Tribunal Criminal Tribunal for the Former Yugoslavia

Page 917

1 Friday, 13 May 2005

2 [Status Conference]

3 [Open session]

4 [Accused not present]

5 --- Upon commencing at 4.32 p.m.

6 JUDGE BONOMY: Would the Registrar please call the case.

7 THE REGISTRAR: Yes, Your Honour. Good afternoon again,

8 Your Honour. This is the case number IT-99-37-PT, the Prosecutor versus

9 Milan Milutinovic, Nikola Sainovic and Dragoljub Ojdanic.

10 JUDGE BONOMY: Well, this is the latest Status Conference in this

11 case. May I first of all take the appearances for the Prosecutor?

12 MR. HANNIS: Thank you, Your Honour. For the Office of the

13 Prosecutor I'm Tom Hannis, assisted in my right by Christina Moeller and

14 Karen Edgerton, and on my left our case manager, Susan Grogan.

15 JUDGE BONOMY: Thank you, Mr. Hannis. For the accused?

16 MR. O'SULLIVAN: Eugene O'Sullivan, appearing for Mr. Milutinovic.

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

18 Vladimir Petrovic on behalf of Nikola Sainovic.

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

20 Tomislav Visnjic on behalf of Dragoljub Ojdanic.

21 JUDGE BONOMY: Thank you, gentlemen. I take it none of the

22 accused is intending to be here and we can proceed now with the

23 conference. Thank you.

24 There are a number of matters I wish to raise in no particularly

25 logical order but in view of the status conference which took place

Page 918

1 earlier this afternoon, it may be I think appropriate to look at a broader

2 issues, first of all, which were discussed in some extent in the course of

3 that case.

4 The Prosecution have tendered a motion to conjoin this with the

5 case of Lazarevic and others. And as I understand the position in the

6 present case, none of the accused objects to that motion. I therefore

7 think it's not at all unreasonable, even at this stage, to approach the

8 issues on the basis that there is a prospect of these cases being

9 conjoined, and that's without by any means trying to prejudge that

10 decision.

11 My understanding is that even if the light of that possibility, a

12 trial could occur beginning at around the turn of the year.

13 Now, it's with that prospect in mind that I intend to approach the

14 issues which arise in pre-trial preparation.

15 Now, the first specific matter to which I turn is what's described

16 as the fifth motion for the Prosecution for protective measures. And at

17 first sight, this motion appeared to relate to material in the case

18 against General Ojdanic but I understand from proceedings at the 65 ter

19 conference that the Prosecution consider that the material may implicate

20 the other two accused.

21 Now, Mr. Hannis, what -- can you clarify the position for me first

22 of all?

23 MR. HANNIS: Yes, Your Honour. These matters relate to

24 intercepted conversations and I believe although most of the ones

25 concerned General Ojdanic, there is one I believe in which Mr. Sainovic is

Page 919

1 the speaker and there is one in which Mr. Milutinovic is the speaker. In

2 addition because our theory in this case involves joint criminal

3 enterprise, we feel that this will apply to all of them.

4 JUDGE BONOMY: Now, Mr. O'Sullivan was it a surprise to you to

5 learn this or were you aware of it?

6 MR. O'SULLIVAN: I was aware of that, Your Honour.

7 JUDGE BONOMY: Have you seen the particular material at this

8 stage?

9 MR. O'SULLIVAN: Yes, I have.

10 JUDGE BONOMY: Are you aware of General Ojdanic's approach it,

11 which is that the issues that the Prosecution are worried about will not

12 arise because of the approach he will take to this evidence?

13 MR. O'SULLIVAN: I'm aware of both the original fifth motion by

14 the Prosecution and the response by Ojdanic. We opted not to respond but

15 since Ojdanic has taken the lead on this, we thought he covered the

16 issues.

17 JUDGE BONOMY: Is your position the same that you don't envisage

18 cross-examination on the sensitive matters that concern the Croatian

19 government?

20 MR. O'SULLIVAN: I think that's a matter that will -- so much will

21 depend on how that witness is led through examination-in-chief. It seems

22 a little bit premature to say that necessarily we would not be wanting to

23 cross-examine this witness.

24 JUDGE BONOMY: Does that mean that unlike General Ojdanic you see

25 the material as potentially incriminating rather than exculpatory?

Page 920

1 MR. O'SULLIVAN: There are a number of issues, Your Honour.

2 That's one of them. Authenticity may be another.

3 JUDGE BONOMY: So it's not possible to stipulate to this at the

4 moment? No?

5 MR. O'SULLIVAN: Not at this time, Your Honour, no.

6 JUDGE BONOMY: Mr. Petrovic, is your position different or

7 similar?

