Tribunal Criminal Tribunal for the Former Yugoslavia

Page 42

1 Thursday, 25 August 2005

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.03 p.m.

6 JUDGE BONOMY: Would the registrar call the case, please.

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

8 IT-05-87-PT, the Prosecutor versus Milan Milutinovic and others.

9 JUDGE BONOMY: Thank you very much. Can I have the appearances.

10 MR. HANNIS: Thank you, Your Honour. On behalf of the Office of

11 the Prosecutor, I'm Tom Hannis. I'm joined today by Mr. Chester Stamp,

12 who is my co-counsel in this case, and on my left is Susan Grogan, our

13 case manager.

14 JUDGE BONOMY: Thank you, Mr. Hannis.

15 MR. O'SULLIVAN: Good afternoon. Eugene O'Sullivan appearing on

16 behalf of Mr. Milutinovic.

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

18 MR. FILA: [Interpretation] Good afternoon. I'm Toma Fila. I'm

19 appearing for Mr. Sainovic.

20 MR. PETROVIC: [Interpretation] Good afternoon. I'm Milan

21 Petrovic, and I'm appearing on behalf of Mr. Lazarevic.

22 MR. VISNJIC: [Interpretation] Good afternoon. Tomislav Visnjic

23 appearing on behalf of General Ojdanic.

24 MR. ACKERMAN: Good afternoon, Your Honour, I'm John Ackerman

25 appearing on behalf of General Pavkovic, and with me is Aleksandar Aleksic

Page 43

1 also appearing as co-counsel in the case.

2 JUDGE BONOMY: Mr. Ackerman.

3 MR. BAKRAC: [Interpretation] Good afternoon, Your Honour, I'm

4 Mihajlo Bakrac appearing on behalf of General Lazarevic.

5 MR. SCUDDER: Good afternoon, Your Honour. I'm Theodore Scudder

6 appearing on behalf of Sreten Lukic, and I'm assisted here by Mr. Dragan

7 Ivetic.

8 JUDGE BONOMY: Thank you. Now, this afternoon is a Status

9 Conference. I won't try to give it an identification number because it

10 probably is a different one for almost each of the accused here. We have

11 now for the first time a total of six accused represented at this one

12 Status Conference.

13 There are two accused present. They are Mr. Petrovic and

14 Mr. Lukic. I address them for the moment just to confirm that they are

15 able to understand these proceedings in a language that's familiar to

16 them. Is that the position for you, Mr. Petrovic?

17 MR. HANNIS: Your Honour, it appears --

18 JUDGE BONOMY: I'm sorry, Mr. Pavkovic. My mistake, sorry.

19 Mr. Pavkovic.

20 THE ACCUSED PAVKOVIC: [Interpretation] Your Honour, I can follow

21 the proceedings in language that I can understand.

22 JUDGE BONOMY: Thank you. And Mr. Lukic?

23 THE ACCUSED LUKIC: [Interpretation] Your Honour, I can follow the

24 proceedings.

25 JUDGE BONOMY: Thank you very much.

Page 44

1 Now, I'm going to deal with quite a number of matters this

2 afternoon, and I want to deal first of all with outstanding motions or

3 issues which require determination either here or by the Trial Chamber.

4 And the first of these is a Prosecution motion for protective measures

5 which relates to two particular witnesses designed to give evidence about

6 intercepted communications. There is a matter for the Trial Chamber to

7 determine possibly in relation to this motion. One of the problems

8 related to it is that the motion contains a number of measures which it

9 sought to introduce in the course of these witnesses' evidence, and

10 because these are measures insisted upon by the state from which these

11 witnesses come, the Trial Chamber is probably in the position of either

12 accepting these measures and allowing evidence in that way or in the way

13 sought or refusing to hear the witnesses, which may be an unfortunate

14 position for the Trial Chamber, because it may have sympathy with some of

15 the measures sought and may feel that others go too far.

16 Now, I gather the matter was raised at the 65 ter Conference, and

17 what I'd like to know from Mr. Hannis is whether he is any further forward

18 in identifying whether all of these measures are actually insisted upon.

19 MR. HANNIS: Your Honour, I'm sorry to say I don't have that

20 information for you yet, but I do now have the name of the appropriate

21 person to discuss those matters with, and I will be doing that shortly and

22 advising you through your legal officer as soon as I have that

23 information, and I will advise him of the concerns that have been

24 expressed.

25 JUDGE BONOMY: For example, the Chamber might well be sympathetic

Page 45

1 to the part of the motion which would restrict or prevent

2 cross-examination about the means by which these communications were

3 intercepted. In other words, issues that might relate to national

4 security.

5 On the other hand, the Chamber might not be too sympathetic to

6 restricting cross-examination on a broader basis than that in a

7 preliminary decision. Any further restriction might be best dealt with in

8 the course of the trial by objection to particular questions or lines of

9 questioning that are taken up. So there's a distinction there in relation

10 to the two separate requests to restrict cross-examination. There's also

11 a question over whether it's necessary for a representative of the state

12 to be present.

13 Now, if there is no agreement on exactly how cross-examination is

14 to be limited, then there may be a good argument for a representative of

15 the state to be present. If, on the other hand, agreement can be reached

16 then it would appear to be unnecessary. And likewise, I think I indicated

17 at the last Status Conference for the first three accused here that I was

18 hopeful that counsel might get closer to the stage of being able to

19 stipulate at least some of the elements that arise from this particular

20 evidence.

21 Now, Mr. O'Sullivan, can you tell me if there's any progress on

22 that front or whether progress is impossible because of the lack of

23 information from the Prosecution?

24 MR. O'SULLIVAN: The position hasn't changed in any substance

25 since we met in May. I don't think it's impossible that we advance on

Page 46

1 this, but there has been no movement at all.

2 JUDGE BONOMY: Now, the motion in this case is made in the

3 original case of Milutinovic and two co-accused, but presumably,

4 Mr. Hannis, you want the same arrangements to apply in relation to all six

5 accused.

6 MR. HANNIS: That's correct, Your Honour. And I assume that when

7 I speak with the appropriate Croatian authorities I will bring that to

8 their attention. I anticipate that this will involve six accused, and I

9 assume they would be requesting the same things.

10 JUDGE BONOMY: It may be that the evidence doesn't affect three of

11 the accused directly. It may effect them indirectly because of the issue

12 of joint criminal enterprise but it may not affect them directly. But it

13 raises the technical question of whether in fact you ought to submit

14 another motion, which is a motion in the case involving all six accused

15 rather than a motion that's confined to three.

16 MR. HANNIS: That -- I take your point, Your Honour. That may be

17 a good course of action, and I can do that once I've spoken with them and

18 maybe reached some agreement about diminishing or removing some of the

19 current requested measures.

20 JUDGE BONOMY: It may be at the same time you ought to review all

21 the motions in this case that have actually -- in both cases of that been

22 determined so far to decide whether you actually need to lodge some

23 composite motion to give effect to these in the conjoined case, but I --

24 it's a matter I understand from the 65 ter Conference you at least have in

25 mind.

Page 47

1 MR. HANNIS: We do now, yes.

2 JUDGE BONOMY: So do you think the appropriate course in relation

3 to the current motion is for the Trial Chamber to take no further action

4 until it hears further from you?

5 MR. HANNIS: I do, Your Honour.

6 JUDGE BONOMY: Well, that's -- that's -- unless any counsel for

7 the accused has any other comment to make on that, that's the course of

8 action I would propose to take.

9 The second outstanding motion is Mr. Lukic's emergency motion for

10 provisional release which has now become not an emergency motion but has

11 really been converted into a broader motion for provisional release. All

12 filings have now been received by the Chamber in relation to that and a

13 decision will be made by the Chamber as soon as possible.

