Tribunal Criminal Tribunal for the Former Yugoslavia

Page 657

1 Wednesday, 24 September 2003

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 3.34 p.m.

5 JUDGE ROBINSON: Will the Registrar please call the case.

6 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honour.

7 This the case number IT-99-37-PT, the Prosecutor versus Milan Milutinovic,

8 Nikola Sainovic, Dragoljub Ojdanic.

9 JUDGE ROBINSON: And may we have the appearances, please.

10 MR. NICE: For the Prosecution, Geoffrey Nice, Cristina Romano,

11 Milbert Shin, and our case manager, Susan Grogan.

12 JUDGE ROBINSON: Thank you, Mr. Nice. For the Defence?

13 MR. O'SULLIVAN: Good afternoon, Your Honour. Eugene O'Sullivan,

14 appearing on behalf of Mr. Milutinovic.


16 MR. PETROVIC: [Interpretation] Good afternoon, Your Honour,

17 Vladimir Petrovic, appearing as Defence counsel for Mr. Nikola Sainovic.

18 MR. VISNJIC: Your Honour, Tomislav Visnjic for

19 Dragoljub Ojdanic.

20 [Albanian interpretation on English channel]

21 JUDGE ROBINSON: Thank you very much. We have a number of

22 matters to get through in this conference.

23 Is there a problem with the translation? Is it working now?

24 We'll continue then. So we have a number of matters to deal with

25 in this Status Conference and I will proceed immediately, and call on the

Page 658

1 parties as appropriate.

2 First, as to pending motions. We have the Ojdanic application

3 for binding orders addressed to certain NATO states. We are awaiting

4 submissions from four states. I'm aware that we have received a reply

5 from one, and we're waiting a reply from the others.

6 Then there are two matters pending before the Appeals Chamber,

7 one relating to the Ojdanic motion for additional funds and the other to

8 the motion challenging jurisdiction over events in Kosovo.

9 There is also a Prosecution application relating to disclosure of

10 witness statements. And I have to say that the Chamber will be dealing

11 with that as soon as possible.

12 Just to remind ourselves, the instructions given were that the

13 Prosecution was to file its pre-trial brief no later than one month after

14 the Appeals Chamber decision on the preliminary motion and Defence

15 pre-trial briefs to be filed three months later.

16 I turn now to pre-trial preparation and disclosure of witness

17 statements under 66(A)(i) are completed for all three accused and

18 66(A)(ii) statements disclosure to all three accused completed, with the

19 exception of two remaining witnesses in respect of whom an application was

20 made for an extension of protective measures.

21 Mr. Nice, can you say anything about the -- the progress in

22 relation to contacting these witnesses?

23 MR. NICE: I'm not sure that I can, but I'll see if one of my

24 colleagues can assist on that.

25 [Prosecution counsel confer]

Page 659

1 MR. NICE: Your Honour, I'm sorry I'm not able to provide an

2 immediate answer to this. Just give me one second and I'll be able to.

3 JUDGE ROBINSON: Well, let me go on, Mr. Nice, and we'll come

4 back to it. Yes.

5 I turn next to expert witnesses. All expert reports have been

6 disclosed both in B/C/S and English. There is, I understand, one

7 potential issue, and it relates to the report of Patrick Ball. The

8 Ojdanic Defence, I understand, would like to have the underlying material

9 used in respect of that report and the Prosecution takes the position that

10 this is not required unless it forms part of the actual report. But I

11 understand the Ojdanic Defence should be in a position to bring us up to

12 date on that.

13 Mr. Visnjic, could you let us know where we stand on that issue.

14 MR. VISNJIC: [Interpretation] Your Honour, we haven't made much

15 headway with regard to this particular issue for a simple reason: In our

16 contacts with the Prosecution, we received a request of theirs to deal

17 with this material more precisely, so to speak, and to provide them with

18 lists. We have reduced the material involved, in view of the pending

19 ruling of the Appeals Chamber. We have stopped working on this particular

20 matter. We are waiting for the ruling of the Appeals Chamber, and then we

21 are going to continue our contacts with the Prosecution with regard to

22 that particular matter.

23 JUDGE ROBINSON: A ruling of the Appeals Chamber on which matter?

24 MR. VISNJIC: [Interpretation] Funds, Your Honour. Funds for the

25 Defence, Your Honour.

Page 660

1 JUDGE ROBINSON: I see. I see. Very well. Well, at some stage

2 you may want to consider whether you wish to put in a motion for the

3 Chamber's consideration on that matter. And you may sit down,

4 Mr. Visnjic.

5 I understand, Mr. Nice, that the Prosecution is considering

6 adding another constitutional law expert in light of what happened in the

7 Milosevic case in relation to the evidence of Ivan Kristan.

8 MR. NICE: Yes, that's in development. I may by now -- I may

9 have identified another suitable expert and approaches may be made within

10 days. But knowing how long this material takes to -- well, knowing how

11 long it takes to find a willing expert and then how long it takes to

12 prepare the report, I'd prefer not to be bound by any time limit at the

13 moment and prefer to report back at the next Status Conference on that, if

14 that's acceptable to the Court.

