Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20

1 Wednesday, 23 May 2001

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.33 p.m.

6 JUDGE MAY: Yes. Let the Registrar call the case.

7 THE REGISTRAR: Good afternoon, Your Honour. Case

8 number IT-00-39 & 40-PT, the Prosecutor versus Momcilo Krajisnik and

9 Biljana Plavsic.

10 JUDGE MAY: Appearances, please.

11 MR. HARMON: Good afternoon, Judge May. My name is Mark Harmon.

12 I am representing the Office of the Prosecutor this afternoon, and I'm

13 assisted by Mr. Nicola Piacente.

14 MR. BRASHICH: Good afternoon, Your Honour, Deyan Brashich for the

15 Krajisnik defence. I'm joined by Mr. Goran Neskovic.

16 MR. PAVICH: Good afternoon, Your Honour, Robert Pavich on behalf

17 of --

18 THE INTERPRETER: Microphone to the counsel, please.

19 MR. PAVICH: Good afternoon, Your Honour. Robert Pavich on

20 behalf of Biljana Plavsic.

21 JUDGE MAY: Thank you. The purpose of this hearing is to review

22 the progress in the case. At the last hearing a timetable was

23 established. It would be helpful to know how that timetable is being

24 adhered to, and we can then go on and make further orders and deal with

25 further matters.

Page 21

1 Yes, Mr. Harmon.

2 MR. HARMON: Judge May, since the work plan timetable was

3 disseminated at the last hearing there have been events that have

4 intervened that make it impossible for us to comply with the schedule that

5 was disseminated by Your Honour. We are continuing to make discovery

6 available to the Defence. In that respect, today we will be providing to

7 the Defence additional discovery in the form of 123 witness statements, a

8 total of 3.149 pages.

9 We have been asked to attempt to identify the number of core

10 documents that we will be using during the course of the trial, and at

11 present, we have identified approximately 800 core documents.

12 We have had correspondence in respect of adjudicated facts. I

13 just met my colleague Mr. Brashich today for the first time, and I can

14 inform the Chamber that Mr. Brashich has sent us a letter in which he has

15 agreed to a limited number of the adjudicated facts that were put forth to

16 him. We have not met to discuss the issue since I just met him today, but

17 in the future, I anticipate sitting down and discussing the matter with

18 Mr. Brashich and Mr. Pavich as well.

19 I understand that Your Honour is expecting a report on the amount

20 of material that has been analysed and will be analysed by the Office of

21 the Prosecutor. I understand further that there had been a reference at

22 some point in time to a mention of 2.7 million documents. I'm told that

23 the Evidence Unit has identified out of that body of material 104.000

24 potential relevant documents. That represents approximately 95 per

25 cent -- I'm sorry, let me repeat that because I don't think I have that

Page 22

1 right. There have been identified by the Evidence Unit 104.000

2 potentially relevant documents. The documents have been selected by the

3 Evidence Unit, and they will be given to the lawyers of the Prosecution

4 team to continue then to review for purposes of making additional

5 selections.

6 I can further tell Your Honour that it's the Prosecutor's

7 intention, either this week or next week, to file two expert reports

8 pursuant to Rule 94 bis. They are the expert reports of Dr. Hunt and

9 Professor Wright. They relate to the Brcko municipality, killings and

10 exhumations. They are the exhumation reports that were conducted in

11 respect of Brcko. They were presented in evidence and accepted in

12 evidence in the Jelesic case, and we will be filing those either this week

13 or early next week.

14 That, Judge May, is a summary of the discovery and what has been

15 happening with the Office of the Prosecutor in respect of this case.

16 JUDGE MAY: Mr. Harmon, I hear that. This is the first time that

17 you have appeared, and so therefore it's difficult to hold you personally

18 responsible, but you must understand that it's a matter of very real

19 concern for the Trial Chamber that this is a case which has been going on

20 now for months, there was a Rule 61 hearing in it some years ago, one of

21 the accused has been in custody for a year, and therefore the fact that

22 the matter is not trial ready now is a matter of the gravest concern, and

23 therefore every effort must be made to have it trial ready in as short a

24 time as possible.

