Tribunal Criminal Tribunal for the Former Yugoslavia

Page 44216

 1                           Friday, 8 July 2016

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.29 a.m.

 6             JUDGE MOLOTO:  Good morning to everybody in and around the

 7     courtroom.

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

 9             THE REGISTRAR:  Thank you.  And good morning, Your Honour.  This

10     is case IT-09-92-T, the Prosecutor versus Ratko Mladic.

11             JUDGE MOLOTO:  Thank you very much.

12             On the 1st of July, the Prosecution emailed the Chamber and the

13     Defence requesting that a procedural hearing take place either on the 7th

14     or 8th of July.  That same day, the Chamber emailed the parties granting

15     the request.  The Chamber also informed the parties that it would allow

16     counsel to be absent and only have Mr. Ivetic present to represent the

17     Defence.  Due to the unavailability of Judge Orie and Judge Fluegge, the

18     Chamber has decided that only a single Judge will be present at this

19     Status Conference.  And during this conference, I will put a number of

20     matters on the record and hear the parties' submissions, but any

21     decisions based on those submissions will be decided at a later stage.

22             The second point I wanted to put is that on the 12th of April,

23     2016, the Chamber emailed the parties advising that they should expect to

24     file their final briefs by the 1st of September.  This was put on the

25     record on the 16th of June at trial transcript at 44211.  On the 1st of

Page 44217

 1     July, the Chamber emailed the parties again advising that in light of

 2     outstanding evidentiary issues it was setting the 3rd of October as a new

 3     preliminary date for the filing of the briefs but that the final decision

 4     would be taken only once all evidentiary matters have been decided upon.

 5     And this is hereby put on the record.

 6             Now, I'm going to ask the Prosecution to raise the issues.  We

 7     are here at the request of the Prosecution, and I would like to hear

 8     what -- the Prosecution's ideas on the points that are still outstanding,

 9     evidentiary issues that are still outstanding.

10             MR. TIEGER:  Thank you, Your Honour.

11             In the email that the Court -- that Your Honour already alluded

12     to on July 1st, we indicated that our request for the hearing arose from

13     a comment made by the Trial Chamber the last time we were in court to the

14     effect that the Trial Chamber, of course, intended to close the Defence

15     case once it had decided all evidentiary matters.  In that connection,

16     the Prosecution recognised that that -- that reaching that moment would

17     be facilitated by the imposition of certain deadlines that did not yet

18     exist for certain categories of remaining evidentiary matters, and indeed

19     for categories broad enough to cover what we believe would address all

20     remaining evidentiary matters.

21             So in that respect, we wanted to bring essentially two broad

22     categories to the Court's attention.  Also mention one additional matter

23     that might implicate further evidentiary matters and that could be

24     expedited by accelerated action over the immediate and foreseeable

25     future, and then, of course, since remaining evidentiary matters are more

Page 44218

 1     in the hands of the Defence than they are in the Prosecution, just

 2     confirm that the categories covered, indeed, embrace the totality of

 3     remaining evidentiary matters.

 4             So that's the broad framework for this.  And the two categories

 5     we wanted to bring to the Court's attention were also referred to in the

 6     email, and those are further submissions related to the bar table motions

 7     and the possibility of additional witnesses again arising from rulings in

 8     connection with bar table motions that have either taken place or have

 9     been renewed.

10             As the Court is aware from what's transpired over the recent

11     period, we have seen sporadic renewed motions as translations have come

12     in.  It's the Prosecution's understanding that all, or with the

13     possibility of one exception, translations have now been provided to the

14     Defence, and that would indicate to us that it's certainly a propitious

15     time for the imposition of a deadline.

16             Now in view of what's entailed, that is, the resubmission of the

17     specific document pursuant to the earlier bar table motion, it would be

18     our view that a deadline of one week from today for the filing of such

19     motions should be made with respect to any documents, if there are any,

20     that have not been translated, that the deadline be one week or one week

21     from the receipt of the translation.  As I say, it's our impression from

22     the materials we've reviewed, and even from conversations with the

23     Defence, that at most there is one and perhaps none.  But in any event,

24     those two factors should cover deadlines for any renewed bar table

25     submissions, and thereby really take a giant step toward reaching the

Page 44219

 1     point at which the Court is in a position to and has made rulings on all

 2     evidentiary matters.