15 JUDGE ROBINSON: It's also relevant for the Milosevic case.

16 MR. NICE: It's relevant for the Milosevic case, and the time

17 limit of that is rather tighter, as Your Honour knows. I'm very anxious

18 to, at the least, be able to serve a report before we run out of time in

19 the Milosevic case so that the material may be available; but I'm doing

20 the best I can.

21 JUDGE ROBINSON: Thank you.

22 MR. NICE: I should have been able to tell you and can now the

23 two witnesses to whom you refer are apparently dealt with compendiously in

24 the recent filing. We have no further information to provide at the

25 moment beyond that in the filing.

Page 661

1 JUDGE ROBINSON: Thank you.

2 Rule 68 disclosure, the instructions given at the last conference

3 was that the Prosecution should disclose 68 material by the time their

4 pre-trial brief is to be filed. That itself is one month after the

5 Appeals Chamber decision on the preliminary motion. And the Prosecution

6 was to report whether there was 68 material for which the consent of the

7 provider has not yet been provided pursuant to Rule 70.

8 Mr. Nice, are you in a position to say whether consent has been

9 given in respect of the relevant material?

10 MR. NICE: I'm not in a position to say that it's been

11 obtained --

12 THE INTERPRETER: Microphone for Mr. Nice, please. Microphone

13 for Mr. Nice.

14 MR. NICE: I'm not in a position to say it's been obtained in

15 respect of every item of such material yet. Where the consent has not yet

16 been obtained, we are actively pursuing it. In the event of any

17 irreconcilable conflicts between the Rules, we will -- that seem incapable

18 of resolution, we will notify the Chamber immediately.

19 JUDGE ROBINSON: Thank you.

20 And since you're on your feet, on 68 material in general, where

21 are you in relation to the disclosure of that?

22 MR. NICE: I'm not sure that I can give a quantitative answer to

23 that. As the Chamber will know, we've pursued the policy in this case, as

24 in another case, of identifying the search criteria and pressing ahead

25 with the searches in an orderly way and as rapidly as we can.

Page 662

1 Notwithstanding the suspension of proceedings following the Appeal

2 Chamber's decision, we've continued to be turning over Rule 68 material in

3 an orderly way and as soon as we reasonably can. It seems to us that

4 meets the Rule 68 requirement -- duty that falls upon us, and there's the

5 fourth report that has been filed and I think Ms. Romano may be in a

6 position to speak about that, but it's all dealt within that report at the

7 moment. The report deals with the position up until the date of the

8 report, and I think also it gives lists of material filed from the

9 beginning of the case.

10 JUDGE ROBINSON: Thank you.

11 I turn next to reciprocal disclosure. And the Ojdanic Defence

12 had invoked the reciprocal disclosure regime, and my understanding is that

13 the issues relating to that have been resolved. Is that so?

14 MR. VISNJIC: [Interpretation] That's right, Your Honour. It was

15 only yesterday that we exchanged with the Prosecution a number of

16 documents that we had received from the National Committee of Yugoslavia

17 for Cooperation with The Hague Tribunal. We have a total of eight

18 requests there. Only our first request has been dealt with so far, and

19 that's the one we submitted in October 2002. And I hope that this pace

20 will accelerate, because otherwise we are going to have problems in the

21 future. If some other issues are not resolved, we are going to file

22 additional requests to them, depending on how the investigation proceeds.

23 Thank you.

24 JUDGE ROBINSON: Very well. Thank you.

25 Mr. Nice.

Page 663

1 MR. NICE: On the topic of reciprocal disclosure, may I simply

2 recall the following, so that it's on the record: In light of the

3 disclosure regime existing with the Ojdanic Defence, we provided them with

4 material that, in the event, was a provision in excess of what a Rule 70

5 provider had authorised. Once we discovered this, we drew it to the

6 attention of the Ojdanic team. They were good enough to agree to return

7 the material, which had been delivered to them, in order that the terms of

8 the Rule 70 provider could be adhered to. And I'm grateful for the fact

9 that they're providing that material back to us or returning it to us, and

10 I understand that those -- that material and all copies of it will be back

11 to us soon.

12 The conditions upon which the material was to be made available

13 to the Ojdanic team are being complied with forthwith.

14 JUDGE ROBINSON: And I'd like to commend the Ojdanic Defence team

15 for their fraternal and cooperative spirit.

16 I turn next to the question of agreed facts. The Prosecutor had

17 proposed to the Defence the three accused persons to seek agreement on

18 facts on the basis of the indictment on a statement-by-statement basis.

