1 Tuesday, 16 December 2008
2 [Pre-Trial Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.18 p.m.
6 JUDGE PARKER: Good afternoon.
7 I would ask the Registrar to call the case, please.
8 THE REGISTRAR: Good afternoon, Your Honours.
9 This is case number IT-05-87/1-PT, the Prosecutor versus
10 Vlastimir Djordjevic.
11 JUDGE PARKER: Thank you very much.
12 We have assembled today for the pre-trial conference in this
13 matter. I would ask first, then, for appearances.
14 Mr. Hannis, unexpectedly I see you.
15 MR. HANNIS: Good afternoon, Mr. President, Your Honours.
16 I am Tom Hannis. I'm the senior trial attorney on behalf of the
17 Office of the Prosecutor. I'm joined today on my right by Line Pedersen,
18 who is our case manager, and on my left is trial attorney,
19 Daniela Kravetz.
20 I would indicate, Your Honour, that I'm standing in for the
21 assigned senior trial attorney, Mr. Stamp, who unfortunately could not be
22 with us this week, due to a personal matter; and I am here, but I'm going
23 to be relying heavily on Ms. Kravetz, who is more familiar with the case
24 and more up to speed than I am, and probably will be more help to you on
25 substantive matters today.
1 JUDGE PARKER: Well, thank you, Mr. Hannis, although we won't let
2 you off too lightly, because I've noticed your name on a whole number of
3 earlier filings.
4 MR. HANNIS: Understood.
5 JUDGE PARKER: Thank you, indeed.
6 Now, Mr. Djordjevic.
7 MR. DJORDJEVIC: Good afternoon, Mr. President, Your Honours.
8 I am Dragoljub Djordjevic, lead counsel for the accused
9 Djordjevic, and together with me today is my co-counsel,
10 Mr. Veljko Djurdjic, and my legal associate, Marie O'Leary.
11 JUDGE PARKER: Thank you, and we're pleased to see you, and we
12 welcome all counsel. And we look forward over the coming time, I'll call
13 it months, to our association.
14 And I see now in the court Mr. Djordjevic, himself. I welcome
15 you, sir, and I ask whether you are receiving the broadcast in a language
16 you understand of what is happening in the courtroom.
17 You are; is that correct?
18 THE ACCUSED: [Interpretation] Good afternoon. Yes, I can hear
19 it. Thank you.
20 JUDGE PARKER: Thank you very much, Mr. Djordjevic.
21 I'm sure the accused, Mr. Djordjevic, and counsel will be pleased
22 to know that only last week, on Thursday, a decision was made in New York
23 by the United Nations, appointing Judge Baird to join this Chamber to
24 enable this trial to proceed, and that, then, has enabled the completion
25 of this Trial Chamber. Judge Flugge and Judge Baird will join me for the
1 conduct of the trial. The appointment means that we are now able to
2 proceed to the final stages of preparation and set trial dates, with a
3 view to the trial proceeding at the earliest possible moment. And I'm
4 sure it's much to the relief of Mr. Djordjevic that at last the matter
5 can be dealt with, and it will be possible to deal with the trial and
6 reach a decision about the indictment at the earliest proper opportunity.
7 Yesterday, the President assigned Judge Baird to Trial
8 Chamber II, and this morning Judge Agius, the Presiding Judge of Trial
9 Chamber II, assigned Judge Baird to this case. I mention those two
10 orders because they will reach you in due course, but they have been
11 signed, and they complete the technical procedures for the assembling of
12 this trial section to deal with this case.
13 The pre-trial conference procedure is formally dealt with in
14 Rule 73 bis of the Rules, as you know, but in fact many of the matters
15 contemplated by that Rule have been under care by Judge Harhoff, who has
16 been the Pre-Trial Judge; and his work has enabled many aspects of what
17 would normally be done on this occasion to be treated as already
18 effectively completed. We're grateful to Judge Harhoff for what he has
19 been able to do in this respect.
20 Under Rule 73 bis, for example, attention might properly be given
21 by this Trial Chamber to questions of the length and range of the matters
22 alleged in the indictment and to the questions of the witnesses who will
23 be called in support of the indictment by the Prosecution. While we will
24 not treat the present position as finalised, the Chamber is not presently
25 of the mind that anything more needs to be done about the range of
1 matters alleged in the indictment. In other words, it will treat the
2 current version of the indictment as the indictment that will proceed to
4 This is the operative indictment that's I think the fourth
5 amended indictment which was finalised and filed in July of this year, so
6 that is the form of the indictment which we contemplate and upon which
7 counsel have been working for some four and a half, five months now.
