Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Wednesday, 11 October 2006

 2                          [Status Conference]

 3                          [Open session]

 4                          [Accused not present]

 5                          --- Upon commencing at 8.02 a.m.

 6            JUDGE ROBINSON:  Mr. Registrar, will you call the case, please?

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

 8    IT-04-81-PT, the Prosecutor versus Momcilo Perisic.

 9            JUDGE ROBINSON:  And may we have the appearances?

10            MS. SOMERS:  Good morning, Your Honour.  For the Prosecution,

11    Susan Somers; to my right, Ms. Carmela Javier, case manager; and to my

12    left, Mr. Frederick Ossogo, trial attorney.

13            JUDGE ROBINSON:  And for the Defence?

14            MR. CASTLE:  Good morning, Your Honour.  Jim Castle appearing on

15    behalf of Mr. Perisic.  To my left is Ms. Tina Drolec and also Danijela

16    Vurdelja.

17            JUDGE ROBINSON:  Thank you very much.

18            This Status Conference is conducted pursuant to Rule 65.  We have

19    a number of matters to deal with.

20            At the outset, I would like to say that generally I have not been

21    satisfied with the stage of preparation and the rate of preparation for

22    trial.  In particular, it does not appear to me that the Prosecution has

23    been diligently discharging its obligations relating to disclosure.  I, as

24    you have been informed, will establish a work plan and we'll deal with

25    that after I have dealt with a number of preliminary matters.

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 1            66(A)(i) disclosure, I understand, is complete with the exception

 2    of one document - I think we have dealt with this before - subject to Rule

 3    70.  And, Ms. Somers, I now understand that you're not in a position to --

 4    or you have not been able to obtain consent.

 5            MS. SOMERS:  That is correct, Your Honour.  I have consistently

 6    been speaking with Mr. Stamp who has been trying, but he's not been able

 7    to do that.

 8            JUDGE ROBINSON:  The consequence of that is, no doubt, known to

 9    you.

10            66(A)(ii), I had ordered at the last Status Conference the

11    Prosecution to provide copies of all witness statements, including 92 bis

12    and 89(F), by the 18th of August.  On that day, the Prosecution filed a

13    preliminary list of witnesses -- 366:  161 viva voce; 200 92 bis; and five

14    Rule 94 bis.

15            Ms. Somers, anything specific on this?

16            MS. SOMERS:  Your Honour, the numbers appear to be pretty

17    accurate.  The Prosecution is continuing, as it gets the additional

18    statements -- obviously, the disclosure was very large, and we are

19    continuing to supplement as additional materials, either exhibits to

20    testimony or to statements, come in, or as additional statements are found

21    through the searching process.

22            JUDGE ROBINSON:  Mr. Castle?

23            MR. CASTLE:  Yes, Your Honour.  As we had discussed yesterday at

24    the Rule 65 ter conference, the disclosure came in two forms.  Initially

25    it was a list of witness names and then subsequently we were provided with

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 1    a spreadsheet that identified statements that the 366 witnesses had made.

 2    Accompanying that was some materials concerning those statements.  It

 3    wasn't complete at that time.  Since that time, there have been more and

 4    more statements that have been produced by the Prosecution.

 5            Our main concern at this point is the non-production of statements

 6    that relate to individuals who have not been specifically identified in

 7    that list of 366 witnesses.  Within that 366 witnesses, I believe there

 8    are 17 witnesses that are given generic-type names, such as senior VRS

 9    officer or legal and constitutional expert or senior FRY political figure,

10    things of that nature.  And that's the only designation that's been

11    provided to the Defence.  There are no statements, either redacted or

12    otherwise, that have been provided for those witnesses.

13            At the Rule 65 ter yesterday, there was discussion on this issue,

14    and it's our request that the Prosecution be ordered to produce the

15    identities of these individuals, unless there is some kind of a Rule 70

16    protection issue or unless there is an order by the Court authorising

17    non-disclosure.  That's first of all.

