Tribunal Criminal Tribunal for the Former Yugoslavia

Page 477

1 Friday, 3 June 2005

2 [Status Conference]

3 [Open session]

4 [The accused not present in court]

5 --- Upon commencing at 3.05 p.m.

6 JUDGE KWON: Good afternoon, everybody. Please call the case.

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

8 This is case number IT-03-69-PT, the Prosecutor versus Jovica Stanisic

9 and Franko Simatovic.

10 JUDGE KWON: Thank you. Would the parties make their

11 appearances, please.

12 MR. RE: For the Prosecution, good afternoon, Your Honour, David

13 Re assisted by our case manager Ms. Skye Winner.

14 JUDGE KWON: Thank you, Mr. Re.

15 MR. JORDASH: For Mr. Stanisic, myself, Wayne Jordash, and

16 Melinda Taylor.

17 JUDGE KWON: Is Mr. Knoops not coming today?

18 MR. JORDASH: No, he didn't.

19 MR. JOVANOVIC: Good afternoon, Your Honour. I'm Zoran Jovanovic

20 appearing on behalf of Mr. Franko Simatovic. Thank you.

21 JUDGE KWON: [Interpretation] Thank you, Mr. Jovanovic.

22 This is the sixth Status Conference with the previous one being the one

23 that took place on 20th of January this year, and this Status Conference

24 was due originally last month, but upon the request of the parties I

25 postponed it to today. Although we passed the 112 days provided by the

Page 478

1 Rules, I don't see any problem there given that there were consent of all

2 the parties involved and that the accused are on provisional release.

3 First of all, I deal with the matters. There's one thing I'd like to

4 raise with the parties, in particular the Mr. Stanisic Defence.

5 I was handed over a memorandum from Mr. Knoops by the senior

6 legal officer of our Chamber, a memorandum addressed to me titled

7 "Defence memorandum on preparation for the Status Conference on the 3rd

8 of June, 2005," which is partly to be confidential. I note that it is of

9 great assistance for the Chamber, for the Pre-Trial Judge, to deal with

10 the matter, because it can serve as a summary of the submission of the

11 party, but given that it contains a substantial and detailed submission

12 of the party, I would prefer such document to be filed officially. Could

13 that be done?

14 MR. JORDASH: Certainly.

15 JUDGE KWON: Thank you. I understand that there are several

16 motions outstanding at this moment. Two most important of them being --

17 one of them is motion for the amendment of indictment from the

18 Prosecution, and we, the Chamber, granted the motion from the Defence

19 from the extension of time for response until the motion till the access

20 to ex parte materials be resolved. That decision will be filed,

21 delivered in due course very shortly, sometime hopefully in the next

22 week.

23 And then we have a bigger motion, motion for joinder from the

24 Prosecution. I wonder if that motion has any effect on the motion for

25 the amendment of indictment at all. If Mr. Re can give some explanation

Page 479

1 on that.

2 MR. RE: At the moment they stand separately. The motion to

3 amend the indictment is only in respect of Mr. Stanisic and Mr.

4 Simatovic. No similar motion has been proposed in the Seselj, Hadzic, or

5 Martic case.

6 The Prosecution's position is the Trial Chamber should proceed to

7 deal with that matter separately because the motions which have been

8 filed in relation to Martic, Seselj, and Simatovic and Stanisic I think

9 were going to the bureau and the two are essentially separate matters.

10 If the Trial Chamber or the bureau decides to join the indictments of the

11 various accused any indictment coming out of that which would have to be

12 a joint indictment would deal with that separate issue of the amendment

13 and whether it applies to one or all of the accused on an amended joined

14 indictment. Does that assist?

15 JUDGE KWON: Yes. I'm not sure whether it is for the bureau to

16 decide upon the issue. But can I take it that the Prosecution's position

17 is that once decided to join them we'll have one joint indictment?

18 MR. RE: That would be the case. When I say the bureau, I

19 understand the process was the bureau was getting the Trial Chambers

20 together to decide on it as opposed to making the decision itself.

21 JUDGE KWON: Thank you. Any observation from the Defence on this

22 point?

23 MR. JORDASH: The only observation I would make is that the

24 timing of the response to joinder, I would respectfully submit, ought to

25 be extended to allow the decision on the amendment in relation to

Page 480

1 Stanisic and Simatovic indictment to be decided first. We ought to then

2 be allowed to look at what the indictment is after that decision before

3 having to consider the joinder decision.