14 Now, I don't think, Mr. Scudder, that anything else needs to be

15 done in relation to that today. Is that the position?

16 MR. SCUDDER: Not to my knowledge.

17 JUDGE BONOMY: Thank you.

18 The third one is the second request, or the amended request,

19 rather, to NATO and the states of NATO at the incidence of General Ojdanic

20 under Rule 54 bis.

21 Now, there are certain ongoing discussions, as I understand it.

22 These affect certain of the states. It may not effect them all. And the

23 indication I was given following the 65 ter Conference was at least in

24 relation to the states with whom discussions are ongoing and perhaps in

25 relation to others that it would be premature to make a final decision on

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Page 49

1 this application at the moment.

2 Now, Mr. Visnjic, what is the position?

3 MR. VISNJIC: [Interpretation] Your Honour, first of all, I would

4 like to say that I owe you an explanation from the 65 ter Conference that

5 concerns part of the request with regard to Holland. Before we applied

6 for the send time, the Dutch government responded in satisfactory way, and

7 that's why it is not listed as one of the states from which we have

8 requested documents in our second application.

9 JUDGE BONOMY: So you will not be proceeding against the

10 Netherlands.

11 MR. VISNJIC: [Interpretation] No. They have met our requests, and

12 that is why they have not been listed in our second application.

13 [Trial Chamber and legal officer confer]

14 JUDGE BONOMY: Yes. Now, I understand that there are ongoing

15 discussions with at least two states. Does that mean that it's premature

16 to make any final decision in relation to any of the states at the moment?

17 MR. VISNJIC: [Interpretation] I believe that a partial decision

18 with regard to other states would be premature. I believe that they would

19 all have to be encompassed with one decision. Even the ongoing

20 correspondence that we have with two states according to the current

21 situation will lead to the partial satisfaction of our request, but we

22 have to take our position with regard to the final set of documents that

23 we received from them, and we will inform the Chamber accordingly.

24 It would be more rational in my view if a decision -- one decision

25 was rendered for all the states instead of rendering two separate

Page 50

1 decisions. We will have the final outcome of our correspondence very

2 soon, I believe.

3 JUDGE BONOMY: So the matter will remain with you to notify the

4 Trial Chamber with a further filing when it's appropriate for a decision

5 to be taken, and can I take it that in that filing you will indicate

6 anything that you want to modify or vary or withdraw in relation to the

7 application?

8 MR. VISNJIC: [Interpretation] That is correct, Your Honour.

9 JUDGE BONOMY: Thank you very much.

10 Now, the fourth motion is that at the instance of General Pavkovic

11 for disclosure. Now, Mr. Ackerman, there seems to be a measure of

12 confusion about how this should be dealt with. What is sought is access

13 to material in the case of Slobodan Milosevic. Is that correct?

14 MR. ACKERMAN: Yes, Your Honour. What I'm asking for is all of

15 the trial transcripts and exhibits from the Milosevic trial as it respects

16 Kosovo and make that an ongoing request because the trial is still going

17 on, including all of the -- all of the protected material, the closed

18 session and private sessions and the whole thing. I filed it in the wrong

19 case, I understand, and although it's the same Judges, what I will do is

20 just change the heading on it and refile it probably as early as Monday.

21 JUDGE BONOMY: Well, I -- that may be just jumping the gun a

22 little. The -- have you looked at all at what arrangements have been made

23 for disclosure from the Milosevic case in relation to your now co-accused?

24 MR. ACKERMAN: I learned, I think maybe from the agenda for the

25 65 ter Conference, that there was an outstanding order of some form

Page 51

1 regarding disclosure of Milosevic matters, but I don't know the extent of

2 it.

3 JUDGE BONOMY: Well, there is an order, and it's even given rise

4 to concern that perhaps it hasn't been implemented as well as it ought to

5 be. I think maybe Mr. O'Sullivan has raised that issue in relation to his

6 client.

7 MR. ACKERMAN: He spoke about that at the 65 ter.

8 JUDGE BONOMY: But the order is there, and it's simply an order on

9 counsel to liaise with the Registrar. It's an order reminding the

10 Prosecution of its obligation, and it makes it clear that counsel can

11 apply to the Trial Chamber where satisfactory arrangements for disclosure

12 are not made.

13 Now, I don't think at this stage it's necessary for the Trial

14 Chamber in the Milosevic case to be involved in this. I mean, have you

15 asked the Prosecution for the material?

16 MR. ACKERMAN: I've spoken to the Registry about it, and they said

17 they would give it to me as soon as an appropriate order was entered by

18 the Chamber, and that's as far as I've gone. I take it from what Your

19 Honour is telling me now the order -- the order from the -- the order

20 applies to the new three defendants even though it's not couched that way.

21 JUDGE BONOMY: No. I'm surprised that the Registry took that view

22 in light of the terms of the existing order. It does only apply in the

23 original case, which is the case against the first three accused, but I

24 find it difficult to see why there should be a need for any other order

25 when the terms of that order were simply for the accused to liaise with

Page 52

1 the registrar to establish mutually convenient methods of provision of the

2 transcripts of all open-session proceedings and all public exhibits, and

3 the Prosecution were reminded of an obligation to ensure that

4 closed-session transcripts were reviewed and submitted for release on an

5 ongoing basis and in a timely fashion.

6 So I don't see the need for an order from the Trial Chamber for

7 this at all.

8 MR. ACKERMAN: It sounds, Your Honour, that the matter might have

9 been taken in hand before and --

10 JUDGE BONOMY: Someone from the Registry did tell you that you

11 would require an order?

12 MR. ACKERMAN: I understand that was in the context of my advising

13 the Registry that I'd filed a motion and that I thought it may be

14 appropriate to wait until that motion had been granted with regard to

15 the -- to the non-public materials so that everything could be provided to

16 me in a -- in an orderly manner rather than piecemeal. So that was the

17 basis of the Registry's position, that they would await the order.

18 JUDGE BONOMY: Thank you.

19 MR. ACKERMAN: Somewhat to my suggestion that they do that.

20 JUDGE BONOMY: I'm reminded that the original order, in fact, only

21 applied to the second and third accused and didn't actually apply to

22 Mr. Milutinovic, and yet it has been implemented, as I understand it, in

23 relation to Mr. Milutinovic.

24 Is that right, Mr. O'Sullivan?

25 MR. O'SULLIVAN: Yes, Your Honour. Excuse me. I have been

Page 53

1 receiving the transcript and exhibits. The only concern or perhaps

2 portion that needs to be covered are any confidential exhibits, if any, or

3 exhibits from closed session, not just the public exhibits, which are

4 relevant to Kosovo.


6 Mr. Hannis, this can, I think, be resolved by you quite simply. I

7 take it that there is absolutely no difficulty about the Prosecution

8 ensuring that closed-session transcripts and indeed exhibits which are

9 not -- or which are in any way under seal or restricted are released on an

10 ongoing basis to all -- those acting for all six accused.

11 MR. HANNIS: Your Honour, I understood this was a responsibility

12 for the Registry rather than for our office.

13 JUDGE BONOMY: Well, that's not the position in this order. The

14 order, so far as closed-session material is concerned, and I think by

15 analogy I would apply it to exhibits as well that were restricted in any

16 way is that -- the terms of the order were to remind the Prosecution of

17 its obligation to ensure that that material was disclosed, and I suspect

18 that's because you're best placed to make sure that nothing that shouldn't

19 escape your clutches or the clutches of the records is passed over.

