Tribunal Criminal Tribunal for the Former Yugoslavia

Page 92

 1                          Wednesday, 23 May 2007

 2                          [Status Conference]

 3                          [Accused not present]

 4                          [Open session]

 5                          --- Upon commencing at 10.00 a.m.

 6            JUDGE ROBINSON:  Please call the case.

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

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

 9            JUDGE ROBINSON:  And the appearances?

10            MR. HARMON:  Good morning, Your Honour, Mark Harmon and Faith

11    Devine for the Prosecution.  My case manager, Carmela Javier, is also

12    appearing.  Thank you.

13            JUDGE ROBINSON:  And for the Defence?

14            MR. CASTLE:  Good morning, Your Honour.  Jim Castle and Novak

15    Lukic appearing on behalf of Momcilo Perisic, who is not present.  Also

16    with us today is case manager, Tina Drolec.

17            JUDGE ROBINSON:  Thank you, Mr. Castle.  I begin this Status

18    Conference by looking first at the pending motions.  There is a motion

19    from the Defence for the appointment of an amicus counsel to report to the

20    Chamber on equality of arms.  And I have to say that a decision will be

21    given shortly on this motion.

22            There is the Prosecution's motion for judicial notice of

23    adjudicated facts relating to Sarajevo.  Mr. Harmon, I have personally

24    dealt with two motions for adjudicated facts, but as a Judge of a Trial

25    Chamber, and I would hate to have, as a Judge of a Trial Chamber, a

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 1    Pre-Trial Judge dealing with this matter.  In my view, it is much better

 2    to have it dealt with by the Trial Chamber.  I'm going to leave this

 3    motion for the Trial Chamber, but it will not affect the Prosecution's

 4    duty to file its witness list.

 5            Then there is an application for an order pursuant to Rule 54 bis,

 6    directing the government of the Republic of Serbia to comply with

 7    outstanding requests for assistance.  The Chamber had, on the 18th of

 8    April, issued an order inviting the Republic of Serbia to file a report on

 9    the outstanding requests for assistance by the 21st of May, and I have

10    that report at hand.  Do you have it, Mr. Harmon?

11            MR. HARMON:  Yes, Your Honour, and we are scheduled to file a

12    response to that report on the 29th, which we will do in due course and it

13    will be an exhaustive report analysing precisely what we say is

14    non-compliance.

15            JUDGE ROBINSON:  I'm sorry, I didn't hear that.

16            MR. HARMON:  Yes.  It will analyse what we will assert in our

17    filing to be non-compliance with the --

18            JUDGE ROBINSON:  I'll await that.  I believe you're referring to

19    paragraph 4 and when I have your reply, then the Chamber will decide what

20    to do.

21            MR. HARMON:  Thank you.

22            JUDGE ROBINSON:  Yes.  There is also a Defence motion for

23    extension of time to file responses to the Prosecution's motions for the

24    introduction of evidence pursuant to Rule 92 bis, ter and quater, and 89.

25    In view of the large number of 92 bis statements to be reviewed by the

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 1    Defence, I will give the Defence an additional four weeks to respond,

 2    which means that the deadline for the response will be Tuesday, the 19th

 3    of June, 2007.

 4            Next are disclosure matters, Rule 66(A)(i), supporting material to

 5    the indictment; 66(A)(ii), Witness statements; 68, exculpatory material;

 6    66(B) and 94 bis, expert reports.  I understand that there are no issues

 7    relating to these matters.

 8            The length of the trial may be a little difficult for you,

 9    Mr. Harmon, but what would be your best estimate at this stage?

10            MR. HARMON:  It's very difficult, Your Honour, simply because

11    without a decision on the 92 bis motions and the adjudicated facts, it's

12    merely a guess, and I would be very, very reluctant, Your Honour, to even

13    furnish that at this point in time.  I think it would take, worst case

14    scenario -- I can try to give you some guidance, but worst case scenario,

15    if none of the 92 bis motions are granted, it would seem to me that the

16    trial will last, assuming there is a sitting of five days a week in the

17    normal course of business with very few interruptions, I would think it

18    would last a year and a half.

19            JUDGE ROBINSON:  And if 90 per cent of the 92 bis motions are

20    granted?

