Tribunal Criminal Tribunal for the Former Yugoslavia

Page 506

1 Thursday, 29 September 2005

2 [Status Conference]

3 [Open session]

4 [The accused not present in court]

5 --- Upon commencing at 3.04 p.m.

6 JUDGE KWON: Good afternoon, ladies and gentlemen. Would the

7 Registrar please call the case.

8 THE REGISTRAR: Good afternoon, Your Honour. This is case number

9 IT-03-69-PT, the Prosecutor versus Jovica Stanisic and Franko Simatovic.

10 Thank you.

11 JUDGE KWON: For the record, could I have the appearances, please.

12 MS. UERTZ-RETZLAFF: Good afternoon, Your Honour. For the

13 Prosecution, Alex Whiting, who is the new STA on this case; David Re,

14 trial attorney; my name is Hildegard Uertz-Retzlaff; and we are

15 accompanied by Lakshime Walpita, our case manager.

16 JUDGE KWON: Thank you, Ms. Uertz-Retzlaff.

17 MR. KNOOPS: Good afternoon, Your Honour. For the Defence of

18 Mr. Stanisic, Mr. Geert-Jan Knoops and my legal assistant Ms. Melinda

19 Taylor. Thank you.

20 JUDGE KWON: Thank you.

21 MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honour. My

22 name is Zoran Jovanovic. I'm an attorney-at-law from Belgrade and I

23 appear for the accused Franko Simatovic. Thank you.

24 JUDGE KWON: Thank you. I think there are several motions

25 outstanding, however, I don't think there is much to be done today in this

Page 507

1 Status Conference.

2 First of all, I have to note that there is a motion to amend the

3 indictment, and there's another motion for a joinder, the latter being

4 considered by the Joinder Chamber, so I have nothing to say in relation to

5 that motion.

6 I note the Prosecution position to be that the motion to amend the

7 indictment would not be affected by the motion for joinder. However, I

8 note -- I was informed that Prosecution would seek to drop certain charges

9 and reduce the crime base if the joinder was to be -- is to be granted.

10 MS. UERTZ-RETZLAFF: That's correct, Your Honour. But we -- in

11 any event, we would maintain the Srebrenica amendment. It would be

12 related to other minor crime bases where there is no overlap.

13 JUDGE KWON: Yes. That's what I heard.

14 Speaking for myself, would it not be more efficient and convenient

15 for the Chamber, as well as for the parties, to consider the motion to

16 joinder after the -- I beg your pardon. How did I say? To consider the

17 motion to amend the indictment after the motion for joinder is resolved?

18 Do you have any observation on that matter?

19 MS. UERTZ-RETZLAFF: As the Srebrenica amendment is not affected

20 by the joinder application, I wouldn't say that it's necessarily so, but

21 whatever the Trial Chamber decides, we are going with it.

22 JUDGE KWON: If the joinder is to be granted, there would be an

23 order to -- to the Prosecution to file a consolidated indictment, and then

24 the current incumbent -- current indictment will be not operative any

25 more, and then it will be more efficient to deal with the new indictment.

Page 508

1 MS. UERTZ-RETZLAFF: Let me -- Your Honour, let me say in this

2 context that we had a similar situation in the Seselj case, where we also

3 had applied for an amendment despite the fact that we at the same time

4 asked for joinder, and this was actually decided upon, and the Trial

5 Chamber in the Seselj case granted the amendment, and we have next week an

6 initial appearance of Mr. Seselj in relation to this amendment. So --

7 JUDGE KWON: There are other items other than Srebrenica in the

8 motion for the amendment of the indictment, so that cannot be -- it may be

9 unnecessary to be dealt with in the interim.

10 MS. UERTZ-RETZLAFF: I only wanted to point out that it was a

11 similar situation and the Trial Chamber decided different from what your

12 suggestion is. And we would actually appreciate to get a decision on the

13 amendment, but if you would rather wait ...

14 JUDGE KWON: Of course I will -- the Chamber will consider the

15 matter, but I don't think every Chamber has to follow the same course of

16 action.