 3             The second matter relates to any witnesses whom the Defence feels

 4     are implicated by the decisions on bar table motions.  We understand

 5     that, from discussions with them, that that number is extremely limited,

 6     that those persons have indeed been identified, and so we would seek in

 7     that circumstance essentially the same or similar deadline.  That is, no

 8     reason then for there not to be whatever filings are necessary to

 9     initiate that process, that is, I would imagine to be motions for leave,

10     to add that witness.  And that process, we urge, should be perfected

11     within one week of today, and there's no reason given the history of this

12     entire process that, in our view, that that would impose an unreasonable

13     burden on the Defence, and it would accelerate the conclusion of the case

14     and put the Chamber in a position to make the necessary rulings so the

15     case could be closed at the earliest possible day.

16             I have one more smallish matter, but I think -- well, I might as

17     well raise it now.

18             And that is -- it's not a category.  It's just a specific matter

19     that occurs to us in connection with the currently scheduled last

20     witness, and that is Mr. Demurenko, whose testimony is expected to

21     recommence and conclude on the 16th of August.  There are a fairly large

22     number of associated exhibits tendered in connection with that witness.

23     We would urge the Trial Chamber to make a decision on the admission of

24     those documents prior to August 16th, and indeed sufficiently prior to

25     August 16th, so that the Defence could undertake any action it deemed

Page 44220

 1     necessary with respect to the witness and his presence in court with

 2     regard to particular documents that may not have been admitted, so the

 3     entire process could be resolved at that time rather than creating a

 4     possibility of a situation where after the witness had left the stand a

 5     decision was made on the associated exhibits, and that might trigger more

 6     bar table litigation which would be unnecessary and unfortunate.

 7             JUDGE MOLOTO:  Is that it?

 8             MR. TIEGER:  That's it, Your Honour.

 9             JUDGE MOLOTO:  Thank you very much, Mr. Tieger.

10             Mr. Ivetic.

11             MR. IVETIC:  First of all, good morning, Your Honours.  And good

12     morning to everyone.

13             On behalf of the Defence, I can comment as follows.  First of

14     all, Mr. Tieger has raised the issue of documents from the bar table.  If

15     we are talking only about documents that were denied without prejudice

16     for which translations needed to be required, we also have some documents

17     where additional information, i.e., a cover page from a publication or

18     publication information, were also required for which we are still

19     awaiting to get that information which then would have to be translated.

20     So there are some translations still outstanding for that.  We think if

21     we get a two-week deadline that we could comply with that and especially

22     in so far as we are -- already have some of that in progress.

23             We also in this same category put other documents that Mr. Tieger

24     has not raised, and I don't know if those are the ones he's talking about

25     that there are translations completed, but those are outstanding issues

Page 44221

 1     from, I believe, it's the second omnibus decision relating to documents

 2     from Witnesses Poparic and Subotic.  There was a joint submission between

 3     Prosecution and Defence as to certain documents and videos and then there

 4     was some additional Defence submissions as to documents.

 5             For those, we have certain issues that we have to still resolve

 6     with -- lead counsel had been working with the Prosecution on that one,

 7     and so for instance one particular video the parties in their submission

 8     asked for a 21-minute segment to be shown and entered into evidence.  And

 9     that particular video, according to my records and the records of our

10     Case Manager, is only seven minutes long.  So there is an error there

11     somewhere.  Obviously, I have to liaise with the Prosecution to see what

12     we can do about that.  And I think with that one as well with a two-week

13     deadline from today we should be able to address those.  It's a handful

14     of additional documents, and I don't know if Mr. Tieger kind of viewed

15     them as being also bar table documents, but I do want to stress that they

16     were from the second omnibuses decision.  So a two-week deadline would

17     work with that.