4 JUDGE KWON: The Chamber will consider the motion when it is

5 filed from the Defence for the extension of time for response.

6 MR. JORDASH: Certainly. We'll do it that way.

7 JUDGE KWON: Thank you. I'd like to deal with the -- some

8 disclosure issue. I understand that there are some dispute or

9 disagreement between the parties upon some certain translation issues.

10 Can I hear from the Defence, first of all.

11 MR. JORDASH: Well, it relates specifically Witness B024, but it

12 may well relate to others, but the Defence wrote to the Prosecution

13 request service of a B/C/S transcript of B024's interview.

14 JUDGE KWON: Which is taped into video, so you mean the

15 transcription of that video?

16 MR. JORDASH: Transcription of the video.

17 JUDGE KWON: I understand English transcript has been disclosed.

18 MR. JORDASH: That's right. And what we're seeking is the

19 Prosecution to disclose the B/C/S transcript version so that the accused

20 can study that interview.

21 JUDGE KWON: My understanding is that the actual video hasn't

22 been disclosed because of --

23 MR. JORDASH: That's right.

24 JUDGE KWON: -- certain protective measures.

25 MR. JORDASH: That's right. The Prosecution take the view that

Page 481

1 by disclosing the video the accused would recognise the voice and that

2 would breach the protective measures order. We don't seek to go behind

3 that. What we seek to have instead, therefore, is disclosure of the

4 B/C/S transcript. The Prosecution's response in a letter dated the 1th

5 of April, 2005 is simply to say we do not have the B/C/S transcript of

6 the interview; the witness subject of protective measures; the

7 Prosecution do not provide a copy of the audiotape as his voice would be

8 known by the accused. Full stop. They don't go on to deal with their

9 position in relation to whether they consider they've complied with their

10 disclosure obligations simply by taking that position.

11 We would say in order to properly comply with their disclosure

12 obligations they ought to serve a B/C/S transcript to allow the accused

13 to be able to know the case against him.

14 JUDGE KWON: So the issue will be whether Prosecution has

15 obligation to translate those transcription into B/C/S.

16 MR. JORDASH: Exactly. In the absence of --

17 JUDGE KWON: In the absence of the Serb version.

18 MR. JORDASH: And serving the video, which they do not which to

19 do.

20 JUDGE KWON: Thank you. Can I hear the Prosecution's position.

21 Mr. Re.

22 MR. RE: Yes. The Prosecution's position is that we have

23 complied with our disclosure obligations. We have provided the Defence

24 with a copy of the transcript in English in a very timely fashion. They

25 -- we do not have a B/C/S transcript. It hasn't been done. Nothing, of

Page 482

1 course, prevents the Defence from translating it themselves or requesting

2 a translation from CLSS or do an informal one themselves if they wish it

3 to be done. It's not an issue of the Prosecution feeling -- not

4 providing the audio because it feels that the voice would identify the

5 person being interviewed, there's a Trial Chamber order for delayed

6 disclosure of 30 days before trial.

7 Our position is that we've complied and there's nothing more we

8 wish to say about it.

9 JUDGE KWON: So the Prosecution's case is that this is different

10 from the obligation of disclosing witness statements.

11 MR. RE: That's correct.

12 JUDGE KWON: Where the Prosecution has obligation to translate.

13 MR. RE: That's correct.

14 JUDGE KWON: Into the language the accused understands.

15 MR. RE: That's correct.

16 JUDGE KWON: And I will also note there's a similar problem in --

17 I wonder whether I can name these suspects [sic]. Can I go into private

18 session briefly.

19 [Private session]

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 483

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 JUDGE KWON: Different from a protected witness, Mr. Babic's case

13 is a bit different I would assume. There's a similar problem in relation

14 to Babic suspect interviews, and the Prosecution takes the same position,

15 but my query is whether Prosecution has any translation of the

16 transcription in -- given -- considering the Rule 43(vi), because let me

17 find the -- read the: "Whenever the Prosecutor questions a suspect, the

18 questioning shall be audio-recorded or video-recorded, in accordance with

19 the following procedure," and then subparagraph (vi) says "the tape shall

20 be transcribed if the suspect becomes an accused."

21 I have to note that Mr. Babic has already become an accused so I

22 assume the Prosecution should already have the transcription -- sorry,

23 the translation into B/C/S of that transcription.

24 MR. RE: Yes. There's definitely the English one.


Page 484

1 MR. RE: I'm sorry, I thought the issue was the plea agreement

2 not the suspect interview.