21            MR. HARMON:  Well, that -- certainly, it would be reduced.  I

22    can't say how much.  I would want to go back and give you a better answer

23    than a guess.  We also have adjudicated facts which are before the Court,

24    which could resolve and shorten considerably the amount of evidence that

25    we would lead in the case.  It may be, in fact, Your Honour, that if the

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 1    adjudicated facts motions are granted, some of them relate directly to

 2    scheduled incidents that are in the schedules relating to the sniping and

 3    the shelling of Sarajevo.  If those aspects of the adjudicated facts

 4    motions were to be granted, I certainly think that would put us in a

 5    position of possibly not having to call those witnesses at all, which

 6    would again reduce the scope and length of the trial, but I'm hard pressed

 7    to give you any guidance in the absence of those two considerable sets of

 8    motions that directly impact on how much evidence we need to prepare and

 9    present to a court viva voce.

10            JUDGE ROBINSON:  Thank you.  I appreciate the effort that you have

11    made.  The trial date, it's not possible for me to say when the trial will

12    begin, but Mr. Castle, I understand that there is a matter that you would

13    wish to be taken into consideration.  If you don't wish to mention it,

14    then --

15            MR. CASTLE:  No, no.  The only -- the Defence has -- isn't located

16    here and we have to move here relatively quickly when a trial date is

17    set.  My understanding is that the trial could be as early as September,

18    most likely in October, but it could be as far as January.  I'm not alone,

19    and I have a family to move, along with me, and schools and things of that

20    nature and to the extent that the Trial Chamber that is assigned this case

21    can give us advance notice, I would request it.  We also have -- it's not

22    just myself but also other -- we have to assemble Defence team members for

23    the case and have them move to Holland also, and the logistics of that

24    is -- it's pretty onerous.  So to the extent that we can get advance

25    notice we are asking for it.

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 1            JUDGE ROBINSON:  So I understand, your entire family would move.

 2            MR. CASTLE:  Yes.

 3            JUDGE ROBINSON:  Well, I take note of it and I say so so that it

 4    can be placed on the record so that the extent that it can be taken into

 5    account, it will.

 6            Mr. Castle, in your pre-trial brief, at paragraph 140, you had

 7    requested the Prosecution to file a reply opening brief, and the basis for

 8    this request, as I understand, is that it would shorten the length of the

 9    trial, as the Prosecution's reply would disclose whether it, the

10    Prosecution, is contesting certain factual and legal issues raised by the

11    Defence.  I understand this matter was raised at the 65 ter conference,

12    and are you still maintaining that position?  Because if you are, then I

13    would --

14            MR. CASTLE:  Yes, we are.  We believe that the whole purpose of

15    the pre-trial briefs is to narrow the issues down so that the fact finder

16    can focus in on what is in dispute and what is not.  The Prosecution's

17    brief dealing with the two legal theories here, one being command

18    responsibility, the other being complicity, i.e. aiding and abetting,

19    their brief essentially merely discussed the state of the law as it's been

20    applied in intrastate cases, and this particular case is a different

21    animal.  It's a different kind of case.  It's one that where the

22    Prosecution is asking to break some very new ground, and I believe that--

23    we've tried to address that fairly extensively in our brief.  We believe

24    that it helps everyone, not just the Trial Chamber, but the parties, to

25    know where it is the Prosecution is coming in on this -- on these issues.

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 1            Additionally, after, literally I think it was 72 hours after they

 2    filed their brief, the decision, the ICJ decision on BiH versus Serbia

 3    came down.  That decision addressed a number of factual and legal issues

 4    that are addressed in our case.  Now, granted it's not binding precedent

 5    upon the ICTY but it is persuasive, and I think it would be beneficial to

 6    all of us to know to the extent to which the Prosecution is asserting that

 7    the legal standard is different than what is -- was being set forth in the

 8    ICJ decision, and what they dispute factually from that so that we know --

 9    it will tell us many things.  It will tell us how long this trial is going

10    to be, where the focus of our efforts need to be placed, and frankly I

11    just don't see that there's any downside to us having this additional

12    information.  I'm not asking him to do a full brief on all the issues,

13    just the limited ones that we set forth.

14            JUDGE ROBINSON:  Mr. Harmon, what's your position on this?

15            MR. HARMON:  Our position is first of all in respect of the ICJ

16    judgement, it's not a precedent.  The ICJ case dealt with different legal

17    issues.  It had different factual evidence before it.  As I said at the 65

18    ter conference, our evidence will be substantially more robust than the

19    evidence that was available to the ICJ in -- when it rendered its

20    decision, so I think clearly the clarifying and making distinctions on a

21    judgement that has no precedential value is not the best use of the

22    Prosecution's time.

23            Second of all, I believe, Your Honour, that if the Trial Chamber

24    that would be assigned to this case wants additional guidance as to the

25    law, it would be the appropriate Chamber to request briefing on the matter

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 1    but at this point in time, in my opinion, Your Honour, that is not

 2    necessary.  We have set out the law and the Defence has set out its

 3    version of the law, and I think it's now incumbent on a Trial Chamber to

 4    review the matter and decide if it wants additional briefing.

