Tribunal Criminal Tribunal for the Former Yugoslavia

Page 701

1 Wednesday, 15 September 2004

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE BONOMY: Call the case, please.

7 THE REGISTRAR: Thank you, Your Honour. The case reference

8 IT-99-37-PT, the Prosecutor versus Milan Milutinovic, Nikola Sainovic,

9 Dragoljub Ojdanic.

10 JUDGE BONOMY: This is my first Status Conference in this case, so

11 I would be grateful if first of all counsel would introduce themselves.

12 MR. NICE: Your Honour, I appear for the Prosecution. But matters

13 of detail will be dealt with by Ms. Romano on my right, who has the

14 day-to-day conduct of the case, and we are also appearing today by Ms.

15 Christina Moeller, who sits to her right, and our case manager on my left

16 is Ms. Susan Grogan.

17 JUDGE BONOMY: Thank you, Mr. Nice.

18 For Mr. Milutinovic.

19 MR. SULLIVAN: Yes, good afternoon, Your Honour. Eugene

20 O'Sullivan appearing on behalf of Mr. Milutinovic.

21 JUDGE BONOMY: Thank you, Mr. O'Sullivan.

22 For Mr. Sainovic.

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

24 Mr. Nikola Sainovic, attorney Vladimir Petrovic. Thank you.

25 JUDGE BONOMY: Thank you, Mr. Petrovic.

Page 702

1 And for Mr. Ojdanic.

2 MR. VISNJIC: [Interpretation] Good afternoon, Your Honour.

3 Tomislav Visnjic for General Ojdanic.

4 JUDGE BONOMY: Thank you, Mr. Visnjic.

5 The first matter that I am pleased to note is that pre-trial

6 briefs have been lodged on behalf of each of the accused. There are a

7 number of quite separate issues which I want to briefly address, but I

8 don't think any gives rise to any particular difficulty that needs to be

9 addressed today. An application is made for binding orders addressed to

10 NATO states, and a decision has been taken to hear the submissions in that

11 case in December. The view formed has been that it will take the best

12 part of two full days to deal with that application. We have, therefore,

13 allocated time on the afternoon of each of the 1st and 2nd of December and

14 the whole of the 3rd of December in the hope that that can be dealt with

15 then.

16 Now, does any counsel have any comment to make on that

17 arrangement? Thank you.

18 Applications have been made on behalf of Mr. Sainovic and Mr.

19 Milutinovic for access to confidential material in the Milosevic

20 proceedings. One matter remained outstanding. I've been able, with the

21 assistance of Ms. Featherstone, to deal with that, and hopefully a

22 decision disposing of the final outstanding matter will be issued in the

23 next day or so.

24 An application is made by the Prosecution for variation of

25 protective measures for material provided pursuant to Rule 70. There's

Page 703

1 been no response on behalf of any of the accused in relation to that, and

2 it may be that that is indicative of there being no need to consider this

3 matter further and that the application can simply be granted. Is that

4 the position so far as the Defence are concerned?

5 MR. SULLIVAN: Yes, it is, Your Honour.

6 JUDGE BONOMY: Thank you very much. Well, in that event, an order

7 will be drafted and issued dealing with that.

8 Expert witnesses. There have been notices intimated on behalf of

9 each accused in respect of the reports of eight expert witnesses. I can

10 see that in the ordinary case, it would be appropriate simply to leave the

11 matter of how to deal with expert reports and witnesses to the trial. But

12 two of the experts in this case have already been the subject of decisions

13 excluding their evidence completely, the expert Torkildsen and the expert

14 Kristan. In the case of Kristan, I suppose his evidence was not excluded

15 completely, but so far as it's relevant to this trial it was excluded

16 completely. And it struck me that there might be some benefit in inviting

17 the Prosecution to respond to these notices with a view to considering

18 whether the position can be dealt with and clarified in advance of the

19 trial. And if the Prosecution were to be invited to respond in respect of

20 two of the experts, then it struck me also that there would be no harm in

21 inviting them to respond in relation to all eight, bearing in mind that

22 substantial submissions are made on behalf of each of the accused in

23 relation to all the expert reports.

24 Now, I turn first of all to Ms. Romano for reaction to the

25 suggestion that the Prosecution might be invited to respond to the notices

Page 704

1 which have been submitted.

2 MS. ROMANO: Your Honour, I think the Prosecution doesn't see any

3 problem in addressing this matter.

4 JUDGE BONOMY: And so far as timing is concerned?

5 MS. ROMANO: I will have to ask at least maybe what, two weeks.

6 JUDGE BONOMY: So far as counsel for the accused are concerned, is

7 there any comment to make on that, to dissuade me from following that

8 course or reducing the time or on any other point? No.

