Tribunal Criminal Tribunal for the Former Yugoslavia

Page 232

1 Friday, 10 May 2002

2 [Status Conference]

3 [The accused entered court]

4 [Open Session]

5 --- Upon commencing at 9.00 a.m.

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

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

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

9 Plavsic.

10 JUDGE MAY: Yes. I'll have the appearances.

11 MR. HARMON: Good morning, Judge May. I am Mark Harmon, appearing

12 for the Prosecutor. Appearing with me is my colleague Mr. Alan Tieger,

13 and to my left is Carmela Annink-Javier.

14 MR. BRASHICH: Good morning, Your Honour. Deyan Brashich,

15 together with Nikola Kostich, for the Krajisnik Defence.

16 MR. PAVICH: Good morning, Your Honour. For the Plavsic Defence,

17 Robert Pavich, with Mr. Eugene O'Sullivan and Mr. Peter Murphy.

18 JUDGE MAY: Thank you. This is a Status Conference in this case.

19 The matters to be addressed appear to be these, and of course I'll hear of

20 any others: There are matters of timetabling. There are matters of

21 outstanding disclosure, translation problems, matters of the exhibits

22 including the videos, the disclosure of 11.000 and more documents, expert

23 reports, and then agreed and adjudicated facts. Those have been

24 identified by the Trial Chamber as matters which we ought to address at

25 this Status Conference.

Page 233

1 The most expeditious way to deal with this may be to start with

2 the Prosecution and start going through some of the issues, perhaps

3 beginning, Mr. Harmon, if we may, with the disclosure and deal with the

4 state of disclosure. To date, you have filed your pre-trial brief,

5 witness list, and exhibit list. You've identified, as I understand it,

6 400 witnesses - slightly more - and you are going to apply for 200 of

7 those to be put in in statement form.

8 MR. HARMON: That's correct.

9 JUDGE MAY: As far as the witnesses are concerned, I anticipate

10 there are no immediate matters to be dealt with. No doubt there will have

11 to be rulings in due course, and we can perhaps come back to that in terms

12 of a timetable.

13 MR. HARMON: I can apprise Your Honour that insofar as the witness

14 statements are concerned, there were six witness statements that were not

15 provided by the date of the filing of the pre-trial brief. Those witness

16 statements are available today and will be provided to the Defence today.

17 JUDGE MAY: So dealing with -- perhaps while we're on the

18 witnesses, that means that all the statements will be provided. In what

19 language?

20 MR. HARMON: There are, I am informed, 26 newly-selected witnesses

21 who appear on the witness list in the pre-trial brief. There are -- some

22 of those statements are untranslated into B/C/S. They have been submitted

23 to the Language Service Section for translation, and they will be provided

24 in a language the accused understands as soon as we get them back from the

25 Language Service Section. All of the rest of the statements have been

Page 234

1 provided to the Defence in a language the accused understands.

2 JUDGE MAY: And as far as Rule 92 bis is concerned, what are your

3 plans in that direction?

4 MR. HARMON: Well, let me give Your Honour a comprehensive report

5 on the status of that.


7 MR. HARMON: 92 bis, as Your Honour is aware, is a process that

8 includes going into the field and collecting a proper declaration from

9 witnesses. We have been engaged in that time-consuming and

10 resource-intensive and expensive endeavour for over a year, and we have

11 and continue to engage in the process of collecting the proper

12 declarations.

13 I can tell Your Honour that the results of this prodigious effort

14 have been mixed. We have identified 212 witnesses on our witness list of

15 406 as being 92 bis witnesses. That's 52 per cent of our witnesses in the

16 trial, we propose to have their testimonies come in through written

17 evidence, either under 92 bis (B), sub-part (C) or sub-part (D).

18 To date, we have furnished the Defence with 103 statements under

19 92 bis. We have 13 new statements that we have collected in the field

20 that are now being processed. They come from a mission that was completed

21 on the 26th of April, 2002, and they will be submitted to the Defence once

22 the processing of those statements is complete. We expect that to be very

23 quickly done. There are 49 witness statements that remain to be

24 collected, the proper declarations need to be collected. We anticipate

25 that those missions will be completed by mid-July, and we will process

Page 235

1 those statements very quickly.

2 Now, turning my attention, Your Honour, to the 103 92 bis

3 statements that have been submitted to the Defence to date, the Krajisnik

4 Defence informed me on the 9th of May, 2002, that they objected to all of

5 the 103 statements taken under 92 bis and submitted to them on the basis

6 that they were written statements that go to the proof of acts and conduct

7 of the accused as charged in the indictment under 7(3). Now, they also

8 noted in their letter to me that portions of those statements would be

9 properly admitted under the provisions of 92 bis, but the Krajisnik

10 Defence does not have time or resources to specify which part of each

11 statement would not be objectionable.

12 On the 6th of May, the Plavsic Defence advised me that 83 of those

13 statements, of those 103 statements that have been submitted to them,

14 would be accepted without reservation and 16 of those statements would be

15 acceptable with redactions made. And I have not had time to discuss with

16 my colleagues from the Defence those particular 16 statements, but I am

17 quite confident that I and the Defence will reach some agreement on some

18 of those statements.