18             Addressing the additional witnesses.  As I recall, at issue were

19     two individuals whom the Defence may have to call depending on the

20     decision of the Trial Chamber relating to Defence requests to have

21     documents admitted from the bar table that related to the evidence that

22     we would want to elicit from these witnesses.

23             Now, Your Honours have issued a decision yesterday as to one of

24     those sets of documents denying the same, and we therefore need time now

25     to decide what we are going to do and whether we call this witness or

Page 44222

 1     not.  But to my knowledge, the second set of documents relating to

 2     another witness have not been ruled upon, and therefore for that

 3     particular witness we don't even have a decision yet.  So I think a

 4     one-week deadline as suggested by Mr. Tieger would not be feasible for

 5     those two witnesses.

 6             Again, I would ask for a two-week deadline for the one that we

 7     got a decision on yesterday.  And then depending on how long it takes for

 8     a decision on the second matter, we can have a two-week deadline after

 9     that decision is made by the Chamber.

10             There is also a filing that both parties have made jointly for

11     one witness to appear -- for one witness's testimony to be accepted under

12     Rule 92 quater, and that particular submission has been made but there

13     was an issue of a book authored by that witness and some excerpts from

14     this book.  That is, of course, still pending with CLSS.  At issue are

15     ten pages from a book that were submitted 17th June with a deadline of

16     24 June for translation.  That deadline was confirmed by CLSS, but to

17     date we still don't have a translation from CLSS.  That's DEF52376.

18             I have a request for an update outstanding to CLSS that I sent

19     this morning once I confirmed that we still don't have a translation of

20     that.  And so again, we can't finalise that 92 quater filing until we get

21     the translation.  And then again we have to sit down, since it was a

22     joint filing with the Prosecution, to see if we can reach agreement as to

23     the entirety of the excerpt, what we agree can come in alongside the

24     witness's statement.

25             I hope I haven't missed anything.  I think that's all that was

Page 44223

 1     raised and that I have prepared to present to you this morning.

 2             JUDGE MOLOTO:  And what deadline would you put for -- you suggest

 3     for this last item?

 4             MR. IVETIC:  Your Honours, for the last item as far as -- I'm

 5     hoping that CLSS is near completion.  It's only ten pages at issue, and I

 6     don't know what the holdup has been.  I suspect once we get that

 7     translation it should be rather easy for the Prosecution and I to liaise,

 8     as we have, in relation to that filing, and I would suspect we could

 9     probably turn that around within a week or two as well.  Again, depending

10     on when that translation comes back from CLSS.

11             JUDGE MOLOTO:  The short answer is you can't give a deadline

12     suggestion.

13             MR. IVETIC:  Correct, Your Honours.  Until we hear back from

14     CLSS, I cannot make a firm deadline.  I can promise that we will do a

15     short -- that we'll work to get it done as soon as possible after the

16     translation is completed, as we have worked with the Prosecution on this

17     matter.  And Mr. Traldi is in court today and he can also, I think, stand

18     up and give any additional information that I've missed on that.

19             JUDGE MOLOTO:  And before we go to Mr. Traldi, from the point of

20     view of the Defence, have we heard everything that is outstanding before

21     we can close the case?  [Microphone not activated] ... this morning.  Are

22     those the only outstanding things from the Defence?

23             MR. IVETIC:  As to things that still have yet to be filed, yes.

24     There are, of course, other issues that have already been filed.  There

25     was one additional document that was sought from the bar table last week

Page 44224

 1     that my colleague sought to have admitted under Rule 89(C) that had been

 2     missed in the previous filed submissions from the bar table, but to our

 3     knowledge that should be -- that should be everything that is yet to be

 4     finalised or filed.

 5             JUDGE MOLOTO:  Thank you.

 6             Mr. Traldi, I saw you smiling back at Mr. Ivetic when he

 7     mentioned your name.  Would you like to share your smile with us?