3 MR. JORDASH: It is the suspect interviews. That's the issue.

4 JUDGE KWON: Yes. It's different from 68 material. The suspect

5 interview is also in --

6 MR. JORDASH: This is the I view that we would wish to --


8 MR. RE: Our view of the Rule is the same as I outlined earlier:

9 The transcription is --

10 JUDGE KWON: Should be in English.

11 MR. RE: -- in English or French, the official languages of the

12 Tribunal. We have provided it in English.

13 JUDGE KWON: Having noted the Prosecution position and if the

14 Defence still wants the translation of those English transcription, it

15 should file the motion and the Chamber will consider the issue.

16 Any further observation, Mr. Jordash?

17 MR. JORDASH: I would only make this observation: We would say

18 the Rule is quite clear Rule 66 on this issue. And whilst we accept Your

19 Honour's direction to file a motion, we are almost overwhelmed in this

20 case by the mass of material. And filing motions on issues such as this

21 places an even greater burden on us where we would say the Prosecution

22 obligation is crystal clear. Those are my observations.

23 JUDGE KWON: If you could cite the jurisprudence which exists

24 already. Speaking for myself, I think it is not crystal clear whether

25 66(A)(ii) covers the transcription of suspect interview, videotaped

Page 485

1 interview.

2 MR. JORDASH: I would simply say plain reading of the rules -- I

3 don't have the jurisprudence at my finger tips --

4 JUDGE KWON: I would appreciate --

5 MR. JORDASH: Certainly.

6 JUDGE KWON: -- the Defence would file a motion on this issue.

7 Then we have an issue in relation to 68 materials. Yes. I

8 understand the Defence is seeking the plea agreement of certain accused.

9 Can I hear from the Defence first on this issue.

10 MR. JORDASH: The -- what we're seeking is the statements

11 underlying the plea agreement and would simply say that they fall, we

12 would submit, under Rule 68 obligations.

13 JUDGE KWON: To which the Prosecution do not agree.

14 MR. JORDASH: They do not agree. There has been correspondence,

15 and I think that this particular witness we're referring to is subject to

16 protective measures, but it has been dealt with in correspondence in

17 April and May and the Prosecution do not accept that they have an

18 obligation to disclose that agreement or the underlying statement.

19 JUDGE KWON: Is it not for the Prosecution to determine whether a

20 certain material is exculpatory or not?

21 MR. JORDASH: Well, it is for the Prosecution to determine that.

22 We accept that. After a review of the material, we take note that -- but

23 we are concerned because we have, for example, disclosed a pre-trial

24 brief and the Prosecution have not, it appears, reviewed that in order to

25 fulfil their Rule 68 obligations, and we're concerned in relation to this

Page 486












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Page 487

1 specific witness that the same might be true. We accept, of course, that

2 it's within their jurisdiction, if I can put it that way.

3 JUDGE KWON: I'm sorry, you said after a review of the material.

4 Do you mean you reviewed that very material?

5 MR. JORDASH: No, after -- the Prosecution's obligation extends

6 to reviewing the material and then making a decision as to Rule 68

7 material. We would say that there are concerns that they haven't done it

8 in relation to the pre-trial brief and they may not have done it in

9 relation to this identified witness. That's our position.

10 JUDGE KWON: Thank you. Mr. Re, the refusal, if I can say so,

11 from the Prosecution to disclose those materials is based on the fact

12 that -- or assessment of the Prosecution that they are not exculpatory.

13 Am I correct in so understanding?

14 MR. RE: Yes. There are two issues which my learned friend Mr.

15 Jordash raised. The first one is the two plea agreements. The two plea

16 agreements were filed confidentially in the two cases concerned. One of

17 them is as about irrelevant to this particular indictment as you could

18 possibly get. The other one contains nothing exculpatory or in any way

19 affecting the credibility of the proposed witness which isn't referred to

20 in the judgement. Sorry, there's nothing in that plea agreement which

21 isn't in the judgement anyway. The fact is that --

22 JUDGE KWON: Exculpatory, being different from about relevant.

23 MR. RE: They're not relevant. They're not exculpatory. They

24 don't affect the credibility. They're filed confidentially and we've

25 made it clear if the Defence wishes to gain access to these they simply

Page 488

1 file a motion before Trial Chamber I for access to it. I doubt we'll

2 oppose the motion.