19 There was one statement under 92 bis that the Plavsic Defence

20 objected to and three statements had not been disclosed to them in

21 English, and therefore they were of no opinion. They could not give me an

22 opinion as to those statements.

23 So the results in respect of 92 bis are essentially divided. We

24 have one defendant disagreeing on all; another defendant agreeing on a

25 significant portion of them. It is our intention, Judge May, to file a

Page 236

1 motion with the Trial Chamber for the admission of 103 statements objected

2 to by the Krajisnik Defence and possibly the one statement objected to by

3 the Plavsic Defence. It is our intention to file with the Trial Chamber

4 the list of the 83 statements for which the Plavsic Defence has no

5 objection. We will file the list of those statements and the actual

6 statements with the Trial Chamber, and we invite the Trial Chamber to give

7 us a scheduling order as to when we should file our motion as to the

8 103 statements that are objected to by the Krajisnik Defence.

9 JUDGE MAY: Let's deal with that now. When can you do it?

10 MR. HARMON: I would say, Your Honour, we could probably do that

11 by a week from today.

12 JUDGE MAY: Yes, that's 17th May.

13 MR. HARMON: Yes.

14 JUDGE MAY: As I understand, the Defence at least have indicated

15 to you their view about it, so they could respond fairly quickly.

16 MR. HARMON: Yes, I believe so.

17 JUDGE MAY: Yes, well, let's deal with that now.

18 You hear the proposal for the Defence. You've given provisional

19 views, informal views. Is there any reason why you shouldn't give some

20 views to the Trial Chamber fairly rapidly on that?

21 THE INTERPRETER: Microphone, please.

22 MR. BRASHICH: I'm quite sure that we can very rapidly respond to

23 the 92 bis motion, especially since, with the witness list, we have been

24 provided with the specific counts in the indictment that these 92 bis

25 statements are being offered for.

Page 237

1 THE INTERPRETER: Microphone, please. Microphone for Judge May.

2 JUDGE MAY: Two weeks, three weeks? Three weeks. So the response

3 in three weeks. And we will rule as far as possible on those matters.

4 Yes, now, that leaves the remainder of 92 bis. What are your

5 proposals there?

6 MR. HARMON: Well, Mr. President, my proposal would be that the 13

7 new statements that have been completed we will get to the Defence, as I

8 say, as soon as possible. I'm not quite sure how long it takes to do the

9 processing, but I don't imagine it takes -- it should not take more than a

10 few days to do the processing. We will submit those statements to the

11 Defence, I would say, by the same date, by the 17th of May. And it would

12 seem to me that they can give me their provisional views on those

13 13 statements rather quickly.

14 On the 49 witness statements that remain to be taken, those will

15 not be completed, as I have said, until mid-July. We will submit those to

16 the Defence as quickly as we can process those statements, but it will be,

17 I would think, probably late July or early August before we can submit

18 those remaining 49 statements.

19 JUDGE MAY: By my mathematics, that comes out at about 175,

20 something of that sort. You said you had 202 -- 212.

21 MR. HARMON: I'm told 212, and I will need to check the math.

22 This is the advice I have received. And if you bear with me, I will have

23 an answer.

24 JUDGE MAY: We understand that those outstanding, in any event,

25 you will submit as soon as possible. We will leave the matter there.

Page 238

1 MR. HARMON: That's correct.

2 JUDGE MAY: It is obviously in hand. Let us now go on to the

3 issue, other issues, of disclosure; in particular, the exhibits and the

4 transcripts, videos, all those matters.

5 THE INTERPRETER: Microphone, please. Microphone, Prosecutor.

6 MR. HARMON: Yes. I turn my attention first to the video clips,

7 because these issues are all interrelated, and the issue of exhibits is

8 interrelated to the issues of pre-trial resolution of matters before the

9 case, because there's a direct impact on if the parties can agree, for

10 example, on adjudicated facts or if they can agree on other issues, the

11 exhibits go down considerably. So if I may, Judge May, I would like to

12 address the issues of where we have made efforts to resolve these matters,

13 and then turn my attention at the end to the number of exhibits. With the

14 Court's indulgence, I will start in that fashion.

15 I can say, Your Honour, that we have endeavoured over the period

16 of time that we've had this -- that I've had this case to try to resolve

17 issues by agreement. Let me turn my attention first to agreed-upon facts

18 in the indictment.

19 In an effort to reduce the scale and duration of the trial and

20 reduce the number of exhibits in this case, I have proposed to the Defence

21 that they take the indictment and take a colour marker and mark through

22 the indictment and identify those portions of the indictment that are not

23 in dispute. I was rebuffed on that proposal. The joint Defence position

24 on this is that everything is in dispute, and, therefore, we have been

25 unable to reduce the size and scale of the number of exhibits, and

Page 239

1 obviously that impacts on the translation backlog. So as far as

2 agreed-upon facts in the indictment, there are none.