19 Now, that has been done in relation to the accused Milutinovic and the

20 accused Ojdanic, but the Sainovic Defence team proposed a different

21 methodology, that is, a list of facts which would go beyond the

22 statement-by-statement approach in relation to the indictment. I have to

23 say that the Chamber has considered this matter and the Chamber finds that

24 the approach proposed by the Sainovic Defence team is a reasonable one and

25 that it should be followed in relation to Sainovic.

Page 664

1 Mr. Petrovic, you should first start the ball rolling by

2 proposing a list of agreed facts to the -- to the Prosecutor.

3 MR. PETROVIC: [Interpretation] Your Honour, thank you for this

4 decision and thank you for your understanding of the approach that we had

5 opted for in this matter.

6 On behalf of Mr. Sainovic's Defence, I can say that we are going

7 to prepare a set of facts as early as possible that we consider to be

8 convenient for being dealt with by way of facts that are not in dispute,

9 agreed facts. So I hope that we will proceed this way as you suggested.

10 Thank you.

11 JUDGE ROBINSON: And proceed as expeditiously as possible. And I

12 want to clarify: This is, of course, without prejudice to the agreement

13 that has already been reached by the Prosecutor and the other accused.

14 Rule 92 bis, I'm told that instructions have been given for the

15 parties to consider the best possible use of Rule 92 bis and to start

16 discussions on this once the Prosecution witness list has been served. In

17 the circumstances of the case, I say no more about that at this stage.

18 I turn now to the length of the trial and the witnesses.

19 Mr. Nice, at an earlier stage an indication had been given by the

20 Prosecutor, an estimate of 100 to 120 witnesses. And for the

21 Prosecution's case in chief to last approximately three to four months.

22 Would you like to update me on that, please.

23 MR. NICE: In a second.

24 [Prosecution counsel confer]

25 MR. NICE: Well, Your Honour, I think this is an estimate. The

Page 665

1 earlier figures can stand, but of course we have yet to reach the stage

2 where the 65 ter list is finally submitted, and we have no knowledge at

3 the moment of what may be the time benefits of 92 bis agreements or

4 rulings, and so the estimate stands but things may, inevitably, change.

5 JUDGE ROBINSON: Thank you.

6 May I ask if there is any issue which any of the parties would

7 wish to raise now.

8 Mr. Nice?

9 MR. NICE: There's nothing we want to raise. We may, of course,

10 have matters to which we want to respond. There may be matters to which

11 we would like to respond.

12 JUDGE ROBINSON: Mr. O'Sullivan.

13 MR. O'SULLIVAN: There's nothing for today, Your Honour.


15 Mr. Petrovic?

16 MR. PETROVIC: [Interpretation] Thank you very much, Your Honour.

17 No, thank you.

18 JUDGE ROBINSON: Mr. Robinson.

19 MR. ROBINSON: Yes, thank you, Your Honour. I just would briefly

20 like to take the opportunity to comment on the status of the case from the

21 perspective of the Ojdanic Defence team. And as far as we're concerned,

22 the status of the case as it stands today is very poor, because we have

23 not been working for the last six months and not been able to prepare for

24 the trial. General Ojdanic deserves to have a strong preparation and a

25 strong defence so that he has a fair trial. And the Prosecution has in

Page 666

1 the meantime had the resources to continue working during all that time

2 and we believe that it's a very unfortunate situation, and I don't think

3 that we could let the Status Conference pass without calling that to the

4 attention of the Pre-Trial Judge. We hope that when we see you in the

5 next four months or so, that the circumstances will be more favourable and

6 more equitable at that time. Thank you.

7 JUDGE ROBINSON: Yes. I know the matter that you're referring

8 to, and it's not really within the -- the competence of the Trial Chamber.

9 But my understanding is that the matter is being dealt with at

10 expeditiously as possible by the Appeals Chamber, and a ruling should be

11 given in a relatively short time.

12 May I then turn to the accused persons and inquire whether

13 there's any matter that they wish to raise concerning their conditions of

14 detention or any other matter relating to the -- to the case. I start

15 with Mr. Milutinovic.

16 THE ACCUSED MILUTINOVIC: Your Honour, nothing for this moment.

17 Thank you.

18 JUDGE ROBINSON: Thank you, Mr. Milutinovic.

19 Mr. Sainovic?

20 THE ACCUSED SAINOVIC: [Interpretation] Thank you, Your Honour.

21 Nothing at this point.

22 JUDGE ROBINSON: Mr. Ojdanic?

23 THE ACCUSED OJDANIC: [Interpretation] Your Honour, nothing to

24 raise at this moment. Thank you.

25 JUDGE ROBINSON: Thank you, Mr. Ojdanic.

Page 667

1 The next conference must be held on or before the -- Thursday,

2 the 22nd of January. And I'm fixing Wednesday, the 21st of January as the

3 date for the next -- the next conference.

4 Is there any other matter?

5 MR. NICE: I think not.


7 The hearing stands adjourned.

8 --- Whereupon the Status Conference

9 adjourned at 3.58 p.m.