3 JUDGE KWON: I'm sorry to interrupt here. The confidentiality

4 itself cannot be an obstacle for the -- to the disclosure of 68

5 materials. Once Prosecutor finds that material exculpatory it has the

6 duty to get the permission from the Chamber to disclose those materials

7 to the Defence.

8 MR. RE: Well, of course. That's what I'm saying.

9 JUDGE KWON: So the issue is not confidentiality but

10 exculpatoriness.

11 MR. RE: There are two subissues there. One is there is nothing

12 Rule 68. We have reviewed it. As Your Honour has correctly pointed out

13 the law, we have reviewed it. There's nothing there which in our view

14 could possibly be Rule 68 which moves to the fact that the Defence wants

15 to get hold of these. If they wish to do so they must file a motion

16 before the relevant Trial Chamber and we've told them that.

17 JUDGE KWON: Whether Prosecution cannot take it as the Defence is

18 invoking 66(B) disclosure.

19 MR. RE: I suppose that if you took it at its most technical in

20 relation to one of them, possibly. Possibly. In relation to the other

21 one, not at all.

22 JUDGE KWON: I think I can understand the other one. If the

23 Defence can elaborate on the relevant of that, the other one.

24 MR. RE: The Prosecution doesn't mind if they mention the names

25 publicly. We don't think there's any -- any need for confidentiality.

Page 489

1 JUDGE KWON: That would be Mr. Jokic, I --

2 MR. RE: Admiral Jokic. We say it's irrelevant because it

3 concerns the shelling of Dubrovnik in 1991.

4 MR. JORDASH: That particular witness, as from the pre-trial

5 brief, that person had a relationship with Bogdanovic who was in the

6 Ministry of the Interior. Clearly related closely in time and activities

7 to the accused. We are not simply asking for the plea agreement. The

8 letter we sent to the Prosecution asked for the plea bargain, the factual

9 basis for the plea bargain or witness statements from Admiral Jokic which

10 relate to the role of the Ministry of Defence and the Ministry of

11 Interior in Croatia. That's the relevance, we would say, and we would

12 say that would upon a proper review give rise to a decision that that

13 material in part at least is exculpatory. That is clear, we would

14 submit, from the pre-trial brief.

15 JUDGE KWON: However, having heard from the Prosecution that they

16 find those materials not exculpatory to the Defence, the reasonable steps

17 for the Defence to take is to go to the Chamber and get the permission

18 for access to those materials, I would say.

19 MR. JORDASH: May I simply just leave at it at this, then, Your

20 Honour, that when the Prosecution wrote back to the Defence,

21 notwithstanding the request for a number of items revolving around the

22 plea agreement, the Prosecution's response dealt only with the plea

23 agreement. It might assist the Defence in terms of knowing whether to

24 submit a motion or not to know whether the Prosecution have in fact

25 reviewed all that material or in fact have simply reviewed the plea

Page 490

1 agreement as indicated by their letter. If it's the former, that they

2 reviewed all that material, it may mean that a motion is pointless. But

3 if they have limited themselves to the plea agreement, they might in the

4 spirit of cooperation want to look at the other material first before we

5 then are obliged to take a decision as to whether to draft a motion.

6 I don't know if the Prosecution want to assist in indicating the

7 position.


9 MR. RE: Well, we have reviewed the material related to Admiral

10 Jokic and as far as I know there's nothing there which could be Rule 68.

11 JUDGE KWON: Thank you.

12 MR. RE: There was one other issue which Mr. Jordash commented or

13 arose in relation to Rule 68, and that was -- I think he said that we

14 had, he suspected, failed to comply with our obligation because we hadn't

15 read the pre-trial brief and done searches looking for exculpatory

16 material. In as much as that may be a live issue here and was raised at

17 the Rule 65 ter conference the other day and in correspondence between

18 the parties, we have made our view clear to the Defence that we invite

19 them to provide us with relevant search terms which they consider

20 relevant to their defence, and we will run the requisite searches through

21 the material they would not have access to on the Electronic Disclosure

22 Suite, namely witness material and Rule 70 material. We make it quite

23 clear from reading, as the Defence suggests, the index to the pre-trial

24 brief it tells us virtually nothing. It's an index of subject headings.

25 We are not a position to second-guess the Defence tactics or the exact

Page 491

1 nature of what they're after or what could be exculpatory. We are basing

2 it upon our own assessments. If they wish us to assist them in the most

3 practical manner, we invite them to provide us with search terms and we

4 can run the searches.

