Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 14 June 2012

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.37 p.m.

 6             JUDGE DELVOIE:  Good afternoon to everyone in and around the

 7     courtroom.

 8             Mr. Registrar, you may call the case, please.

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

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

11             Thank you, Your Honour.

12             JUDGE DELVOIE:  Thank you.

13             Can we have the appearances, please, starting with the

14     Prosecution.

15             MR. STRINGER:  Good afternoon, Your Honour.  Douglas Stringer

16     appearing on behalf of the Prosecution with Muireann Dennehy and our

17     Case Manager, Sebastiaan van Hooydonk.

18             JUDGE DELVOIE:  Thank you.

19             MR. ZIVANOVIC:  Good afternoon, Your Honour.  On behalf of

20     Mr. Goran Hadzic is Zoran Zivanovic, lead counsel; on my right is

21     Mr. Christopher Gosnell, co-counsel; and next to him is Mr. Toma Fila,

22     legal consultant.

23             JUDGE DELVOIE:  Thank you very much.  May I confirm with

24     Mr. Hadzic that he can follow the proceedings in a language he

25     understands.  Thank you very much.

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 1             This is the third Status Conference in this case.  The purpose of

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

 3     between the parties as to ensure the expeditious preparation for trial.

 4     It is also to allow Mr. Hadzic the opportunity to raise any issue in

 5     relation to his mental and physical conditions while in detention.

 6             There was a Rule 65 ter Conference held this week on the

 7     12th of June at which the parties and the legal officer of the Chamber

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

 9     case.  The Trial Chamber has been informed of what transpired at that

10     meeting.  I wish to thank the parties for their participation in that

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

12     co-operation that they have displayed thus far during the pre-trial

13     preparation of the case.

14             I acknowledge receipt of the Prosecution's Notices of Compliance

15     in relation to access to confidential material in the Seselj case on

16     19 April and the Dokmanovic case on 26 April.  I note that Notices of

17     Compliance have not been filed in the Mrksic et al., Slobodan Milosevic,

18     and Stanisic and Simatovic cases.

19             Mr. Stringer, do you have any indication when Notices of

20     Compliance will be filed in these three cases?

21             MR. STRINGER:  Yes, Your Honour.  Once we complete the work on

22     the Prosecution exhibit and witness lists that are due to be filed next

23     Tuesday, we're going to redouble our efforts on the access issues, and we

24     expect to file Notices of Compliance by mid-July at the latest for those

25     cases.

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 1             I should point out that we still don't have -- I'm informed we do

 2     not have a decision yet on access in the Milosevic case -- no, I'm sorry

 3     that's not correct.  I think we have all the access decisions in.  We're

 4     in the process of reviewing what's confidential and expect to file our

 5     notices by mid-July.

 6             JUDGE DELVOIE:  Thank you very much, Mr. Stringer.

 7             Mr. Zivanovic, do you have any comment in relation to access to

 8     confidential material?

 9             MR. ZIVANOVIC:  No, Your Honour.

10             JUDGE DELVOIE:  Thank you.

11             MR. STRINGER:  Excuse me, Mr. President.  I apologise for the

12     interruption.  I just want to indicate that a letter went across to the

13     Defence earlier this morning from the Prosecution.  At the 65 ter meeting

14     on Tuesday, the Defence inquired whether the Prosecution was able to

15     indicate roughly the volume of materials that we're reviewing on the

16     remaining three access cases, and we did gather that information and send

17     that across to counsel in a letter earlier today.  A copy of the letter

18     was sent to the Chamber's legal officer as well.

19             JUDGE DELVOIE:  I think I've seen a copy of that, Mr. Stringer.

20     Thank you very much.

21             I note that the second joint report on agreed facts has been

22     filed.  I wish to thank the parties for their timely filing of that

23     report.  I'm also very grateful for the continued progress towards --

24     towards reaching agreement on facts pertinent to the trial where

25     possible.