18            And second of all, what we are requesting is that the statements

19    be produced at least with the names redacted at this point, if there is

20    Rule 70 or some other protective issue involved.  If there isn't one, then

21    it's our position that the full statement and the names ought to be

22    produced.

23            These are all fairly important witnesses in this case, from what I

24    can tell, just by their designation as something such as senior

25    international political figure.  I'm not sure what that is, but I can't

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 1    imagine it would be a small person in this case, if they are a senior

 2    international political figure.

 3            So our position is that, in the spirit of 66(A)(ii), and in the

 4    spirit of being prepared as early as possible with this case, that

 5    production of these materials ought to be done.

 6            In addition, Your Honour, one of the things I forgot to talk about

 7    yesterday at the Rule 65 ter is the concept of final statements versus

 8    statements of these witnesses.  In review of these statements of the 366

 9    witnesses, it does not appear that what is considered a final witness

10    statement, i.e., a statement that was produced for the purposes of this

11    case, has been included in these materials.  So I don't believe any final

12    statements have been taken of any of the witnesses in preparation of this

13    trial.  And if so, we would ask for production of that.

14            MS. SOMERS:  Your Honour, may I?

15            JUDGE ROBINSON:  Yes, Ms. Somers?

16            MS. SOMERS:  May I respond partly in open session and request a

17    few minutes of closed session, if possible.

18            JUDGE ROBINSON:  Yes.

19            MS. SOMERS:  First of all, in terms of final statements, as this

20    Chamber is well aware, not unlike the Milosevic case, this case, at the

21    crime base level, is composed of multiple cases that have gone to trial

22    here or are presently going to trial.  So, for purposes of the statements

23    that are used at that level, those are the statements.  If they are to be

24    supplemented at some point, either for a 92 ter or a 92 bis use, then that

25    would be one possibility.  Or, as the Chamber knows, when people are

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 1    coming in for proofing, if they come in viva voce, there is sometimes some

 2    addition which the Defence is immediately made aware of.

 3            JUDGE ROBINSON:  So the statements from the other trials are the

 4    statements?

 5            MS. SOMERS:  In the crime base, at this point, yes, Your Honour.

 6            JUDGE ROBINSON:  The final statements.

 7            MS. SOMERS:  From Srebrenica, from Galic, from Dragomir Milosevic

 8    which is about to go to trial, and from Martic which is presently in

 9    trial.  So this, again, is very similar to the cases with which Your

10    Honour is familiar.

11            In terms of linkage issues, if I may ask for a moment of private

12    session.

13            JUDGE ROBINSON:  Yes.  Private session, please.

14                          [Private session]

15  (redacted)

16  (redacted)

17  (redacted)

18  (redacted)

19  (redacted)

20  (redacted)

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

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11    Pages 61-63 redacted. Private session.















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 1  (redacted)

 2  (redacted)

 3  (redacted)

 4  (redacted)

 5  (redacted)

 6  (redacted)

 7                          [Open session]

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

 9            MR. CASTLE:  In our case, we are in a situation where we need to

10    be as prepared as possible.  And I believe that the trial will be shorter,

11    more efficient and fairer if we have all the materials as soon as possible

12    that relate to our client's conduct.  And it's literally been a very long

13    time, and I would have thought that by now, any issues with other

14    governments or with these witnesses could have been taken care of.  But

15    here we are.

16            JUDGE ROBINSON:  Ms. Somers, the statements or reports for the

17    linkage witnesses, are those in a final form or --

18            MS. SOMERS:  Your Honour, if I may first comment.  This case, of

19    course, is a case that is both 7(1) and 7(3).  The likelihood of many of

20    these persons dealing directly with General Perisic is not what the

21    Prosecution is seeking their input for.  It is an issue of notice, in

22    great matter, of what is taking place.  As Your Honour knows, what happens

23    on the ground is, of course, reported up.  So notice issues are extremely

24    important.  And whether or not these persons ever had any dealings with

25    General Perisic may be doubtful.  What the Court will have to have is

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 1    enough evidence so that argument can be made.  This is a highly -- it's a

 2    case, naturally, of circumstantial evidence based on being the highest

 3    commander in the VJ.  So the likelihood may or may not exist, which brings

 4    me to a second point, Your Honour.