5 MR. JORDASH: Your Honour, may I just briefly reply. It's not --

6 it was a concern I expressed. I'm not making any firm allegations, but

7 what we do say is that we will provide more in the -- by way of search

8 terms although we do say that the pre-trial brief is fairly detailed.

9 But we hear what the Prosecution say and search terms will be

10 forthcoming.

11 JUDGE KWON: Yes. Since the Prosecution's position is clarified,

12 I leave the matter to the Defence.

13 What happened to the statements of Mr. Bogdanovic and Janackovic?

14 Have they been disclosed?

15 MR. RE: I was actually reviewing them today, so that -- I'll be

16 in a position to communicate with the Defence sometime next week on

17 whether they should be disclosed or not.

18 JUDGE KWON: And has the video in issue been disclosed?

19 MR. RE: The video in issue is sitting on the floor next to me

20 and we will hand it to the Defence immediately after the conclusion of

21 this Status Conference.

22 JUDGE KWON: Thank you.

23 MR. JORDASH: On that subject, I'm sorry to leap to my feet, but

24 I would like to express a further concern about that video. It was, as

25 Your Honour knows, subject to special measures. We haven't received it,

Page 492

1 notwithstanding an order of May the 11th that the --

2 JUDGE KWON: Yes. I didn't know that until I entered the

3 courtroom today, and actually theoretically speaking or practically

4 speaking, the Prosecution should be in breach of that protective measure.


6 JUDGE KWON: But now I think that kind of protective measure is

7 of no use at this moment. I'll discuss the mat we are the Chamber and

8 try to lift that confidentiality very shortly.

9 MR. JORDASH: Well, that's my concern, simply put: special

10 measures. We haven't been allowed to see the video. The rest of the

11 world has.

12 JUDGE KWON: Thank you. And I think there are some three or four

13 matters Mr. Stanisic's Defence would like to raise, but considering that

14 I have read those submission handed over to me by way of Senior Legal

15 Officer, I wonder there is anything for the Chamber, Trial Chamber, to

16 practically do anything at this moment.

17 MR. JORDASH: Your Honour, it was simply to bring the information

18 to Your Honour's attention.

19 JUDGE KWON: Yes. And the Chamber will take note of it, and

20 again if there is any specific relief the Defence is seeking, I would

21 encourage the Defence to file a motion.

22 MR. JORDASH: Certainly, Your Honour.

23 JUDGE KWON: Having dealt with these matters, I wonder if there's

24 anything further for the parties to raise. Yes, Mr. Jovanovic.

25 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. There's

Page 493

1 an issue I'd like to raise, and this is something that was discussed at

2 the 65 ter meeting, so I believe you're familiar with the substance of

3 this issue. It's about the application of Rule 92 bis.

4 At the previous status conference, the OTP provided an

5 explanation to the effect that the Prosecution's motion on adopting

6 witness statements pursuant to Rule 92 bis is part of the 65 ter motion

7 or, rather, that the summaries contained in the motion itself were

8 printed in two different ways. Everything that was printed in italics is

9 what the Prosecution wishes to submit according to Rule 92 bis. Now the

10 problem emerges in relation to those witnesses where a partial 92 bis

11 admission has been proposed.

12 The Defence does not believe that there are sufficient elements

13 for us to agree with the proposal of the other party regarding the use of

14 this Rule. The Defence has initiated two further meetings in the

15 meantime with the other party in a bid to resolve this problem. However,

16 the situation remains the same for both parties.

17 Why is it that I say that the Defence can't declare a final

18 position on the application of Rule 92 bis at this time? There have been

19 several examples demonstrating a degree of imprecision. We have the same

20 summaries in both sections, and it's not clear which summaries Rule 92

21 bis would apply to and which not.

22 In relation to one specific witness, there has been a motion to

23 admit his statement pursuant to Rule 92 bis, but there is no portion of

24 the text in italics in that particular statement. Therefore, it is

25 impossible for the Defence to ascertain with any degree of certainty

Page 494

1 which specific portions of these statements are being submitted for

2 admission under Rule 92 bis.

3 I think the problem has been resolved in relation to those

4 witness statements that will be admitted in their entirety under Rule 92

5 bis. Most of these are crime base witnesses. This can be dealt with

6 swiftly.

7 I do however believe it is necessary for the OTP in relation to

8 those witness statements where only parts of statements are tendered

9 under Rule 92 bis to submit a motion containing all the relevant elements

10 or portions of statements and transcripts that the OTP believes should be

11 tendered under Rule 92 bis. Only then could the Defence state its final

12 position on this matter.