 5            JUDGE ROBINSON:  What about the first two matters that are

 6    mentioned in I think it's paragraph 141, the -- that the Prosecution would

 7    identify the matters with which the Prosecutor takes issue in the

 8    accused's pre-trial brief and in the case of each such matter the reason

 9    why the Prosecutor takes issue with it?  Forgetting for the moment the ICJ

10    decision.

11            MR. HARMON:  I think, Your Honour, that it's certainly possible to

12    identify those matters where we take issue, but in terms of a full

13    briefing, as to why we take issue with those matters, I don't think that

14    that would be a useful effort on our part because the Trial Chamber may

15    well have its own views, it may well be satisfied with the exposition of

16    the law and it may not require that.

17            Second of all, insofar as the factual issues where we take --

18    where there are differences, that's a matter for the trial, and we intend

19    to put forth our case, not respond to the Defence's --

20            JUDGE ROBINSON:  In 65 ter (F), the Defence is required to state

21    the matters with which the accused takes issue in the Prosecutor's

22    pre-trial brief, and 3, in the case of each such matter the reason why the

23    accused takes issue with it.  So I understand Mr. Castle is asking the

24    same.

25            MR. HARMON:  Your Honour, there is -- he may be asking -- he is

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 1    asking the same.

 2            JUDGE ROBINSON:  Yes.

 3            MR. HARMON:  But there is no provision in the rules, first of all,

 4    and I don't want to hide behind a technical argument, but there's no

 5    provision in the rules that at this point the Prosecution has to reply.

 6    Otherwise there will be endless sets of briefing back and forth.  I think

 7    that this -- the purpose of Rule 65 was to identify the issues.  Where are

 8    the differences?  We've -- this exercise of the Prosecution pre-trial

 9    brief and the Defence pre-trial brief has now succeeded in accomplishing

10    that.  It's identified the issues where there are disputes.  Now asking

11    the Prosecution at this stage to brief again and set forth why we take --

12    explain why we have issues, I think, is one, as I say, not required by the

13    rules and, two, I think best left to a Trial Chamber.

14            JUDGE ROBINSON:  Is there any precedent for this, Mr. Castle, in

15    the trial -- in the Tribunal's case law?

16            MR. CASTLE:  No.  I found no precedents.  It has not been argued

17    by either side, but I think perhaps the reason for that is most Defence

18    teams do not put forth a very explicit opening brief, and therefore, I

19    think they are not in the position where they could ask in fairness for

20    this type of knowledge.  I just don't want to be spending a lot of time

21    proving facts that we set forth in our brief that they are not disputing.

22    No more than they wish to do so.  And so far, throughout this whole

23    process, it's been a process where the Defence has had to identify which

24    of the Prosecution's facts it disputes and which ones it doesn't so that

25    we can assist them in narrowing down their case.  All we are asking for is

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 1    a quid pro quo with respect to those factual assertions that we put forth

 2    in our case, in our brief, and I think that other than fundamental

 3    fairness, there is no set -- there is nothing in the rules which require

 4    it, but it would seem that everything -- when you read the entire rules in

 5    total, what they set forth is a desire that only the disputed facts in a

 6    case be presented for efficiency reasons, if for no other reasons.

 7            JUDGE ROBINSON:  Thank you.  What I will do is -- you wish to say

 8    something?

 9            MR. HARMON:  I do, Your Honour.

10            JUDGE ROBINSON:  Yes.

11            MR. HARMON:  Mr. Castle and I have a history of being able to

12    resolve some of our factual disputes by agreement and we will be filing

13    with the Court a set -- a pleading setting forth where we have factual

14    agreements.  This is precisely the kind of an exercise that we can embark

15    on over the remaining months to try to narrow the issues ourselves.  We

16    may agree, we may disagree, but I think Mr. Castle and I will be in a

17    position to pretty much narrow the exercise.  I think it's also a

18    process -- Mr. Castle is from the United States.  Because he's not here

19    often, we don't have that much of an opportunity to get together and sit

20    down and talk through these issues.  We will have those opportunities, I

21    think, in the future, and what Mr. Castle has asked for, in other words,

22    to try to identify what facts are not -- that he's set forth that aren't

23    in dispute, we can resolve those without additional pleadings, Your

24    Honour.  That's my submission.

25            JUDGE ROBINSON:  Mr. Castle, you would be content with that?

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 1            MR. CASTLE:  Well, I'd prefer to see it in writing, in the manner

 2    which we had to.  It wasn't a very detailed portion of our brief.