 5            This is why we have asked for time to have the ability to check

 6    the archives which have just been made available.  This case should be a

 7    rich document case.  We have just never had the ability to make that call

 8    because we never had the access until this recent period.

 9            I fully understand the questions, but the litigation in this

10    institution, as Your Honour knows, is the top is built up from the bottom

11    and many of the bottom cases have been tried.  And the inferences that

12    will have to be drawn through argument are required representing the lower

13    level cases, including all of those persons who were on the ground dealing

14    with persons in the upper structure.

15            So perhaps my learned counsel opposite didn't realise that or has

16    not seen that notice is one of the most critical points here and it would

17    not require the type of inquiry necessarily as has been made.  Thank you.

18            JUDGE ROBINSON:  Just to remind you that we have to finish by

19    8.30.

20            MS. SOMERS:  I appreciate that.

21            JUDGE ROBINSON:  I thought we had until 9.00.

22            MS. SOMERS:  So there is no misunderstanding, it's not likely that

23    many people will have had contact with the general.  It wouldn't be

24    required for this type of case.

25            JUDGE ROBINSON:  Thank you, Ms. Somers.

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 1            With regard -- may I say, then, since we have to move more quickly

 2    than I had thought, that the application that the Prosecution made to

 3    vacate the order of the 14th of June concerning the filing time for

 4    military reports will be denied.  I believe the Prosecution has had more

 5    than enough time to deal with these matters.

 6            May I turn, then, very quickly to the work plan which has been

 7    distributed to you, and to just go through it and to have comments, if you

 8    have any.

 9            On the 20th of November, the Trial Chamber will request the

10    Prosecution to propose ways of reducing the indictment, and then on the

11    27th of November we'll have a 65 ter conference.

12            On the 4th of December, that's the deadline for the Prosecution to

13    file proposals for reducing the indictment, pursuant to Rule 73 bis.

14            On the 19th of February - that's 2007 - the Prosecution is to file

15    its pre-trial brief and all the material required under Rule 65 ter (E),

16    including its witness and exhibit lists, conforming to the requirements of

17    65 ter (E)(ii) and (iii), indicating with respect to each witness the

18    exhibits the witness will offer in evidence.  The lists will also indicate

19    with respect to each exhibit the witness who will offer the exhibit in

20    evidence.  With regard to each proposed viva voce witness, the Prosecution

21    will indicate whether the witness will offer written evidence pursuant to

22    Rule 92 ter.  With regard to each proposed 92 bis witness, the Prosecution

23    will indicate whether it believes the witness should attend for

24    cross-examination.

25            On the 19th of March, 2007, the parties will file a joint

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 1    submission setting out where agreement has been reached on matters of law

 2    and fact, and what points have not been agreed upon.  And the Prosecution

 3    on that day will also file any motion for adjudicated facts and any motion

 4    for judicial notice of documentary evidence.

 5            There will be a 65 ter conference on the 26th of March.

 6            On the 2nd of April, the Prosecution will file a motion clearly

 7    stating, one, which witness will be proposed as a 92 bis witness, whether

 8    statement or transcript witnesses, whether it is proposed that they attend

 9    for cross-examination, and any other relevant information, also which viva

10    voce witnesses it is proposed will give evidence-in-chief, in writing,

11    according to Rule 92 ter.  And the Prosecution will also file a motion

12    requesting admission of any written testimony in accordance with Rule 92

13    bis and Rule 92 ter.

14            The 2nd of April, Defence pre-trial briefs will be due.

15            The 23rd of April, the case will be ready for a Pre-Trial

16    Conference, and on the 30th of April, the case is to be ready for trial.

17    So we are working towards a trial date, a readiness for trial, on the 30th

18    of April.

19            And I want to stress to both parties that nothing is to stand in

20    the way of parties fulfilling their obligation under this work plan, and I

21    mean nothing.  Nothing that is taking place elsewhere is to stand in the

22    way of this work plan, and the discharge of the obligations of the parties

23    under the work plan.

