Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Wednesday, 6 July 2005

 2                          [Status Conference]

 3                          [Open session]

 4                          [The accused not present in court]

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

 6            JUDGE ROBINSON:  Will the registrar call the case, please.

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

 8    This is case number IT-04-81-PT, the Prosecutor versus Momcilo Perisic.

 9            JUDGE ROBINSON:  Thank you.  May we have the appearances.

10            MR. STAMP:  Thank you very much, Your Honour, and good afternoon.

11    For the record, I'm Chester Stamp along with Mr. Karim Agha for the

12    Prosecution, and Ms. Skye Winner is our case manager.

13            JUDGE ROBINSON:  Thank you.  For the Defence.

14            THE INTERPRETER:  Microphone, please.  Counsel, microphone.

15            MR. CASTLE:  Jim Castle appearing on behalf of Momcilo Perisic,

16    whose appearance has been waived for this proceeding.  Also present is

17    Tina Drolec who is our case manager.

18            JUDGE ROBINSON:  Thank you very much.

19            This is the first Status Conference in respect of the accused

20    Momcilo Perisic.  Nonetheless, it raises the same kind of issues that we

21    deal with in Status Conferences, so I'll proceed as quickly and as

22    efficiently as possible.  First with pending motions, and I will just go

23    down a list I have and call on the parties as appropriate.

24            The following motions have been filed and are with the Chamber:

25    There is a motion to strike portions of the indictment alleging

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 1    responsibility for reckless acts, and a motion to strike portions of the

 2    indictment alleging responsibility for other inhumane acts.  There is also

 3    a motion to strike portions of the indictment alleging command

 4    responsibility and one for -- in respect of lack of specificity, and the

 5    Prosecution has filed a consolidated response for the first two and a

 6    separate consolidated response addressing motions three and four.

 7            I turn next to disclosure, 66(A)(i), supporting material to the

 8    indictment.  Mr. Stamp, can you tell us about the state of disclosure.

 9            MR. STAMP:  As far as Rule 66(A)(i) disclosure is concerned that

10    was completed some time ago, and the Prosecution did file a notice of

11    compliance.  There was one document accepted, a document which had

12    inadvertently been included in the supporting material although it was a

13    Rule 70 document.  The Defence in a cooperative way did waive disclosure

14    of that document for the purposes of time running for Rule 72 application,

15    and we are making efforts to obtain a copy of that document nonetheless to

16    have it disclosed to Defence, and we expect to do so soon.

17            JUDGE ROBINSON:  Mr. Castle.

18            MR. CASTLE:  We're satisfied with their efforts, and we're working

19    in a cooperative manner on that issue.  We have no objection at this point

20    to the delay of disclosure of that particular document.

21            JUDGE ROBINSON:  And I take it, Mr. Stamp, in respect of the

22    Rule 70 provider you're endeavouring to obtain the consent?

23            MR. STAMP:  We are obtaining -- endeavouring to obtain --

24            THE INTERPRETER:  Microphone, counsel, please.

25            MR. STAMP:  I beg your pardon.  We are -- we have made efforts to

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 1    obtain that consent, and we are also making efforts to obtain a copy of

 2    the document from other sources that will allow us to disclose it.

 3            JUDGE ROBINSON:  Very well.  I understand there are 19 witness

 4    statements and interviews in the supporting material, although as we will

 5    see next, that doesn't represent the totality of the number of witnesses.

 6            Mr. Stamp, again, on the number of witnesses.

 7            THE INTERPRETER:  Microphone, please, microphone.

 8            JUDGE ROBINSON:  Microphone.

 9            MR. STAMP:  I'm sorry.  I'm out of practice.

10            Should this case be tried and there's -- and we need to prove by

11    viva voce evidence all the allegations in the indictment, we would

12    probably need to call somewhere in the region of 170 to 200 witnesses,

13    because the case involves three crime bases, two of them being very, very

14    large crime bases and covering a long period -- covering long periods of

15    time, and I speak of the Sarajevo crime base which covers almost two

16    years, a whole city which was the capital of the country, and the

17    Srebrenica crime base which covered a period of months.

18            However, we believe that this is a case which will benefit very

19    much from documents coming in on the basis of adjudicated facts, and also

20    from agreement we have so far had a very cooperative relationship with the

21    Defence, and much of the witness evidence in respect to the crime base,

22    which is a bulk of the evidence in the case, would most likely be material

23    that could be received in evidence under Rule 92 bis.  So we believe that

24    as -- that over a period of time the size of the case in terms of time

25    could be narrowed significantly.

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 1            JUDGE ROBINSON:  But any estimate for the Prosecution case?

 2            MR. STAMP:  At this stage the estimate would be just too vague.  I

 3    could say eight months, a year, to three years.  On one extreme, if we had

 4    to prove all of this by viva voce evidence, if there were no adjudicated

 5    facts, if there was very little 92 bis, then there would be a significant

 6    amount of evidence led for the Prosecution and also for the Defence, but I

 7    don't think we will come to that, and I think I could give a much clearer

 8    idea of how long this case would last in the forthcoming months.  And I

 9    suspect it would be a much more abbreviated estimate.