25 Now, that means that I will hear an application in relation to

Page 23

1 pre-trial briefs, but it's not one which is going to lead to a

2 considerable extension. As it is, this trial cannot come on before the

3 end of this year, and it looks as though it may well be going into next

4 year, and that is a matter of concern, and it should be for the whole

5 Tribunal, not merely for this Trial Chamber.

6 Can I ask you, so that I have the position, you are disclosing 123

7 witness statements, 3.400 pages, is that in addition to -- that's in

8 addition, I take it, to the statements already disclosed.

9 MR. HARMON: That's correct.

10 JUDGE MAY: And so that I can have some idea, how many witness

11 statements is it anticipated in all will be disclosed? It doesn't have to

12 be a precise figure.

13 MR. HARMON: I'm informed approximately 430. I should add, Judge

14 May, that the process of reviewing the evidence is ongoing, and I will say

15 that in -- with the development of the rules, the evolution of these

16 rules, which clearly are designed to shorten the length of the trial,

17 there are many new developments in these rules, and we're paying attention

18 to those developments. In particular, we are trying to determine how we

19 can present the best case that we have in the most efficient way we can do

20 it by utilising the new rules and still be sensitive to the rights of the

21 accused. That means that we are looking at a variety of ways to eliminate

22 repetitive testimony. I'm very conscious of that, Judge May. I was in

23 the Blaskic case that lasted 25 months, and I know Your Honour presided

24 over the Kordic case that lasted longer.

25 We would like to litigate the most essential parts of this case.

Page 24

1 We nevertheless need to ensure that the evidence that is presented is full

2 and complete in respect of the interests of the Prosecutor. And in

3 looking at the Rules that are now available, obviously it's a challenge to

4 present a case very efficiently with an indictment that is -- encompasses

5 41 municipalities. Now, I can only assure Your Honour that our efforts

6 are to distill this case to its essence, and we will be working very, very

7 conscientiously to do that.

8 My -- a situation that has developed that has slowed the process

9 down is that I am still fully engaged in the Krstic trial that is due to

10 conclude on the 29th of June, the very same day that the Prosecution

11 pre-trial brief is due, and that has made it very difficult for me to

12 devote my full attention to this case. Indeed, my attention is devoted in

13 large measure to concluding the Krstic case which has been ongoing since

14 March of last year.

15 So in addition to that, as Your Honour is aware and counsel is

16 aware, Mr. Piacente is leaving the Tribunal, and he will be replaced by a

17 colleague, Mr. Alan Tieger, who has just come to the Tribunal this week.

18 To assure Your Honour, Mr. Tieger is a veteran of this institution, having

19 participated in the Tadic trial, the first trial that was heard in this

20 ICTY. So he is familiar with many of the events that took place,

21 particularly in and around Prijedor.

22 Those are some of the reasons that I can give to Your Honour as to

23 why we would be making an application to the date of the final pre-trial

24 brief to be advanced. In my own view, having the ability of the trial

25 lawyers, including myself, to focus on the requirements in the new Rules

Page 25

1 to shorten this case, giving us some additional time to reflect and to

2 devote our 100 per cent attention to the effort will, in the long-run, I'm

3 quite confident, shorten the length of the trial. That is something that

4 I think is in the interest of all parties here.

5 Therefore, we would make an application to have a final pre-trial

6 brief date of the 28th of September, and we would request that the final

7 date for Prosecution disclosure be the 21st of September. In respect of

8 other dates that flow from that, I'm at Your Honour's disposal, but those

9 would be the recommendations and the -- and that would be the application

10 of the Office of the Prosecutor.

11 JUDGE MAY: Just help me with disclosure. You've identified 800

12 core documents. That is a process in which you would be very much

13 encouraged by the Trial Chamber so that we may understand and the Defence

14 may understand the documents which you really rely on. Now, have -- and

15 that, I guess, is an ongoing consideration.

16 MR. HARMON: That is correct.

17 JUDGE MAY: The sooner those documents are disclosed or the

18 identity of them is disclosed the better, because clearly it would help

19 everybody with their preparation to know what the documents are which the

20 Prosecution are relying on. So if you can do that within the next month

21 or so, that would be of assistance, I think, to all, particularly when

22 there are claims, as there have been, that there are 3 million documents

23 being relied on. If it comes down to 2.000, it would be an improvement.