20 MR. HANNIS: All right, Your Honour. Thank you.

21 JUDGE BONOMY: But in any event, I take it that assuming we

22 identify who has been doing this that you accept that it should apply to

23 all six accused.

24 MR. HANNIS: I do.

25 JUDGE BONOMY: And I take it you also accept that it should apply

Page 54

1 not only to transcripts of oral evidence but should apply to documentary

2 evidence as well and any exhibits involved.

3 MR. HANNIS: I agree.

4 JUDGE BONOMY: Yes. Thank you.

5 So it seems to me that it's a matter for Defence counsel to

6 arrange with the Registrar. I will make sure -- and to liaise with

7 Mr. Hannis to make sure that whatever the Registrar is not providing he

8 provides to you, and I will ensure that a transcript of this exchange is

9 passed to the Registry so that you can complete your discussions with

10 them.

11 And in the light of that, what I would prefer you to do today,

12 Mr. Ackerman, is withdraw your motion. Obviously if anything -- if things

13 don't work out the way we've discussed, you would be able to re-enroll,

14 retender the motion but in the right process.

15 MR. ACKERMAN: Your Honour, I'll do that. I do now withdraw the

16 motion.

17 But let me mention to you an additional problem that

18 Mr. O'Sullivan raised in the 65 ter, and that is the Registry's response,

19 as I understand it, has been that the transcripts are available on the

20 Internet and all we have to do is go to the Milosevic part of the Internet

21 and download them. And the problem is those are not transcripts that have

22 the appropriate headings on them like the official transcripts that --

23 that we would get similar to what we got from yesterday's conference, for

24 instance, and we need the official transcripts so we can have the headings

25 that would make it possible for us to make some sense of them.

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Page 56

1 JUDGE BONOMY: Well, I understand from the senior legal officer

2 that the matter was taken up with the Registrar yesterday following the

3 65 ter Conference and has been resolved so far as the first accused is

4 concerned, and I can see no reason why it shouldn't be resolved in

5 relation to everyone in the same way. So, again, I simply request that

6 you liaise with the Registry to solve this problem and to raise it with

7 the Trial Chamber only if you cannot do so by your own efforts.

8 MR. O'SULLIVAN: Your Honour.

9 JUDGE BONOMY: Mr. O'Sullivan.

10 MR. O'SULLIVAN: There is one final dimension to receiving

11 materials from the Milosevic proceedings, and that is exhibits which are

12 marked for identification purposes only but which have not been admitted

13 into evidence. I don't care where they come from, whether it comes from

14 the Registry or Prosecutor, but to make any sense of understanding the

15 testimony of a witness we need to also have exhibits which have only been

16 marked for identification and not yet admitted into evidence, otherwise we

17 can read pages of transcript where questioning is going on in relation to

18 a document, for example, which we may not receive if we only receive the

19 exhibits, and it is relevant to our case preparation.

20 JUDGE BONOMY: Is that comment confined to Prosecution exhibits?

21 MR. O'SULLIVAN: No, it's not. All exhibits.

22 JUDGE BONOMY: Now, Mr. Hannis, there doesn't seem to be on the

23 face of it a reason why exhibits which are marked for identification

24 shouldn't be disclosed either, is there?

25 MR. HANNIS: I -- I don't have argument why they shouldn't, Your

Page 57

1 Honour. I'm just not sure about logistically -- for example, I know

2 Mr. Milosevic has tendered a number of items that have been marked for

3 identification only, and I don't know how much of that we have received,

4 whether we have full sets or --

5 JUDGE BONOMY: I understand the problem of the mechanics of this.

6 I think the principle is probably that the material should be disclosed.

7 It's a question of working out how to do it. So, again, I'll draw the

8 issue to the attention of the Registrar because I think the ongoing

9 material, the ongoing evidence that counsel here will be concerned about

10 is largely defence evidence and largely defence exhibits, and I will leave

11 it to counsel, the matter having been raised in the transcript, to sort it

12 out with the Registrar.

13 Now, the next motion also concerns Mr. Pavkovic, and that is a

14 motion to set aside the joinder order or, in the alternative, to sever his

15 case from that of the other five accused.

16 Now, Mr. Ackerman, I need to be clear about the factual position

17 in relation to this motion. You say that you were assigned on the 13th of

18 June. The motion for joinder was not served upon counsel for the accused,

19 nor was the new counsel - that's you - advised that such a motion was

20 pending and needed to be answered within a stated period of time.

21 Now, I noticed yesterday in the hearing that you attended in

22 relation to the question of provisional release that there is reference in

23 the Prosecution's response to this motion. Did that not alert you to the

24 need to do something about it?

25 MR. ACKERMAN: Your Honour, I really don't recall there being a

Page 58

1 reference in that response, but I certainly take your word for it. If you

2 say it was there, it was.

3 The answer is no, it didn't alert me. I apparently overlooked it.

4 JUDGE BONOMY: I have to find the document myself.

5 Yes, paragraph 5 of that response. On the 1st of April, the

6 Prosecution filed a motion to join the case against General Pavkovic and

7 his three co-accused with the case against the three accused of case

8 number, and the case number is given. At the present time, that motion is

9 pending before the Trial Chamber, and this was filed on the 24th of June,

10 which is two months ago.

11 MR. ACKERMAN: I can't argue that it's not there, Your Honour

12 because it is there. I don't have any memory of seeing it. That's all

13 I'm telling you.

14 JUDGE BONOMY: Where does that put your claim that you had weren't

15 on notice about this?

16 MR. ACKERMAN: Your Honour, let me give just you a bit history

17 about my assignment. I was assigned, as I said, on the 13th of June, and

18 within -- I would say within two or three days, and I can give you the

19 exact date because I still have the e-mail, I believe, I was advised by

20 the Registry that the Chamber had asked the Registry to advise me that if

21 I had any kind of a motion to file under Rule 72 with regard to the

22 indictment the Chamber would like to receive it by the 1st of July, and so

23 I was aware at that point the Chamber was advising me that there are

24 matters that needed to be dealt with and that was one of them.

25 The -- also, the order assigning me to the case asked the

Page 59

1 provisional counsel that had been assigned to provide me with any

2 outstanding matters that needed to be dealt with.

3 JUDGE BONOMY: I mean, I think -- I accept from the information

4 available to me that the motion wasn't formally served on the preceding

5 counsel for your client, so even if she did pass on all the material it

6 wouldn't have included this particular motion probably.

7 MR. ACKERMAN: It may very well be, Your Honour, that I should

8 have -- should have noticed what was in that response the Prosecution

9 filed and made some inquiry but I can tell you that I did not, and that's

10 the best I can do.

11 JUDGE BONOMY: But it raises, I think, for the Chamber the

12 question whether it's right to say that there was no notice to your client

13 of the motion, and that is a important issue in deciding whether your

14 application to set aside should be granted.

15 There are two ways of dealing with this, I think. We could look

16 at that application on its own on the purely technical basis of whether or

17 not there was adequate notice given, or we could look at the whole picture

18 in the light of any comments you wish to make about the merits of the

19 motion for joinder.

20 Now, in view of the general state of play here, the latter might

21 be the better course. I'm inclined to the view that time is -- the time

22 for the trial -- the trial is so far away anyway that it would be wrong to

23 hold it against you, that perhaps you should have picked it up and made a

24 response. If your inclination was to accept that the right thing to do

25 now was to complete your response on the merits and let the Chamber look

Page 60

1 at your position on the basis that you've had an opportunity to state all

2 that you want to state.

3 MR. ACKERMAN: Well, yeah, from a very intensely practical

4 standpoint that's obviously the way to go. It wouldn't make sense to --

5 to order the filing of a new motion and give me an opportunity to response

6 to that new motion and then make a new decision regarding the joinder.