10            JUDGE ROBINSON:  Okay.  Thank you.  Depending on the progress that

11    is made, at the next Status Conference I may set a deadline for disclosure

12    of Rule 66(A)(ii) statements.

13            Now, Rule 68, that's the mitigating exculpatory material.  Your

14    comment on that, Mr. Stamp.

15            MR. STAMP:  In respect to Rule 68(i) material which we know would

16    fall under the Rule, we're in the process of compiling what would be a

17    significant amount of disclosure in terms of number of documents that we

18    will disclose electronically to the Defence, and we expect to do so before

19    the next Status Conference.

20            In respect to 66(A)(ii), the Defence is aware that most of the

21    material that are available to us is now searchable by them, and the

22    material which is not available for their searches we propose to do the

23    appropriate searches.  We have already talked to the Defence asking them

24    to provide us with some guidance as to the areas or the categories that

25    they would consider to be exculpatory material to assist us in focusing

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 1    the searches of those material, and that represents about 20 per cent of

 2    material that the OTP has, material which is witness-related material as

 3    well as material that comes under Rule 70.

 4            So again, we are, for the time being, in a process of cooperating

 5    and getting that aspect of the -- of the trial preparation discharged.

 6            JUDGE ROBINSON:  Thank you, Mr. Stamp.

 7            Mr. Castle, on this point and in particular on the guidance being

 8    sought as to the criterion for Rule 68 material.

 9            THE INTERPRETER:  Microphone, please, counsel.

10            MR. CASTLE:  Our position is we have no objection to providing

11    that guidance.  However, it's our position that it's actually the duty of

12    the Prosecutor to make those searches even if we do not provide that

13    guidance, but I will most certainly endeavour to provide that guidance

14    where we can.

15            The problem that is presented when you try to do that is often by

16    providing that guidance you are tipping your hand, so to speak, at the

17    direction of the Defence and so tactically there may be reasons why we

18    cannot do that, but where we can do it I will certainly provide that

19    information to the Prosecutor.

20            JUDGE ROBINSON:  Well, you are right, of course, that ultimately

21    the duty's on the Prosecutor under Rule 68, but to the extent that you

22    can, then that would assist the process.

23            Rule 66(B).  I understand, Mr. Castle, that you have

24    invoked 66(B).

25            MR. CASTLE:  We have, and we'll be following that up with written

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 1    invocation of 66(B).

 2            JUDGE ROBINSON:  Yes.  Thanks.  Expert reports under 94 bis.

 3    Mr. Stamp, I understand that you anticipate calling 15 expert witnesses.

 4            MR. STAMP:  Yes.  That was an estimate.

 5            JUDGE ROBINSON:  Yes.  Can you tell us anything more about the

 6    reports, the nature of the reports that they will be providing?

 7            MR. STAMP:  There are three crime bases, and there will be expert

 8    reports in respect to the commission of the offences, the direct

 9    commission of the offences in those crime bases.

10            Sarajevo, if I could give an example, would involve expert reports

11    by persons who can give opinion evidence about sniping and reports by

12    persons who can give opinion evidence about shelling.  Then having regard

13    to the casualties, the quantum of the casualties, we would need another

14    expert report for that in Sarajevo, and also, as you can imagine, we would

15    need similar types of reports in respect to the shelling in Zagreb as well

16    as Srebrenica.

17            There are also expert reports which have been commissioned in

18    respect to the allegations covering the chain of the authority of command,

19    the link of the accused to the offences.  Two such expert reports have

20    been commissioned, and although I'm not able to advise as to precisely

21    when they'll be ready, I think by the next Status Conference I would be in

22    a better position to give a time when they can be complete.

23            So some reports may be done by one expert.  It is possible that

24    one expert may do shelling reports in respect to -- or I shouldn't say

25    shelling reports but may do reports in respect to different matters.  So

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 1    the estimate is about 15 reports.  There might be slightly less experts

 2    testifying.

 3            JUDGE ROBINSON:  I see.  Yes.  Pre-trial preparation.  You

 4    commented already, Mr. Stamp, on the possibility of utilising Rule 92 bis

 5    and 89(F), and I would encourage you to utilise those Rules as much as

 6    possible.

 7            I'd also encourage both parties to meet to discuss the use of

 8    adjudicated facts, agreed facts, and stipulations, and in fact, I will

 9    require a report by the next Status Conference on the status of those

10    discussions.

11            The next Status Conference has to be convened on or before

12    Thursday, the 3rd of November, 2005, and I will set Wednesday, the 26th of

13    October as the date of the next Status Conference unless I hear any

14    indications of difficulties.

15            Mr. Castle, your client is on provisional release, so the question

16    of conditions of his detention doesn't arise at this stage.

17            Is there any other matter that any of the parties would wish to

18    raise?

19            MR. STAMP:  Nothing from this side, Your Honour.

20            MR. CASTLE:  Nothing from the Defence.

21            JUDGE ROBINSON:  Thank you.  Well, there being no other matter,

22    the hearing is adjourned.

23                          --- Whereupon the Status Conference adjourned

24                          at 3.17 p.m.