Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20

1 Tuesday, 6 September 2005

2 [Status Conference]

3 [The accused entered court]

4 [Open session]

5 --- Upon commencing at 2.21 p.m.

6 JUDGE SCHOMBURG: Thank you very much. Good afternoon to

7 everybody, in particular those assisting us before and behind the scenes.

8 Mr. Bonabello, would you be so kind to call the case on behalf of

9 the Registrar.

10 THE REGISTRAR: Thank you, Your Honour. This is case number

11 IT-01-42-A, the Prosecutor versus Pavle Strugar.

12 JUDGE SCHOMBURG: Thank you. And may I have the appearances,

13 please. The Prosecution first.

14 MS. BRADY: Good afternoon, Your Honour. Good afternoon to the

15 Defence and the other court personnel. Helen Brady appearing on behalf of

16 the Prosecution together with Mr. Xavier Tracol, and our case manager

17 Ms. Victoria McCreath.

18 JUDGE SCHOMBURG: Thank you. And on behalf of the Defence.

19 MR. PETROVIC: [Interpretation] Good afternoon, Your Honour. My

20 name is Vladimir Petrovic. I'm co-counsel for the accused,

21 General Pavle Strugar. Thank you.

22 JUDGE SCHOMBURG: I thank you.

23 Mr. Strugar, may I ask you: Can you hear me and follow the

24 proceed information a language you understand?

25 THE APPELLANT: [Interpretation] Yes.

Page 21

1 JUDGE SCHOMBURG: Do you have any complaints about the conditions

2 in the United Nations Detention Unit?

3 THE APPELLANT: [Interpretation] No.

4 JUDGE SCHOMBURG: And then are there in particular new health

5 problems apart from those general issues we have to discuss later in the

6 framework of this Status Conference or in other environment foreseen in

7 the Rules?

8 THE APPELLANT: [Interpretation] No. The intensity of my pains is

9 a bit more frequent, especially when walking. Other than that, I have no

10 new complaints.

11 JUDGE SCHOMBURG: Thank you. You may be seated again.

12 Please, the parties may correct me if I'm wrong, I take it that

13 the filing of the appeal briefs, the responses, and replies is now

14 completed. May I ask are there any objections as to the lengths of the

15 briefs or its contents, in particular anything you have identified that

16 should be treated confidentially?

17 MS. BRADY: Your Honour, there is only one matter I wish to raise

18 about the Defence reply brief, and we do notice that it's somewhat

19 oversized by approximately one and a half pages, but the Prosecution

20 doesn't take issue and doesn't object to the filing in that form.

21 JUDGE SCHOMBURG: Thank you. And -- yes. As a kind of give and

22 take, let my address: Also at the same time there was an addendum to the

23 book of authorities for Prosecution appeal brief dated 12 July 2005, not

24 accompanied by any motion. Does the Defence have any objections that we

25 take this without any further ado as part of the book of authorities for

Page 22

1 Prosecution appeal brief?

2 MR. PETROVIC: [Interpretation] Your Honour, the Defence has no

3 objection to including it in the material referred to by the Prosecution

4 in their appeal brief.

5 JUDGE SCHOMBURG: Thank you. Then it's now clear what we have

6 before us.

7 You may be a little bit surprised, but in order to be on the safe

8 side I want to go through the notice of appeal presented by the Defence,

9 alleged error by alleged error, from 1 to 100, that you we are abundantly

10 clear what we have before us. So would you therefore please be so kind

11 and take this notice of appeal.

12 I can see both parties are now in possession of this document.

13 The confusion might emanate from the fact that, for example, under

14 paragraph 9 you have alleged error number 1. And I will from now on refer

15 only to the alleged error. Please correct me immediately when I'm wrong

16 or if there is any doubt.

17 Error 1, alleged error 1, withdrawn. 2, withdrawn. 3 upheld, 4

18 upheld, 5 upheld, 6 upheld, 7 upheld, 8 upheld, 9 upheld, 10 upheld, 11

19 upheld, 12 upheld, 13 withdrawn, 14 withdrawn, 15 withdrawn, 16 withdrawn,

20 17 withdrawn, 26 upheld [sic], 19 upheld, 20 upheld, 21 upheld, 22 --

21 MR. PETROVIC: [Interpretation] Your Honour, I apologise. Could we

22 please go back to the transcript. I think that the transcript that I have

23 in front of me says 26 upheld and it should have been 18 upheld. This

24 seems to be an error, especially in view of the order that you read

25 the errors in. So could we please go back to that.