 8             MR. TRALDI:  Good morning, Your Honour.

 9             JUDGE MOLOTO:  Good morning.

10             MR. TRALDI:  I think I'd agree with Mr. Ivetic's submissions

11     regarding the joint 92 quater submission we had made with the, I suppose,

12     slight nuance that I'd understood the book excerpt remains outstanding,

13     but there is nothing precluding a decision on the remainder of the

14     materials.  The parties will simply deal with the book excerpt when a

15     translation becomes available, but that's between the parties and doesn't

16     affect or prejudice the remainder of the submission in any way.

17             JUDGE MOLOTO:  Thank you.

18             MR. IVETIC:  And, Your Honours, Mr. Traldi is absolutely correct.

19     That's our position as well.

20             JUDGE MOLOTO:  That's your position.  Thank you very much.

21             Any other matters, Mr. Tieger?

22             MR. TIEGER:  Just to note one matter in response to Mr. Ivetic's

23     comments about the witnesses.  And it is simply this:  That while under

24     the normal pace of trial with many months, sometimes years ahead, for

25     scheduling purposes it's understandable to operate in a specifically

Page 44225

 1     sequential fashion - this decision, this consideration, this next move -

 2     I think given the stage of the case, it's incumbent upon the parties to

 3     move forward in as expeditious a manner as possible.  So in -- with

 4     respect to the two witnesses, the two possible witnesses that Mr. Ivetic

 5     mentioned, there were only two possibilities for the motion upon which

 6     that we understood there the question of whether or not a witness would

 7     be called depended, and those possibilities were the motion would be

 8     granted, the motion would be denied.  If granted, the need for any

 9     witness would be obviated.  If denied, then it would implicate the

10     question of whether the Defence wanted to do so.  So waiting until the

11     decision is actually made seems quite unnecessary given the very clear

12     options that exist.

13             Now, we don't have a problem with -- if two weeks is needed at

14     this point to deal with the -- to start undertaking the discussions about

15     whether or not the Defence wishes to seek leave to have a witness called

16     in connection with the document, the admission of which was denied.

17     Okay, that's been done.  It hasn't happened yet and we don't have a

18     problem with that.

19             But the same thing should happen with the other witness now, I

20     would suggest.  That is, that we know what the consideration is.  All

21     steps should be taken about -- to -- in anticipation of the obviously

22     realistic possibility that the document will not be admitted, and so the

23     Defence should be prepared to act on that within that same two-week

24     period.  At the same time, I'm sure the Court will have in mind that

25     issue too, and it will either obviate the issue, trigger the issue, or

Page 44226

 1     the motion will be pending while the Court is considering the original

 2     underlying motion with respect to the document.

 3             But I -- it's difficult to see any reason for building further

 4     delay into the process but waiting until a decision that only has two

 5     possibilities is made.

 6             JUDGE MOLOTO:  Mr. Ivetic, I pick up two points from what

 7     Mr. Tieger has just mentioned.  First of all, how soon can you file your

 8     motion for leave to call the witness about whom you now have certainty

 9     that you need to call?

10             Secondly, the other point is:  Can you start preparatory measures

11     with respect to the other witness in anticipation of a worse-case

12     scenario?  What can you tell us about that?

13             MR. IVETIC:  If I understood Mr. Tieger correctly, at transcript

14     page 10, lines 4 through 10, he indicated that a two-week deadline was

15     acceptable to the Prosecution for the one witness for whom we had a

16     decision on his documents yesterday.  I believe that the Defence will be

17     in a position to make a filing as to recalling that witness within that

18     time-period.  So that's the first of Your Honours' points.

19             And then --

20             JUDGE MOLOTO:  Can I interrupt you on that one.

21             MR. IVETIC:  Yes.

22             JUDGE MOLOTO:  I don't think you need two weeks to file that

23     motion.  Can't you do it a little quicker?  You have made up your mind

24     you are going to call this witness.  All you have to do is to draft a

25     motion and file it.  Do you need two weeks for that?

Page 44227

 1             MR. IVETIC:  Well, Your Honours, depending on the contact with

 2     the witness to see whether they are willing or not, that would define

 3     what type of motion we file; whether it's an additional motion seeking

 4     perhaps a subpoena, or whether it's just simply to have leave to recall

 5     the witness.  That's what I had in mind.