24            Any comments?  Ms. Somers?

25            MS. SOMERS:  We mentioned yesterday, Your Honour, that the

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 1    November 27th date was not -- sorry, carved in stone.

 2            JUDGE ROBINSON:  The November 27th date?

 3            MS. SOMERS:  Yes, that there may have been -- that there may have

 4    been some wiggle room for perhaps later in the week, but we would raise

 5    that --

 6            JUDGE ROBINSON:  I see.  For the 65 ter --

 7            MS. SOMERS:  Yes, in November.  Yes, yes.

 8            JUDGE ROBINSON:  November the 27th, what day of the week is that?

 9            MR. CASTLE:  Monday.

10            JUDGE ROBINSON:  What would you like to propose, then?

11            MS. SOMERS:  If, perhaps, later in the week.  Both counsel thought

12    it might be difficult that day for reasons of --

13            JUDGE ROBINSON:  Shall we put it, then, to Thursday or --

14            MS. SOMERS:  Or Friday, if the Chamber is available.

15            JUDGE ROBINSON:  Friday?  Friday will be what date?  Friday would

16    be the, what?

17            MS. SOMERS:  I'm sorry, I don't have a calendar.  Just one second

18    and I'll tell you.  Friday will be the 1st of December, Your Honour.

19            JUDGE ROBINSON:  Friday, the 1st of December.  Yes.  We will work

20    on that basis.  Friday, the 1st of December.

21            Mr. Castle?

22            MR. CASTLE:  The only thing that I would add is, yesterday at the

23    Rule 65 ter conference, there was also discussion as to whether the March

24    19th, 2007 date should also be a deadline by which the Prosecution should

25    file a motion seeking admission of any materials that they believe fall

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 1    under the judicial notice rule, if such agreement hasn't been made between

 2    the parties prior to that date.

 3            JUDGE ROBINSON:  Yes, that's included.  It has been included and I

 4    did mention that.

 5            MR. CASTLE:  I apologise.  Okay.

 6            Your Honour, the only other thing that we would ask, and this has

 7    been subject of discussion between the parties, we have yet to be able to

 8    receive the intercepts of our client's statements that they intercepted

 9    and we would ask, because of the various litigation that can flow from

10    those intercepts, that somewhere in that case plan schedule, the

11    Prosecution be required to produce those intercepts.

12            JUDGE ROBINSON:  Where would you suggest?

13            MS. SOMERS:  Your Honour --

14            MR. CASTLE:  I would ask -- let me hear from Ms. Somers.

15            MS. SOMERS:  Yes.  The staff who are involved in working with

16    those, which, of course, include translations, are mobilised.  But it is a

17    lengthy process.  Much of the much material is not translated.  So I just

18    would ask as late as possible, because it will take a reasonable amount of

19    time to make sure that they are in a form that is useful for the Defence.

20            JUDGE ROBINSON:  Well, I'll not identify the date now, but the

21    order is going to be made to which the work plan will be attached by the

22    end of today, and I'll fix the date for that in that order.

23            Mr. Castle?

24            MR. CASTLE:  Since we have one more minute left, Your Honour,

25    there was an issue brought up yesterday at the Rule 65 ter conference

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 1    concerning the Prosecution being required to identify exculpatory material

 2    under 68(i) both prospectively and retrospectively.  We would ask that

 3    that --

 4            JUDGE ROBINSON:  Let me clarify that.  The position is that the

 5    rule requires that the Prosecution disclose exculpatory matter, material

 6    that is within its actual knowledge.  That means that the Prosecution does

 7    not have to trawl through hundreds of pages to find material that is

 8    exculpatory.  But, Ms. Somers, it does mean that you must let the Defence

 9    know which of the material that you have disclosed is 68(i) exculpatory,

10    68(ii) relevant, or 66(B).