3 Now, turning my attention to adjudicated facts, which also have a

4 direct bearing on the size and scale of this case and the number of

5 exhibits and also the translation backlog, there have been submitted to

6 the Defence 1.363 adjudicated facts. There were four separate submissions

7 of those facts to the Defence. The first was about 20 months ago --

8 THE INTERPRETER: Could the counsel please slow down.

9 MR. HARMON: [Previous translation continues]... 2000, 537

10 facts --

11 JUDGE MAY: You're asked to slow down.

12 MR. HARMON: I will. There were four separate submissions made to

13 the Defence. The first, as I say, was about 20 months ago. It was on the

14 21st of September, 2000; it was a submission of 537 adjudicated facts. On

15 the 14th of December, 2000, about 17 months ago, an additional 34

16 adjudicated facts were submitted to the Defence. Five months ago, on the

17 11th of December, 2001, an additional 408 adjudicated facts were submitted

18 to the Defence. And on the 28th of March, 2002, an additional 384

19 adjudicated facts were submitted to the Defence.

20 Now, as I say, those adjudicated facts were submitted to the

21 Defence in order to streamline the trial and reduce the problems that now

22 confront us. Now, the current status of that is that there has been no

23 acceptance of any of those adjudicated facts by the Defence. I am assured

24 by the Plavsic Defence separately that they will now devote their

25 attention to this, and I accept their undertaking to do so, particularly

Page 240

1 in light of their efforts in respect of 92 bis.

2 I have not had conversations with the Krajisnik Defence team in

3 respect of the adjudicated facts, although we -- I should take that back.

4 Let me retract that, because I've misspoken. I have had conversations

5 with Mr. Brashich in respect of adjudicated facts, and he did endeavour to

6 go and consult with his client in respect of some of those adjudicated

7 facts, and what was reported to me, and I'll defer to Mr. Brashich on

8 this, was that it was a time-consuming process.

9 Now, I have a proposal, and that is that in three weeks' time,

10 that the Defence address themselves to the 1.363 adjudicated facts and

11 give me a reply on what their position is in respect of each of those

12 facts. And at that point in time, I will be in a position to inform the

13 Chamber what is accepted and what is not, and we can litigate the issue of

14 adjudicated facts once I am fully apprised of the position of the

15 Defence.

16 So that's what I can report to Your Honour insofar as adjudicated

17 facts.

18 JUDGE MAY: Let's pause there and try and resolve that aspect of

19 it.

20 Now, I turn to the Defence, and it's not satisfactory, in my view,

21 that there are no agreed facts. I cannot believe that there is nothing in

22 the indictment which is not susceptible of agreement.

23 It was, and I speak for my own experience, which some will

24 recognise, it was the fashion 50 years ago to enter criminal litigation

25 and say the Prosecution had to prove everything, everything was in

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Page 242

1 dispute, the Defence would prove nothing. I suggest that things have

2 moved on since then and that courts are moving towards - and certainly

3 this Tribunal should be moving towards - a position where only the matters

4 which really are in dispute are put before the Court for its resolution.

5 And it's particularly important in a case of this sort, that matters which

6 are susceptible of agreement should be agreed.

7 Now, this does not mean, of course, that matters which are

8 genuinely areas of dispute have to be agreed. There is no question of the

9 Court coercing parties into agreement. That, of course, is not the

10 position at all. But at the same time, may I suggest that a good faith

11 attempt should be made to agree on some basic things so that at least we

12 can move forward on an agreed basis and really deal properly in the trial

13 with the matters which are the central core issues.

14 One case - not this one - I remember where even the grid

15 references on a map were in dispute. It's not necessary to conduct

16 litigation, I suggest, these days in that way.

17 Now, I recognise there's a burden on everybody in the coming

18 months, but we must get this trial on.

19 Mr. Brashich, the proposal is that in three weeks you address

20 yourselves to the adjudicated facts issue. That's a rather different one,

21 but I suggest to you that you have a look again to see whether some

22 matters can't be agreed between the parties at the very outset.

23 MR. BRASHICH: I concur with your position, Judge May, as to

24 litigation. However, there is a totally different aspect to this

25 litigation which has to be addressed.

Page 243

1 We did try a good-faith effort to reach a consensus on what is

2 agreed and what is disagreed upon. However, as we are speaking as to the

3 adjudicated facts, they are in English. On one hand, we have been

4 bombarded and we continue to receive boxes and boxes of documents which

5 require our attention. On the other hand, I went over to the Detention

6 Unit, visited with my client to get his brief and his direction as to the

7 adjudicated facts.

8 Now, there's 1.363 facts. I tried to translate the adjudicated

9 facts and discuss them with my client. During the course of an afternoon,

10 we got through 15. There was a suggestion that we receive some aid from a

11 B/C/S speaker who would sit and translate, because it's quite difficult

12 for me to do it and at the same time act as an attorney and at the same

13 time act as a translator.

14 So for that reason, I just had to drop it and not go any further

15 with it because we just do not have neither the resources nor the time,

16 based on what we are getting from the Prosecution.

17 We just received 12 boxes of documents before we came to The

18 Hague. We haven't even had a chance to open those boxes and find out what

19 is inside. So the Defence is stretched to the limit, and we don't know

20 what to address first.