8 With respect to the witnesses, it's evident that Judge Harhoff,
9 as the Pre-Trial Judge, has spent some considerable time in looking at
10 the witnesses which the Prosecution intend to call. In this respect, we
11 note that on Friday of last week, the Prosecution filed a final amendment
12 of its list originally filed some months ago in which it proposes now
13 that it will call some or lead evidence from some 114 witnesses, which is
14 a substantial reduction from the number originally proposed. And of
15 those 114 witnesses, the Prosecution presently has moved for orders that
16 would allow it to lead the evidence from 31 of those 114 witnesses in the
17 form of a written statement pursuant to Rule 92 bis, and for 4 other of
18 the 114 witnesses in the form of a written statement pursuant to
19 Rule 92 quater.
20 The reduction of the total number of witnesses has been the
21 subject of a procedural order by Judge Harhoff which allows the Defence
22 an opportunity to put submissions as to whether it has a concern
23 primarily, I would think, as to whether any of the deleted witnesses
24 ought to be called by the Prosecution, even though they propose in their
25 latest amended list not to call them. Now, the time contemplated for
1 that order was until the 26th of January. We would indicate that we
2 would not see that as a matter that must be finalised before the trial
3 commences. The trial can commence without that matter being finalised,
4 but that if the Defence is in a position to file its position earlier, it
5 would enable the Chamber to reach a decision, if there is any difficulty
6 in submission, and so enable both the Prosecution and the Defence to
7 proceed with their planning and conduct of the case with greater
8 certainty. So we would encourage the Defence, if it is practical, to
9 bring forward any submission they wish to make about the reduction in the
10 Prosecution list to 114 witnesses earlier than the 26th of January, if
11 that is feasible.
12 The Prosecution has contemplated, as I've indicated, that a
13 number of witnesses, instead of being called viva voce, their evidence
14 should be received in the form of a written statement pursuant to
15 Rule 92 bis. It has moved for that to occur in, on my count, four
16 motions that are before the Chamber. Three of them are strictly 92 bis,
17 and the fourth is 92 quater. The Defence has responded to those motions
18 on the 11th of November. Now that the Trial Chamber has been appointed,
19 it will be possible for a decision to be given about those evidentiary
21 I have not yet analysed whether any of the witnesses that were
22 subject to Rule 92 bis motions are among those to be deleted in the
23 proposed Prosecution list. If that is the case, when we come to look at
24 the matter, we will simply put aside those particular witnesses for the
25 present time, at least, and deal with those witnesses who are on the
1 Prosecution's proposed list of 114 who are subject to a motion by the
2 Prosecution under Rule 92 bis.
3 There was, on the 13th of November, as I read the transcript, an
4 invitation by the Pre-Trial Judge which would allow the Defence, if it
5 wished, to supplement its response to the Rule 92 bis motions, and it was
6 asked to do this by January of next year.
7 Could I inquire, Mr. Djordjevic, whether it is intended to
8 advance any further submissions in opposition to the motions for evidence
9 to be received by written statement under Rule 92 bis.
10 MR. DJORDJEVIC: Mr. President, Your Honours, I will continue now
11 in Serbian.
12 [Interpretation] Our Defence team, primarily for practical
13 reasons, will be unable to submit its response by the 26th for two
14 reasons, namely. I have said this to the Pre-Trial Judge, His Honour,
15 Judge Harhoff, and I want to repeat it before this Trial Chamber.
16 The team working with me, in view of the volume of the material
17 we have to review, and the reasons preferred by the Prosecution for
18 admitting testimony under 92 bis, ter and quater, and in view of the fact
19 that we have been awarded the second level of complexity, which is
20 incomprehensible to me, and in view of the fact that this accused had
21 been co-accused with Milutinovic et al, who had a third level of
22 complexity, we owe a high-quality defence to this accused.
23 I notice the matter for the Registrar, not the Trial Chamber, but
24 we are not able to provide a response before the 3rd of January. If we
25 are required, however, to do it by the 26th or at any time earlier than
1 the 3rd of January, we would waive that right. Therefore, we plan to
2 submit a response to this Trial Chamber by the 3rd of January.
3 JUDGE PARKER: I'm a little confused, Mr. Djordjevic. You're
4 mentioning 3rd of January and the 26th of January. That was the
5 interpretation we received.
6 The order, as we understand it, of Judge Harhoff is for the 26th
7 of January.