13 In their motion pursuant to Rule 65 ter, the OTP announced that

14 prior to trial they would be providing all relevant details but only once

15 the Defence has marked out the witnesses in relation to which it would

16 accept a 92 bis submission. We believe this is unduly delayed and that

17 this motion containing all the relevant elements should be filed in good

18 time, and then the Defence would be given a chance to object.

19 JUDGE KWON: I don't follow the last. The Prosecution announced

20 that prior to try they would be providing all relevant details but only

21 once the Defence has marked out the witnesses in relation to which you

22 would accept the 92 bis submission. What does it mean?

23 Mr. Re?

24 MR. RE: I don't know. If Mr. Jovanovic could perhaps elaborate

25 I might know what he's meaning.

Page 495


2 MR. JOVANOVIC: [Interpretation] In actual fact, the OTP

3 interprets most of the 65 ter summaries in the light of their motion

4 asking the Defence to declare our position as regards the statements, the

5 92 bis statements, we actually accept. It is only once the Defence has

6 made our position known that the OTP would be forwarding more detailed

7 information on the matter.

8 As stated in the 65 ter motion, on page 6, these would be

9 delivered in relation to each and every witness prior to the beginning of

10 the trial, and here I mean the information requested by the Defence.

11 This would make it possible for us to make our position known.

12 I believe it is necessary for the motion to contain references to

13 specific statements or portions of statements in relation to which the

14 OTP has requested 92 bis. I believe this could create a certain amount

15 of confusion as to which portions of these statements would come under

16 Rule 92 bis. Certain statements are repeated in these summaries pursuant

17 to Rule 92 bis. That's what I'm trying to say.

18 JUDGE KWON: Sorry, but the motion -- was the motion filed or is

19 it in the process of discussion among the parties?

20 MR. RE: There's no motion. We clearly can't file a motion until

21 we have a Trial Chamber appointed, because the Trial Chamber will decide

22 the issue, not the Pre-Trial Chamber.

23 JUDGE KWON: It has been our practice that -- to defer those

24 matters to the actual Trial Chamber. But the discussion can take place

25 during the pre-trial process, which no doubt would be of assistance to

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Page 497

1 the Trial Chamber if the parties come to an agreement as to admission of

2 92 bis, full bis or partly bis.

3 MR. RE: Your Honour, that is our earnest desire that we can do

4 that, and we certainly have about very much exhorted to do so by the

5 senior legal officer, Ms. Featherstone, at every meeting.

6 Of the 120 witnesses on the list, 11 have indicated we would call

7 viva voce.


9 MR. RE: Forty-nine we have indicated are 92 bis, in our view in

10 their entirety.

11 JUDGE KWON: ICTY jargon, full bis. Yes?

12 MR. RE: Fifty-five are partial 92 bis and we have 5 expert

13 witnesses.

14 JUDGE KWON: Partial bis means that they would come for

15 cross-examination.

16 MR. RE: Yes.

17 JUDGE KWON: And partial examination-in-chief will be dealt with

18 in viva voce as well.

19 MR. RE: That's correct, although it's the Trial Chamber's

20 decision whether or not those we indicate would be fully 92 bis would

21 be --

22 JUDGE KWON: Be it 92 bis or 89(F).

23 MR. RE: Or without cross-examination, but our proposal would be

24 our proposal but we would tender their evidence in chief via statement 92

25 bis or 89(F). So of the 49 there is absolutely no issue as to which

Page 498

1 parts of the evidence we say are 92 bis. It's the entirety.

2 JUDGE KWON: What those statements disclosed --

3 MR. RE: Yes.

4 JUDGE KWON: -- to the Defence.

5 MR. RE: Everything has been disclosed. Of the 55 in our 65 ter

6 summary filing we have written -- Mr. Groome has indicated this to the

7 Trial Chamber -- to Your Honour before. We have italicised the portions

8 of the summary which we say should be 92 bis and the portions which are

9 not are not italicised or the other way around. Whichever way it is,

10 it's quite clear that we say this portion goes to the actual conducts of

11 the accused and the other part doesn't.

12 Now, our desire is for the Defence to inform us, based on our

13 summaries, whether or not they agree with our assessment, and from there

14 we may be able to reach agreement with the Defence.