7 I think the motion that I filed to set aside the joinder could

8 very well be taken as a -- as a document in opposition to the joinder

9 because most of the reasons that I'd be opposed are contained in there in

10 any event.

11 JUDGE BONOMY: So are you saying you don't really need time to

12 amplify these, that the argument's there and the Chamber can proceed on

13 the basis that you've not only dealt with the technicalities but the

14 merits?

15 MR. ACKERMAN: The arguments that I have regarding the joinder,

16 Your Honour, basically boil down to that -- that portion of the joinder

17 decision in which the Chamber said we see no reason why this trial can't

18 begin in December or January, and I have set out, I think, a number of

19 reasons why in the interests of justice that can't happen, and I certainly

20 would like to -- to speak further to that at an appropriate time, maybe

21 when you get to that portion of your agenda regarding trial time or

22 something like that, or if you'd like me to do it now I can

23 do it now.

24 JUDGE BONOMY: No, I think we'll take it in its place and treat

25 what you say as a supplementary submission in support of the motion you've

Page 61

1 made.

2 MR. ACKERMAN: I think that's probably the appropriate way to

3 handle it.

4 JUDGE BONOMY: Thanks very much. That's very accommodating of

5 you, Mr. Ackerman, and it allows the Chamber, I think, to take a pragmatic

6 course to a situation which basically is no one's fault but arises through

7 a combination of circumstances which affect this particular accused and

8 the way in which he came before the Tribunal.

9 MR. ACKERMAN: Yes, Your Honour.

10 MR. HANNIS: Your Honour, if I may, in regard to that last

11 matter. To the extent that we might have any right to reply to his

12 supplement, we waive that right, and we're comfortable to Your Honour

13 ruling on the motion based on the prior pleadings.

14 JUDGE BONOMY: All right. Thank you, Mr. Hannis.

15 Now, that leaves one motion, but I think probably the most

16 important of the motions, and that's a motion to amend the indictment,

17 which is accompanied with -- accompanied by an amended indictment

18 reflecting the decision to conjoin the two cases. So I'd be assisted by

19 some guidance on how you envisage this now being dealt with.

20 Perhaps Mr. Hannis might suggest a course of action.

21 MR. HANNIS: Your Honour, was there -- I guess I'm not sure what

22 your specific question is at this point.

23 JUDGE BONOMY: Well, your motion is to amend the indictment. That

24 will have to be responded to in some way. How did you envisage that being

25 done?

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Page 63

1 MR. HANNIS: Well, Your Honour, I envisaged the Court giving the

2 Defence an opportunity to object and the Court considering that.

3 JUDGE BONOMY: The motion was filed on the 16th of August, so do

4 you simply assume the normal two-week period for responding would apply?

5 [Trial Chamber and legal officer confer]

6 JUDGE BONOMY: In fact, Mr. Hannis, I think the order that was

7 originally made required or at least allowed 15 -- or allowed a response

8 within 14 days, I think, from the -- 15 days from the 15th of August, and

9 the filing was actually, for some minor technical reason, made on the

10 16th.

11 So you would envisage that simply taking its ordinary course.

12 MR. HANNIS: Yes, Your Honour.

13 JUDGE BONOMY: Now, one problem that has been drawn to my

14 attention is one of translation. What you've got is an indictment which

15 is in English. What you've heard here today is that a number of the lead

16 counsel are conducting the proceedings in the language of the accused.

17 The accused themselves are entitled normally to see an indictment in a

18 language that they can read, and I think I've been given an indication

19 that translation might take until the middle of September.

20 MR. HANNIS: That's what my case manager confirms to me, Your

21 Honour. In fairness, it seems to me the defendants should have 15 days

22 from the time that they actually receive a copy in their language.

23 JUDGE BONOMY: Even though there's -- on each team there's a

24 person who can conduct the proceedings in English and even though the

25 issues here are legal issues on which an accused might have some view but

Page 64

1 you wouldn't expect his input to be the most significant by any means?

2 MR. HANNIS: No. But I'm trying to imagine myself sitting on the

3 other side the courtroom and what I would want. And it doesn't seem like

4 it's the kind of thing where I can suggest to Your Honour to split the

5 baby and give them seven and a half days. I just don't know what to

6 recommend at this point. I wish we could have a translation quicker but

7 it doesn't seem that we can.

8 JUDGE BONOMY: Who actually deals with that? Is it the Tribunal's

9 translation service or is it the Prosecutor --

10 MR. HANNIS: CLSS, yes.

11 JUDGE BONOMY: All right. Thank you, Mr. Hannis.

12 Mr. O'Sullivan, what comments have you to make?

13 MR. O'SULLIVAN: Well, you were, the position of the accused, I've

14 spoken to all the counsel, and we would ask for 15 days from the time we

15 receive the translated indictment in B/C/S. We see it as giving an

16 opportunity for our clients to read and understand the indictment, and

17 it's our submission that those 15 days wouldn't prejudice the accused or

18 these proceedings.

19 JUDGE BONOMY: Well, in spite of the view that I originally formed

20 that that might not be necessary, it would be childish of me I think to

21 ignore what has been said on the part of the Prosecution by Mr. Hannis, so

22 I'm willing to make that order.

23 So far as the content of any response is concerned, do you agree

24 that a challenge to the indictment in its new form would be something

25 which ought to be raised in the response to the motion to amend the

Page 65

1 indictment?

2 Does Mr. Fila wish to say something or do you --

3 MR. FILA: [Interpretation] Your Honour, I am prepared to accept

4 your proposal. I personally believe that for the three of us who were

5 here from the beginning, there will be no problems. We think it would be

6 silly to repeat what was written concerning the first indictment.

7 However, we have a double problem now. There are two new indictees who

8 have not yet pled to the first indictment at all, so the legal position is

9 different. It's different for the first three accused, Milutinovic,

10 Sainovic, and Ojdanic in relation to the other three.

11 JUDGE BONOMY: You may not --

12 MR. FILA: [Interpretation] So I do not see any reason to object

13 unless you want me to object to this.

14 JUDGE BONOMY: You may not be aware of all that's gone on in

15 relation to the other accused. Both Lazarevic and -- sorry? Yes indeed,

16 but both Lazarevic and Lukic challenge the indictment, and the Chamber

17 ruled on these challenges. Part of that ruling was that the Prosecution

18 should review the indictment in relation to all six accused, and

19 therefore -- and also in the case of Mr. Pavkovic a similar determination

20 was made, although the real -- the crux of the matter was dealt with in

21 the objections taken by -- on behalf of Mr. Lazarevic.

22 Now, that means, I think, that all six are in the same position.

23 The indictment is to be amended, according to Prosecution. I expect

24 opposition to that amendment for reasons which I think were discussed at

25 the 65 ter Conference, and there may be others, but it seems to me that if

Page 66

1 you are challenging the form of the indictment that the appropriate way to

2 do it when an amendment is involved is to incorporate these challenges

3 into your opposition to the motion to amend. It's a one-stage rather than

4 two-stage process as I see it at the moment.

5 Now, if anyone disagrees with that, then I'd like to hear their

6 submissions.

7 MR. FILA: [Interpretation] As far as I'm concerned that's fine.

8 That's precisely what I meant, that we shouldn't make it a double burden.

9 JUDGE BONOMY: I take it that silence on the part of everyone else

10 confirms that that is how you intend to approach the matter. And that is

11 helpful, because again with so many accused involved, we do not want to be

12 bogged down -- it's in nobody's interest to be bogged down on technical

13 arguments over things which we can resolve at a meeting such as this one.