11            MS. SOMERS:  May I just comment, Your Honour?

12            JUDGE ROBINSON:  Yes.

13            MS. SOMERS:  First of all, certainly prospectively we will, if the

14    Chamber is so ordering on 68(i).  What we have done is our disclosures

15    usually say "68" or "66" because the call is very difficult to make.

16    Where it just says "68", just "68", it is general and that is particular

17    to a disclosure of a number of materials from about 20-something binders.

18    That would have been our shorthand for 68(i).  But we would ask that this

19    be prospective.  If the Defence has a question, we will certainly gladly

20    try to interpret for them what the particular intent was.  But I've gone

21    through the materials, and that is consistent with how we've read it.  We

22    cannot make certain calls on whether it is 66, unless it's from a

23    collection that we are pulling off the EDS.

24            But when we are looking at something, for example, from the Drina

25    Corps collection, I was going through -- as Mr. Boas recognised yesterday,

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 1    we look through things for the Prosecution's trial preparation.  I saw

 2    that there were things that met the description of something that Mr.

 3    Castle raised that may be exculpatory.  We don't necessarily agree, but we

 4    respect the assistance in identification of materials.  We passed it on

 5    and indicated that, in fact, we found these.

 6            So we certainly will henceforth do that.  I think that is easily

 7    identifiable from the other materials that have come out.  But it would be

 8     -- if the Chamber would, based on Krstic, not require it -- if the order

 9    is from today, the Krstic judgement, at para 190, is quite specific about

10    obligations, and the Prosecution has followed quite religiously the Krstic

11    judgement.  But henceforth, the Chamber's order as to the identification

12    will certainly be -- we will certainly do that.

13            JUDGE ROBINSON:  Yes, Mr. Castle?

14            MR. CASTLE:  The problem I have is that at the last Status

15    Conference, Your Honour brought up this concept and had indicated that

16    they couldn't take an exculpatory document and just toss it in a sea of

17    documents, and advised counsel of that.  I have their disclosure log, and

18    the only things that are marked as just Rule 68 is one interview with

19    Radislav Krstic and witness testimony in the Halilovic case.  The rest of

20    it is done in the alternative.

21            The problem is, this isn't 20.000 pages to look through - if it

22    was, I wouldn't have a problem - but it's 460.000 pages that we have to go

23    through.  And there is going to be more coming our way and, frankly, we

24    are never going to be able to review all of it.  We have to make cuts.

25            So if they come across a document they believe is exculpatory,

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 1    they should identify it.  But, also, if they have done that in the past,

 2    we also need to know that, certainly from -- prospectively from the last

 3    Status Conference when the Court indicated they couldn't do that.

 4            JUDGE ROBINSON:  What they are saying is that in some cases it's

 5    not possible, it's very difficult to say whether it's exculpatory under

 6    68(i) or 66(B).

 7            MR. CASTLE:  I understand.  But I believe that if it's possible

 8    that it's exculpatory, they should identify it as potentially exculpatory.

 9    I think that's the way the case law deals with exculpatory material.  If

10    there is any chance it's exculpatory, it needs to be produced as such.

11            JUDGE ROBINSON:  Yes, I would agree with that.  Yes.  But they

12    might also put it under 66(B).

13            MR. CASTLE:  I understand that they might put it under that.  But

14    what we would be asking for, if it has any possibility of being

15    exculpatory, that they identify it as 68(i).  I'm not going to hold them,

16    saying that's some kind of judicial admission in court that a document is

17    exculpatory.  But we do need to have it identified.  The problem is right

18    now everything is identified as 66(B) or 68, generally.

19            JUDGE ROBINSON:  Yes.  Well the general identification is not

20    enough; I think Ms. Somers has grasped that point.  And I understand her

21    to say that she will henceforth be indicating whether the material is

22    68(i) or 66(B).

23            We do have a leave.  I want to indicate that the next Status

24    Conference has to be held by Friday, February the 9th.  I will have that

25    Status Conference on Wednesday, February the 7th of 2007.

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 1            Unless there is anything that any of the parties wishes to raise,

 2    the hearing is adjourned.

 3                          --- Whereupon the Status Conference adjourned at

 4                          8.35 a.m.