9 Very well. What I -- Ms. Featherstone, is it the appropriate

10 course to make an order following today's hearing or simply to make an

11 oral --

12 [Trial Chamber and legal officer confer]

13 JUDGE BONOMY: Well, I think what I'll do is make an order

14 requiring the Prosecution to respond to the three notices in 14 days, and

15 no doubt counsel for the accused, if they consider it appropriate, will

16 invite the Chamber to receive any further comments that they wish to make

17 in the light of these responses.

18 I note that there is some uncertainty about the role of the

19 Prosecution in continuous reporting of the situation in relation to

20 Rule -- the disclosure of Rule 68 material. It may be that that has been

21 resolved, but as matters stood when I was preparing for this, it did seem

22 that the Prosecution position was that their obligation to continue to

23 report was now at an end. It's not entirely clear to me that that is so.

24 Is there anything you wish to say on that matter, Mr. Nice.

25 MR. NICE: Yes. First of all, it's our position that in light of

Page 705

1 the Rule change, most recently introduced Rule 68, where the whole Rule

2 was made subject to the provisions of Rule 70, there is no duty now of any

3 kind falling on the Prosecution in one of these cases to reveal anything

4 to the accused or to the Court about its dealings with Rule 70 material

5 that it judges may have a Rule 68 component. In those circumstances, and

6 as a matter of theory, in this case, there would be no justification, it

7 could be argued, for continuing the practice of 68 reporting that I can't

8 remember now whether it was the Court introduced it or whether we actually

9 volunteered it, but one way or another I can remember instigating the

10 process of Rule 68 reporting outside the provisions of the Rules at an

11 earlier occasion in the Milosevic case, and I think the practice spilled

12 over into this case. So we have a system of reporting that is, I think,

13 outside, strictly outside, the Rules in which we've sought to help the

14 parties, and it's a practice in relation to 68, 70 material that is now

15 more generous or has been more generous than the Rules now require.

16 JUDGE BONOMY: Does that mean you're saying it's not the Rule

17 change that makes the Prosecution take this line, but that simply awakened

18 a desire to reduce the paperwork.

19 MR. NICE: No, no. I think the Rule change freezes without doubt

20 of any need to report -- if we're reporting at all, the Rule change

21 freezes of any need to report on Rule 70 material that has an arguable

22 Rule 68 component.

23 Now, the question is, since we've -- or one of the issues is:

24 Since we have, as a matter of fact, under the reporting mechanism that I

25 suspect we introduced being keeping parties informed about what in this

Page 706

1 case we've been doing about material that is both Rule 68 and Rule 70,

2 should we continue to do so, in this case, although we'll do something

3 different in other cases? There's no prejudice, of course, to the accused

4 in our ceasing to report, because information about what we are doing with

5 Rule 70 providers in respect to material that is Rule 70 and Rule 68 is of

6 no utility to them in any event, so not having the information doesn't

7 help them, or having it doesn't help them. But nevertheless having said

8 all that, we don't see any particular problem in this case without

9 prejudice to other cases in just carrying on the process of reporting,

10 although, as we say, we don't think it's of any relevance to, nor can it

11 be any utility to the defendants.

12 JUDGE BONOMY: Well, I'm obliged to you for that, Mr. Nice, so

13 I'll simply note that the practice will at least continue until this case

14 goes to trial. Thank you.

15 MR. VISNJIC: Your Honour.

16 JUDGE BONOMY: I'm sorry. Yes, Mr. Visnjic.

17 MR. VISNJIC: [Interpretation] Your Honour, I should just like to

18 respond to what Mr. Nice said a moment ago, briefly and I'll start by

19 going back into history, if I may. The Defence of General Ojdanic, on the

20 30th of October, 2002, submitted, filed a request --

21 JUDGE BONOMY: Just before you go any further, can I be clear on

22 the purpose of this submission? The Prosecution position is no change so

23 far as this case is concerned, and it's certainly not my intention to make

24 a decision in principle about the point that might affect other cases if

25 that's not required to advance the present one. Is there a separate point

Page 707

1 that arises for you?

2 MR. VISNJIC: [Interpretation] No. If they continue to supply us

3 with information as they have been doing so far, we will be quite

4 satisfied with that. But as I understood it, and according to what was

5 written down in their eighth report on disclosure, I think the position

6 there was contrary to what you've just said, or what Mr. Nice just said,

7 and that is why I wanted to make a brief comment.