Page 23

1 JUDGE SCHOMBURG: If it could be corrected. That's line -- page

2 3, line 19, 26 should be replaced by "18 upheld."

3 Mr. Registrar, I take it that this will be corrected. So we can

4 take it that it will be corrected.

5 We came to 22, error 22, and there it should read "withdrawn"

6 instead of "upheld."

7 23 withdrawn, 24 upheld, 25 upheld, 26 upheld, 27 upheld, 28

8 upheld, 29 upheld, 30 upheld, 31 upheld, 32 upheld, 33 withdrawn, 34

9 upheld, 35 upheld, 36 upheld, 37 upheld, 38 withdrawn, 39 withdrawn, 40

10 upheld, 41 withdrawn, 42 withdrawn, 43 withdrawn, 44 upheld, 45 upheld, 46

11 upheld, 47 withdrawn, 48 withdrawn, 49 upheld, 50 withdrawn, 51 withdrawn,

12 52 withdrawn, 53 withdrawn, 54 upheld, 55 upheld, 56 withdrawn, 57

13 withdrawn, 58 withdrawn, 59 withdrawn, 60 withdrawn, 61 withdrawn, 62

14 withdrawn, 63 withdrawn, 72 withdrawn, 73 -- oh, sorry.

15 I have to restart. I was again confused by the paragraph and the

16 error number. Could we please start again with 64. 64 is upheld, 65

17 withdrawn, 66 withdrawn, 67 withdrawn, 68 withdrawn, 69 withdrawn, 70

18 withdrawn, 71 withdrawn, 72 withdrawn, 73 withdrawn, 74 upheld, 75

19 withdrawn, 76 withdrawn, 77 upheld, 78 withdrawn, 79 upheld, 80 upheld, 81

20 withdrawn, 82 withdrawn, 83 upheld, 84 upheld, 85 upheld, 86 upheld, 87

21 upheld, 88 upheld, 89 upheld, 90 upheld, 91 upheld, 92 withdrawn, 93

22 upheld, 94 upheld, 95 upheld, 96 upheld, 97 upheld, 98 upheld, 99 upheld,

23 and finally 100 upheld.

24 Is this correct? I see a nodding from both sides.

25 Then the question to both parties: Can we agree that we can and

Page 24

1 should use the numbers allocated to the reasons of appeal in this notice

2 of appeal and not, which would no doubt be the alternative, renumber the

3 reasons in your appeal brief which I'm afraid could create some

4 confusions?

5 MR. PETROVIC: [Interpretation] Yes, Your Honour. The Defence

6 agrees.

7 JUDGE SCHOMBURG: The Prosecution.

8 MS. BRADY: Yes, Your Honour. This would be also suitable to the

9 Prosecution. I noticed the Defence appeal brief has essentially five

10 grounds, and so in effect the grounds in the notice of appeal are split up

11 among these five, but I think for ease of reference we could certainly use

12 the ones in the notice of appeal. Thank you.

13 JUDGE SCHOMBURG: I take it as an agreed fact that we refer to

14 these numbers allocated to the reasons of appeal in the initial notice of

15 appeal.

16 Are there any problems related to disclosure, any complaints by

17 the Defence?

18 MR. PETROVIC: [Interpretation] Your Honour, it is my duty to

19 inform you that from the minute the hearings were concluded in this trial

20 there were no further -- there was no further disclosure from the

21 Prosecution on any grounds. Therefore, I can't really state our position

22 as there was no disclosure as such.

23 Now, as to whether there was any material that should have about

24 disclosed to us in accordance with the Rules I really can't say. I

25 believe that if there was such material the Defence would have received

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Page 26

1 it. However, we have not received anything, so I believe that things are

2 in order.

3 JUDGE SCHOMBURG: May I hear the Prosecution on this. Is there

4 any search done or was there any search done in the past?

5 MS. BRADY: You were, we are continuing with our disclosure

6 obligations. To date nothing that is come to light that falls within our

7 obligations under Rule 68(i) and if and when material comes to light we'll

8 of course disclose to the Defence accordingly.