21 MR. PAVICH: Your Honour, I don't want to have the Court left with

22 the impression that we have taken and are taking an unreasoned position on

23 these issues. I think our position has been from the beginning that at

24 the appropriate time, we would address this. An amended indictment was

25 filed at the beginning of this year. That indictment was not sufficiently

Page 244

1 specific to enable us to address the adjudicated facts. And so our

2 understanding was that once the pre-trial brief had been filed, we would

3 then take that, together with the amended indictment, sit down with

4 counsel for the Prosecution and work through these matters. It is still

5 our intent to do so. It was always our intent to do it with that time

6 frame in mind. I simply don't want to leave the Court the impression that

7 we are taking an unreasoned position on this. It is something that we

8 feel we would like to address, and we feel this is the appropriate time to

9 do it.

10 I would ask my colleague Mr. Murphy, who was at the last 65 ter

11 conference, where I was not present, to address a couple of more specific

12 issues on that, with the Court's indulgence, please.

13 MR. MURPHY: Your Honour, the position as stated by Mr. Harmon,

14 with great respect, with -- about the agreements on the adjudicated facts

15 is somewhat incomplete. And if Your Honour would look at the transcript

16 of the last 65 ter conference, I think that would become very clear.

17 There were two matters of discussion: The first was, are there

18 any facts in the indictment which could be admitted or agreed to?

19 Mr. Harmon suggested, as he told the Court, that what we do is take a

20 coloured pen and mark certain areas of the indictment which might be

21 agreed and which were not. And he cited, for example, surely the

22 defendants don't dispute their dates of birth.

23 My response to that at the 65 ter conference was we will be very

24 happy to sit down with you and discuss that, but there are two problems,

25 both of which since probably have been resolved. One was that, at that

Page 245

1 time, we had not received the pre-trial brief. The second was that there

2 was still an application for leave to appeal pending in the Appeals

3 Chamber regarding the Trial Chamber's granting of leave to amend the

4 consolidated indictment. We took the position that until those issues

5 were resolved, it would be foolhardy of us to try to indicate agreed

6 facts. Now that those matters are resolved, we stand by the promise we

7 made to Mr. Harmon at the 65 ter conference to sit down with him and

8 resolve the issue, and we will.

9 Your Honour, as to the adjudicated facts, there was discussion of

10 that matter at the 65 ter conference, and the transcript reflects that it

11 was specifically agreed, I believe at the suggestion of Ms. Featherstone,

12 that a timetable be established for that today at this Status Conference.

13 And again, we have told Mr. Harmon on more than one occasion that we have

14 reviewed most of the adjudicated facts. We anticipate that most of them

15 will not be controversial. And it is our intention to respond positively,

16 as I believe the Plavsic has always demonstrated, for example, in relation

17 to the 92 bis statements.

18 JUDGE MAY: Very well. Let us consider how we move forward on

19 this issue. Is there any practical reason why you shouldn't meet after

20 this hearing and at least begin a preliminary discussion on this issue

21 with the Prosecution? Is the Prosecution ready to do that?

22 MR. HARMON: We are.

23 JUDGE MAY: Yes. Can I invite the Defence to meet with the

24 Prosecution and at least begin preliminary discussions on trying to

25 resolve these issues.

Page 246

1 The next proposal, clearly we should move towards a resolution;

2 the earlier, the better. The proposal is that you respond in three weeks

3 to the suggestion, suggestions made by the Prosecution. Now, that's the

4 proposal. I'll hear your reaction to it, Mr. Brashich.

5 MR. BRASHICH: Could I just confer?

6 JUDGE MAY: Yes, yes.

7 [Defence counsel confer]

8 MR. BRASHICH: Your Honour, after consulting, I just can't see how

9 we can do it. We have been allotted a certain amount of hours, which we

10 have used up. After discussing this with Mr. Kostich, with what we have

11 on our plate, I just can't see having the time to, first, go into the

12 decisions and the judgments, pulling those adjudicated facts and comparing

13 them as they appear in the judgment and still have time to sit with

14 Mr. Krajisnik and still attend to the other problems and other matters

15 that we have before us. I just can't see it being done in three weeks,

16 Your Honour.

17 JUDGE MAY: When do you think you could do it?

18 MR. BRASHICH: One moment, Your Honour.

19 [Defence counsel confer]

20 JUDGE MAY: Yes.

21 MR. BRASHICH: End of June, Your Honour.

22 JUDGE MAY: Very well. Let me consider that.

23 MR. BRASHICH: Your Honour, again, depending on which way the

24 Court rules and schedules, we are at the same time also doing our

25 pre-trial brief.

Page 247

1 JUDGE MAY: Yes, I have that in mind.

2 MR. BRASHICH: And addressing the 12 boxes which we haven't opened

3 yet.

4 JUDGE MAY: It may be that we have to come to a comprehensive

5 timetable on all these matters.

6 MR. MURPHY: Your Honour, the Plavsic Defence will comply with

7 whatever date the Court decides.

8 JUDGE MAY: Thank you. I will consider that. But the first

9 matter is there should be a meeting after this hearing to try and start

10 moving that matter along.

11 MR. BRASHICH: Yes, Your Honour.

12 JUDGE MAY: And I'm told the judgements are in B/C/S. Is that

13 right, Mr. Harmon?