 6             JUDGE MOLOTO:  Sure.  Those are the logistics that will come up

 7     as and when you find out more information about the availability of the

 8     witness.  But for purposes of alerting the Chamber and getting the

 9     principled decision whether or not to call the witness, you can file that

10     motion.

11             MR. IVETIC:  Yes, I suppose --

12             JUDGE MOLOTO:  That would be a short motion.

13             MR. IVETIC:  Yes.  And --

14             JUDGE MOLOTO:  And that could go in tandem with your preparatory

15     measures to finding about the -- his availability.

16             Can I give you a much shorter deadline for that motion?

17             MR. IVETIC:  You may, Your Honour.

18             JUDGE MOLOTO:  Three days.

19             MR. IVETIC:  Three business days, I hope.

20             JUDGE MOLOTO:  Are you saying Wednesday next week?

21             MR. IVETIC:  Yes.

22             JUDGE MOLOTO:  Are we agreed on your word of honour?  Thank you.

23             MR. IVETIC:  You have my word, Your Honours.

24             JUDGE MOLOTO:  Okay.  Thank you.  Next week Wednesday.

25             Now, the next point is can the Defence be starting on

Page 44228

 1     preparations with respect to the other witness in anticipation of a

 2     possible denial of your motion?

 3             MR. IVETIC:  We can start.  There's an embassy involved as the

 4     witness is a Rule 70 witness.  That's the only other thing that I wanted

 5     to raise with respect to Mr. Tieger's submission.

 6             JUDGE MOLOTO:  Now, a Rule 70 witness, that might take much

 7     longer.

 8             MR. IVETIC:  That's why I wanted to have at least two weeks from

 9     the date of a decision made on the documents to give as much time as

10     possible for the embassy to do what they need to do in that respect if --

11     if the decision comes back on the motion for the documents to be denied.

12             JUDGE MOLOTO:  Without revealing the name, would this be a kind

13     of an embassy that would be sufficiently co-operative for you to

14     accomplish all what you need to accomplish within two weeks?

15             MR. IVETIC:  I would hope so.

16             JUDGE MOLOTO:  Okay.  Thank you very much.

17             MR. TIEGER:  There may have been some disconnect between what the

18     Prosecution was urging, what Mr. Ivetic was indicating, and what the

19     Court was hearing.

20             So again, we don't think any of this needs to or should wait

21     until such time as the -- as the decision is made.  So it -- it -- as far

22     as -- I mean, there may be -- for a number of reasons.  Number one,

23     irrespective of the witness's availability or the difficulties entailed

24     with dealing with embassies and any delays involved, the motion may not

25     be granted for independent reasons and it should -- it's -- there should

Page 44229

 1     not be a delay in having that before the Court, that is engendered by a

 2     factor outside the reasons for seeking and justifying the attempt to call

 3     that particular witness.  So we'd look to move forward on that as quickly

 4     as possible.

 5             Secondly, the -- we now know that there have been -- that -- now

 6     with respect to a witness who has been essentially on the table and whose

 7     possibility of -- or who -- the possibility of seeking that witness's

 8     appearance have been discussed for some period of time, there has

 9     apparently been no effort to determine whether that witness is available,

10     wishes to testify, and so on.  That entire process obviously needs to be

11     undertaken, and this would be independent, as the Court has indicated, of

12     the motion.

13             So we want to detach the deadline for filing as the Court

14     indicated in respect of the first witness from the deadline for getting

15     that matter before the Court so decisions can be made irrespective of

16     any -- of any possible logistical issues that may arise should leave be

17     granted.

18             JUDGE MOLOTO:  And where -- I'm not quite sure I understand where

19     the disconnect is.  I thought I tried to suggest to Mr. Ivetic that we're

20     giving him a short deadline for the request for leave to call the one

21     witness.  We're asking him to start doing what needs to be done to get

22     both witnesses in; in other words, the one about whom there is certainty

23     and the other one about whom there is no certainty, particularly because

24     the one about whom there is no certainty is the Rule 70 witness and

25     therefore then is not just -- doesn't just involve the witness himself

Page 44230

 1     but it also involves the government of the country.