14 So the order which -- there will be written order following

15 today's proceedings, and it will deal with the period -- extending the

16 period for filing these -- or making these filings in opposition to the

17 Prosecution motion.

18 Now, Mr. Hannis, we seem to have more or less completed the

19 disclosure of expert witness reports, and all that's outstanding is a

20 translation of the latest report by Mr. Coo.

21 MR. HANNIS: That's correct, Your Honour, and I understand we

22 expect that in late September.

23 JUDGE BONOMY: And can I take it by the 30th of June each of the

24 last three accused had received disclosure of all the other expert

25 reports?

Page 67

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

2 JUDGE BONOMY: Now, I'm addressing myself to counsel for Pavkovic,

3 Lazarevic, and Lukic. None of you has, as far as I'm aware, submitted any

4 filing in relation to expert reports. That may be because of the weight

5 of material that you're working your way through; I'm not

6 sure. But in the case of each of the first three accused, there are

7 various notices under Rule 94 bis in relation to each of the experts, and

8 while they differ in form, the position of each of the accused is broadly

9 similar in relation to each expert how they I tend to challenge that, that

10 expert. It's not entirely similar, but through clarification as we've

11 gone along they appear to be broadly taking the same line.

12 Your time for actually submitting notices has expired except in

13 relation to Mr. Coo, probably, because the translation is outstanding, and

14 he may be the only one that matters for any of you; I don't know. But I

15 draw this to your attention, because if you are going to raise peculiar

16 points about expert evidence that have not been raised by the other three

17 accused, it seems to me that should be done now or within the next -- I

18 can indicate now I'm proposing quite an early either Status Conference or

19 maybe a 65 ter Conference in this case. I don't think the next one will

20 be in December. It will be much earlier.

21 So if it's, say, in six weeks or so, then I would expect within

22 that time-scale any challenge that you see as different from the way in

23 which each of the counsel for the first three accused see the expert

24 evidence would have been intimated, and I think you ought to take the

25 opportunity of either aligning yourselves with the others or making it

Page 68

1 clear that you don't intend to challenge in a similar way. In other

2 words, you should check the various filings that relate to the expert

3 witnesses, check the expert reports and take a position within that

4 time-scale.

5 Now, the reason that I consider this important I explained the

6 last time we had a Status Conference in relation to the first three

7 accused, and I think I may also have expressed it to Mr. Bakrac before

8 when he appeared, the Defence in this case have in my opinion a duty to

9 try to coordinate their responses to expert evidence, and if there is to

10 be Defence expert evidence, that unless an accused has an entirely

11 distinctive position from the others, there would seem to be little reason

12 why he cannot rely on the same expert as the other accused. That might

13 require some internal wrangling among accused -- among counsel for the

14 various accused, but it should be possible to identify common experts, and

15 hopefully that can be done sometime within the next four or five months on

16 the part of the Defence so that when the Prosecution case does begin at

17 least the expert challenges are clear on the face of it.

18 So I invite each of you for Messrs. Pavkovic, Lazarevic, and Lukic

19 to look at the expert evidence so that we can see how identical your

20 position will be to that of the other three accused. And again I think I

21 would be inclined to make an order to that effect.

22 Now, Mr. Ackerman.

23 MR. ACKERMAN: Your Honour, my reaction to that is that based upon

24 the overwhelming task that is ahead of us in preparing for this case,

25 these expert reports are simply one small part of that huge body of

Page 69












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Page 70

1 material. What -- what you seem to be saying to us today is in the

2 process of prioritising the way we go about that, you'd like us to begin

3 there and deal with those expert matters first. I -- I don't know enough

4 to tell you how much of a problem that is because -- because of the amount

5 of material, but it may very well be that it's only a document that I'll

6 be able to see months from now that will dictate the position I would have

7 to take with regard to a particular expert. That may be the case.

8 So if -- if you want a position taken within the period of time

9 you've suggested, then it would simply have to be a seat of the pants kind

10 of protect my client in every way possible, agree to nothing and demand

11 cross-examination and just leave it at that and that may be the best I'd

12 be able to do. I haven't even seen the expert reports yet. I know that

13 they're -- they're at my office. I know that they're accessible to me,

14 but I have no idea what's contained in them. I understand the Coo report

15 is huge and would take a long time to look at.

16 JUDGE BONOMY: Four of these experts have been challenged on a

17 broader basis than simply we want to cross-examine them and that's a view,

18 I'm sure, you can form without being privy to the contents of all the

19 disclosed material. You should be able to form a view about a person's

20 expertise by considering his CV and his report. So there are certain

21 things you can undoubtedly do.

22 I note what you say. I hear what you're saying, but that's simply

23 an indication that later you may have to alert the Court to a particular

24 position that you weren't able to at the stage that you were expected to

25 respond. But I remind you the Rule makes it clear, you have a certain

Page 71

1 time to respond to expert reports, I am reminding you of the terms of that

2 Rule, time is already up, so I'm simply alerting you to the importance of

3 concentrating some effort on that particular area and making the

4 appropriate filings. And you may find that it's a lot easier than -- a

5 much simpler task than you are currently envisaging.

6 MR. ACKERMAN: I hope so. I can tell you right now that I

7 understand this proposed expert Coo actually is an employee of the Office

8 of the Prosecutor who was involved in investigating this case, and it's

9 bizarre to me that such person could be termed an expert. He would never

10 be an expert in my country or in your country as far as I know.

11 JUDGE BONOMY: That's one of the -- that's one that I don't

12 anticipate there will be very much agreement about, whereas the others I

13 think -- or some of the others, not them all, some of the others fall into

14 a different category, and I'm trying to concentrate efforts in areas that

15 will eliminate unnecessary disputes.

16 MR. ACKERMAN: Thank you, Your Honour. I think you've clarified

17 it for me.

18 JUDGE BONOMY: Yes. And it's important that you're on notice of

19 the significance of this.

20 Mr. Scudder.

21 MR. SCUDDER: Yes. I concur in the statements just made by

22 Mr. Ackerman. And in addition, the Court mentioned that it urges counsel

23 to agree as far as possible on these expert reports unless a particular

24 defendant is in a different position than the other defendants, and I

25 don't think because we haven't seen these reports yet I'm in a position to

Page 72

1 say anything definite at this time but I thought would I mention to the

2 Court that Mr. Lukic has been a police official, and as I read the

3 indictment most of the references are separately either to military or

4 police. The only other police defendant in the case is Vlastimir

5 Djordjevic, who is not before the Court, and that may put Mr. Lukic in a

6 unique position regarding the experts.

7 JUDGE BONOMY: You may find it does in relation to one rather than

8 the experts entirely. All right. I note what you say.

9 Now, just one final point on experts. Is it Mr. Visnjic who was

10 going to consider or had decided to challenge the qualifications of the

11 witness Joachim? No?

12 MR. VISNJIC: [Interpretation] Your Honour, we are having a slight

13 problem with the interpretation, but I believe that I know who you are

14 talking about, but it seems to me that we have already challenged his

15 qualification in the filing that we submitted. I don't know the exact

16 date because I don't have the filing before me at the moment.

17 JUDGE BONOMY: All right. Thank you.

18 Mr. O'Sullivan.

19 MR. O'SULLIVAN: One matter about the experts, and that is the --

20 we did receive the Coo military report on the 31st of July, and we are

21 still awaiting the B/C/S translation of that. And I would ask that your

22 order for notices under Rule 94 bis reflect the fact that we would like to

23 have a reasonable period after receiving the B/C/S translation of that

24 report.