14 MR. HARMON: Yes. When we submitted the adjudicated facts to the

15 Defence, we identified the particular paragraph from the judgement that we

16 were extracting the adjudicated fact. And the judgements themselves are

17 in B/C/S, and those judgements have been provided to the Defence. At

18 least, some of those judgements have.

19 MR. BRASHICH: That's correct. Some of the judgements were, and I

20 carry about 25 pounds of paper to the Detention Unit. And I also gave my

21 client the English version of the adjudicated facts, and I left him with

22 the chore to go through just using the numerical paragraphs. And I must

23 admit I have not had a chance to get a report from my client as to how

24 much of that he has completed.

25 JUDGE MAY: No doubt that's something which could be looked at

Page 248

1 today.

2 Yes.

3 MR. HARMON: Turning my attention to the expert reports that have

4 been filed with the Court, in June, early June of 2001, and on the 19th of

5 October, 2001, we filed 16 exhumation reports, the statements of experts

6 relating to these exhumation reports. Nine of those are translated into

7 English; seven were untranslated; and all of those reports were given to

8 the Defence on the dates I've informed Your Honour of.

9 Now, in order to alleviate the translation bottleneck that is

10 bedevilling us constantly in this case, a joint Defence expert was

11 appointed to review all of the untranslated reports. On the 8th of March,

12 2002, the Krajisnik Defence filed a request to cross-examine all of the

13 Defence experts. I was somewhat taken aback by that request, given that

14 there had been a previous communication saying that the expert was not in

15 a position to give an opinion unless and until he had received colour

16 photographs relating to some of those exhumation reports. And I inquired

17 as to whether or not those -- the expert could -- whether the

18 expert -- I'm sorry. Whether the filing by the Krajisnik Defence applied

19 to all of the expert reports or only those expert reports that did not

20 have photographs at all. I also suggested that we should sit down and

21 have -- identify what areas the expert had in disagreement, because we

22 might be able to resolve issues to the expert's satisfaction. And I have

23 not had any answer on that request.

24 At the last 65 ter conference, the issue of these expert reports

25 was raised and the joint position, the joint Defence position, was that

Page 249

1 all of the expert reports are contested, including the individual autopsy

2 reports contained in those exhumations. Now, the impact on that,

3 obviously, of that decision is considerable. It will create additional

4 problems in terms of the translation backlog. We will submit those

5 additional reports that are now being contested into the translation

6 queue. And in addition to the 16 exhumations I've identified, we have an

7 additional six exhumation reports that we intend to file that relate to

8 additional sites identified in the indictment.

9 So that is what I can report insofar as the 94 bis statements of

10 experts, specifically the forensic experts dealing with exhumations.

11 JUDGE MAY: Yes, Mr. Brashich.

12 MR. BRASHICH: Your Honour, whenever I appear here, there appears

13 to be an onus on the Defence to do more than what it is doing. When we

14 found ourselves with the problem that there were nine untranslated expert

15 witness reports and they were given to us a year and a half or two years

16 into this case, we went out of our way, both the Plavsic Defence and the

17 Krajisnik Defence, to appoint a B/C/S-speaking expert to be able to get

18 through the reports and to allow us to take a position.

19 We have consulted with our expert, and based on our consultation,

20 we have taken the position that we do not accept the expert witness report

21 and we wish to cross-examine the particular witness.

22 I know that we have a problem with translation, but that onus is

23 not upon us. That onus is either on the Prosecution or the Registry. And

24 I think that the Krajisnik Defence has tried to cooperate and be as

25 reasonable as possible.

Page 250

1 And then, of course, we do stand by our position that we do wish

2 to cross-examine the expert witnesses.

3 JUDGE MAY: But, Mr. Brashich, what possible issues arise about

4 exhumations?

5 MR. BRASHICH: One very simple one is date of death. We have an

6 indictment from June 1991 to December 30, 1992. Don't you think date of

7 death is relevant, Your Honour?

8 JUDGE MAY: Don't address the Trial Chamber like that. But --

9 MR. BRASHICH: I apologise, Your Honour.

10 JUDGE MAY: -- Mr. Brashich, you see, here is a matter which it

11 does seem to me should be susceptible of agreement. These are experts, I

12 take it, and I take it they're independent. The notion -- I'm told, and

13 that may be wrong, that there are some 70 or 80 individual autopsy

14 reports. Now, it does seem to me again that this must be an area in which

15 there could be some agreement.

16 Now, what about, again, you can meet with the Prosecution to

17 discuss what the issues are that arise. The notion that a Trial Chamber

18 is going to spend a very long time going through that is a matter of

19 concern. There are far more fundamental problems in this case. Yes.

20 MR. BRASHICH: Your Honour, I've just been told --

21 THE INTERPRETER: Microphone for Mr. Brashich.

22 MR. BRASHICH: Your Honour, we're more than happy to meet, but

23 I'll defer to Mr. Pavich on this issue.

24 JUDGE MAY: Yes.

25 MR. PAVICH: I think the Court's anticipated exactly what we plan

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Page 252

1 to do. I think that with regard to the autopsy reports, it's a matter of

2 our being able to establish a sufficient foundation that will reassure us

3 that these reports relate to deaths that occurred within the period of

4 indictment, and I believe that counsel for the Prosecution will sit down

5 with us, and we will go through the materials that will address our

6 concern as to what foundational material will be supplied in addition to

7 the autopsies that will give us the assurance that these autopsies relate

8 to deaths that occurred within the period of the indictment; I think

9 precisely what the Court has in mind.