8 MR. PETROVIC: [Interpretation] Your Honour, my position is

9 virtually identical. We are aware of the existence of this material. We

10 have analysed it, and at this point in time, all we can say is that we

11 expect this to be clarified in the course of the actual trial, both as

12 regards the source of this material and its very substance.

13 JUDGE BONOMY: Thank you.

14 Mr. O'Sullivan, have you actually listened to the intercepts?

15 MR. O'SULLIVAN: Yes, Your Honour. They were disclosed to us and

16 both in the -- well the audio I don't understand, but transcripts were

17 provided as well.

18 JUDGE BONOMY: And has your client listened to them?

19 MR. O'SULLIVAN: He has.

20 JUDGE BONOMY: And there remains an issue over their authenticity?


22 JUDGE BONOMY: Mr. Pavkovic -- Mr. Petrovic, has your client heard

23 them?

24 MR. PETROVIC: [Interpretation] Your Honour, I believe that he has

25 but I can't be certain at this point in time. I do know for a fact that

Page 921

1 he read the transcript. I really can't say whether we've had an

2 opportunity since the time our client was provisionally released to play

3 the tape to him but that in no way affects my position on these documents.

4 I am quite certain he did read the transcript but I can't say anything

5 about the audio tapes, for the simple reason that I can't remember at the

6 moment. But either way, this would in no way affect my position on the

7 documents. Thank you.

8 JUDGE BONOMY: Thank you.

9 Well, it follows from these exchanges that the motion will require

10 to be adjudicated upon by the Trial Chamber, and that will happen shortly,

11 and a written determination will be issued. Can I give you back this

12 documents? Thank you.

13 I should have made it clear a little earlier that on the question

14 of joinder, again, that matter will now be presented to the Trial Chamber

15 and a written decision will be issued on that motion.

16 Now, can I turn to the to date rather vexed question of expert

17 reports? I see that the report -- the Prosecution report from the expert

18 in sexual offences has been produced, and that also all disclosure is

19 completed in respect of the DNA expert report. So far as the challenges

20 to qualifications and relevance of expert evidence are concerned, and in

21 particular the challenges in respect of Kristan Babovic [phoen] ^,

22 Torkilson [phoen], and Bal ^4.48.20, the Trial Chamber or the pre-trial

23 Chamber is unlikely to make any determination on these challenges. It's

24 now plain that this Trial Chamber would not be dealing with the trial.

25 It's likely to be the policy of the Tribunal to transfer cases to the

Page 922

1 Trial Chamber at the -- the Trial Chamber which will hear the case at the

2 earliest possible opportunity once it has been identified. So while these

3 appear to me to be suitable matters to be considered pre-trial and

4 possibly determined pre-trial, it won't be in the course of the reign of

5 this pre-trial Chamber over this case. I should say it's unlikely to be.

6 Timing may alter that but assuming things go as anticipated it won't be

7 dealt with by this Chamber.

8 So it does appear that the only report about which there is any

9 outstanding business that could be transacted today is the report of the

10 constitutional law expert. Now, an order for disclosure for that has not

11 been complied with and perhaps Mr. Hannis it's for you to explain the

12 position.

13 MR. HANNIS: Your Honour, at the time that filing was due, we did

14 file a notice with the Court indicating that based in part on the comments

15 that Your Honour had made at a prior status hearing, we had decided to try

16 and proceed by being able to reach agreed facts with the Defence counsel

17 because many or much of the subject matter of the constitutional law

18 expert appeared to us to be matters that could be settled by agreement,

19 that this was the constitution in effect at the time and this these laws

20 were passed on such and such a date, et cetera. And matters as far as

21 resolving what interpretation should be made to those may in the end be

22 matters for the Court to decide at any rate. In addition, we do view Mr.

23 Kristan as a constitutional expert that we already have in the case. So

24 Professor Marko was someone we were considering as a supplementary expert.

25 We have sent a letter to the Defence on the 2nd of May, I believe,

Page 923

1 enclosing some proposed facts regarding matters related to this

2 constitutional issue. We hope that we are able to achieve some

3 substantial agreement with them on that and won't be seeking to add

4 Professor Marko or any other constitutional law expert at this time. If

5 we fail on that, then I guess we are faced with the dilemma of approaching

6 the Court and saying, "Gee, we weren't able to reach that. We feel like

7 we still do need another constitutional law expert. We know we didn't

8 comply with the time requirements earlier. Would you give us leave to add

9 one now?" And have to live by the decision of the court at that time if

10 it comes to pass that way.

11 JUDGE BONOMY: Has Professor Marko provided a report to you?

12 MR. HANNIS: We have had a draft sent to us. Related to that,

13 Your Honour, we are also considering the possibility of filing a motion

14 asking for judicial notice of certain matters related to the constitution

15 and laws in Kosovo at the time.