25 JUDGE BONOMY: I'm in no doubt that your request in this case is

Page 73

1 justified, more so than in relation to the indictment, I may say. But,

2 yes, you will be allowed adequate time after the translation. The

3 indications are the end of September, so when you get it I think you can

4 take it for granted that you've got 30 days from then to indicate any

5 challenge or to respond in terms of 94 bis as you consider appropriate.

6 MR. O'SULLIVAN: One further matter in relation to witnesses, and

7 I'm not sure whether you were about to deal with Rule 66, but it's correct

8 that witness statements have been disclosed to the accused for some time

9 in this case. However, at the 65 ter meeting two days ago, the

10 Prosecution indicated that there would be further witnesses as and when

11 they are identified and also further documents or potential exhibits as

12 and when identified, and that the Prosecution is making its final

13 determinations in light of evidence that's being led in the Milosevic

14 case. So it appears that Rule 66 will be ongoing, that disclosure.

15 JUDGE BONOMY: Mr. Hannis, is that the position?

16 MR. HANNIS: Yes, Your Honour. In light of the joinder, we

17 believe that we probably will be adding witnesses to the number that we

18 had previously indicated, that the trial will take somewhat longer than

19 previously indicated for the original three defendants. And those numbers

20 and the exhibits are going to be increased partly as a result of what

21 has -- what has transpired in the Milosevic trial recently. A number of

22 Defence witnesses called have produced I think a few hundred documents

23 that we had not seen before that we think are pertinent to the prosecution

24 of this case.

25 JUDGE BONOMY: Yes. But you're indicating now what, that there

Page 74

1 are witnesses to be thought about or you've identified them or what is the

2 position?

3 MR. HANNIS: Both, Your Honour. It's making a determination

4 about -- in a joint case these three -- the three new accused we

5 anticipate calling some witnesses that might not have been called in the

6 original case because they deal more specifically with military or police

7 matters than with the political matters. And because of some of the new

8 information we have -- we have come to understand in light of

9 interpretation of new evidence from the witnesses and documents in the

10 Milosevic case causes us to think that we should call additional

11 witnesses.

12 JUDGE BONOMY: Does any of -- does any of this plan to introduce

13 other witnesses that relate to the concept that's been introduced into the

14 case of indirect co-perpetratorship or joint control over the criminal

15 conduct of forces or is it related to something else?

16 MR. HANNIS: Not necessarily, Your Honour.

17 JUDGE BONOMY: I've been struggling with this concept, I have to

18 say, since it appeared and have been trying to understand what it's

19 about. But that's not the source of the additional -- the need for

20 additional witnesses?

21 MR. HANNIS: No. And it's a matter -- it's matter of quality of

22 evidence and efficiency of preparation, Your Honour. One thing that's

23 happening in course of ongoing analysis of information and contacting new

24 potential witnesses as a result of some of those analyses sometimes we

25 find ourselves in the position of having an insider witness, perhaps a

Page 75

1 Serb who was a soldier or policeman or -- on the inside, who may be able

2 to testify not only about deportation but about a killing as well, and we

3 make a decision about, well, do we call that witness to replace our

4 current listed victim of a deportation or as a supplement to. It depends

5 on a lot of circumstances.

6 Did that answer your question?

7 JUDGE BONOMY: Yes. It concerns me that rather than becoming a

8 bit simpler as the result of the review of the indictment the case seems

9 to get increasingly more complex, and one can only have sympathy then for

10 the Defence when the goal-posts are moving and material is not completely

11 disclosed and accused have been before the Tribunal for more or less three

12 years in some instances. It's depressing to find that that's the state of

13 play, and it's very difficult to see that the plan that was in mind to get

14 things going at the turn of the year can be fulfilled, in fact.

15 THE PROSECUTOR: I understand, Your Honour. I share that

16 depression. I can only tell you in the last trial I participated in we

17 were talking about events that happened in 1992, and even up to the last

18 month of trial we were finding out new information and bringing in new

19 witnesses even at that point in time. However, it was our view that it

20 was in the interest of justice and of assistance to the trier of fact to

21 have the best information possible.

22 JUDGE BONOMY: There's no doubt that that's the case, but what you

23 expect is perhaps something to supplement the case that is already there.

24 What we're seeing here is the case itself changing a little as you -- as

25 you amend and that will inevitably, I think, cause some sort of delay in

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Page 77

1 actually getting to trial.

2 MR. HANNIS: I understand that, Your Honour. But that again also

3 is partly a reaction and reflection to the change in and the changing

4 jurisprudence in the Tribunal. What was written in the original

5 indictment, you know, the law of joint criminal enterprise seems to be

6 moving a little bit from where it was in 2003.

7 JUDGE BONOMY: All right. Thank you.

8 Mr. O'Sullivan.

9 MR. O'SULLIVAN: Thank you. This may be the appropriate time to

10 raise this because we're talking about changes to the playing field, as

11 you've called it, and I'm sure Your Honour has seen in the joinder

12 indictment there's also a very, very important addition to this indictment

13 and that is the allegation that all seven accused in this indictment are

14 responsible for alleged crimes which were committed in 1998. This is the

15 first time that any allegations in a Kosovo indictment, of any of the

16 previous Kosovo indictments allege liability of these accused for 1998.

17 JUDGE BONOMY: Well, I don't understand the indictment period to

18 be extended to 1998. What's being said is that knowledge of events and

19 indeed participation in events in 1998 brings home a basis for inferring

20 involvement in the joint criminal enterprise or for inferring knowledge

21 and intent necessary to establish participation in the joint criminal

22 enterprise. However, I see the point you're making in any event that it's

23 necessary to prove the events in 1998 before you can then rely upon these

24 as a basis for inferring the things that the Prosecution may seek to infer

25 from these events.

Page 78

1 MR. O'SULLIVAN: I agree.

2 JUDGE BONOMY: I don't think it's being suggested that you should

3 be held criminally responsible and sentenced for these.

4 MR. O'SULLIVAN: I believe there's -- I accept what Your Honour

5 has said, but I believe it does go further in relation to Mr. Milutinovic.

6 In paragraph 36(e) it says he promoted, instigated, facilitated,

7 encouraged, and/or condoned the perpetration of crimes during 1998.

8 JUDGE BONOMY: And are any of these specified?

9 MR. O'SULLIVAN: Well, they're not, which may go to the form of

10 the indictment. Or I can choose look at Mr. Lazarevic where it says --

11 paragraph 58(f) refers to the crimes charged in 1998.

12 JUDGE BONOMY: I noticed the use -- I think it's only in relation

13 to him, is it, that the word "charge" is actually used.

14 MR. O'SULLIVAN: That's correct.

15 JUDGE BONOMY: And also -- yes, it may have been in relation to

16 General Pavkovic I picked up the use of the word "charged," but it may be

17 in fact in relation to more than one accused.

18 MR. O'SULLIVAN: The other dimension to this is that this greatly

19 broadens the work that we must do in preparing this case. Now these

20 allegations that crimes were committed by the Serbs against Albanians in

21 Kosovo brings into play, in my submission, a review of the Limaj

22 proceedings or the Haradinaj case because we can anticipate the

23 Prosecution calling evidence to suggest that crimes were committed

24 against -- or by Serb forces. Well, to prepare that properly we have to

25 look and see what the events were in 1998, and the best example we have

Page 79

1 here in this Tribunal are the two cases indicting Kosovar Albanians.

2 We're in the same situation as we have been in many other cases in this

3 Tribunal; the Lasva valley, for example, where HVO was on one side and the

4 Bosnian army is on the other. And those are related cases now. And those

5 are things which must be reviewed, and for the first time now we are being

6 put on notice that the Prosecution intends to proceed this way, and it's

7 going to affect us. Even the three original accused now, we must revisit

8 evidence, we must revisit Milosevic, we must look at the Albanian cases.