17 Can I hear any observation from the Defence on this matter.

18 MR. JOVANOVIC: [Interpretation] Your Honour, in our view, it would

19 be efficient to act in this way. As for the two motions of the

20 Prosecution, I believe we have already responded to both motions. At one

21 point the Defence announced that it would seek leave to continue

22 expressing its views on the motion for joinder should the Chamber so

23 decide that the amendments be -- that the joinder be made. Although there

24 are similarities, we feel that this would -- there would not be grounds

25 for this. We feel that it would be correct after the decision on the

Page 509

1 joinder is made to issue a decision on an amendment to the indictment.

2 JUDGE KWON: Thank you, Mr. Jovanovic.

3 Mr. Knoops.

4 MR. KNOOPS: Your Honour, in this stage we would like only to

5 observe that the suggestion put forward should be also seen in the context

6 of the interest of justice, because it's the question whether there is

7 sufficient overlap in the crime bases regarding the respective defendants.

8 And moreover, with respect to our case, a decision on the amendment could

9 impact on the joinder, and vice versa, considering the pending medical

10 issue we pointed to in our Rule 65 ter brief of last Tuesday. Thank you.

11 JUDGE KWON: Thank you, Mr. Knoops. Since you raised the issue of

12 -- the medical issue, to be frank, I don't follow the point of yours

13 raising the medical issue at the Status Conference. So are you going to

14 file a motion to change the condition of provisional release, or what?

15 Could you clarify it or elucidate on that matter.

16 MR. KNOOPS: Your Honour, if Your Honours seek to have further

17 clarification on the exact ramifications of our observations last Tuesday,

18 I would prefer to go into private session. If my information should go

19 beyond the announcement of the filing of the medical motion with the

20 relief sought which I elaborated on during the Rule 65 ter Conference last

21 Tuesday, I have to go into more details, and then it would be probably

22 more appropriate to do that in private session.

23 JUDGE KWON: I don't remember what I heard in relation to your

24 ramification, but let's go into private session briefly.

25 [Private session]

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11 Pages 510-512 redacted. Private session















Page 513

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 [Open session]

6 THE REGISTRAR: We're in open session, Your Honour.

7 JUDGE KWON: Are there any matters to discuss in relation to

8 disclosure? Any observation from the Prosecution?

9 MR. RE: I can happily report back from the last Status Conference

10 -- Your Honour will, of course, have read the transcript of the Rule 65

11 ter Conference on Tuesday -- the 66(A)(i) is still complete, as it was

12 last time. 66(A)(ii) we have uncovered, with the assistance, and we're

13 indebted to Mr. Jovanovic, an extra interview of a witness. We are

14 disclosing that, as indeed another interview with another witness. So

15 there were two things outstanding there which have come to our attention

16 in the last few days.

17 In relation to the next one, Rule 68 and the search terms, Defence

18 counsel for Mr. Stanisic has provided us with search terms. We are

19 utilising those in our searches of the remaining material not available to

20 the Defence, namely the interviews -- sorry, the witness statements and

21 the Rule 70 material which the OTP has exclusive access to at the moment.

22 So we are in the process of doing that.

23 The Rule 66(B), I don't think there are any issues arising from

24 that.

25 The next one was the Rule 94 bis, the exhumation reports. The

Page 514

1 translations are still being requested but we are at the moment reviewing

2 whether or not they are required as they were used in Milosevic -- it's

3 solved. I'm sorry. There is good news on that front.

4 I have some very good news to report: Everything is translated

5 and it's all on the EDS, and I apologise for the miscommunication by

6 counsel at the bar table.

7 The next one was access to transcripts and materials from the

8 Milosevic case. Pursuant to the Trial Chamber's order of March this year,

9 we have completed contacting all the witnesses in Milosevic who gave

10 evidence in closed session relevant to the Stanisic and Simatovic aspects

11 of the Milosevic indictments. Those who have consented to our providing

12 the transcripts and exhibits to the Defence, we have done so now. We did

13 that this week. We have reviewed the transcript of the remaining

14 witnesses who did not consent to our providing the transcript to the

15 Defence to see whether we could unredact or disclose parts in closed

16 session. Unfortunately, there -- we were -- not unfortunately. The trial

17 attorneys or the attorneys in Milosevic were so careful only to go into

18 closed session on matters which would identify the witnesses that we are

19 unable to disclose anything further because it would in fact identify

20 those witnesses.