16 JUDGE BONOMY: Mr. O'Sullivan?

17 MR. O'SULLIVAN: Your Honour, I vigorously oppose the position

18 taken by the Prosecution in relation to this expert. Your order of the

19 18th of January, at the last status conference, was quite clearly to

20 disclose the expert report by the 7th of April. In the months preceding

21 the Prosecution has made both written and oral submissions in relation to

22 the constitutional expert, and if I might I would just like to take a

23 moment and review that with you.

24 On the 28th of October last year, the Prosecutor filed the report

25 stating that it was seeking using its best efforts to identify a

Page 924












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Page 925

1 constitutional expert, a problem which Your Honour is well aware of

2 because of the Milosevic proceedings. In that same filing of October

3 28th, the Prosecutor said that once identified, the name of the expert

4 would be disclosed to the Trial Chamber and the Defence and that the

5 expected date of the report would be communicated.

6 On November 5th on behalf of Mr. Milutinovic, we responded to that

7 filing and asked the Chamber to order the Prosecution to both identify the

8 constitutional expert and to order the Prosecution to disclose that report

9 within clearly defined time frames, or a clearly defined time frame.

10 Moving ahead to the 18th of January, the last status conference,

11 orally the Prosecution informed the Chamber that a CV of this witness had

12 been disclosed to the parties, which is correct, that they had met with

13 the expert, and he had agreed to provide an expert report by early April,

14 from which you ordered that this report be filed by the 7th of April. It

15 is our submission that your order is underpinned by Rule 94 bis(A) which

16 states that you have the authority as the Pre-Trial Judge to order a party

17 to disclose the expert statement within prescribed time limits, which is

18 precisely what you did.

19 We have responded to this most recent turn of events on April

20 20th, 2005 and we asked for alternative relief, either that the -- you

21 order the Prosecution to disclose this report immediately, in compliance

22 with your order of the 18th, or that the Prosecution acknowledge that it

23 has abandoned its attempts or its willingness to add a second potential

24 constitutional expert. To be clear, Your Honour, it is our position that

25 we reject any attempt by the Prosecution to unilaterally sidestep or

Page 926

1 bypass your order and to decide on its own that it wishes to reconsider

2 the matter.

3 This approach is both, in our submission, contrary to your order

4 and it amounts to a violation of the Statute and the Rules. Your Honour,

5 you are the guardian of the rights of the accused. Rule 94 bis(A) is a

6 notice provision designed to put the -- to make the accused aware of the

7 case against him and the one he must meet. We say that this Rule

8 94 bis(A) flows from Articles 20 and 21 of the statute, the fair trial

9 provisions, which ensure a fair trial, which own sure that the accused be

10 treated in full equality.

11 Mr. Milutinovic has pleaded not guilty. He has a right to be

12 informed of the case against him, to know the case he must meet, and to

13 have time to adequately prepare his case. So therefore we ask

14 Your Honour, as we have set out in our April 20th filing to require the

15 Prosecution to abide by your order, provide full disclosure. Indeed we

16 recognise that the Prosecution had a problem identifying its expert. The

17 pre-trial brief in this matter was filed last June. In the meantime the

18 Prosecution identified Professor Marko. We want to know what the

19 Prosecution's position is on constitutional issues. Mr. Milutinovic

20 during the relevant period to this indictment was the president of the

21 Republic of Serbia. These are central issues to this case against him and

22 his Defence.

23 There can be -- if the Prosecution wishes, after the report is

24 disclosed to us, to discuss any agreed facts or stipulations, it would

25 seem to me that that's the logical course of events. But the first step

Page 927

1 is for us to get the expert report, to know what the expert has said, to

2 have our expert look at it, and then proceed from there. So, Your Honour,

3 it's not -- it would be patently unfair for the Prosecution to delay even

4 longer when it has told you and told us that they have their expert.

5 There has been no suggestion that the report could not be prepared by the

6 7th of April. We are now almost six weeks beyond that date and we ask you

7 to intervene and ensure that Mr. Milutinovic's rights to notice and

8 disclosure are fully enforced.

9 [Trial Chamber and legal officer confer]

10 JUDGE BONOMY: Mr. Hannis, I can see that by raising matters the

11 way in which I did, that I gave you occasion to consider the position a

12 bit further, but you haven't really indicated a reason why the report of

13 an expert that you may be compelled to rely upon in due course, if

14 agreement is not reached, should not have been disclosed in terms of the

15 order. And equally, you've not taken a particular position, as I

16 understand it. In spite of what Mr. O'Sullivan said, you considered that

17 you may well be in difficulty at a later stage.