 2             So I'm assuming that I'm perfectly understood that you should be

 3     initiating, if you haven't already done so, moves to get that witness

 4     ready to come as and when needed.  You can do it on a provisional basis

 5     and indicate to the embassy that you may need the witness but -- and you

 6     are making preparations on a contingent basis.

 7             MR. IVETIC:  Your Honour is absolutely correct.  That is how I

 8     understood Your Honour's instruction to me and that is how I will

 9     proceed.

10             JUDGE MOLOTO:  Thank you very much.

11             Does that address your concerns, Mr. Tieger?

12             MR. TIEGER:  Largely, Your Honour, except to the extent

13     possible -- and I was trying to identify a specific concrete deadline by

14     which certain action needed to be undertaken.  I understand that the

15     completion of the process of dealing with the embassy doesn't, at this

16     moment, necessarily lend itself to that, but the filing of the motion

17     may.  And the filing of the motion, I was suggesting, is detached from

18     the logistical complications, if any.

19             JUDGE MOLOTO:  Okay.  Now, what you are saying is a motion for

20     request for leave to call the uncertain witness should also be filed.  Is

21     that what you are saying?

22             MR. TIEGER:  Yes.

23             JUDGE MOLOTO:  Okay.

24             From that body language, Mr. Ivetic, it doesn't like you have any

25     problem with that?


Page 44231

 1             MR. IVETIC:  I --

 2             JUDGE MOLOTO:  Again, it's --

 3             MR. IVETIC:  It could be provisional.

 4             JUDGE MOLOTO:  You're asking for a principled decision from the

 5     Chamber in the meantime, and you indicate that, of course, it is

 6     contingent upon the outcome of the decision.

 7             MR. IVETIC:  Then I think we can do that.

 8             JUDGE MOLOTO:  You can do that.  Can I pin you down to three days

 9     also with respect to that one?

10             MR. IVETIC:  If we're again talking about Wednesday next week,

11     yes.

12             JUDGE MOLOTO:  It is so pinned down.  Okay.  Thank you very much.

13             MR. IVETIC:  Thank you, Your Honour.

14             JUDGE MOLOTO:  Anything else outstanding?

15             MR. TRALDI:  Your Honour, I was just going to, I think -- we know

16     which motion the uncertain witness relates to, but for the clarity of the

17     record I was going to mention it.  And before I do, I'd inquire with

18     Mr. Ivetic whether it's better to do in private session.  I don't know

19     the Rule 70 conditions that might apply or not.

20             MR. IVETIC:  To be safe we should probably go into private

21     session.

22             JUDGE MOLOTO:  May the Chamber please move into private session.

23                           [Private session]

24   (redacted)

25   (redacted)

Page 44232











11 Page 44232 redacted. Private session.















Page 44233

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Open session]

 8             THE REGISTRAR:  We're back in open session, Your Honour.

 9             MR. TIEGER:  Your Honour, the Court had just inquired about

10     whether there was any anything additional, noting that it appeared to

11     Your Honour that we had addressed the matters and were prepared to

12     conclude the proceeding.

13             And we agree.  I mean, our understanding is that within two

14     weeks, embracing all the factors we've discussed, all motions pertaining

15     to any pending evidentiary matters will have been filed by the Defence,

16     and the remaining steps of a response and decisions can be made, but

17     that's a -- in our view, a considerable and very positive advancement

18     toward the conclusion of the case.

19             JUDGE MOLOTO:  Thank you, Mr. Tieger.

20             You confirm, Mr. Ivetic?

21             MR. IVETIC:  Your Honours, I don't think I need to add anything

22     to what's been said.

23             JUDGE MOLOTO:  Thank you very much.

24             In that event, that brings us to the end of today's session.  We

25     then stand adjourned sine die.


Page 44234

 1             Court adjourned.

 2                      --- Whereupon the Status Conference adjourned at 10.05

 3                      a.m.