21 The last matter which relates to disclosure was the list of

22 suspect interviews provided by Defence counsel for Mr. Simatovic. That's

23 Mr. Jovanovic. We have gone through the list and have now disclosed,

24 mostly today and I think some earlier this week, all of the suspect

25 interviews which we have found on that list. There are, I think, three or

Page 515

1 four we are still checking into on the basis that we are unsure whether

2 there is a record of having spoken to those people as opposed to there

3 being a transcribed suspect interview.

4 So to up to the date, disclosure is as good as we can do it.

5 JUDGE KWON: Thank you, Mr. Re. That will be noted.

6 I wonder if there are any observations on the part of the Defence

7 on this issue of disclosure. Yes, Mr. Jovanovic.

8 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. Just as

9 my learned friend Mr. Re said, the Defence request under Rule 68 has been

10 partly met. The only thing I would like to learn is: At the 65 ter

11 Conference, the OTP said that it would have another military expert,

12 Reynaud Theunens, from the Milosevic case. I would like to learn more

13 details, if possible, about this. The Defence is familiar to a certain

14 extent, in accordance with your decision on access to materials from the

15 Milosevic case, that this is accompanied by a large number of documents.

16 What I wish to know is whether these documents will be disclosed

17 separately or whether the OTP will ask for an amendment to the list of

18 exhibits. Thank you.

19 JUDGE KWON: I was handed over the transcript of 65 ter Conference

20 only this morning, so frankly, I didn't have enough time to go through all

21 of it, but I'm of the understanding that the expert witnesses are five for

22 the Prosecution. So you are going to add Mr. Theunens.

23 MS. UERTZ-RETZLAFF: Yes, Your Honour. We actually plan to

24 consolidate the witness and exhibits list in the near future, immediately,

25 actually, after we know whether the cases are joined or not. Even if the

Page 516

1 cases are not joined and Stanisic and Simatovic would run alone, we think

2 that for the Croatia part of this indictment, we would need a military

3 expert detailing the military structures in Croatia, and that is actually

4 Mr. Theunens who did that in the Milosevic case and who is already an

5 expert witness in the Martic case and in the Seselj case. We would like

6 to add this, and we -- we are able to disclose the materials immediately.

7 That should not be a problem. But I wonder, as long as such an amendment

8 to our witness list and exhibits list isn't granted, I wonder whether you

9 already want to go through the materials. If you want to have them right

10 now, it can be done.

11 JUDGE KWON: I take it from the Defence submission it wishes to

12 receive it as soon as possible.

13 MR. JOVANOVIC: [Interpretation] Yes. All documents accompanying

14 the expert report of Reynaud Theunens is something that the Defence would

15 like to have disclosed as soon as possible. Thank you.

16 JUDGE KWON: Thank you, Mr. Jovanovic.

17 Any observation, Mr. Knoops?

18 MR. KNOOPS: Yes, Your Honour. We -- despite the solution of

19 several disclosure matters during the Rule 65 ter Conference last Tuesday,

20 we respectfully ask your attention for two additional disclosure issues.

21 One is more an information for Your Honours relating to Rule 66

22 disclosure.

23 Today, in accordance with the outcome of the Rule 65 ter

24 Conference of last Tuesday, the Defence in the Stanisic case did file its

25 motion regarding the witness B24 in relation to the B/C/S transcripts.

Page 517

1 Secondly, that relates --

2 JUDGE KWON: That would be considered by the Chamber.

3 MR. KNOOPS: Yes. Secondly, Your Honour, relating to Rule 66

4 and/or Rule 68 disclosure, we have an additional query regarding the

5 Milosevic disclosure, and on this issue we are also willing to file a

6 motion, if Your Honours would seek that we do so, but before we do so, we

7 think it's proper to bring this today to the attention of Your Honours and

8 the Prosecution.

9 Of course we understand that formally the matter of the Milosevic

10 disclosure is seized of by the Milosevic Chamber, but as the Chamber, as

11 Your Honour knows himself, is composed of the same Judges as Judges in the

12 Stanisic-Simatovic case and the Prosecution is also composed of the same

13 trial attorneys, we think it's proper to bring this matter to your

14 attention.