9 JUDGE SCHOMBURG: And I take that we continue you with the, one

10 might call it old-fashioned system and not with the electronic disclosure

11 system in this case.

12 MS. BRADY: Your Honour, we are using the EDS system in this case

13 and our searches are across material which is not on the EDS system. Your

14 Honour, to do otherwise would create the problems that were in the -- were

15 inherent in the old system. So our disclosure searches proceed on the

16 basis that we search across non-EDS material, and if we come across

17 material which needs to be disclosed according to our obligation, we will

18 of course disclose. But in terms of material which is on the EDS, the

19 Defence, I understand, has access to the EDS and will be able to utilise

20 the search terms that he has at hand to access material in the EDS. We

21 think that this is the most efficient way forward in handling disclosure.

22 Thank you.

23 JUDGE SCHOMBURG: Right. But to come back to this question, the

24 EDS in general, of course it's accessible for the Defence, but you have no

25 special case related, let's call it database for this concrete case where

Page 27

1 the Defence would have access in an electronic way to those documents and

2 the Defence would be on the permanent obligation to look up whether

3 something has become new in this concrete case file, to put it this way.

4 MS. BRADY: We can certainly alert the Defence to new indices and

5 give a general description of the documents that have been placed on the

6 EDS since the dates of the hearing. To my knowledge, and I would have to

7 check this, there may be two indices that have been placed on since this

8 matter -- since the hearing. Those two indices are probably not

9 pertaining to the actual crime scene to the crime base that's of relevance

10 to this accused. But if there are indices then the Prosecution will

11 certainly -- specific indices, the Prosecution will certainly notify the

12 Defence so that they're under -- well, basically know where to look.

13 JUDGE SCHOMBURG: So I take it that the Defence will continue

14 interpreting Rule 68 to that end, that whenever something specific for the

15 concrete case which normally, as it was in the past, would -- there would

16 be the need that you have to disclose under Rule 68 this material you

17 would alert the Defence on this in particular.

18 So you are satisfied with this solution or you have problems with

19 the access to the electronic disclosure system, which I know can be

20 difficult to access from abroad.

21 MR. PETROVIC: [Interpretation] Your Honour, we don't have any

22 problems accessing the system. To the extent possible, we search

23 everything that could possibly pertain to our client.

24 It should be noted that the EDS system does not have a separate

25 segment pertaining to this accused. Rather, we have to search the general

Page 28

1 database which makes this process much more complex and longer. However,

2 I would like to thank you for your interpretation of Rule 68.

3 In addition, I would like to add that it would be very useful to

4 the Defence if we could be periodically informed about the new numbers of

5 documents which were included in the EDS so that we could shorten the time

6 we need to search the EDS and to avoid any duplication of searches.

7 If we could be provided information about the new documents

8 included into the system, that would be very useful because that would

9 mean that we do not have to duplicate the search, to redo something that

10 has been done in the past.

11 I don't know whether this is feasible, whether we can address our

12 colleagues in the Prosecution directly regarding this, or perhaps we

13 should turn to the EDS administration personnel. I don't know. If you

14 have any advice concerning this, I would be very grateful.

15 JUDGE SCHOMBURG: Let me ask Prosecution. Wouldn't it be the best

16 way to deal with this that whenever a document pertaining to not only the

17 concrete crime site but also to the accused that you would immediately

18 inform the Defence, this being part of your disclosure obligation?

19 MS. BRADY: Your Honour, when the collections of documents are

20 seized, of course we're talking about extremely large volumes of documents

21 which take a while to be scanned and to be put onto the EDS. Within -- so

22 it's not as if the Prosecution can immediately identify that there is one

23 document within a collection of 300.000, let's say, that would be of

24 relevance to this case.

25 I think that perhaps the best solution to this is that we will

Page 29

1 continue abide by our Rule 68(i) and if matters which fall within that --

2 come within our knowledge we will disclose. In the meantime, what we can

3 do is identify what collections, relevant collections have come in and I

4 think from the description and where the documents were seized from and

5 what they generally are about, I think from that the Defence will be able

6 to clearly see whether this is a matter which they need to apply their

7 search criteria to. This is --


9 MS. BRADY: This, we believe, is probably the best way forward.

10 JUDGE SCHOMBURG: Right. I can agree with this provided that we

11 take into account that, in fact, opposed to other cases where we have not

12 only the general EDS system but a case-related separate setting of

13 documents accessible for the Defence, that when we continue a case on

14 appeal that we should continue in the, let's call it again, old-fashioned

15 way, and I think the burden to disclose this material is still with the

16 Prosecutor. And I think it's -- it fits best in the rationale and the

17 spirit behind Rule 68 that we continue with this. It will be no doubt

18 only a limited number of relevant documents falling into the scope of Rule

19 68(i).