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 1             The Trial Chamber is anticipating the filing of the Prosecution's

 2     witness and exhibit lists on the 19th of June.  We also anticipate on

 3     this date the notice of all protective measures from prior proceedings,

 4     motions for the variations of protective measures and any new motions for

 5     additional protective measures.  Moreover the Prosecution's deadline for

 6     the disclosure of statements, transcripts and exhibits is 26 June.

 7             I acknowledge receipt of the Prosecution's 5th, 6th, 7th and 8th

 8     reports on disclosure.  Would I now ask the Prosecution to report on the

 9     state of the Rule 68 disclosure.

10             MR. STRINGER:  Your Honour, Rule 68 disclosure is being handled

11     as part of all of the disclosure in the case.  Because of the way we're

12     doing trial preparation here, which is to review lists of documents that

13     are generated on database searches, we're manually going through

14     literally hundreds of thousands of documents.  That's what this exercise

15     has entailed.  And so in the course of these document reviews we're

16     selecting documents that go on to the exhibit list, other documents that,

17     although possibly of relevance, are not going on the exhibit list because

18     we don't envision tendering them.  And in the course of this we're also

19     identifying anything that appears to us to fall within Rule 68, and so

20     all of that is happening at the same time, and all of the disclosure that

21     is taking place is -- is Rule 68 disclosure falls within that.

22             I should also indicate that the Rule 68 -- we're keeping special

23     track, obviously, of Rule 68 documents that come to our attention during

24     the document reviews, and much of that will be within the disclosure of

25     all the exhibits that takes place on the 26th.

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 1             JUDGE DELVOIE:  Okay.  Thank you very much, Mr. Stringer.

 2             Mr. Zivanovic, any comment to make in relation to that?

 3             MR. ZIVANOVIC:  No, Your Honour.

 4             JUDGE DELVOIE:  Thank you.

 5             MR. ZIVANOVIC:  I have no comment.

 6             JUDGE DELVOIE:  Thank you.

 7             At the last 65 ter Conference, issues regarding the management of

 8     evidence during the pre-trial and trial phase were discussed, in

 9     particular the state of disclosure pursuant to Rule 70.

10             Mr. Stringer, do you have an update as to how much material is

11     pending Rule 70 clearance and a target eventually, a target date for

12     completion of all Rule 70 disclosure?

13             MR. STRINGER:  Yes, Your Honour.  I'll address each of those.

14             I've come today with specific figures so that the Chamber knows

15     exactly where we stand on Rule 70.

16             At the moment, and of course this changes as we go through the

17     completion of the exhibit list, at the moment we have 145 exhibits on the

18     exhibit list that fall within Rule 70 for which consent has already been

19     granted.  We've already obtained consent for the disclosure of those.

20             Now, we have currently about 267 documents for which there are

21     pending Rule 70 requests to different providers.  A couple of those

22     requests go back actually now two or three months ago that we made them.

23     That figure's higher than what I indicated to the Chamber's legal officer

24     on Tuesday, because actually I was under the impression that a couple of

25     the older requests have been resolved.  They have not been.

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 1             After I began looking into this again on Tuesday, we contacted

 2     now all the providers who have pending requests.  One of them wrote us

 3     back rather quickly and indicated that they were currently working on it

 4     and they expect that we would have their answer by the 26th of June.  So

 5     at least in respect of probably about 50 or 60 documents, we're going to

 6     have that resolved by the 26th of June.

 7             We continue to do what we can to urge the providers of the

 8     remaining documents to process the outstanding requests.

 9     Unfortunately -- Your Honour, I'm reluctant to give a target date because

10     I just can't control that other than to say that, again, a couple of

11     these -- one of these requests was made more than two months ago, another

12     one was made more than a month ago, and we are trying to follow up

13     without being too pushy, if I can put it that way.