8 JUDGE BONOMY: I think, Mr. Visnjic, that Mr. Nice has, for the

9 purposes of the present case, departed from what was said in the eighth

10 report, without prejudice to the position the Prosecution might take in

11 any other case. So you needn't worry about it so far as the present case

12 is concerned. Thank you.

13 MR. VISNJIC: [Interpretation] Thank you.

14 JUDGE BONOMY: Now, I have not noted any further matters. Is

15 there any other procedural or technical issue that the Prosecution or

16 Defence wish to raise?

17 MR. NICE: Will Your Honour just give me one minute.

18 JUDGE BONOMY: Yes, Mr. Nice.

19 [Prosecution counsel confer]

20 MR. NICE: Nothing to raise, but since it's always rather

21 intriguing to see somebody discuss something and want to know what they

22 were actually thinking about, I don't see any reason not to at least

23 mention what is in my mind, and that is whether this case, certainly by

24 the time it starts, is one where there will be any use, utility,

25 desirability, in having computerised systems of information and evidence

Page 708

1 management that can be common to the three interested organs of the trial,

2 the Bench, Prosecution, and Defence. Our computer systems are advancing,

3 and I know that the practices differ as between chambers and the

4 Prosecution, and it may be that it's something that at some stage it would

5 be sensible to give some thought to, perhaps later 65 ter conferences or

6 Status Conferences.

7 JUDGE BONOMY: Perhaps at the next 65 ter conference, it might be

8 an appropriate time to raise that.

9 MR. NICE: I'm quite confident that if there is within any trial

10 the potential to harmonise systems for managing material, there may be

11 very great savings in both costs and substantial increases in efficiencies

12 of presentations and so on.

13 JUDGE BONOMY: Thank you, Mr. Nice.

14 Does any Defence counsel have any other matter to raise?

15 MR. SULLIVAN: Nothing at this time, Your Honour.

16 JUDGE BONOMY: I understand it's the practice at these Status

17 Conferences to give to the accused the opportunity to mention any matter

18 that they do wish to raise. The practice I intend to follow is to invite

19 counsel to indicate if there is anything that they do wish to raise about

20 the conditions of the accused or any other relevant matter. If you decide

21 that it's appropriate to raise any such matter, then it's for you to

22 decide whether you make the submission to me or the comment, or you invite

23 your client to do so. But I will direct that inquiry always to counsel

24 rather than to clients directly. So is there any other matter of even a

25 general nature or about conditions generally that you wish to comment upon

Page 709

1 at this stage?

2 MR. SULLIVAN: Nothing on behalf of Mr. Milutinovic.

3 MR. PETROVIC: [Interpretation] Your Honour, on behalf of

4 Mr. Sainovic and on behalf of the Defence, no, thank you.

5 JUDGE BONOMY: Thank you.

6 MR. VISNJIC: [Interpretation] Your Honour, we do not have anything

7 to raise either. Thank you.

8 JUDGE BONOMY: Well, thank you to counsel. That brings the

9 proceedings at this Status Conference to an end. The date of the next

10 one, I think we should fix upon now, and I have in mind the 13th of

11 January. So I take it in the absence of dissent, that will be the date of

12 the next Status Conference. Sorry, Mr. Visnjic.

13 MR. VISNJIC: [Interpretation] Your Honour, the 13th of January is

14 New Year's Eve, according to the Orthodox Christian calendar. I just

15 wanted to say that, and we would highly appreciate it if that would not be

16 a working day, so that we could meet some other time.

17 JUDGE BONOMY: Please excuse my insensitivity on that. What

18 alternative do you propose?

19 MR. VISNJIC: [Interpretation] Any date after the 15th, by your

20 leave.

21 JUDGE BONOMY: The conference has to be held on or before

22 the 14th, and we don't resume, I think, until the 10th. So there's a

23 limited selection of dates available.

24 MR. VISNJIC: [Interpretation] I'm sorry. May I just consult my

25 colleagues for a moment.

Page 710

1 [Defence counsel confer]

2 [Trial Chamber and legal officer confer]

3 JUDGE BONOMY: I understand also that with agreement it could be

4 postponed until the beginning of the following week. If that's the

5 proposal you want to make, then I'm open to that.

6 MR. VISNJIC: [Interpretation] Precisely, Your Honour. Precisely,

7 Your Honour. That is what we had wished to ask for, just a brief

8 extension. We agree with that.

9 JUDGE BONOMY: Well, in that case, I think the 18th of January

10 would be appropriate. So the next Status Conference will be this time,

11 and on the 18th of January.

12 MR. VISNJIC: [Interpretation] Thank you.

13 JUDGE BONOMY: Thank you very much.

14 --- Whereupon the Status Conference adjourned at

15 3.22 p.m.