8 MR. DJORDJEVIC: [Interpretation] I'm sorry. We're talking about
9 the 26th, the 26th of January, 2009.
10 JUDGE PARKER: Yes, thank you.
11 And I understand, from what you say, that you will -- [French on
12 English channel]. Thank you.
13 The interpretation apparently overlapped with French. What I was
14 saying is that we understand that the Defence will put its submissions in
15 this matter by the 26th of January, and Mr. Djordjevic agreed with that.
16 There are then two distinct matters, if I can make it clear. One
17 is the matter whether any witness whom the Prosecution does not propose
18 to call in its new amended list for 114 witnesses, whether the Defence
19 objects to the failure to call any other witnesses who are not among the
20 114. Now, that's one matter. The second matter is whether the
21 Prosecution should or should not be given leave to advance its evidence
22 of any of the witnesses which it calls in the form of a written statement
23 under Rule 92 bis, and that's a separate issue.
24 Under Rule 92 bis, the witness may -- his evidence or her
25 evidence may be received entirely in a written form, and the witness does
1 not attend in the court at all, or it is possible that the witness's
2 evidence-in-chief will be received in written form, but the witness will
3 be required to attend for cross-examination. There are two options, and
4 that second option directly overlaps with Rule 92 ter, which provides
5 expressly for a witness's evidence to be given in a written form
6 in-chief, but who will be cross-examined in court in the ordinary way.
7 If it is in its submissions that the Defence, in particular,
8 wishes to cross-examine one of the witnesses that the Prosecution
9 proposes under Rule 92 bis, could we make it clear that we will be
10 looking for the particular reason which the Defence advances, why it is
11 that it wishes to cross-examine that witness.
12 There are two positions: The general principle whether the
13 witness should give all the evidence orally, that's one general
14 submission that we might anticipate. The second is if it is the
15 circumstances could justify the evidence being given in a written form,
16 whether there is a particular reason why, in the interests of justice,
17 cross-examination of that witness should be ordered.
18 So I trust, Mr. Djordjevic, that you will be dealing with those
19 matters in the course of your submissions.
20 Thank you. I see you nod your acceptance.
21 MR. DJORDJEVIC: [Interpretation] I would like just to make an
22 observation in this connection.
23 Although I come from a system where the adversarial practice is
24 not prevailing, I understand very well the provisions and the basic
25 principles of the adversarial system. We have already made our
1 submissions to the OTP concerning the witnesses we would like to
3 I would also wish to say, although the Trial Chamber is aware of
4 it, that we have also filed another submission which reflects the
5 position of the Defence that it is necessary to cross-examine witnesses,
6 which emanates from the basic Rule, and what the Pre-Trial Judge,
7 Judge Harhoff, said at an earlier meeting is that he wanted to know the
8 reasons why the Defence wished to cross-examine a witness rather than
9 accept his evidence under 92 bis. Therefore, we have already agreed to
10 what you are suggesting.
11 JUDGE PARKER: I am perhaps repeating things that Judge Harhoff
12 has said, but we want to be sure that it is clear, in everybody's mind,
13 what is expected, because we think it is in the interests of everybody to
14 get this matter finalised as soon as possible, so that if we get
15 submissions that deal with each issue that has to be looked at, advances
16 reasons for cross-examine, et cetera, we will then be in a position to
17 give a decision quite promptly, which will enable everybody to proceed
18 with certainty as the case progresses.
19 Now, can I mention also the proposal with respect to expert
20 witnesses, Rule 94 bis. Notice was given in respect of seven proposed
21 expert witnesses by the Prosecution in March of this year. The Defence
22 responded in May, and in the course of that, it indicated two things;
23 first, that it wished to cross-examine all experts, and that, of course,
24 means that the Prosecution must prepare on the basis that each one of
25 their proposed experts must be present to give evidence orally. The
1 second issue raised by the Defence is in respect of two of the seven
2 proposed expert witnesses, Witnesses Coo and Ball, and the Defence
3 indicated that it objected to the expertise of those two.
4 Now, in its notice of objection, the Defence set out the reasons
5 why it was not prepared to accept each of those as experts. I assume
6 that is the submission of the Defence in that respect. If that is so, we
7 would need to have a response from the Prosecution dealing with its
8 contention that each of those people are properly to be treated as expert
10 Mr. Hannis, is that a matter that can be dealt with imminently or
11 would you like until, say, the 12th of January to deal with that?