20 I think we can agree on this and -- or should there be any

21 problems, please alert me immediately that we can resolve this matter.

22 This brings me to the next question -- yes, sorry, you're on your feet.

23 MS. BRADY: Yes. If I could just add to that that the Prosecution

24 and perhaps if we go back to Rule 68(ii), we can make available to the

25 Defence in electronic form the collections of relevant material which we

Page 30

1 have by placing it on EDS, and we can make a case-specific,

2 Strugar-specific folder on the EDS so that the Defence can get access to

3 that. But -- and then of course we can file with our Rule 68 (i)

4 obligations to -- disclose material within our actual knowledge falls

5 within 68.

6 JUDGE SCHOMBURG: I don't think this would be helpful for one of

7 the parties. You would have additional workload to provide such a new

8 folder, and then as there is -- this electronic disclosure system is still

9 flawed, no doubt, and you can't see when accessing these documents what is

10 inside. You have to open all the documents because only the number of the

11 documents is revealed on the screen, and therefore I think the easiest way

12 for both parties is whenever you come across something that could fall

13 under the scope of Rule 68(i), then you should alert the other party and

14 not start a new folder for this case where I think most of the documents

15 have already been admitted into evidence and the likelihood that there is

16 fundamental new document as all the archives have been opened now seems to

17 be limited. So I would really appreciate if you could avoid entering in a

18 new area of disclosure in this case but still continue under -- let's call

19 it under the old Rules.

20 Could you live with this?

21 MS. BRADY: Your Honour, again, we will always provide to the

22 Defence that which falls within Rule 68(i), which comes within our actual

23 knowledge. We're talking about documents which may be of more tangential

24 relevance to the case, and there it actually, I think, can speed the

25 process by making sure that the Defence knows which indices the Defence is

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Page 32

1 to look into. Otherwise, the Prosecution, under the old fashioned system

2 as you quite rightly referred to it, is in the position that you're

3 searching across the entirety of the evidence collection and then having

4 to review it, each piece individually, and this is the system that I

5 understand the Prosecution's position is, we've moved away from by the EDS

6 system. So it's hard for me to agree to Your Honour's suggestion in light

7 of that.

8 JUDGE SCHOMBURG: In fact, this would be a kind of compromise not

9 open a new folder for the specific purposes of the case before us but to

10 alert the Defence when there is a new or there are new indices pertaining

11 to the concrete case before us, and then it would be for the Defence, and

12 there is also some advantage for the Defence to label the documents itself

13 whether they tend to be exculpatory or not.

14 So if you can agree on this basis, I think this would be an

15 excellent solution that you alert on indices and the Defence would then

16 open these indices and look into the documents contained in this

17 collection.

18 Would this be acceptable for the Defence?

19 MR. PETROVIC: [Interpretation] Your Honour, yes, it would be

20 acceptable.

21 MS. BRADY: Yes, Your Honour, this would be acceptable to the

22 Prosecution.

23 JUDGE SCHOMBURG: Thank you. May I ask already now is there any

24 intention of one or both parties to file a motion for the admission of

25 additional evidence under Rule 115?

Page 33

1 MS. BRADY: Not at this stage, Your Honour.

2 MR. PETROVIC: [Interpretation] Your Honour, as we notified you at

3 the previous Status Conference, not at present. Our work, however, and

4 our efforts to find a highly relevant document which would meet the

5 criteria for additional evidence is ongoing. So should such a document

6 turn up, we will make the appropriate submission. However, at present we

7 do not have such a document in our possession. Thank you.

8 JUDGE SCHOMBURG: I thank you. Now let's come to a more serious

9 point, and maybe from the point of view of Mr. Strugar, the most serious

10 one, and that is the question of the health of Mr. Strugar.