10 JUDGE MAY: I mean, it may be -- it may not be a matter which is

11 susceptible, because it may not be a matter on which experts can agree.

12 But of course there are procedures in some courts for experts to meet and,

13 if necessary, to produce an agreed report. I don't know whether that's a

14 way forward here.

15 MR. BRASHICH: Your Honour, I just wanted to make it clear that

16 this is only one of the issues which our expert has raised.

17 I have discussed these reports at length with Professor Dunjic,

18 and it is based on his advice and not my independent decision or judgement

19 that cross-examination was well warranted in this case.

20 JUDGE MAY: Well, meet with the Prosecution to see whether these

21 matters can't be ironed out. I mean, if there are genuine matters of

22 concern about the reports, then of course they should be addressed. But

23 if they're peripheral and unimportant on analysis, then the report should

24 be agreed as far as possible.

25 So, Mr. Harmon, could you add to the agenda for the meeting

Page 253

1 something of that?

2 MR. HARMON: Yes. I will be glad to.

3 JUDGE MAY: Something of that aspect. Yes.

4 MR. HARMON: Turning now to the issue of video clips. In November

5 of 2001, on the 6th of November, in an effort to alleviate the bottleneck

6 on translations in respect of video clips that had been submitted to the

7 Defence, the Defence undertook to have translated and prepared transcripts

8 of video clips where no transcripts existed.

9 Now, despite being assured repeatedly that the work had been done

10 or some work had been done on these transcripts and that they would be

11 provided to the Prosecution forthwith, to date we have not received any

12 transcripts of video-clip material that has been apparently prepared in

13 the former -- in the Federal Republic of Yugoslavia. So that is what I

14 can report insofar as the video clips are concerned.

15 MR. BRASHICH: Your Honour, this is the Krajisnik Defence

16 undertaking and the only thing I can say is mea culpa. I have not

17 followed through. Every time I wish to follow through and to call

18 Belgrade and say, "Just put them in an envelope and send them," I get

19 derailed.

20 I was thinking of going to Belgrade tomorrow. If not, I will get

21 the transcripts that have been done. And as I have advised

22 Ms. Featherstone in several Rule 65 ter conferences, that effort came to a

23 dead stop due to lack of resources. But what has been done, if I have to

24 personally deliver it, I will do it, but it is my mistake. Mea culpa.

25 JUDGE MAY: Is the position that the transcripts have been

Page 254

1 completed and are waiting delivery or that they haven't been done?

2 MR. BRASHICH: They have been done. They need to be polished, the

3 ones that have been done, and delivered. But it's only a portion of the

4 video clips, because we came to a stop due to resources.

5 JUDGE MAY: Well, seven days for return?

6 MR. BRASHICH: Yes, Your Honour.

7 JUDGE MAY: Seven days for return, and the video clips which

8 haven't been processed should also be returned.

9 Is that right, Mr. Harmon? Do you want the video clips back or --

10 MR. HARMON: Yes, I would like the video clips back, and I would

11 like the portion -- the clips clearly identified as to which -- I'm sorry,

12 the transcripts for the clips clearly identified. So there would be a

13 transcript from a clip that would be identified. We have given the

14 Defence a list of the video clips with numbers --

15 JUDGE MAY: Yes.

16 MR. HARMON: -- and if they can correspond the transcript to the

17 list that I have furnished to the Defence, that would be helpful.

18 MR. BRASHICH: Understood, Your Honour.

19 JUDGE MAY: All right. Seven days, then.

20 Yes, Mr. Harmon.

21 MR. HARMON: Now let me -- and I can turn my attention then to

22 experts, the remaining experts. That appears on Your Honour's list, and

23 let me address that issue.

24 We have identified in our pre-trial brief some of the experts we

25 intend to call, specifically Mr. Ewan Brown, Mr. Rick Butler, Pat Trenor,

Page 255

1 Professor Bianchini, and we have apparently omitted to identify, but I

2 will identify now, two experts in addition; Robert Donia and Dolly

3 Hanson. Those expert reports that are being prepared by these experts we

4 will try to complete as soon as possible. I say that because some of

5 these experts have very busy schedules.

6 We have -- some of these expert reports are works in progress, and

7 as I have said before, we will turn these expert reports over as soon as

8 they are completed.

9 There is an issue of two experts, a propaganda expert, which we

10 have yet to identify. We have tried to identify the proper expert, and we

11 have been unsuccessful to date in identifying that expert, but we continue

12 in that effort.

13 And the other expert is demographics. Again, we have been in

14 consultation but have not yet identified the actual expert. We will

15 continue to do so with great attention, and once identified, we will

16 identify the expert to the Defence and have the reports turned over to the

17 Defence as soon as we get the reports in hand.

18 JUDGE MAY: Very well. I seem to remember that experts feature in

19 the motion which has been put forward by Mrs. Plavsic to exclude

20 evidence.