18 MR. HANNIS: With regard to Professor Marko that's correct,

19 Your Honour; however not with the particular issue. Professor Kristan's

20 report has been filed in 2003. We have taken a position on that. Defence

21 is not without notice as to what our position about that is. Prior to my

22 coming on the case, I think there was a decision made that some

23 supplemental expertise might be helpful to the case. Upon reviewing

24 everything, I've taken the view that --

25 JUDGE BONOMY: It may be rather different from that because as I

Page 928

1 understand it, Professor Kristan was excluded in the Milosevic case as an

2 expert for certain reasons, rightly or wrongly, and that's an issue that

3 you may have to face in this case as well.

4 MR. HANNIS: And that was one of the driving reasons behind

5 seeking to have a second expert, because of that uncertain status

6 regarding Professor Kristan and whether or not that decision would have

7 any kind of binding effect in this case. We would argue that it does not,

8 that the Trial Chamber that hears this Court [sic] should take a different

9 view and we hope to prevail on that issue. If we don't, given what I've

10 done now, we may be stuck a little bit, but that's where we are. But I

11 take issue with Mr. O'Sullivan's comments that somehow by what we are

12 doing here we are preventing his client from having a fair trial. I don't

13 see that that's the case, Your Honour.

14 JUDGE BONOMY: Well, Mr. O'Sullivan, I really don't see myself as

15 having a power at this stage to do anything. The Prosecution have failed

16 to comply with the order and therefore they would not be able to lead the

17 witness. That's a matter that -- the one follows from the other. What

18 more do you consider is possible to do and what's the authority for doing

19 it?

20 MR. O'SULLIVAN: If that is in fact the consequence of failing to

21 comply with the order, that's one of the alternative reliefs I was

22 seeking. What I don't want to find myself in is in a situation months and

23 months from now when the Prosecution says, "Well, now we'll give you

24 Professor Marko's report," when they have it today and they said that they

25 would produce it on the 7th of April. Now if that time has passed,

Page 929

1 Professor Marko is no longer being contemplated, that's fine.

2 JUDGE BONOMY: I see two sides to this. I understand your concern

3 but I can also see the point of view that says let's try and reach

4 agreement on all these things, and I wouldn't like to think that by making

5 the suggestion I did about the Prosecution identifying the various things

6 on which agreement might be reached, that I've actually scuppered any

7 prospect of agreement because of the relationship -- the interrelationship

8 between the attempt to agree and the obtaining of the additional expert

9 report.

10 MR. O'SULLIVAN: My view would be that indeed the report of

11 Dr. Marko would be the very basis for discussion. Now we are just talking

12 about was there a 1974 constitution in SFRY? Well, a report puts these

13 constitutions and legislation in a context which can form a basis of

14 discussion.

15 JUDGE BONOMY: But does Kristan's report not do that?

16 MR. O'SULLIVAN: It does.


18 MR. O'SULLIVAN: As I say, there is no prejudice to the process if

19 we have -- if it's understood that we either have Kristan or Kristan and

20 Marko, but there is prejudice to Mr. Milutinovic if, in several months

21 from now we go through a process, they say, "Well, we can't reach a mutual

22 agreement," and then we are late fall or whenever this might happen, and

23 we are pushing everything back.

24 JUDGE BONOMY: Remind me what your position is on Kristan?

25 MR. O'SULLIVAN: We say that in the context of the -- the Kosovo

Page 930

1 indictment, our indictment, he's a -- he cannot testify as an expert in

2 line with the ruling of the Milosevic Trial Chamber.

3 JUDGE BONOMY: And you think that was correct, do you?

4 MR. O'SULLIVAN: I do. Indeed, I believe if there has been talk

5 about having Kristan testify as a fact witness, just as Professor Marko

6 was a fact witness for the Defence. There is -- I'm not -- I mean the

7 Rule 68 bis does empower you to make a ruling on sanctions and I'm not

8 suggesting anything drastic but we need some guidance from you, and a

9 determination on this, because representations were made that this report

10 would come at the beginning of April, based on diligent efforts by the

11 Prosecution to locate an expert.

12 JUDGE BONOMY: Mr. Hannis, I am unhappy about the situation that's

13 developed. I'm concerned about imposing a sanction on something which may

14 be capable of agreement. On the other hand, I don't see why the matter

15 shouldn't be resolved at a fairly early stage. Are you firm in your

16 resolve at the moment that this won't be disclosed?