15 JUDGE KWON: Thank you.

16 MR. RE: As to --

17 JUDGE KWON: Thank you, Mr. Ray.

18 Mr. Jovanovic, I didn't follow when you said you need more

19 detailed information to make any response to this. Once the witness

20 statements are disclosed, what do you need more than that to say you are

21 agreeing with this or not?

22 MR. JOVANOVIC: [Interpretation] Your Honour, that's where the

23 Defence sees the problem. The Prosecution says that they exactly marked

24 the sections of individual statements that are suggested for admission

25 under 92 bis. However, on the basis of the summaries that are printed in

Page 499

1 two different ways, we simply had a difficulty to identify the parts of

2 witness statements that are intended for 92 bis and those that are not.

3 The Defence has to see how the OTP interprets this and then we're

4 supposed to recognise what section is proposed in which way. This

5 creates difficulties, and that's why I gave examples. We have almost

6 identical statements or, rather, portions of statements within a single

7 text and the Defence cannot discern which part is which. That is why I

8 think - and as I said, again, I'm just talking about partial 92 bis

9 application - the Defence believes that it is the duty of the Prosecution

10 to mark the exact portions of the transcript or statements that they have

11 in mind so that the Defence would not do it on its own on the basis of

12 their own interpretation. They want to have the Prosecution's

13 interpretation.

14 JUDGE KWON: However, my understanding is that those parts the

15 Prosecution wishes to introduce by way of 92 bis are italicised, but the

16 -- I see that there's some technical problems I would say. So I would

17 encourage the parties to sit together after this conference to find the

18 solution, sort out the way to go on. So could that be done?

19 MR. JOVANOVIC: [Interpretation] By all means, Your Honour. We

20 accept this recommendation. However, as I've already said, we have

21 already had two meetings about the same issue. The result is that I'm

22 presenting the problem here and now, yet I do hope that we will make some

23 headway.

24 JUDGE KWON: I think the discussion must take place in more

25 detailed way. You should bring specific witness statements and bring the

Page 500

1 attention to the Prosecution to specific parts you have questions.

2 MR. JOVANOVIC: [Interpretation] That is what we will do, Your

3 Honour. In the time ahead of us, we will try to deal with the matter

4 through direct meetings.

5 JUDGE KWON: Thank you very much. Can I take this opportunity to

6 deal with another matter, i.e., the agreed facts. I understand there's

7 not much progress on this, but my understanding is that Prosecution is

8 minded to file in one way or another in a motion or the questions to be

9 put to the Defence.

10 MR. RE: We have prepared a draft proposal. After the 65 ter

11 conference a few days ago I spoke with Mr. Knoops and Mr. Jovanovic. We

12 agreed we would send it to them first so we could attempt to reach an

13 agreement to file a joint motion rather than us coming to the Trial

14 Chamber. We should be able to do that in --

15 JUDGE KWON: Can it be done very shortly?

16 MR. RE: Fairly near future, yes.

17 JUDGE KWON: So can I set a deadline for this? Two weeks from

18 now.

19 MR. RE: That's to file a joint motion or to reach agreement?

20 JUDGE KWON: No, no, just put the question, questions to the

21 Defence.

22 MR. RE: Of course.

23 JUDGE KWON: And how long would the Defence need to respond to

24 those questions? I would encourage not too ambitious nor that simple,

25 but try to get as many as -- agreements as possible.

Page 501

1 Yes, Mr. Jordash.

2 MR. JORDASH: In response to Your Honour's question, I'm not

3 sure. Until I see what the Prosecution will deliver, it's difficult, and

4 I'm reluctant to commit ourselves, especially in light of the outstanding

5 motions.

6 JUDGE KWON: Yes. I see the point. You have to communicate with

7 your clients and --


9 JUDGE KWON: But in the sense for the purpose of promoting the

10 process, I would set four weeks. Is that too short? And if necessary,

11 you can ask for a leave to extension of time.

12 MR. JORDASH: Certainly. Certainly. If I can allay the Court's

13 fears slightly in relation to the subject we were talking about, the 92

14 bis, we have spoken to the Prosecution and agreed that we will indicate,

15 as far as we're able from the Rule 65 ter document, which witnesses we

16 say are possibly in principle that we can look at pursuant to that Rule.

17 We will do the same thing with the document if relation to the

18 adjudicated facts and indicate as far as we can our agreement or

19 otherwise.

20 JUDGE KWON: So wrapping up, the question for the purpose of the

21 agreements of the facts among the parties should be sent by the end of

22 the 17th of this month. That is the recess time. And the response to

23 that questions should be filed by the end of July, I would say. And file

24 a motion for extension of time if necessary.