14             Because the document review process has been continuing up until

15     within the last few days, which is being used to generate the exhibit

16     list, there are additional Rule 70 documents that are being identified

17     for inclusion on the list for which we have not yet sought consent to

18     disclose, and I expect that that is probably going to be in the range of

19     about 150 documents.  And as soon as the exhibit list is filed, we are

20     going to be getting the requests out for consent in respect of those

21     remaining documents.

22             So those are the figures as they stand today, Your Honour.

23             JUDGE DELVOIE:  Thank you very much, Mr. Stringer.  I understand,

24     of course, the fact that you -- that there are factors that you don't

25     have under control, and I trust you will keep a reasonable pressure on

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 1     the issue.  We all understand that obtaining clearance from all the

 2     relevant Rule 65 providers -- Rule 70 providers, sorry, is a matter of

 3     urgence so that the case can be ready to go on trial in October.

 4             Mr. Zivanovic, any comments on your part on this issue?

 5             MR. ZIVANOVIC:  No, I have no comments.  Thank you.

 6             JUDGE DELVOIE:  Thank you.

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

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

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

10     condition while in detention and please note that we can go into private

11     session for these purposes, if you would prefer.

12             THE ACCUSED: [Interpretation] Thank you, Your Honour, and I have

13     to say that I have no comments to make.

14             JUDGE DELVOIE:  Thank you.

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

16             Mr. Stringer.

17             MR. STRINGER:  Yes.  Thank you, Mr. President.  I did want to

18     make a few remarks and actually ask for the Chamber's guidance or at

19     least to flag an issue that would assist the Prosecution in going forward

20     in respect of 92 ter statements.  So one is -- is to sort of foreshadow

21     what's coming in the witness summaries, and then the second issue on

22     92 ter is more of a question that perhaps we could resolve on a

23     going-forward basis, not necessarily today.

24             The first issue relates to the Chamber's direction in respect of

25     what we're calling the hybrid 92 ter witnesses, those for whom there's

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 1     92 ter evidence in the form of a statement and for whom additionally

 2     there may be testimony viva voce when they actually come to testify.

 3             At the present time on our list we have about 60, six zero, 60

 4     witnesses whom we've categorised as 92 ter witnesses.  About half of

 5     those we currently see as being strictly 92 ter with not very much, if

 6     anything, in the way of viva voce testimony and certainly staying within

 7     the 30 minutes of direct examination that the Trial Chamber has laid down

 8     in its guide-line.

 9             For the other half, again about 30, we do envision that there

10     would be viva voce evidence, and we're very aware of the Chamber's --

11     what we understand to be a strong preference that witnesses when they

12     come as 92 ter evidence witness that they do not talk about or repeat

13     things viva voce that are already included in their 92 ter statement.

14     And we're guided by that now as we prepare the witness summaries for the

15     92 ter witnesses because the Chamber's indicated that it wishes for us to

16     indicate in the summaries what parts of the evidence would be from the

17     statement versus what parts would be the viva voce part.

18             And to be candid, Mr. President, the difficulty for us at the

19     present time lies in identifying in the summaries what would be parts of

20     the evidence that are the viva voce part, and the reason for that, if I

21     may say, is that we expect that as we talk to witnesses, parts of their

22     narratives, and as the trial actually develops, parts of their

23     narratives, parts of their statements may need to be developed, in our

24     view, beyond what is already contained in the statement, although it may

25     be on the same topic.  There maybe additional evidence, new things that

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 1     witnesses say.

 2             In previous submissions that we've made to Your Honour and in the

 3     65 ter meetings, the Prosecution's indicated that the work of

 4     re-interviewing the 92 ter witnesses, having them review their prior

 5     testimony and statements, amalgamating those statements together into a

 6     single statement when that's required, that that work remains to be done.

 7     It has not yet been done as we've worked on preparing the witness lists

 8     and the exhibit lists and the disclosure.

 9             It's during this process to come that the Prosecution envisions

10     that it will become in a position to identify what parts of a 92 ter

11     witness's testimony ought, in the Prosecution view, to be led viva voce.