12 MR. HANNIS: Your Honour, given the date we find ourselves in and
13 the limited availability of my staff, I would ask for the later date in
14 January. Thank you.
15 JUDGE PARKER: Very well.
16 [Trial Chamber confers]
17 JUDGE PARKER: We will then order that the Prosecution's response
18 to the Defence's notice of objection to those two experts should be filed
19 by Monday, the 12th of January, and the Chamber will then be in a
20 position to reach a decision about those two proposed expert witnesses.
21 Now, the Prosecution, in its notice filed last Friday, the
22 reduced list of witnesses, has indicated, in respect of a number of
23 witnesses, that their evidence will be given either live or pursuant to
24 Rule 92 ter. As far as I've discovered, there has been no Rule 92 ter
25 motion presented by the Prosecution, and if I understand the position
1 correctly, it's apparent that there is an immediate need for a
2 Rule 92 ter motion.
3 We take it from the witness list that the Prosecution has
4 identified those witnesses it would propose should be called or whose
5 evidence should be led pursuant to Rule 92 ter, which expressly
6 contemplates the evidence-in-chief being led, in whole or part, in
7 written form, but that the witness will be present in court for
9 Do I correctly understand the position, then, Mr. Hannis, that
10 there will be a Rule 92 ter motion about these witnesses?
11 MS. KRAVETZ: Good afternoon, Your Honour.
12 Yes, we do anticipate filing a Rule 92 ter motion. The reason it
13 hadn't been done until this stage was simply because it was considered by
14 the Pre-Trial Judge to be a matter for the Trial Chamber. So he had
15 ordered us to file all our 92 bis and quater motions, but the 92 ter
16 motion was left pending to be dealt with by the Trial Chamber.
17 JUDGE PARKER: Thank you for that, Ms. Kravetz.
18 Now I would ask, if I can be so direct, how quick can the 92 ter
19 motion be filed?
20 MS. KRAVETZ: Well, I presume that's going to depend on the
21 anticipated date of start of trial. We could file it sometime towards
22 the end of January, for example. We have a large number of 92 ter
23 witnesses on our witness list. I mean, we have 21 witnesses who are only
24 92 ter witnesses, and then we have some that we've designated as live
25 92 ter, and those are 44 witnesses. So it is going to be -- take us some
1 time to prepare that motion, especially, as Mr. Hannis has indicated,
2 given the fact that staff is now going off on Christmas leave and won't
3 be back until early January.
4 JUDGE PARKER: Can the Chamber make it very clear, this trial is
5 expected to start in January.
6 MS. KRAVETZ: Well --
7 JUDGE PARKER: So what about the 12th of January?
8 MS. KRAVETZ: We'll do our best, Your Honour, to have the motion
9 ready for the 12th of January.
10 JUDGE PARKER: I think we're going to need to be a little more
11 determined than "do our best."
12 MS. KRAVETZ: Yes. We will comply with the deadlines that are
13 set by the Trial Chamber.
14 JUDGE PARKER: Well, we don't want to be unreasonable in our
15 deadlines, but nor are we going to be put off with suggestions, "Well,
16 it's a bit difficult, and we'd really like to have a more comfortable
17 time." You understand? We want very much, in the interests of the
18 Tribunal, the accused, to have this trial underway efficiently and
19 quickly, and therefore the question is: Is it feasible or are we being
20 unreasonable to expect the 92 ter motion by the 12th of January?
21 MS. KRAVETZ: Your Honour, I think it's going to be feasible for
22 the team to do so, to comply with that.
23 JUDGE PARKER: I'm grateful. Thank you, Ms. Kravetz.
24 That, indeed, then will be the order, that the Prosecution file
25 its 92 ter motion by the 12th of January.
1 The Defence will then need time to deal with that. The normal
2 time would be 14 days, which would again take you to the 26th of January,
3 Mr. Djordjevic.
4 MR. DJORDJEVIC: [Interpretation] Your Honour, by the 26th of
5 January, we shall deal with the issue of witnesses in general, including
6 this issue as well. But as I already said, my team is not staffed to the
7 extent that we believe should be required to be able to work on this
8 case. I will, therefore, ask you for an extension of time; that is to
9 say, a few days after the 26th January. Now, speaking what would be
10 reasonable, we think that about a week after the 26th would be the 1st or
11 the 2nd of February.
12 JUDGE PARKER: You will realise, Mr. Djordjevic, that the level
13 of complexity in a case for legal aid purposes is a matter for the
14 Registrar, not for this Trial Chamber. It occurs to me, not having
15 considered the matter in depth, that the Registrar might well have seen a
16 significant difference between a trial with six or seven or eight accused
17 than a trial with one accused, even though the trial would otherwise be
18 dealing with substantially the same matters, so that might be the
19 explanation. I just offer that for your assistance.