15 As Your Honours may have noticed during the last Rule 65 ter

16 Conference on Tuesday, the Prosecution indicated that in some cases where

17 the witness in question would not consent to full disclosure of their

18 statements to the Stanisic Defence, the Prosecution would not be able to

19 disclose the private sessions of their testimony and, therefore, would

20 also not be possible for the Prosecution to redact the statements further.

21 In this situation, the Defence in the Stanisic case is put before

22 a dilemma. On the one hand, we understand the position of the

23 Prosecution; but on the other hand, Your Honours have --

24 JUDGE KWON: Just pausing there. Ms. Uertz-Retzlaff, is it due to

25 the order of delayed disclosure?

Page 518

1 MS. UERTZ-RETZLAFF: In these disclosure issues, I would like to

2 have the questions addressed to Mr. Re.


4 MR. RE: No, Your Honour, it's actually --

5 JUDGE KWON: Redaction is necessary?

6 MR. RE: It's the terms of the Trial Chamber's order of the 11th

7 of March, 2005, order 1(ii) says: "Where such consent is not given by the

8 witness, the Prosecution has redacted those parts of the testimony and

9 exhibits that may reveal the identity of any protected person or that

10 relate to a period other than 1 April 1991 to 31 December 1995." The

11 problem is --

12 JUDGE KWON: So the identity of the witness will be disclosed to

13 the Defence until certain deadline before the trial begins or before the

14 actual witness comes to the Court to testify.

15 MR. RE: There are two issues: The second part of the Pre-Trial

16 Chamber's order relates to witnesses in Milosevic who are not on the

17 witness list here in this particular case. We were to contact all of

18 those in closed session. We did that. The majority said, yes, you can

19 provide the testimony, and a small portion said we can't. Now, the Trial

20 Chamber's order is go through it and, if you can deredact it, unredact it,

21 provide it. I've gone through it, read it all; gone to the exhibits.

22 Most of the exhibits relate to the identity of the witnesses. Unless the

23 Trial Chamber changes its order, we're stuck with that. Of course, going

24 through it, I found one Rule 68 matter, but -- in one of those witnesses,

25 but we interpreted that as being subject to the protective 30 days before

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13 English transcripts.













Page 520

1 trial order, but we could revisit that one later.

2 So as it stands at the moment, the way the order is worded, our

3 hands our tied. There is nothing to stop the Defence --

4 JUDGE KWON: So that order being an order of Pre-Trial Chamber.

5 MR. RE: That's -- the Pre-Trial Chamber of the Stanisic -- sorry,

6 the Milosevic -- Milosevic, not Stanisic.

7 JUDGE KWON: Yes, Mr. Knoops.

8 MR. KNOOPS: Well, Your Honour, that's exactly the dilemma I refer

9 to. At this moment, the Defence is not aware about the identities, first

10 of all, of these witnesses and cannot assess the relevance of their

11 statements and the portions which are apparently not disclosed yet.

12 The rationale for the position of the Prosecution was that it had

13 curtailed the use of private sessions for these witnesses to only those

14 portions of the testimony for which it was strictly necessary. And it is

15 our interpretation of the order of Your Honours that the identity may be

16 not be revealed at this stage but it cannot extend to the entire contents

17 of the particular statements.

18 Unless Your Honours would interpret that order otherwise, we would

19 suggest that, by way of compensation, the Prosecution were to verify with

20 the Trial Chamber on an ex parte basis that it is not possible to redact

21 the testimony in question further, and at the very least, we believe that

22 the Prosecution should inform the Defence of the identity using pseudonyms

23 or -- if that's necessary, of those witnesses which are relevant to the

24 Stanisic case with which the Prosecution has not disclosed. Therefore, by

25 this mechanism the Defence would be put in place to request further orders

Page 521

1 if needed. We cannot exclude that exculpatory evidence is part of those

2 portions which -- to which the witness apparently didn't consent yet but

3 which goes against the rationale of Your Honours' order, especially the

4 order where Your Honours say, "Where such consent is not given by the

5 witness, the Prosecution has redacted those parts of the testimony in

6 exhibits that may reveal the identity." It doesn't say that it --

7 JUDGE KWON: But, Mr. Knoops, you would not challenge that the

8 Chamber, as well as the Prosecution, have the obligation to protect the

9 identity of the witnesses who was given a protective measure already and

10 who are not to come to the Court as witnesses to its case.