12             That's a long way of saying that at the present time and in all

13     candour, Mr. President, there isn't much information in the witness

14     summaries of these 92 ter witnesses that, as of today, we can indicate

15     would be viva voce.  And the process of reviewing the 92 ter statements

16     of these witnesses, preparing the amalgamated statements, taking

17     additional relevant information that would justify the viva voce evidence

18     as hybrid testimony, because that is to come, we propose and are planning

19     that, of course to the extent that there is supplemental witness evidence

20     in the form of witness statements, that would be immediately disclosed to

21     the Defence and that we could on an ongoing basis revise and update the

22     witness summaries so that as viva voce or what we view as appropriate

23     viva voce evidence becomes known to us and evident, we can then indicate

24     to the Chamber and the Defence that we were proposing the witness be led

25     viva voce on this aspect.

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 1             So this is essentially just to foreshadow, if I may, that in the

 2     coming witness summaries, there's not going to be significant amounts of

 3     evidence for which we're proposing viva voce testimony.  We hope that the

 4     Chamber will accept that the process will continue to develop and that

 5     there may be, as we go forward, revisions of the proposed witness

 6     summaries that will then provide a fuller view of proposed viva voce

 7     testimony of these witnesses.

 8             I hope I've said that clearly enough for Your Honour, and I stand

 9     ready to answer any questions that you may have.

10             JUDGE DELVOIE:  I have -- I have one indeed, Mr. Stringer.  On --

11     how did you or on what basis did you determine then that half of your

12     witnesses are pure 92 ter and half of them are not?  You must have some

13     kind of indication for that.

14             MR. STRINGER:  We do.  It's based upon having reviewed the

15     witness evidence.  Again, we have -- we're talking about some statements

16     now that go back many years to the Milosevic case or testimonies from

17     other cases, such as the Mrksic case, Stanisic/Simatovic, which is more

18     recent.

19             The witnesses gave evidence in that -- in those cases which,

20     although very relevant for this case, is not -- wasn't focused directly

21     on this accused, and there are times when in reading the statement we see

22     that in fairness, in our view, another question needs to be asked that

23     might bring that statement more focussed to this particular case and this

24     particular accused.  So it's actually a matter of -- of refocussing the

25     witness, if I may put it that way, on this case, and that obviously

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 1     Mr. Hadzic or the specific subject matter of this case was not foremost

 2     in the mind of the lawyer or the investigator who was taking the

 3     statement back when it was made.  And so we can see that and that is

 4     something that we feel we must try to develop now in the coming weeks

 5     prior to the trial, and that is where we are as we stand.  And what we

 6     are proposing is to obviously provide immediate notice to the Defence,

 7     update the summaries and to -- and so that everyone sees, to the extent

 8     there may be changes or new aspects, I shouldn't say new, but focus now

 9     of -- that relates more to this case.

10             JUDGE DELVOIE:  Can I conclude then like this:  That in first

11     summary you'll provide, there will be an indication whether this is a

12     purely 92 ter or eventually a hybrid witness, and that as soon as you

13     have the information on what part -- on what the subject of the viva voce

14     part will be, that we will be informed.  What we try to avoid is

15     specifically to get at a hearing with a 92 ter witness and hear then for

16     the first time that it will not take 30 minutes but it will take two

17     hours because there is an important part of viva voce to cover.  So if we

18     can agree that we get the information, that there is a part viva voce and

19     what it is about as soon as you have that information, I think that's as

20     far as we can go.  We, of course, understand that the preparation of a

21     trial is an ongoing business.

22             MR. STRINGER:  That is absolutely the intention, Mr. President,

23     to provide immediate notice once we have the information.  And if I may

24     say, it's -- it's our intention that that would be at the very latest six

25     weeks, which is the Chamber's guide-line on the filing of the statement.