17 MR. HANNIS: Your Honour, may I suggest that you give us an

18 opportunity to have a discussion with Defence counsel to see if we can

19 resolve this some way short of requiring you to take an action such as

20 imposing a sanction? I hear Mr. O'Sullivan's primary concern about this,

21 and given the way this has transpired and given the comments he's made

22 today, I'm trying to envision myself six months from now standing in front

23 of you or some other judge and saying, "Oh, you know that constitutional

24 expert we talked about? Now I've decided I want to have him." That would

25 be really -- it's difficult for me to imagine doing that given the

Page 931

1 position I've taken up to this point without some fantastic reason such as

2 my other constitutional expert died, God forbid, and there is no other

3 constitutional expert in the land, and it is a critical issue. But

4 barring something apocalyptic like that I find it hard to imagine I'm

5 going to stand up and say, "Oh, that guy that I wouldn't tell you about,

6 and that I didn't tell you about back in May, now I'm going to tell you

7 about him and I'd like to call him."

8 JUDGE BONOMY: You're not concerned that you might not be able to

9 reach agreement on the various matters you have proposed agreement on?

10 MR. HANNIS: It just seems to me that many of those things are

11 things that the existence of those laws and those constitutions and some

12 of those related matters really don't seem to be subject to great debate.

13 The interpretation that one might put on the effect of them and the

14 application of them we can argue about, but whether they actually existed

15 and were on the books seems to me that we can agree about.

16 JUDGE BONOMY: Thank you.

17 Now, Mr. Petrovic, anything to be said by you on this?

18 MR. PETROVIC: [Interpretation] Your Honour, I met with the other

19 two Defence teams and we had a discussion. I'm now speaking on behalf of

20 the Sainovic Defence team and I fully support whatever Mr. O'Sullivan said

21 a couple of minutes ago but there is something that I would like to say in

22 connection with the proposal by the other side in relation to the second

23 of May letter. Some facts are being put forth, rather some parts of the

24 Prosecution -- of the constitution in order to be agreed on. This seems

25 to me inappropriate for a number of reasons. These are three or four

Page 932












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Page 933

1 different portions of the 1974 SFRY constitution. To leave them out of

2 context like that and have them adopted as such is something that our

3 Defence team deems unacceptable. We do not think this is the right

4 approach to take and we do not believe that this would yield any results.

5 The key question will not only be the substance of the constitution but

6 also the context of the constitutional norms, not only in relation to 1974

7 but rather the general context of the constitutional legal position of the

8 republics and autonomous regions within the former Yugoslavia starting

9 with the Second World War and all the way up to the latest events.

10 I fear that a selective approach might not bring the results that

11 you, Your Honour, expect us to reach at this stage of the proceedings.

12 JUDGE BONOMY: Well, I have to say I question the value of an

13 exploration of history in the context of these cases but I appreciate why

14 you say that because of the way in which the indictments tend to be

15 formed.

16 However, it seems to me the right approach to proposals from one

17 side about potential agreed facts is for the other side to respond by

18 indicating where they think the proposal can be improved, such as by

19 expanding it in the way you suggest, and it's by that process that you may

20 get to the stage where you can actually reach agreement. You may even

21 reach a modified agreement on the basis that it's accepted that evidence

22 will be led on matters relating to what has been agreed, to expand upon

23 the agreement. Nothing wrong with that. But a lot of time can be wasted

24 looking at the detail of documents in court which can be read by the

25 judges out of court and if the real -- the proper way to do that is to

Page 934

1 read the whole constitution, so be it. But a dialogue would help, I

2 think, on that matter. And I just want to be sure that this development

3 in relation to the further expert will not inhibit the proper dialogue.

4 Now, what I'm going to do -- sorry, I should ask if Mr. Visnjic

5 wants to say anything on the matter.

6 MR. VISNJIC: [Interpretation] Your Honour, General Ojdanic's

7 Defence has nothing to add to what my colleagues have already spoken

8 about. We fully support their positions.

9 JUDGE BONOMY: Well, what I'm going to do to make sure that we

10 don't act in haste and repent at leisure in this situation is I'm going to

11 proprio motu extend the time for the intimation of this report by seven

12 days from today. Now, that will give Mr. Hannis time to do what he said

13 he wanted to do, which was to discuss the matter with particularly Mr.

14 O'Sullivan to see if his concerns can be assuaged, but equally, if

15 disclosure is not made, then I'm noting now that Mr. Hannis accepts that

16 it could only be in unforeseen, exceptional circumstances that he could

17 later attempt to introduce this expert. And I make it clear to everyone

18 that this should not in my opinion undermine the suggestion that you

19 should engage in bona fide dialogue over agreement on as much of the

20 constitution and laws that were applicable at the time within Serbia and

21 the Kosovo part of Serbia, and indeed in the SFRY or what was then in

22 fact, I suppose the FRY rather than the SFRY, although Mr. Petrovic's

23 submission goes much wider than that.

24 Now, at the 65 ter Conference there was some discussion over

25 disclosure. Is there any matter that requires to be dealt with on

Page 935

1 disclosure in the course of this hearing, Mr. Hannis?