11 We all got, I take it, the fundamental documents pertaining to

12 Mr. Strugar's health, but we have not yet got any assessment of this data

13 and what would be the indication, what would be the necessary measures to

14 be taken to undergo an operation or whatsoever. But I really don't

15 believe that it's appropriate to go into the details of this in the

16 framework of a Status Conference.

17 I think it was right from the Defence to ask for not discussing

18 this matter today before academics have given an assessment and come to

19 the conclusion what has to be done. So therefore, in my opinion, it would

20 be more than appropriate to have a 65 ter (I) Conference as soon as

21 possible when you have an assessment. And it's also for the Prosecution.

22 I would invite both parties, before we have such a 65 ter (I) meeting to

23 discuss these matters.

24 And only to tell you in terms of time what would -- is feasible in

25 the concrete case and what is not, normally one could say the stage of

Page 34

1 filings is completed. Now we would be ready for the appeals hearing.

2 However, I just took the Appeals Chamber summary 2005 of 26 August 2005,

3 and there I unfortunately found out that based on the criteria we used in

4 the past that the first incoming appeal will be heard first. We, with our

5 case, are number 13 or 14, depending on how you count in this -- in this

6 order, which means that there is no substantial likelihood that the case

7 can be heard this year. About next year, that is the Appeals Chamber will

8 have to convene and to give priorities to some cases. But I would really

9 appreciate if you could also with the light -- in view of this order of

10 cases that we can discuss when, in case it's necessary, that Mr. Strugar

11 undergoes an operation that we can find the appropriate time, the

12 appropriate venue, and -- because it's a very intimate question, it should

13 be done in the framework of such a Rule 65 ter meeting.

14 May I ask the Defence, when would you be able to come up an

15 assessment of all the data we have also now in B/C/S?

16 THE INTERPRETER: Microphone, please.

17 MR. PETROVIC: [Interpretation] Your Honour, I believe that the

18 Defence would be able to make this assessment by the end of September,

19 that is, within the next two or three weeks at the most.

20 JUDGE SCHOMBURG: Thank you. May I then invite that the parties

21 meet before and we try to have such a meeting in week 40. This would be

22 the first week of October. Are there any obstacles to this?

23 MS. BRADY: Your Honour, the Prosecution remains happy, of course,

24 to attend a Rule 65 ter (I) Conference. We would ask Your Honour not to

25 hold it in week 40 if -- if convenient, if we could have it the week

Page 35

1 following. Both myself and Mr. Tracol will be in the argument -- in the

2 appeals hearing of Stakic that week, and so we would, if it's convenient

3 for the Defence and for Your Honour, prefer week 41.

4 JUDGE SCHOMBURG: This would be the second week of October. I

5 can't see any obstacles to this. Let's be very concrete. What about that

6 very Tuesday in the second week of October? Would it be suitable for both

7 parties?

8 MR. PETROVIC: [Interpretation] Yes, Your Honour. It's suitable

9 for us.

10 MS. BRADY: Yes, Your Honour.

11 JUDGE SCHOMBURG: Okay. Then in order to avoid unnecessary

12 filings, I hereby convene a Rule 65 ter (I), 107 meeting, conference, in

13 my office, that is room M149, together with one representative of the

14 Registrar to take minutes from this meeting and then to discuss how to

15 proceed in this case and, in particular, all the medical aspects but not

16 limited to this.

17 But beforehand, as we are in a party-driven system, let's me again

18 invite both parties to discuss the possible avenues to be taken proprio

19 motu and then it would facilitate and speed up this specific conference.

20 Finally, are there any other issues to be raised by the parties?

21 The Defence, please.

22 MR. PETROVIC: [Interpretation] No, Your Honour.

23 MS. BRADY: No, Your Honour.

24 JUDGE SCHOMBURG: Thank you. Then we will meet, then, in week 41.

25 And, Mr. Strugar, I indeed do hope that your health does not

Page 36

1 deteriorate, but I think you also find it reasonable first to discuss in

2 detail your health situation based on real facts and then to decide how to

3 continue best, and I think no doubt your counsel will discuss these

4 problems with you. We will all try to do our very best that your health

5 condition is not affected by the fact that unfortunately we can't hear the

6 appeal immediately.

7 Thank you once again to everybody. The trial stands adjourned.

8 --- Whereupon the Status Conference adjourned

9 at 3.03 p.m.