24 You've already disclosed a very considerable body of documents.

25 I'm not sure of the total figure. You anticipate, if I understand you

Page 26

1 right, something in the region of 100.000; is that right?

2 MR. HARMON: I have -- in response to that Judge May, I have a

3 number of questions and a number of observations, if I can, if Your Honour

4 would permit me. The first is this: There has been no request for

5 reciprocal discovery in this case. The discovery regime that is now

6 ongoing will be limited to Rule 66 and Rule 68 disclosure.

7 The disclosure of the documents obviously falls within the area of

8 reciprocal discovery, and absent a request for reciprocal discovery, then

9 it is -- raises the issue of whether disclosure to the Defence of those

10 documents is required. And if there is going to be disclosure of the 800

11 documents, then obviously the quid pro quo would be disclosure by the

12 Defence of documents they deem relevant.

13 Now, I raise this issue with Your Honour because it seems to me

14 there may be a conflict in the rules, and the conflict in the rules that

15 we see is found in the Prosecutor's obligation to disclose or identify the

16 evidence in the Prosecutor's pre-trial brief. And we would appreciate

17 some guidance from Your Honour on that very issue because the disclosure

18 of the documents and the evidence in the Prosecutor's pre-trial brief has

19 the potential to circumvent other aspects of the rules, such as the

20 obligations found in reciprocal discovery.

21 So I do not want to be in a position where we are not abiding with

22 the orders of the Court and the spirit of the rules, but my reading of

23 those rules is that there is a tension between the specificity in which

24 the evidence must be identified for purposes of the pre-trial brief,

25 because if they're identified with such specificity that they do not

Page 27

1 create a need to have reciprocal discovery provision in the rules, then

2 the reciprocal discovery provisions are indeed more decoration than

3 anything else.

4 JUDGE MAY: I can't at this hearing make a determination, if there

5 is some matter which requires consideration, that the Trial Chamber will

6 have to do it. But as far as I'm concerned, the way that you should

7 approach this matter is one of cards on the table. If there are documents

8 which you rely on, then you should say so.

9 As far as the other matters are concerned, if the Defence wish to

10 inspect other documents, then, of course, the rules will apply in the

11 normal way. But in my view, the Prosecution should approach this case as

12 one of disclosing their entire case to the Prosecution and Defence, of

13 course, and to the Trial Chamber. The Defence say that they may know the

14 case they have to beat, the Trial Chamber says they know the case they

15 have to try. In that way, it seems to me that the case is most fairly and

16 expeditiously conducted.

17 So you could consider the matter, obviously, and if there are

18 applications which you may wish to make, the Trial Chamber will deal with

19 them, but I would state my view that you should produce all the documents,

20 the witness statements and the documents that you wish to rely on, the

21 exhibits you wish to rely on, as early as possible.

22 As for the other matters, well, the rules are there to cover the

23 other rules of disclosure. And in that connection, although it is a

24 burden, it seems to me there is a growing problem, a danger of a growing

25 problem of the Prosecution simply producing every document which might be

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Page 29

1 relevant to a case and handing it over to the Defence and letting them get

2 on with it, and it seems to me that the dangers of that is that a great

3 deal of time could be wasted. It's much better if the matter is sorted

4 out by the Prosecution to determine what's relevant and what isn't. If

5 the Defence want to see anything else, well, they can ask for it in the

6 usual way, but rather than a mass disclosure of documents, it seems to me

7 helpful there should be one that is guided by the rules. That's aside

8 from the exhibits on which you're going to rely.

9 MR. HARMON: Thank you very much.

10 JUDGE MAY: If that's of assistance. Well, Mr. Harmon, I've got

11 to balance your difficulties as against the time which the Prosecution

12 have had, which I've already referred to, and the need for some expedition

13 in trying to modify the order in which I've made. In the circumstances I

14 will do it, but it seems to me the right thing to do is to modify it by

15 two months, so this would require disclosure and a pre-trial brief by the

16 31st of August.

17 The rest of the timetable, I'll only address the Defence, if I

18 may, will simply go back by two months so the Defence will still have the

19 same time to prepare as before. In fact, you'll have two months more than

20 you had before, of course, but the same time between the pre-trial briefs

21 to produce your pre-trial brief.