9 JUDGE BONOMY: What do your pension policies mature?

10 MR. O'SULLIVAN: I beg your pardon?

11 JUDGE BONOMY: What do your pension policies mature?

12 I think the point that you're making is a point for your

13 submissions in relation to the motion to amend the indictment. And I

14 think that was already discussed, was it not, at the meeting that there

15 are a number of issues which -- which clearly we would expect to see

16 featuring in any such challenge. But I note that it's a supplementary

17 point that if the indictment is amended that -- in the way you highlight

18 that that will extend the time necessary to prepare, but that's an issue

19 we can only address once we see the decision on amending the indictment.

20 Mr. Hannis, the point's been made that the allegations of criminal

21 activity are now expanded into 1998, but it's not immediately obvious that

22 there are specific occasions identified in the indictment when these 1998

23 crimes are said to have been committed. Now, you have from I think

24 paragraph 95 onwards reference to events in Kosovo in very broad terms.

25 Is that what's meant by the 1998 crimes?

Page 80

1 MR. HANNIS: Your Honour, I'd like to ask you to listen to

2 Mr. Stamp speak on this issue regarding particular allegations in the

3 indictment.

4 JUDGE BONOMY: Certainly. Mr. Stamp.

5 MR. STAMP: Thank you very much, Your Honour. Reference to

6 paragraph 95 includes what is referred to in the indictment itself, the

7 new amended indictment, but there are other matters, and may I just go on

8 to describe the other matters.

9 JUDGE BONOMY: Are they already referred to in the indictment?

10 THE INTERPRETER: Microphone Your Honour, please.

11 JUDGE BONOMY: Are those other matters already referred to in the

12 indictment?

13 MR. STAMP: The other matters have been dealt with in detail in a

14 previous pre-trial brief. What the indictment proceeds to do is to

15 clarify either a request of the Chambers, the reasons why it could be

16 inferred the accused possessed knowledge or may be said to have

17 participated in the joint criminal enterprise in respect to the crimes

18 charged in the indictment, and those crimes are referred to from

19 paragraph 72 forward of the indictment. There are no new charges. So

20 we're not inviting the Court to consider charges against the accused

21 alleged to have been committed in 1998. However, events in 1998 are part

22 of the context in which the events or the charges that occurred later on

23 in 1999 occurred and ought to be considered.

24 JUDGE BONOMY: But where you say that Mr. Lazarevic and

25 Mr. Pavkovic are charged with crimes committed in 1998, is that a -- just

Page 81

1 a slip of the pen?

2 MR. STAMP: No. The Prosecution does not intend to allege that

3 they have actually been charged with offences in 1998, but --

4 JUDGE BONOMY: And when you say that the accused, and you heard

5 the example given by Mr. O'Sullivan, were responsible for instigating

6 conduct in 1998, do you intend to lead evidence of specific incidents?

7 MR. STAMP: In a general sense evidence has to be led, Your

8 Honour, of the context, the pre-existing context which led up to the

9 circumstances in which the counts charged in this indictment were

10 committed.

11 JUDGE BONOMY: You say that all you intend to rely upon in that

12 regard has already been set out in a pre-trial brief.

13 MR. STAMP: In the pre-trial brief in respect to the first three

14 accused. What I'm trying to convey to the Court is that the Prosecution

15 does not raise as new counts or new charges events relating to 1998. They

16 are merely contextual.

17 JUDGE BONOMY: All right. Thank you.

18 Mr. O'Sullivan, can you identify from that the material you've

19 already been told about in the pre-trial brief?

20 MR. O'SULLIVAN: I don't believe the pre-trial brief or any

21 previous indictment makes these allegations in connection to 1998.

22 JUDGE BONOMY: Well, we're not in a position to resolve that

23 matter at this stage. The issue is one which you now have a little more

24 information on to address it in your submissions in response to the motion

25 to amend the indictment, and it gives you time at least to consider how

Page 82

1 much notice you've previously been given of this.

2 Now, the last time we had a Status Conference in Milutinovic we

3 had an issue over how interviews were to be conducted of proposed 92 bis

4 witnesses. These were interviews that were require to be carried out in a

5 delicate fashion. Have we made any progress on that?

6 MR. HANNIS: No, Your Honour. We had decided to wait until the

7 other Defence counsel were in the case and decide whether or not they

8 might be willing to go along with Mr. O'Sullivan's proposal and then see

9 if we could work something out.

10 JUDGE BONOMY: Well, Mr. O'Sullivan, I think it's for you to take

11 this matter up with counsel for Pavkovic, Lazarevic, and Lukic. They're

12 going to have plenty to do, so hopefully they would willingly accept your

13 offer to deal with some of this on their behalf, especially since the

14 nature of the evidence is such that it's difficult to imagine that your

15 interests are other than consistent.

16 Now, I think, Mr. Ackerman, I'll hear what else you have to say

17 about the joinder at this stage.

18 MR. ACKERMAN: Thank you very much, Your Honour. My remarks

19 basically go to, as I've suggested, that portion of the joinder order that

20 talks about seeing no obstacle to a rather early trial. And I just want

21 to inform Your Honour of where I think we stand upon what I know today.

22 Since being assigned to this case, I've received I believe 206

23 CDs. That number may be a little soft; it may be 208 or 204. And I

24 understand there are more to come. Mr. Bakrac tells me he's received 280,

25 which means I may have another 74 or something headed my way. I don't

Page 83

1 know the basis for that discrepancy at all.

2 In the time I've been assigned, I have concentrated a significant

3 portion of my time on just trying to figure out what is on each of those

4 CDs. I've managed to get through 80 of them in the last 30 days or so,

5 and that doesn't mean I'm looking at them for content particularly but to

6 determine what they are and thereby know whether to assign them to another

7 member of my staff. For instance, a number of them are either one-hour or

8 two-hour broadcasts of news programmes from Belgrade television during the

9 course of the war in Kosovo. I can't understand a thing that's on those,

10 and so I have to send those off to my co-counsel in Belgrade to have him

11 look at them and determine what they contain.

12 That process, obviously, is going to take a significant additional

13 time just to make the preliminary decision regarding those, and then

14 extracting the content is another matter entirely.

15 There is the electronic disclosure materials. When I first came

16 on the case, I think there were two batches there, maybe three. It's now

17 risen to five just in the short time that I've been there.

18 JUDGE BONOMY: Is there any reason to think, though, that that is

19 material which isn't on the CDs?

20 MR. ACKERMAN: It's definitely not on the CDs. That's why it's in

21 EDS. The things that are on the CDs are simply things that apparently

22 could not be put in the EDS system. All the videos couldn't go in the EDS

23 system. So everything in EDS is totally different from -- there maybe

24 duplications because there always are, but basically it's totally

25 different.

Page 84

1 There are five batches there. The Prosecution cannot tell me how

2 many pages of material are there. The estimates that I've heard range

3 between 250.000 pages and 1 million pages. The Prosecution can't tell me

4 how many -- what -- what number of pages in that material represent

5 Rule 68 material.

6 Your Honour might have seen in my -- in my joinder motion the math

7 regarding this. We throw these numbers around in this Tribunal to the

8 point where they have, I think, lost meaning in in terms of the number of

9 pages of discovery. 250.000 pages of material is an overwhelming amount

10 of material, Your Honour. If you put it in binders at 500 pages per

11 binder, you've got 500 binders of material. It's 500, 500-page books. I

12 told you reading at two minutes per page, a 40-hour week, it would take

13 208 weeks just to read it. Just to read it. So two counsel working on it

14 couldn't even complete in a year and get through the material.