20 Are you suggesting it would not be practical for you to respond
21 to 92 ter by the 26th of January?
22 MR. DJORDJEVIC: [Interpretation] Your Honour, we have been making
23 plans and timetables in accordance with what was instructed to us by
24 Judge Harhoff. As far as 92 ter was concerned, Judge Harhoff decided to
25 leave this matter in the hands of the Trial Chamber, with which I agree,
1 because it is in line with the Rules of Procedure. Therefore, we are
2 going to receive this motion only on the 12th of January. In the
3 meantime, we already have to set out our plan of work, and to resolve the
4 crucial matters relating to witnesses, and to provide reasons, as this
5 Trial Chamber has required, and that is the sole purpose of our request
6 for an extension of time for one week only.
7 JUDGE PARKER: Thank you.
8 [Trial Chamber confers]
9 JUDGE PARKER: You'll be pleased to know, Mr. Djordjevic, that
10 the festive season is upon the Trial Chamber as well, so your request to
11 have an additional week to respond to Rule 92 ter is granted.
12 MR. DJORDJEVIC: [Interpretation] Thank you, Your Honour.
13 JUDGE PARKER: That will take you to Monday, the 2nd of February.
14 Mr. Hannis, I'm sorry.
15 MR. HANNIS: I'm sorry, Your Honour.
16 In light of that, maybe my intended remarks change a little. You
17 had mentioned hoping to start this trial in January, and I find myself in
18 a somewhat awkward position, because I'm standing in for Mr. Stamp, who
19 will probably have to carry the consequences of whatever decision you
20 make about a trial date more than I will. So it would be easy for me to
21 sit here today and say, "Fine, set it whenever you want, January 5th is
22 fine," because I may not have to deal with that, but because up until
23 about two weeks ago, the parties on both sides had a reasonable
24 expectation that the trial wasn't going to start until February, at
25 least, because we had a 65 ter scheduled for the 29th of January, and
1 that has had some impact on us. And now that we are in the holiday
2 season and find it may start earlier than that, many people have already
3 left and are leaving, and it does put us in a difficult position. I felt
4 I needed to put that on the record.
5 I understand that you all are fresh and ready and eager to go,
6 and I commend that, but I would ask you to bear that in mind, and that if
7 we do ask for an extra week or two regarding the beginning of the trial
8 date, I think, based on my work experience with Mr. Djordjevic, the trial
9 attorney across the aisle so far to date, leads me to believe that any
10 credit you give us on the front end of this, if you give us a week or two
11 extra before the start of the trial, it will pay benefits later on during
12 the trial, because we will be better organised, better prepared, and the
13 trial will go more swiftly and efficiently.
14 Thank you.
15 JUDGE PARKER: I would say I should get that in writing from you,
16 Mr. Hannis.
17 MR. HANNIS: I hope that's not personal, Your Honour, but
18 directed towards lawyers in general.
19 JUDGE PARKER: The Chamber is well aware that counsel may feel
20 that they have to step up the pace of their preparation unexpectedly, and
21 it's for that reason, in part, that we're being more generous than some
22 would expect about these matters.
23 Mr. Djordjevic, is there something else you wanted to say?
24 MR. DJORDJEVIC: [Interpretation] Just briefly.
25 Your Honour, you have grey hair, just like I do, and you are well
1 aware that it seldom happens that the Prosecution and the Defence see eye
2 to eye to certain matters. However, one matter that we are going to see
3 eye to eye is the commencement of this trial, regardless of whether we
4 are more or less prepared or not.
5 Quite simply, we do need time at this point, because you know
6 very well that this is an ad hoc tribunal, that many Defence lawyers come
7 from other countries, and we have just been -- started to organise
8 ourselves. We have found an office here in The Hague. We have to rent
9 flats where we are going to live, because we are expected to stay here,
10 according to the plan, for at least one year. So, frankly speaking, it
11 would be only reasonable to expect this trial not to begin before the 1st
12 of February or even a day or two later.
13 Of course, it is in the interests of the Defence team and our
14 client for this trial to commence as soon as possible, but any
15 postponement of one or two weeks will not harm anybody and will
16 contribute to the efficiency of these proceedings.