22 It's not plausible, clearly, now to try to fix a date for trial.

23 It will be in January at the -- it would appear, at the earliest. But

24 Mr. Brashich, I'll hear from you in a moment. I'm not going to rise

25 without hearing from the Defence, but the other point which I wish to make

Page 30

1 is that the dates of the Status Conferences should be maintained, although

2 I take it that Wednesday, the 4th of July, would not necessarily be a

3 popular date in all quarters for a Status Conference here.

4 MR. BRASHICH: Yes, Your Honour.

5 JUDGE MAY: And can easily be the 11th, the 11th of July, if

6 that's convenient, if that's convenient to the Prosecution?

7 MR. BRASHICH: Yes, Your Honour.

8 MR. HARMON: It is, Your Honour.

9 JUDGE MAY: There's a Plenary that day, I'm told, so if we could

10 make it Tuesday the 10th of July for the next Status Conference.

11 Yes, Mr. Brashich.

12 MR. BRASHICH: Your Honour, the Krajisnik Defence is at somewhat

13 of a disadvantage. I have never found myself in a case where we are

14 setting trial dates where discovery has not been completed. The

15 Prosecution stated that they are just now distilling their case. It would

16 seem to me that distilling a case should have come at a pre-indictment

17 stage, not a pre-trial stage.

18 The other disadvantage that the Krajisnik Defence has is that we

19 really don't have the theory of the case.

20 Now, the Prosecutor has identified 800 core documents. The Court

21 has suggested, in a very nice way, that these documents be turned over

22 within 30 days, or something thereabouts. If the 800 documents have been

23 identified to date and these are the core documents that they're going to

24 rely upon, we should get them within a period of three days. It's just a

25 matter of running a photocopying machine. At least then we will know the

Page 31

1 key documentary exhibits that the Prosecution relies upon and we can start

2 fashioning a defence.

3 I have made a motion for a bill of particulars and I'm mindful of

4 the decision of the Court, but if we are -- if the Defence is going to

5 start really addressing the theory of the case on August 31st, we do not

6 know the scope of discovery that the Defence will have to undertake at

7 that time, and I would reserve -- based on what comes out in the

8 Prosecutor's brief, I would reserve the Defence right to seek either

9 additional time or perhaps a shortening of the time if the case is very

10 simple, because my client, as the Court has noted, has been incarcerated

11 for a period of over one year.

12 Now, as I said, I really, at this juncture, do not know where

13 we're going, and because I do not know, except for generally, what the

14 charges leveled against my client are, I cannot prepare a defence except

15 in a very broad and general way.

16 We had the discussion about reciprocal defence. I have not made a

17 demand upon the Prosecutor. The way that I read 66(i) and (ii), is that

18 the supporting material which supported the indictment is handed over to

19 the Defence. Then an additional period of time passes when we get the

20 witness statements that the Prosecution is going to rely upon. It's only

21 then that the additional discovery that the Defence deems necessary, then

22 the demand is made upon the Prosecutor.

23 Here we have 104.000 relevant documents and the search is

24 ongoing. There has been no representation made how many more documents

25 will be made available. The last time we were at a Status Conference, the

Page 32

1 number was 200.000. I do not know whether that number has changed, but

2 apparently, based upon the representations and the warranties by the

3 Prosecutor, there is another 100.000 documents which will be delivered

4 before August 21st.

5 With regard to shortening the time, I had requested of the

6 Prosecutor that whatever exculpatory material is in the file, to identify

7 them so we don't have to go through 104.000 documents which we have

8 received to date. That request has been rejected and there's a pending

9 motion before the Trial Chamber.

10 So I really have to take the position that the Defence on this

11 Status Conference takes no position but reserves all of its rights until

12 the Prosecution moves forward, completes discovery, and really gives us

13 the theory of its case.

14 JUDGE MAY: Mr. Brashich, provided you are ready, the Trial

15 Chamber can ask nothing more of you. There has, as I understand it, been

16 discussions between counsel, and the Trial Chamber would encourage that.

17 In order that documents can be disclosed as soon as possible, I

18 shall order a meeting either in person or by telephone conference with the

19 senior legal officer in order to expedite that matter, and perhaps you

20 could speak to her afterwards in order to fix a date, either tomorrow or

21 within the next few days in order to discuss the next stage of discovery

22 and the next stage towards getting this case ready for trial.