15 And that's the EDS material. There is all of the material from

16 the Milosevic trial. I'm advised by other counsel in the case that it

17 will require at least six months to work through that material and

18 properly deal with that.

19 If we have to deal with the Limaj and Haradinaj material because

20 of the 1998 issue having -- the possibility that that will arise, that

21 adds another rather large layer.

22 There are the 12 expert reports that you've suggested today that I

23 need to make a rather priority and get those and read through those. I

24 don't have any idea how many pages that is and how long it will take me.

25 We've discussed today that Rule 66 disclosure is not yet complete

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1 and there's more material coming my way. We don't know how many

2 additional witnesses. We don't know how many additional documents.

3 There are I don't know how many witness statements that are

4 disclosed in various ways that I will need to deal with. Once we deal

5 with them, then we'll have to make decisions about what we want to do with

6 regard to any investigation we might want to carry out.

7 JUDGE BONOMY: Are you saying that the 206 CDs plus the EDS

8 material is not witness statements? Witness statements are over and above

9 that?

10 MR. ACKERMAN: I don't think so. I think they're contained within

11 that material. I don't know but I think they are. I think that's -- it's

12 fair to assume that they are.

13 There's this -- there's the issue of 92 bis witnesses. I know at

14 some point Your Honour is going to expect me to deal with the issue of

15 92 bis witnesses, and I don't see how I can do that until I have gone

16 through all the material because it may very well be the last document I

17 look at it will be the document that would -- that impeach a proposed

18 92 bis witness. So until I'm familiar with the material, I don't know how

19 I can give Your Honour a -- any kind of a position with regard to whether

20 or not I could agree to a 92 -- proposed 92 bis witness.

21 And it's not -- and the thing that is so important, Your Honour,

22 to understand, it is not just reading through the material. If that were

23 all that was involved, it would make the matter much easier. It is

24 analysing that material, correlating that material, cross-referencing that

25 material, getting that material into some form so that if -- if I need in

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1 the future something that I remember having read as I go through this I'll

2 know how to find it, where it is. I'll have cross-reference it had in

3 some way that I can use of it.

4 The other thing that -- that complicates the matter is as we go

5 through these documents it will become clear that there are a number of

6 documents, a number witness statements, a number of -- a large number of

7 material that -- that needs to be discussed with the accused, in

8 consultation with the accused. That takes hours and hours and hours of

9 time, just those consultations, and the efficiency with which you can do

10 that as I mentioned to you in the hearing yesterday may depend a great

11 deal upon whether the accused is here or in Belgrade. But suffice it to

12 say, that's another major big problem that we're facing.

13 I've suggested if you just take the EDS material, reading it two

14 minutes per page, two counsel, two years -- one year, two counsel, one

15 year just to get through that, I think it's a reasonable estimate, Your

16 Honour, that in compliance with the Statute of this Tribunal that I cannot

17 be ready to try this case before about the fall of 2007, and that's if we

18 don't have a major problem arising out of this new 1998 material which I

19 didn't consider when I filed my opposition to the motion for joinder.

20 It would be -- it would be malpractice and a violation of my oath

21 as a counsel and a violation of the -- of the ethical standards both in

22 the bar to which I belong and the -- and this Tribunal to go to trial

23 without having properly prepared. I couldn't possibly go to trial with

24 not having read, for instance, every page of the Rule 68 material. The

25 Prosecution provides that on the proposition that this is material which

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1 might be exculpatory of the accused. Well, I can't possibly not read

2 that, be familiar with it and understand it and announce to you that I'm

3 ready to go to trial because I can't be.

4 It's a huge problem.

5 JUDGE BONOMY: Can I just interrupt you briefly.

6 MR. ACKERMAN: Yes, you certainly can.

7 JUDGE BONOMY: We're going to have a break shortly because we have

8 little time left on the tape, so can you give me some indication of timing

9 here? We're not far from the end of the Status Conference but it's in

10 your hands.

11 MR. ACKERMAN: I think my speech is virtually ended, Your Honour.

12 I think I've gone through -- I've gone through my list basically, and I'm

13 actually kind of summing up think point. So I think I could simply say

14 that -- that based upon what I've suggested to you I feel that I -- I am

15 assigned to Mr. Pavkovic, and my job is to provide him the highest level

16 of assistance of which I'm capable. I can't do that if I don't understand

17 what the Prosecution's case is. I can't do that -- we have rules that

18 provide for discovery. We have rules that provide the Prosecution must

19 turn over certain materials. It would be a mockery of those rules if I

20 were permitted time to read that material. And so that's what I have to

21 say about that. I think we need significant time to

22 prepare.

23 JUDGE BONOMY: Thank you, Mr. Ackerman.

24 Now, I have noted the various things that were said by the

25 Prosecution about the likely length of the case and the various things

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1 said by the counsel for the various accused at the 65 ter meeting. Is

2 there anything else that anyone wishes to raise this afternoon?

3 MR. HANNIS: Not from me, Your Honour.

4 JUDGE BONOMY: Mr. Scudder?

5 MR. SCUDDER: Judge, could I just say that on behalf of the other

6 defendants added with Mr. Ackerman's client we have exactly the same

7 reaction. I've been doing this for 40 years. In my jurisdiction, the

8 circuit court of Cook County, which I'm told is the largest court in the

9 United States, I had an appeal of the largest civil bench trial up to that

10 time and had to read 10.000 pages, which I thought was large. Then I

11 joined the US government, and we had a nine-month political trial called

12 the Chicago 7 trial. We had a 100.000 pages to read, and when I see what

13 is involved in this case it's bigger than anything I have ever seen before

14 and so I have the same reaction Mr. Ackerman does.

15 JUDGE BONOMY: Thank you, Mr. Scudder.

16 Yes, Mr. Bakrac.

17 MR. BAKRAC: [Interpretation] Your Honours, I am in full agreement

18 with what has been said by Mr. Ackerman and Mr. Scudder. I've been on the

19 case for some two to three months or, rather, I came to the case two to

20 three months before them because Mr. Lazarevic came to the Tribunal

21 earlier, but I have to adjust the mere technical issue of opening the CDs

22 and transferring them to the hard disk is a complex one. Mr. Ackerman

23 mentioned the CDs, 280. I didn't really count them but just to give you

24 an example, to transfer a file of 150 gigabytes, just doing that alone, is

25 a major task, let alone analysing the material. Therefore I support

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1 everything that has been said by my colleagues and believe that needs to

2 be taken into account.

3 JUDGE BONOMY: Thank you, Mr. Bakrac.

4 Well, I think it's appropriate to bring these proceedings to a

5 conclusion. What I propose to do is on the next occasion to have a 65 ter

6 Conference which I will attend, which means that we probably won't have a

7 Status Conference until December, but we will probably have a 65 ter

8 Conference in October. Now, the date of that will depend on how the Trial

9 Chamber deals with the question of amendment and also the position in

10 relation to Mr. Ackerman's motion for Mr. Pavkovic. So that date will be

11 announced at an appropriate time.

12 Meanwhile, I simply urge all counsel to make every endeavour to

13 become familiar with as much of the material as possible on the basis that

14 the plan is still to have a trial at the earliest possible date, and

15 therefore your duty is to commit yourselves fully to becoming as prepared

16 as you possibly can at the earliest possible date.

17 That brings these proceedings to an end, and I adjourn the

18 sitting.

19 --- Whereupon the Status Conference adjourned

20 at 4.44 p.m.