 3    Literally I think it was about seven or eight pages, we went through the

 4    factual assertions and said why we disagreed with them, literally in a two

 5    or three-sentence format.  I would prefer that.

 6            JUDGE ROBINSON:  Yes.  Well, what I would say is that the parties

 7    should work on this issue and if there is no resolution, then Mr. Castle

 8    can resurrect the matter.  I would be prepared to treat it as a motion.

 9    But in the meantime the parties will work on a resolution of this matter.

10            As I indicated before, the exhibit list of the Prosecution is to

11    be filed, notwithstanding the decision that I have made that the motion

12    for adjudicated facts is to be determined by the Trial Chamber, and the

13    date for this filing will be four weeks' time, Wednesday, the 20th of

14    June.

15            Now, Mr. Harmon, there are some matters relating to protective

16    measures, three witnesses, MP 003, MP 004 and MP 0014, and on the 16th of

17    November, the Trial Chamber had ordered the Prosecution to disclose the

18    unredacted statements of these witnesses by no later than 30 days before

19    the commencement of trial, and the Prosecution was also ordered to

20    disclose the identities and the unredacted witness statements of the Rule

21    70 witnesses in Annex B by no later than the 2nd of February, 2007, or

22    remove the witnesses from the witness list.

23            Mr. Harmon, is there any reason why the Chamber should not now

24    remove these witnesses from the witness list, since, as I understand it,

25    there has been no compliance?

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 1            MR. HARMON:  Your Honour, in respect of MP 003, MP 004 and MP 014,

 2    and the order of the 16th of November, we have complied with that order of

 3    the Court.

 4            JUDGE ROBINSON:  What about the other matter, the identities and

 5    the unredacted witness statements of the Rule 70 witnesses?

 6            MR. HARMON:  Rule 70 witnesses, we have complied with as well.

 7            JUDGE ROBINSON:  When was that done?

 8                          [Prosecution counsel confer]

 9            JUDGE ROBINSON:  My information is that there has not been

10    compliance, Mr. Harmon.

11            MR. HARMON:  If I can just have one moment, Your Honour?  Thank

12    you.

13                          [Prosecution counsel confer]

14            MR. HARMON:  Your Honour, I am informed that in respect of MP 003,

15    MP 004 and MP 0014 that we were ordered by the Trial Chamber to disclose

16    the unredacted statements of these witnesses no later than 30 days before

17    the commencement of the trial.  Since we don't have a trial date thus far,

18    we have not been in a position to disclose the unredacted statements of

19    those witnesses.  In respect of the Rule 70 witnesses, we were instructed

20    to disclose the identities and unredacted statements of those witnesses no

21    later than the 2nd of February or remove witnesses from the witness list,

22    and I'm informed that we have complied with that.

23            JUDGE ROBINSON:  What have you done?  You have disclosed or you

24    have removed them?

25            MR. HARMON:  We've done both.

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 1            JUDGE ROBINSON:  Oh, you have disclosed some, and those that you

 2    have not disclosed, you have removed?  Well, can you --

 3            MR. HARMON:  That's correct.

 4            JUDGE ROBINSON:  Can you direct the Chamber, direct me, then, to

 5    the relevant document?

 6            MR. HARMON:  Your Honour, I don't have that information at hand.

 7    I'm certainly in a position after this to collect that information and

 8    provide it to the Senior Legal Officer.

 9            JUDGE ROBINSON:  Because he tells me that there has been no

10    compliance.  What I'll do then is, you will provide that information to

11    the Senior Legal Officer after we adjourn, and if you are unable to

12    because you haven't complied, then the Chamber will issue an order.

13            MR. HARMON:  Yes.  Your Honour, I will -- the representations I

14    have made to you are based on the information that's available to me.  I

15    will be confirming that.  I will have a conversation directly with the

16    legal officer.  But it's also my independent recollection that that has

17    been complied with.

18            JUDGE ROBINSON:  Yes.  Well, the matter will then proceed on the

19    basis that I just identified.

20            MR. CASTLE:  Your Honour, if I could, there are another class of

21    witnesses that are of concern.  After the Court's order from October, the

22    Prosecution filed its Rule 65 ter list and summary in I believe March.

23    When we received that, there were a number of additional protected

24    witnesses.  They are denominated MP 1 and 2, MP 5 all the way to MP 13 and

25    then MP 15, 16 and 17.  So essentially there's 14 new protected

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 1    witnesses.