23 The purpose of these conferences and these meetings is to do

24 that.

25 MR. BRASHICH: Your Honour, I had spoken to Ms. Featherstone on

Page 33

1 that very issue, and I was willing and prepared to do so. Under the new

2 Rules, Ms. Featherstone, as the senior legal officer, perhaps could have

3 some delegated authority to hear and report to the Trial Chamber if there

4 is any disagreement between the Prosecution and the Defence.

5 My experience to date with the Prosecutor in this particular case

6 is that I ain't getting nothing nowhere without a court order. So if it's

7 just going to be a meeting where we're going to discuss our positions,

8 then I would feel that that would be sort of a waste of time. If we had

9 some hard and fast rules and good-faith effort to move this case along and

10 to give the defendant due process in fairness, then I'm ready at any time

11 to meet.

12 JUDGE MAY: Good.

13 Mr. Pavich.

14 MR. PAVICH: Thank you, Your Honour. May I ask Your Honour that

15 the Status Conference that the Court is contemplating also cover the

16 subject of resources, because I think that the Scheduling Order and

17 resources are very closely tied. The amount of time within which we have

18 to prepare may determine the intensity with which we are going to do

19 this. So I might ask if the Court would consider including the Registry

20 or representatives of the Registry at the next conference as the Court did

21 at the last conference that it had ordered.

22 JUDGE MAY: I see no difficulty about that. I see no difficulty

23 about it. And you'd be available in the next few days, either by phone or

24 in person?

25 MR. PAVICH: There's no problem with that. I'll -- I might not be

Page 34

1 available until early next week. I expect to be in Belgrade the next few

2 days, but I'll be available after that, and --

3 JUDGE MAY: I shall ask counsel to remain after this hearing and

4 to fix, fix a suitable time for everybody.

5 MR. PAVICH: And our, our -- the dilemma that the Court has

6 already identified is weighing heavily, I think, on all of us. On the one

7 hand, we want very much to sufficiently narrow the case in order to make

8 it manageable. On the other hand, we have an obligation to see that the

9 material that is being presented to us is material that we can rely on,

10 having been called from a much larger amount of material that has been

11 culled in such a way that we feel that it adequately protects our client's

12 interest, and I'm, in particular, concerned about Rule 68 exculpatory

13 material.

14 We cannot expect the Prosecutor's Office to do our work in terms

15 of going through this much larger universe of documentation, whether it be

16 2 million pages or 1 million or 3 million, in order to look for

17 exculpatory material. That's a concern, and that's something that I

18 certainly will -- needs to be addressed at our Status Conference when

19 we're talking about time and resources.

20 JUDGE MAY: And the regime under the rules here is that it is the

21 Prosecutor's responsibility to hand over exculpatory material. That's the

22 way that it works, and the Prosecutor has to be relied on to do that. For

23 other discovery, other rules apply. But it may be that at this stage,

24 that's rather further down the road.

25 MR. PAVICH: I simply don't want to be in the position where three

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Page 36

1 or four or five months from now, we have to go backwards in time and look

2 at the material that perhaps could have been reviewed earlier. But I

3 think the Status Conference that the Court has in mind will enable us to

4 begin to address some of these questions as soon as possible.

5 JUDGE MAY: Thank you. Well, in that case, there will be a

6 meeting with the senior legal officer within the next week - the Court

7 directs that - in order to try and resolve these issues and ensure that

8 discovery and disclosure is dealt with as soon as possible.

9 The timetable, the revised timetable is now in force.

10 There will be a Status Conference on the 10th of July, but

11 meanwhile, the senior legal officer will report to the Chamber as to what

12 the progress is, and the Chamber will monitor it. If need be, there will

13 be additional conferences with the pre-trial Judge. As I said on an

14 earlier occasion, I am available to deal with matters at any stage in

15 order to move this case forward.

16 Very well. It remains for me to ask counsel if there is any

17 matter in relation to the detention facilities which they wish to raise on

18 behalf of their clients.

19 MR. BRASHICH: Not at this time, Your Honour.

20 MR. PAVICH: Nor I, Your Honour.

21 JUDGE MAY: Thank you very much. The case is adjourned until the

22 10th of July or earlier.

23 --- Whereupon the Status Conference adjourned

24 at 5.11 p.m.