21 MR. HARMON: Yes. We received that late yesterday afternoon,

22 midday, and we will address more fully the issue of experts in our written

23 reply.

24 JUDGE MAY: Now, I think that probably leaves outstanding the

25 matter of exhibits and translation. Perhaps you can update the Court on

Page 256

1 that.

2 MR. HARMON: I'm going to defer to my colleague Mr. Tieger to

3 address this, Your Honour.

4 MR. TIEGER: Your Honour, of course it's no accident that the

5 Court mentioned those two issues in tandem. They are intertwined, and our

6 discussions related to them have always taken place in recognition of that

7 fact. I would draw the Court's attention, therefore, back to the last

8 65 ter conference, during which the translation project was discussed. At

9 that time, all the parties strongly endorsed the project and expressed

10 their support for it and the fact that they were greatly encouraged by

11 it. We did identify a problem that the translation resource needed to be

12 augmented in order to keep up with the capacity for review that had been

13 created. At that conference, we assured your senior legal officer that we

14 would direct our attention to that issue, and we have done so.

15 With the tremendous cooperation within the institution, we have

16 indeed augmented the translation capacity by a substantial percentage,

17 greatly increased it, so that the output of translations will go from

18 hundreds -- a few hundred pages a month to actually thousands of pages per

19 month. And we are -- that process is being put in place. As of today,

20 the first reinforcements will be on line today, and within a

21 matter -- they will be consistently increased over the next few weeks.

22 And the capacity I just described for thousands of pages, rather than

23 hundreds, will be available shortly. I think that's the most direct and

24 effective way of addressing the problem that we have been discussing up to

25 now and satisfies the concerns of the parties as expressed at the 65 ter

Page 257

1 conference.

2 JUDGE MAY: What is the current position? Can you update the

3 Court as to the current position of documents untranslated? I am told, as

4 I said, that the list contains over 11.000. Have they all been

5 disclosed?

6 MR. TIEGER: Yes, Your Honour, they have. The particular numbers

7 involved are as follows: There are somewhat less than 7.800 exhibits.

8 They total approximately 10.800 documents. Obviously, certain exhibits

9 are a series of documents that relate closely to each other. I'm advised

10 that there are approximately 4.500 documents awaiting translation, and

11 those will be processed through the translation project. As I said, the

12 logistical steps have already been put in place to ensure that the

13 reinforced resources that have now been made available will be fully

14 employed at all times.

15 JUDGE MAY: So that I understand the position, the translation, is

16 that from B/C/S into English and French?

17 MR. TIEGER: Yes, Your Honour.

18 Excuse me, Your Honour, I misspoke; into English.

19 JUDGE MAY: Into English.

20 Yes, well, that clearly is a serious matter we'll have to consider

21 in due course, along with the motion. If this trial is to come on in

22 October and November, which it really must, then we need to address that

23 problem. But you're having them translated at the rate of a thousand a

24 month. Is that right?

25 MR. TIEGER: Several thousand pages, Your Honour. Let me say that

Page 258

1 the resource allocation is geared to the number of pending documents and

2 to the pending deadline. And we're augmenting that with that in mind in

3 order to ensure that the deadline will be met.

4 JUDGE MAY: Yes, thank you. Mr. Harmon, one matter: Is the -- it

5 would be sensible, right, to put a date for the expert reports? I have in

6 mind a final cutoff point. Do you want to address me on that? You've

7 explained your position, but there must come a time when the evidence is

8 in.

9 MR. HARMON: Yes. In order to address you comprehensively, I need

10 to consult with the experts themselves. And I would request that I

11 address you either in a written memorandum or --

12 JUDGE MAY: Could you do that?

13 MR. HARMON: Yes.

14 JUDGE MAY: If you could have a memorandum within 14 days.

15 MR. HARMON: Yes, I will do so.

16 JUDGE MAY: On the availability of the experts' reports.

17 MR. HARMON: Yes.

18 JUDGE MAY: And the date.

19 Are there any matters which are outstanding as far as the

20 Prosecution are concerned?

21 MR. HARMON: None, Your Honour.

22 JUDGE MAY: Let me turn to the Defence. The pre-trial brief has

23 now been filed. A motion has been filed by Mrs. Plavsic which the Trial

24 Chamber as a whole will have to consider. It's not a matter for me

25 alone. And of course, we'll do so when we've had the response from the

Page 259

1 Prosecution. If necessary, we'll have to have an oral hearing on it.

2 But meanwhile, I would wish to make a timetable towards a trial in

3 the autumn, which has always been the ambition -- the proposal, rather.

4 And what is required, of course, at the next stage is Defence responses.

5 I've heard about that, adjudicated facts, and also the pre-trial briefs.

6 And a tentative date, I think, has been set for the 1st of September, and

7 that would allow the trial to start in October or November. But I'll hear

8 the Defence as to that.

9 MR. PAVICH: Your Honour, it has always been our intent to do

10 whatever is possible in order to bring this case to trial as quickly as

11 possible. Our motion, I think, at this point speaks for itself. It

12 raises some very grave concerns about whether we're going to be able to

13 adequately prepare a defence within the time frame that we have all been

14 working toward, and that is an October or November trial date.