2 MR. HANNIS: Not that I can think of at the moment, Your Honour.

3 JUDGE BONOMY: Mr. O'Sullivan?

4 MR. O'SULLIVAN: No, Your Honour.

5 MR. PETROVIC: [Interpretation] No, Your Honour.

6 MR. VISNJIC: [Interpretation] Nothing from us, Your Honour.

7 JUDGE BONOMY: Very well.

8 Since in all other areas the expert evidence has been disclosed in

9 this case, it would in my opinion greatly expedite the trial proceedings

10 if the Defence were willing to disclose the identity and reports of their

11 competing experts in so far as they consider that appropriate. I

12 appreciate the obligations may not extend as far as I'm suggesting

13 cooperation at the moment, but you will appreciate that the failure to

14 give notice to the Prosecution at a reasonable stage, a reasonably early

15 stage of competing expert evidence, is likely to extend the process. I

16 understand also from Ms. Featherstone that she did suggest at the meeting

17 that you may take -- you might take steps to combine your resources on

18 this front, rather than each have independent experts, and I hope to the

19 extent that your interests are consistent, that you will endeavour to

20 confine Defence expert evidence and try to reach agreement among

21 yourselves about the expert evidence to be presented.

22 Can I ask Mr. Mr. O'Sullivan as a spokesman for the others if he

23 feels able to indicate whether there is any prospect of developments along

24 these lines that might assist the whole trial process?

25 MR. O'SULLIVAN: Well, I'll speak for myself and we can see if my

Page 936

1 colleagues will agree or not. Your Honour has identified in fact many

2 aspects to expert witnesses just now. Not to belabour the point but we

3 still do not have the military or the constitutional expert reports --

4 JUDGE BONOMY: Sorry, yes, I've omitted that. That's my mistake.

5 I must come back to the military one in a moment, sorry.

6 MR. O'SULLIVAN: So which is why I've been making my submissions

7 on receiving the constitutional expert because then I think that the

8 parties, just to take that example, or the military, the parties can then

9 pursue and identify areas of common interest and I think as a matter of

10 trial tactic and judicial economy you would to the extent possible have

11 one expert for the Defence. It would just make good sense.

12 But I really think it's still early in this process.

13 JUDGE BONOMY: Yeah, I'm only trying to sow seeds at the moment

14 that might assist in advancing the process where it can be advanced. For

15 example, there are experts here that you will no doubt wish to

16 cross-examine. You've indicated that. But whose qualifications you're

17 not going to challenge as debarring them from giving evidence, and it

18 would obviously greatly assist the whole trial process if we could see at

19 an early stage how much agreement there was between the experts.

20 MR. O'SULLIVAN: And indeed the notice under 94 bis is -- in my

21 view is I'm preserving the right to cross-examine which may mean I may not

22 cross-examine. I just want to -- the notice on the 94 bis is from my

23 perspective is to preserve that right which may or may not be exercised on

24 behalf of Mr. Milutinovic.

25 JUDGE BONOMY: I find it difficult to know -- to judge exactly

Page 937

1 what my powers are under 94 bis(A) when it comes to Defence experts,

2 because the rule is not entirely consistent with the stage at which you're

3 obliged to disclose your witnesses.

4 MR. O'SULLIVAN: That's correct, Your Honour, but I believe that

5 the Defence witnesses are governed by Rule 65 ter.

6 JUDGE BONOMY: Yes, indeed, I accept that and that's post the

7 completion of the Prosecution case, whereas 94 bis, if read in its

8 unqualified form, would appear to entitle me to take steps in relation to

9 even Defence experts at an earlier stage. That's why I prefaced the

10 remarks that I made by saying that I realise that the obligations may not

11 be as extensive as the cooperation that I'm requesting of you. I just

12 simply want to have you bear in mind that it would greatly assist the

13 process if we can eliminate areas of dispute in expert evidence before the

14 Prosecution experts are led. Now, that may not be possible to do that in

15 the case of all of them but it must be possible to do it in the case of

16 some. So I sow the seed. And I'm grateful to you for reminding me that I

17 should have addressed the issue of the military expert, Philip Coo. Now,

18 Mr. Hannis, this doesn't seem to be an entirely satisfactory state at the

19 moment.

20 MR. HANNIS: Your Honour, we are -- we have made some progress in

21 getting relevant exhibits, relevant documents, translated. Mr. Coo is

22 working very hard at trying to go through those and -- let me see if I can

23 tell you. That a majority of those documents that he was looking at

24 before have now been translated and are being reviewed. It's anticipated

25 the final version of his report can be completed by the 31st of August.

Page 938

1 Part of -- part of the difficulty has been Mr. Coo is sort of in

2 the lone range in some ways. He's been testifying in other cases and been

3 assisting in other cases and it's -- this is not the only project he has

4 on his plate.

