare to meet all the deadlines and will do

 9     everything possible, obviously, in order to put ourselves in a position

10     to meet any deadline that's set by the Trial Chamber.  We are in the

11     process of contacting witnesses now.  The events of which this trial will

12     be about occurred some 20 years ago.  The fall of Vukovar was 20 years

13     ago this month.  Age is a factor.  It's affected our witnesses and their

14     availability - we're in the process of contacting now to inform them of

15     these developments - and of our pre-trial preparation.  It may be that

16     we're called upon to ask the Trial Chamber to consider adjustments to the

17     witness list as we go along and as we learn about the availability or the

18     lack of availability of witnesses.

19             As I've mentioned, in terms of disclosure, because we're looking

20     to the prior cases, there's a tremendous volume of documentation that's

21     involved for disclosure purposes, and it takes us time to identify the

22     parts of some of these cases that are relevant, because it's not our

23     intention to burden counsel by simply disclosing all the documents that

24     come from a different case.  Because, for example, in a case like the

25     Slobodan Milosevic trial, only a part of that case is of relevance here,

Page 21

 1     and it's not our intention to dump everything on counsel.  Rather, we

 2     have to identify the documents that we view as relevant.  And it's --

 3     it's the same for the Stanisic/Simatovic case, of which there is

 4     substantial overlap, but not total overlap, with this case.  And the

 5     Seselj case as well.  As Your Honour knows, these are all accused who are

 6     co-JCE members with this accused, as alleged in our indictment.  But

 7     we -- it's our intention to be selective in terms of what we -- what we

 8     use and what we disclosure so that the Trial Chamber and also the Defence

 9     is not burdened with the tremendous amount of documentation that is

10     possibly of less relevance.  The point of that is that all of this takes

11     time, and we would hope that the Trial Chamber would factor all of this

12     into its consideration in setting the deadlines for the various filings

13     and notices that will be coming in the course of these pre-trial

14     proceedings.

15             Thank you.

16             JUDGE DELVOIE:  Thank you very much for that information,

17     Mr. Stringer.

18             Mr. Zivanovic, do you have any comment on the ...

19             MR. ZIVANOVIC:  Your Honour, I have no comment on the proposed

20     pre-trial work-plan.  However, I would like to inform the Trial Chamber

21     about a problem we have in the composition of our Defence team, and I

22     apologise since I did not put this issue at the 65 ter Conference.

23             Please, could you move into private session, please.

24             JUDGE DELVOIE:  Can we move into private session, please.

25                           [Private session]

Page 22

 1             THE REGISTRAR:  Your Honour, we're in private session.

 2             JUDGE DELVOIE:  Thank you.

 3             MR. ZIVANOVIC:  Two months ago, and after consultation with my

 4     client Mr. Hadzic, I addressed the assignment of Mr. Toma Fila, an

 5     attorney at law from Belgrade, as a legal consultant in the

 6     Hadzic Defence team as a member of supporting staff.  The request is not

 7     determined yet.  As a first, I got explanation from the OLAD that the

 8     risk of conflict of interest has to be examined.  Shortly after that I

 9     got information that suitability of Mr. Fila has to be examined too.  No

10     further details have been provided.  However, the expeditious decision of

11     this request would also ensure the expeditious preparation of the

12     Defence, so I would ask the intervention of Your Honour, if we could have

13     this decision, definite decision, about this issue.

14             Thank you.

15             JUDGE DELVOIE:  Thank you very much, Mr. Zivanovic.  We'll

16     consider that request.

17             I would now like to raise the issue of agreed facts.

18                           [Trial Chamber and Registrar confer]

19             JUDGE DELVOIE:  Yes, of course.  Can we go back to open session,

20     please.

21                           [Open session]

22             THE REGISTRAR:  Your Honour, we're in open session.

23             JUDGE DELVOIE:  Thank you very much.

24             I would like to raise now the issue of agreed facts.  I would

25     encourage the parties to meet as soon as possible to commence discussions

Page 23

 1     on whether any agreement can be reached on facts that are not reasonably

 2     in any dispute and thus could be submitted to the Chamber as agreed.

 3             I would be interested to hear from the parties on that matter,

 4     especially whether they think they would be in a position to report back

 5     to the Chamber on their progress in this matter by the end of January,

 6     the 31st of January, 2012.

 7             Mr. Stringer.

 8             MR. STRINGER:  I believe, certainly on the side of the

 9     Prosecution, there would be no difficulty in conferring with counsel on

10     the possibility of agreed facts and reporting our progress to the

11     Trial Chamber within that time-period.

12             JUDGE DELVOIE:  Thank you.

13             Mr. Zivanovic.

14             MR. ZIVANOVIC:  Yes, I agree with it.

15             JUDGE DELVOIE:  Thank you very much.

16             The final matter I wish to raise is that of adjudicated facts.

17             I'm minded to set a deadline for any adjudicated facts motion for

18     a date after the Prosecution had completed its disclosures obligation

19     under the Rule 65 ter (E)(ii), (iii); Rule 66(A)(ii); and

20     Rule 65 ter (E)(iii).  And after the Prosecution has filed its pre-trial

21     brief.  Moreover, I would prefer one single motion rather than a series

22     of motions.  Based upon the information in the possession of the Chamber

23     after the Prosecution has completed its disclosure, it is possible that

24     there may be a limit placed upon the number of facts to be submitted by

25     the Prosecution.  A Microsoft Excel spreadsheet has been sent to the

Page 24

 1     parties, in which I have proposed a format for any adjudicated facts

 2     motion.  I would ask the parties to use that format so as to organise our

 3     work as efficiently as possible.

 4             I would be interested to hear any comments from the parties on

 5     these guide-lines for any forecoming motion requesting the Chamber to

 6     take judicial notice of adjudicated facts.

 7             Mr. Stringer.

 8             MR. STRINGER:  Your Honour, we welcome the suggestion or your

 9     inclination to put the adjudicated facts at a later stage until after not

10     only the parties but perhaps the Trial Chamber itself has a greater

11     command of all of the evidence and the issues.  I think we're all in a

12     better position to propose adjudicated facts at that time and for the

13     Trial Chamber to then consider them, so we welcome that.  And, of course,

14     we'll do that within the format that the Trial Chamber prefers.

15             JUDGE DELVOIE:  Thank you so much.

16             Mr. Zivanovic.

17             MR. ZIVANOVIC: [Microphone not activated]

18             JUDGE DELVOIE:  Thank you.

19             At this point I would like to ask Mr. Hadzic whether there are

20     any issues in relation to his case that he would like to raise today.

21     This may include, Mr. Hadzic, issues regarding your mental or physical

22     condition while in detention.  And please be assured that we can go into

23     private session for these purposes if you would prefer.

24             THE ACCUSED: [Interpretation] There is no need for that.  I feel

25     all right, and I am quite content with the conditions in detention.

Page 25

 1             JUDGE DELVOIE:  Thank you very much.

 2             Are there any other matters that parties wish to raise today?

 3             MR. STRINGER:  Not from the Prosecution, Your Honour.

 4             JUDGE DELVOIE:  Mr. Zivanovic.

 5             MR. ZIVANOVIC:  Not for the Defence.  Thank you.

 6             JUDGE DELVOIE:  I thank you kindly for your appearances today.  I

 7     thank the parties for their mutual co-operation in getting this case

 8     ready for trial.  A Scheduling Order for the next 65 ter Conference and

 9     the next Status Conference will be issued in due course.

10             And this Status Conference is now adjourned.

11                           --- Whereupon the Status Conference adjourned

12                           at 3.26 p.m.