15 I think that we've heard now for the first time from counsel for

16 the Prosecution that the seemingly insurmountable problem that we are

17 confronted with, that is the problem of translation, is going to be

18 addressed once again with a new approach, which sounds, based on past

19 experience, to us at this point as being seen very optimistically by the

20 Prosecution. I would suggest that we have a Status Conference within a

21 reasonably short amount of time in order for us to determine how realistic

22 the proposal that we have heard this morning for the first time, that is,

23 that thousands of pages will now be translated per month as opposed to the

24 trickle, literally, of less than 100 a month that we have been getting

25 over the last several months because, Your Honour, it is impossible for us

Page 260

1 to make the kind of commitment that we want to make to the Court with

2 regard to our pre-trial obligations without addressing this translation

3 problem which, frankly speaking, has grown over the past several months.

4 Rather than having this matter being more streamlined over the past

5 several months, despite the encouragement of the Court, we found that the

6 number of documents and exhibits that we have been confronted with has

7 grown from last summer from the 800 core documents to a matter of now

8 thousands, 10.000 documents, almost 5.000 of which have not been

9 translated, which means probably 15 to 20.000 pages of documentation.

10 And so on the one hand, while we have been aggressively trying to

11 meet the problem, from the Plavsic Defence point of view, for example,

12 bringing in 19 translators in Novi Sad on the project that has been

13 proposed and put in effect over the past several months in an effort to

14 deal with this translation problem, we are also then confronted with

15 additional documents that we were given with the filing of the pre-trial

16 brief. So that we will do everything we can to meet the Court deadlines.

17 But I think realistically it is going to be impossible for us to make that

18 commitment unless we can determine that this proposal that we've heard for

19 the first time today is, in fact, a realistic proposal. Will the

20 institution be able to go from translating less than a hundred pages a

21 month to several thousand per month? Perhaps a Status Conference in the

22 next two to three weeks will enable us to assess that and put us in a

23 position where we can give a more realistic response to the Court.

24 Because at this time, Your Honour, I'm not going to reiterate

25 what's in the motion, but I think it's rather clear from our motion that

Page 261

1 we're not only at this point confronted with a less-than-perfect trial but

2 a situation that may not allow us to meet our obligations under

3 Articles 20 and 21. On the other hand, if this proposal is, in fact,

4 realistic and we are going to be getting thousands of pages per month, we

5 should get some sense of that within the next three to four weeks. And I

6 would suggest a Status Conference so that we will be able at that point to

7 more realistically assess the position that we can take.

8 JUDGE MAY: Mr. Pavich, what I would have in mind is to fix a date

9 of the pre-trial brief for the 1st of December [sic], with leave to apply

10 to amend, if necessary, so that if you were unable to meet it, you

11 could apply. But it is most important, in the Court's view, that this

12 case comes on and that everything must be done towards that end, and for

13 that reason, the target date for a Defence pre-trial brief will be of

14 assistance, even with the difficulties which you've mentioned.

15 But again, it may be sensible to discuss with the Prosecution,

16 when you meet after this hearing, how the problem can be alleviated with

17 regard to translation. Nobody wants the Defence to be in a position of

18 simply being unable to prepare properly.

19 MR. PAVICH: That seems to be a reasonable position that the

20 Court's encouraging us to take. I would ask the Court, however, to

21 seriously scheduling a Status Conference in the reasonably near future so

22 that we can again address this situation from a more realistic

23 perspective.

24 JUDGE MAY: Yes, we will do that.

25 Yes, Mr. Brashich.

Page 262

1 MR. BRASHICH: Your Honour, I just want to make it clear that the

2 Krajisnik Defence has joined the motion made by the Plavsic Defence with a

3 reservation of rights which I filed yesterday.

4 JUDGE MAY: Very well. I'll consult with the legal officer.

5 [Trial Chamber and legal officer confer]

6 JUDGE MAY: The orders we shall make with regard to the calendar

7 are these: We will have a Status Conference on the 31st of May. It will

8 have to be after the hearings in Milosevic. It will be at 12.00 or

9 perhaps a bit later but on that day, the Friday. The Defence to respond

10 with regard to adjudicated and agreed facts by the end of June, the 30th

11 of June. The pre-Defence brief -- pre-trial brief, I should say, for the

12 Defence, rather, the 1st of September. It's come up on the transcript on

13 the last occasion as "December." Either, to use the expression of the

14 Tribunal, I misspoke or it was taken down wrong, but 1st of September.

15 And I encourage counsel to try and agree as much as possible, in a meeting

16 hereafter, on those matters which have been discussed today.

17 Also, it may be possible, Mr. Harmon, to do something at least

18 with regard to the Plavsic motion, at least to try and resolve some of the

19 issues. And perhaps we could have a report to the senior legal officer on

20 any matters which have been agreed.

21 MR. HARMON: Yes.

22 JUDGE MAY: Thank you very much. Are there any other matters

23 which counsel want to raise?

24 MR. BRASHICH: No, Your Honour.

25 MR. PAVICH: No, Your Honour.

Page 263

1 JUDGE MAY: Thank you for your attendance. We will adjourn until

2 the 31st of May or the next date.

3 --- Whereupon the Status Conference adjourned

4 at 10.11 a.m.