25 Is there any matter to raise for the parties? Mr. Re?

Page 502

1 MR. RE: There was one matter which Ms. Featherstone raised at

2 the conference the other day and that related to confidential filings,

3 and I think she described it as a tendency or a practice developed to

4 file matters confidentially, not necessarily on the part of the

5 Prosecution.

6 The Prosecution has some concerns about a number of the filings

7 that have been -- the Defence has filed confidentially. There was a

8 recent one which related to a legal issue concerning ex parte materials

9 and a decision the Trial Chamber should make. Our position is that those

10 types of filings should be filed publicly and the only things that should

11 be filed confidentially are matters which are concerned with the safety

12 and protection of victims or witnesses and medical issues related to the

13 accused, the normal sorts of things. And we'd certainly invite the

14 Pre-Trial Chamber to -- if you feel it necessary, to issue some

15 directions. And -- our position is that those sorts of matters should be

16 put in confidential annexes and unless it's absolutely necessary all

17 matters should be conducted publicly before this Trial Chamber.

18 JUDGE KWON: Thank you, Mr. Re. Defence must have heard it, and

19 I believe they will attend to it.

20 Is there any other matters?

21 MR. JORDASH: Just one matter, although if I may just briefly

22 comment on my learned friend's last comments. We hear what the Court has

23 said, and of course we will do our best in that regard. But our filings

24 have been filed in that way as at -- out of an abundance of caution for

25 the protective measures of the witnesses; nothing more, nothing less. So

Page 503

1 if we've overly interpreted those measures then we apologise but we

2 thought better to err on the side of caution.

3 Secondly, the final issue we'd like to raise is the issue of the

4 confidential testimony and exhibits from the Milosevic trial, simply to

5 raise our concern that the information which remains to be disclosed by

6 the Prosecution may well be the most crucial evidence against Mr.

7 Stanisic, and it's clear from reading some of the witness statements that

8 when issues which might relate to Mr. Stanisic are under discussion,

9 those are the times that the session becomes a closed one, and so we are

10 concerned that we haven't had that information disclosed. We are

11 concerned that the Prosecution's stance thus far had been that they will

12 provide the material, and I quote, "as it becomes available," and I

13 simply raise this issue now to say that we would like the information as

14 soon as possible because our preparation depends upon it.

15 JUDGE KWON: What's the status of that issue so far? Was there a

16 motion to that effect?

17 MR. JORDASH: There was a motion, and there is an order that the

18 material is to be served. The Prosecution have accepted their

19 obligations in that regard, and they have indicated that they are

20 endeavouring to do so. They haven't indicated a time frame. Simply I'm

21 flagging the issue up as one of concern.

22 JUDGE KWON: Mr. Re?

23 MR. RE: I thought I indicated at the pre- -- sorry, the 65 ter

24 conference the other day that an investigator is in the process of

25 contacting all the witnesses who gave evidence in Milosevic and it's a

Page 504

1 process that we estimated of one to two months to speak to the people and

2 either obtain their consent or give up.

3 JUDGE KWON: I would very much encourage the Prosecution to

4 expedite the process and comply with their obligations.

5 No other matter?

6 MR. RE: There is one matter which possibly requires an

7 explanation from the Prosecution. That's in relation to the disclosure

8 of the video.

9 The Prosecution -- the position I think that was taken was we

10 wanted to personally serve it on -- because of the protective measures we

11 wanted to personally serve it on Defence counsel and we understood they

12 were coming for a 65 ter conference and we were intending to serve it

13 then. But the conference was put over for a week and we didn't

14 understand that both were going to be here on Tuesday. That's why we

15 didn't hand it over on Tuesday. We apologise if we appear to be in

16 breach of the Trial Chamber's order. Is certainty wasn't intentional.

17 But because of the issues at the time we wanted personal service but

18 those issues have now disintegrated.

19 JUDGE KWON: So to be safe -- on the safe side, there's no

20 position to lift the protective measures from that video.

21 MR. RE: Certainly not. Not now, no.

22 JUDGE KWON: Thank you. My understanding is that next Status

23 Conference should be around the end of September this year, but given the

24 motion for joinder it remains to be seen, and the Scheduling Order will

25 be filed in due course.

Page 505

1 This hearing is now adjourned.

2 --- Whereupon the Status Conference adjourned

3 at 4.01 p.m.