5 JUDGE BONOMY: You've probably gathered already that the 31st of

6 August is a date that's not very popular with me.

7 MR. HANNIS: I know, Your Honour. We will do the best we can. We

8 asked for that date because we think we can have a substantially thorough

9 and complete report by that date. An earlier date, we will do everything

10 possible to comply with that date and have a report done, but we may find

11 ourselves in a position two or three months later trying to get the Court

12 to accept a supplemental report to address some of the other additional

13 documents that weren't able to be dealt with with the earlier date. And

14 we will be disclosing these documents as they are translated and as we go

15 along to try and keep the Defence sort of up to date with what he's

16 looking at.

17 JUDGE BONOMY: Thank you. Mr. O'Sullivan? Sorry, Mr. Petrovic?

18 MR. PETROVIC: [Interpretation] Your Honour, if you will allow me I

19 would like to say a few things. First of all, I would like to say that

20 Mr. O'Sullivan is our spokesman as you have quite right said it, and we

21 agree with him. I would like to assure you that the cooperation between

22 the teams is such that we will do our utmost to do what you have

23 suggested. Obviously it's not going to be possible in every case but to a

24 large extent it is certainly going to be feasible.

25 There are two things that I would like to mention with regard to

Page 939

1 what Mr. Hannis has just said. I said one of those things last time.

2 Philip Coo's report is one of the key reports for the development of our

3 case in our -- of this case, in our view. If we are talking about this

4 trial to start at the end of this year or beginning of next year, if the

5 final version of this report will not be completed before late autumn,

6 then we are reaching such deadlines that the Defence will not be able to

7 study the report. If we only have a month or two around the Christmas and

8 new year holidays, we will find ourselves in very dire straits and we will

9 not be as efficient as we would like to be in dealing with this report.

10 In order to prevent that, it would be very valuable to us and we would

11 appreciate if this report could be completed earlier.

12 If that is not possible, you don't have to provide us with the

13 translations of the documents that Mr. Philip Coo is going to use, even if

14 the documents are in B/C/S. If they are in English, the Defence should be

15 provided with these documents in their original form as soon as possible,

16 even today if possible. Irrespective of how they are going to be

17 interpreted for the subsequent versions of Philip Coo's report -- report.

18 That's why I would like to ask my learned friend to provide us with the

19 documents as soon as possible even if they are not translated. This

20 was -- this would greatly assist us in getting abreast of the contents of

21 these documents.

22 JUDGE BONOMY: On this matter, are you the spokesman? Or is there

23 anything else to be added?

24 MR. O'SULLIVAN: Clearly my co-counsel speaks the language and we

25 would be assisted in receiving these documents as soon as possible even

Page 940












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13 English transcripts.













Page 941

1 without translation. But I have to say that from my perspective for me to

2 work with any report and the supporting documents, I do not speak B/C/S or

3 read B/C/S. So these are all practical matters that we will certainly

4 would like to resolve but there is also constraints of -- that are beyond

5 the control of the parties.

6 JUDGE BONOMY: Well, I consider this is taking too long. The --

7 you've heard Mr. Hannis the request for documents now and I dare say you

8 can comply with that, even untranslated, because the team is well equipped

9 on this side to deal with untranslated documents. But I think we have to

10 be conscious of the potential for getting this underway and I'm going to

11 require production of this report by the 31st of July.

12 MR. HANNIS: Very well, Your Honour. Thank you.

13 JUDGE BONOMY: Now, there is, in the case of each accused, a

14 document that was prepared with a view to reaching agreement on certain

15 facts other than the matters of the constitution that we've been looking

16 at. You've taken the position so far that it's difficult to agree

17 anything that falls out with the period of the indictment, I think

18 Mr. Hannis; is that right?

19 MR. HANNIS: That's correct, Your Honour.

20 JUDGE BONOMY: Now, is that a reasonable approach, if it can be

21 shown to you that the matter that -- on which agreement is sought has

22 potential relevance for the trial?

23 MR. HANNIS: If it can be shown to me that it has potential

24 relevance to the trial and if it can be shown to be the basis for that

25 proposed agreement because if it's something falling outside the time

Page 942

1 period of the indictment it may be beyond my knowledge and I need to know

2 where that comes from, what's the supporting document or witness for that

3 proposal. But I'm not taking a rigid position that I exclude the

4 possibility of agreeing on anything that happened outside the time period

5 of the indictment. That's not my position.