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 1             Now, there are times when that -- I'm sure there will be times

 2     where the Prosecution applies for a change after six weeks, before the

 3     witness testifies, but we expect that six weeks is, for the most part,

 4     going to be the latest time in which we will have given the notice and

 5     identified what we are proposing to be the viva voce aspect.

 6             JUDGE DELVOIE:  Of course.  Nothing is certain, and even that

 7     isn't.

 8             Your second point, Mr. Stringer?

 9             MR. STRINGER:  The second point was to ask for guidance and this

10     would involve input from the Defence, so I don't expect it to be resolved

11     today.

12             Once we file the witness and exhibit lists, a big focus of the

13     team is going to turn toward the preparation of the 92 ter statements and

14     the creation of amalgamated statements when it's necessary to do so.

15             What we're finding is that for a number of witnesses, again who

16     have testified in other cases in the past, they give evidence, that is,

17     the relevant evidence for this case, their experience in Croatia in the

18     relevant areas during the relevant time-frame, but we have a number of

19     witnesses then whose experience moves off elsewhere, say, to

20     Bosnia-Herzegovina down in 1992 or 1993 or 1995.  And in some cases this

21     accounts for a very large volume of the witness's testimony; because if

22     the witness came and testified in the Milosevic case, that witness might

23     have spoken a little bit about Vukovar and spoken a great deal about

24     Sarajevo.  And, on the one hand, we think that it's most efficient to

25     delete and to not include in the 92 ter statement the testimony and

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 1     the -- the testimony that relates to matters that are clearly falling

 2     outside the geographic and the temporal scope of this case; on the other

 3     hand, we're talking not only about direct examination but

 4     cross-examination, and the Prosecution is uncomfortable modifying a

 5     witness's testimony and tendering it as evidence.  It may be that there

 6     are aspects of the cross-examination that relate to Sarajevo that the

 7     Defence, nonetheless, thinks goes to the witness's credibility and that

 8     it should therefore be included.

 9             So there's a bit of tension here between including what's

10     possibly a fairly significant volume of material in a ter statement that

11     doesn't really relate to this case, but at the same time, ensuring that

12     all relevant aspects of the evidence, both direct and cross, are before

13     the Trial Chamber.  So we're not -- that's something I think that we

14     could use some guidance on.

15             JUDGE DELVOIE:  I -- I see the problem, and you've probably

16     considered -- or you could eventually consider the possibility of

17     highlighting the parts you want to submit and then leave to the Defence

18     eventually to add, eventually in another colour, other highlights of

19     parts that they want to add to what you want to tender as the

20     witness's -- as the relevant witness's statement.  That seems to me a

21     first possible solution.

22             I'm thinking of a way, and just -- just to suggest and to put in

23     the idea, a better of way improving the way you can handle, for instance,

24     200 or 250 witness statements in which you have three or four pages of

25     different parts in the statement that you have to look at, but you can

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 1     eventually think about that.  But my first idea would be can we work

 2     with -- if parties agree with that, can we work with highlighted parts.

 3     But I would say let's ask the parties to consider and to discuss this

 4     amongst them and report to us what seems to be the best solution.

 5             Is that all right with both of you?

 6             MR. STRINGER:  Yes, Your Honour.  Thank you.

 7             JUDGE DELVOIE:  Mr. Zivanovic.

 8             MR. ZIVANOVIC:  Yes, we can discuss this issue.

 9             JUDGE DELVOIE:  Thank you.

10             I then thank you kindly for your appearances today.  I thank the

11     parties for their continuing co-operation with each other and with the

12     Chamber in getting this case ready for trial.  A Scheduling Order for the

13     next Rule 65 ter Conference and status Conference has been issued.  The

14     next 65 ter Conference will be held on Thursday, 6 September, at 2.00,

15     and the next Status Conference will be held on Thursday, 13 of September,

16     at 2.30 in a courtroom to be determined.

17             This Status Conference is now adjourned.

18                           --- Whereupon the Status Conference adjourned

19                           at 3.09 p.m.