11 MR. KNOOPS: We're not challenging that, Your Honour.

12 JUDGE KWON: But what you are saying is that with that redaction

13 you cannot understand the case of the true content of the statement.

14 MR. KNOOPS: That's correct, Your Honour. It's our position that,

15 without having access to the full statement, the Defence cannot understand

16 the context of those portions which are disclosed, and the Defence,

17 secondly, cannot exclude the possibility that exculpatory evidence is

18 available in those portions which are not revealed by the Prosecution yet.

19 JUDGE KWON: That's a separate matter.

20 MR. KNOOPS: Yes, of course, but that makes for us part of the

21 interpretation of the order of the Honourable Trial Chamber.

22 JUDGE KWON: So Stanisic Defence is going to file a motion in

23 relation to this matter.

24 MR. KNOOPS: If that's the feeling of Your Honours, we will do,

25 unless the Prosecution is willing to adopt our suggestion.

Page 522

1 JUDGE KWON: No, I was just speaking off the top of my head.

2 Without an informed discussion, the Chamber is not able to deal with it.

3 MR. KNOOPS: In that regard, I think it's appropriate that we file

4 a motion on this issue.

5 JUDGE KWON: Any comment from the Prosecution?

6 MS. UERTZ-RETZLAFF: Your Honour, I think it needs to be filed

7 with the Milosevic Trial Chamber because that's the Trial Chamber who made

8 the order. And when it comes to Rule 68 exculpatory materials, of course

9 we disclose all the exculpatory material we come across. And if we can't

10 give the actual wording of a certain protected testimony, we at least give

11 the information in a memo form. So I can't really understand why you

12 would -- why you think you need to have the exact parts that are protected

13 when we know there is no exculpatory material in it and when we provide

14 the exculpatory parts, as Mr. Re said to you, in the proper form that we

15 are allowed to do. I can't really see where the dispute comes from.

16 JUDGE KWON: However, if that very witness is going to testify in

17 the Stanisic case, the Prosecution will disclose the identity and the

18 redacted part at a later stage.

19 MS. UERTZ-RETZLAFF: Yes, Your Honour. For the witnesses that are

20 actually witnesses in this case here, there is no problem at all because

21 this information will be disclosed 30 days before the trial starts.

22 JUDGE KWON: Yes. The Chamber will consider the Defence assertion

23 if filed later.

24 Is there any matter to raise for the parties?

25 MS. UERTZ-RETZLAFF: Not from the Prosecution, Your Honour.

Page 523

1 JUDGE KWON: From the Defence?

2 MR. JOVANOVIC: [Interpretation] None from the Defence, Your

3 Honour, thank you.

4 MR. KNOOPS: Thank you, Your Honour. None from the Defence in the

5 Stanisic case. Thank you.

6 JUDGE KWON: One matter is in relation to agreed facts. I've read

7 the filings from the parties, and after I have seen the Defence response

8 that -- in which they said that they cannot agree to any of the proposed

9 facts except for the date of birth, and I asked the Prosecution to file

10 their questions. I haven't gone through in detail, but my first

11 impression is that the Prosecution was too ambitious to get the agreed

12 facts as much as possible. And the counter-proposal was the same, and I

13 wonder whether we can start from these minor facts.

14 For example, I'm very pleased to hear that the translation issue

15 in relation to exhumation report has been resolved, but I wonder whether

16 we can start from those things, some certain bodies were exhumed from

17 certain place, setting aside the cause of death and -- but because we are

18 going to deal with the joinder issue and at this moment it would be more

19 efficient as well to put on hold the further negotiation in agreed facts,

20 while I would very much encourage the parties negotiation further, but let

21 us leave the matter as it is right now.

22 So -- and then the next Status Conference will be held either at

23 the end of December or in the middle of January, which will be announced

24 in due course. And having said that, the hearing is now adjourned.

25 --- Whereupon the Status Conference adjourned

Page 524

1 at 3.40 p.m.