6 JUDGE BONOMY: Thank you. Well, I think the time will come when

7 judicial intervention may be necessary in relation to this matter, and

8 indeed in relation to the question, if it arises, of adjudicated facts. I

9 think it's early days for me to try to become involved. But around the

10 time of the next Status Conference, it may be that the position will be

11 different. Related to agreement is the question of 92 bis evidence. I

12 gather that there is a difference between the Prosecution and

13 Mr. O'Sullivan on how to deal with checking the evidence of these

14 witnesses before the issue of consent without cross-examination is dealt

15 with. And I understand that's not been resolved as yet. Now,

16 Mr. O'Sullivan, your position seems to be that you require to be -- or you

17 require -- or you wish that there should be no member of -- no

18 representative of the Prosecutor present when you interview witnesses and

19 your position is different, I think, from the other accused on that; is

20 that correct?

21 MR. O'SULLIVAN: No, Your Honour, that's not my position. My

22 position is I've -- I would like the Prosecution to inquire of these 11

23 witnesses whether they would agree to meet with me without the presence of

24 the other parties, as a preliminary matter. The purpose of the exercise

25 is to see whether we can have these witnesses' statements adopted without

Page 943

1 cross-examination and that's what I support. I do, however n my

2 experience, have found that a witness may be -- if willing to meet me

3 alone, may speak more freely to me and I think it's just a simple process

4 of having the Prosecution inquire of these witnesses whether they would

5 agree to meet with me.

6 JUDGE BONOMY: Thank you. Mr. Hannis?

7 MR. HANNIS: Your Honour, part of my difficulty in this relates to

8 the possibility of joinder in which case we may have six Defence counsel.

9 If all six want to take the same position, I think ten of these 11

10 witnesses we are talking about are sexual assault victims. I don't want

11 to re-traumatise them any more than is absolutely necessary in order to

12 get their evidence before the Court. For example, if -- if all six of the

13 Defence counsel were willing to agree that we would engage in this process

14 and they would all accept the decision of one of their representatives or

15 if all six had to be present. I don't know, I just find it difficult to

16 agree with that process.

17 JUDGE BONOMY: I think both of you have a perfectly reasonable

18 position. I think it's perfectly reasonable of Mr. O'Sullivan to ask the

19 Prosecution to approach these witnesses with a view to speaking to him on

20 his own. I think the Prosecution position is perfectly reasonable that

21 this should happen only once. And therefore, it may be somewhat premature

22 to deal with this at the moment. But it will be a fairly urgent matter

23 around the time of the next Status Conference, by which time we'll know

24 whether the cases have been conjoined. But even if they are not, the

25 question arises. So it would be I think very helpful, Mr. O'Sullivan, if

Page 944

1 you could take the lead on this. I don't think you can do it just now

2 because the other counsel have not, I think, all been identified as yet

3 for sure, although it may be fairly clear who they are going to be. But

4 when they are, unless you've got some particular point to make against it,

5 it seems to me that you should be able to agree among yourselves that one

6 of you, the most charming, no doubt, should undertake this task.

7 I will simply note that the matter should be reviewed at the next

8 65 ter Conference.

9 Any other matters, Mr. O'Sullivan?

10 MR. O'SULLIVAN: No, Your Honour.

11 JUDGE BONOMY: Mr. Petrovic?

12 MR. PETROVIC: [Interpretation] No, Your Honour.

13 JUDGE BONOMY: I have one for you, though. NATO and the

14 disclosure of the documents, where are we? At least the intercept

15 disclosure and documents, I suppose.

16 MR. VISNJIC: [Interpretation] We have acted on your decision and

17 we have sent a new letter to the states that the decision concerned and we

18 have received an answer from one country and we expect that the other

19 countries will do the same, and then we will act in according with the

20 procedure in the order we will have received those replies.

21 JUDGE BONOMY: So you're not in a position at the moment to say

22 whether you are likely to get cooperation or whether the matter is likely

23 to require further adjudication?

24 MR. VISNJIC: [Interpretation] For the time being, I can only tell

25 you that we received a reply from one country and that judging by the

Page 945

1 contents of that reply, we can say that they will review the matter and

2 that it will take some time. However, the reply was not a negative one.

3 It wasn't a refusal.

4 JUDGE BONOMY: Thank you, Mr. Visnjic. Any other matter?

5 MR. VISNJIC: [Interpretation] No, thank you, Your Honour.

6 JUDGE BONOMY: Mr. Hannis?

7 MR. HANNIS: No, Your Honour, thank you.

8 JUDGE BONOMY: The next Status Conference is likely to be on the

9 19th of July. I know that that sounds quite soon, but I think these cases

10 should be aligned in so far as necessary, and provisionally I'm making

11 that arrangement. If you hear nothing to the contrary then that will be

12 the date of the Status Conference, and there will be one held in Lazarevic

13 as well. They may be held together or they may be held separately. That

14 remains to be seen.

15 Since that's all the business for today, I now adjourn the

16 hearing.

17 --- Whereupon the Status Conference adjourned at

18 5.40 p.m.