 2            Now, Defence has not been informed of any orders from any Chambers

 3    that protect these witnesses.  We haven't been informed of whether a

 4    petition has been sought of Your Honour.  My understanding is is that

 5    these are witnesses who may have been subject to protective orders in

 6    other cases.  The Defence, under Rule 75, has the right to object to the

 7    terms of -- the protective terms of these witnesses.  We don't know what

 8    those are.  In reading through the case law, there is a number of

 9    different ways Chambers have dealt with protected witnesses.  In many

10    instances, for example, the Defence is provided with the statements and

11    have the names redacted using an anonymous name of some sort.  We don't

12    know the terms of any of these witnesses, and so it's our understanding of

13    the rules that the Prosecution's required to notify us not only of the

14    Chamber in which the protective order was issued but the terms of that

15    protective order.

16            JUDGE ROBINSON:  Mr. Harmon, what can you say about these

17    witnesses, MP 001, 2, 5, 6, 8, 11, 13, 15, 16 and 17?  What is their

18    status?

19            MR. HARMON:  Your Honour, I can tell the situation is not as dire

20    as was presented in the 65 ter conference.  In respect of MP 16 and MP 17,

21    both the names and the transcripts of those witnesses, transcript of

22    statements of those witnesses, was disclosed to the Defence on the 2nd of

23    February 2007.

24            In respect of MP 001, MP 002 and MP 008, redacted statements of

25    those -- a redacted statement from each of those witnesses was disclosed

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 1    to the Defence in the confirming material.  I am in the process of

 2    reviewing the other matters.  I know there are some -- in some cases some

 3    very severe protective orders that relate to the others.  I'm in the

 4    process of reviewing those.  I will make decisions on those and to the

 5    extent that additional materials can be disclosed to the Defence that are

 6    consistent with the previous court orders and the rule, Rule 75(F)(ii), I

 7    will make additional disclosures.

 8            JUDGE ROBINSON:  Did you cover all of the witnesses that I

 9    mentioned?

10            MR. HARMON:  Your Honour, by default, the others, there has been

11    no disclosure, so I tried to identify for Your Honour the ones where there

12    has been either complete disclosure, partial disclosure and the ones for

13    MP 005, MP 006, MP 011, MP 013 and MP 015, there has been no disclosure

14    and that is based on, as I say, protective measures granted in other

15    cases.  I'm in the process of reviewing those measures and the materials

16    in relation to Rule 75(F)(ii) to see if I can make additional disclosures

17    and I will do so after I've completed my review.

18            JUDGE ROBINSON:  I think Mr. Castle and the Chamber will be

19    assisted if this was done speedily.

20            MR. HARMON:  Yes, Your Honour.  I intend to do so as quickly as I

21    can.  I will be unavailable this next week, but I think upon my return

22    I'll be able to finish that review.

23            JUDGE ROBINSON:  But it should be done within two weeks.

24            MR. HARMON:  I can do that, Your Honour.

25            JUDGE ROBINSON:  Of today.  A full status report.

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 1            MR. HARMON:  Fine.

 2            JUDGE ROBINSON:  On all of these witnesses.

 3            MR. HARMON:  That's fine.

 4            JUDGE ROBINSON:  Yes.

 5            MR. HARMON:  Thank you.

 6            JUDGE ROBINSON:  The only other matter that I have left is the

 7    next Status Conference, but before I do that, I should ask Mr. Castle

 8    whether he has any matter to raise in relation to the accused, his health

 9    or conditions of detention.

10            MR. CASTLE:  We have nothing further to add.

11            JUDGE ROBINSON:  Yes.  Mr. Harmon, do you have any other matter to

12    raise?

13            MR. HARMON:  There is one matter, Your Honour.  The information we

14    received this week was that Miroslav Deronjic passed away in custody in

15    Sweden.  Mr. Deronjic is a listed witness on our 65 ter witness list.  He

16    is -- was scheduled to testify viva voce in this case.  We will be filing

17    a 92 quater motion then because of the development that we were just

18    informed of, his passing.

19            JUDGE ROBINSON:  Yes.  We'll await that.

20            The next Status Conference has to be held before the 20th of

21    September, and I will set it for Wednesday, the 19th of September.

22            There being no other matters, the hearing is adjourned.

23                          --- Whereupon the Status Conference adjourned

24                          at 10.36 a.m.