17 That would be [indiscernible].
18 JUDGE PARKER: Thank you, Mr. Djordjevic. We certainly have in
19 mind the complexities of preparation. Each Judge sitting here is a Judge
20 that has spent their professional lives in courtrooms. We know very much
21 what you are talking about. And we may be young Judges. We're only
22 grey-haired because we've spent some time in court, you see.
23 MR. DJORDJEVIC: [Interpretation] Your Honour, I was only
24 referring to experience, not age. I do not feel myself to be an old man.
25 JUDGE PARKER: Mr. Hannis, I wasn't sure whether there was a
1 particular point to what you said. Are you anxious about the date of the
2 12th of January for your 92 ter motion?
3 MR. HANNIS: Well, Your Honour, perhaps if -- I know you gave the
4 Defence an extra week. If I ask for an extra week now, then he may need
5 an extra week.
6 JUDGE PARKER: He'll need another week, yes.
7 MR. HANNIS: But I was thinking if perhaps if we could have later
8 in that same week instead of Monday, the 12th, if we could have perhaps
9 Thursday, the 15th. I see Mr. Djordjevic saying, "Okay."
10 JUDGE PARKER: We were looking at Wednesday the 14th.
11 MR. HANNIS: Every little bit helps, Your Honour. We would
12 accept that. Thank you.
13 JUDGE PARKER: Very well. This is just about the end of our
14 Christmas spirit, but Wednesday, the 14th, will be the date, then, for
15 the Prosecution's Rule 92 ter motion; and Monday, the 2nd of February,
16 will be the date for the Defence response to that motion.
17 I believe we have coped with the evidentiary issues. Could I now
18 look at disclosure.
19 I see that some months ago, the disclosure under Rule 66(A) (1)
20 was dealt with. There was, in October, a few items still to be concluded
21 under Rule 66(A)(2). I raise it now to learn whether those matters have
22 now been dealt with and whether disclosure is complete.
23 MS. KRAVETZ: Your Honour, it is my understanding that the
24 overwhelming majority of material to be disclosed under Rule 66(A)(2) has
25 already been disclosed. I know there are a couple of pending B/C/S
1 translations. There are around 15 or 18 of them that we're expecting to
2 receive back sometime from here to mid-January. Since this trial was
3 still in the pre-trial stage, it has taken us some time to get the
4 translations back from CLSS, so as we are receiving those, those are
5 being disclosed to the Defence. But that is all that remains to be
7 JUDGE PARKER: It would be appreciated if we could indicate that
8 it would be helpful if you were to communicate with those making the
9 translations, with a view to trying to urge attention to them as quickly
10 as possible.
11 MS. KRAVETZ: We did that just yesterday, in fact, we were in
12 contact with them. And just to indicate, these are simply materials like
13 I would call secondary nature. They are mostly OSCE and ICG statements
14 given by our witnesses; they're not ICTY statements. They are not
15 materials that we intend to use during the course of these proceedings.
16 JUDGE PARKER: Quite obviously, though, they need to be in the
17 hands of the Defence as soon as possible, so if you would give attention
18 to those, we would be grateful.
19 Is there any other matter about disclosure, Mr. Djordjevic, which
20 concerns the Defence?
21 MR. DJORDJEVIC: My legal assistant will explain what's happening
22 on this.
23 MS. O'LEARY: Thank you, Your Honour.
24 As I've said, the Prosecution, we've been working back and forth
25 on translation and Rule 66 and 68 materials, and we expect that to be
1 coming in in the next few weeks. But there were four cases where we had
2 material access to confidential case materials, Milosevic, the Kosovo
3 portion of the trial, we believe, is completed now. The Limaj materials
4 we believe are completed now. The Haradinaj materials we received
5 yesterday, actually, the filings and exhibits. We're still awaiting the
6 transcripts from the Haradinaj case. We also are receiving ongoing
7 materials via motion practice from the Milutinovic Chamber, and those are
8 the most relevant and important to this case.
9 We have not received the materials from the last decision of 9
10 September. That would be dating from July 9th, 2008, to September 9th,
11 2008, and those are some-what important to the case because they include
12 the full briefs of the final briefs and the final witnesses that were
13 heard in that case. So as soon as we could possibly get those, that
14 would assist us greatly.
15 I think that there was some waiting on some redactions that the
16 Registry was waiting to hear back from the OTP, so whenever that would be
17 available, we would be grateful.
18 And that should complete all disclosures, other than any Rule 70
19 materials that we may not be aware of that would be coming in.
20 Thank you.
21 JUDGE PARKER: Thank you very much for that detailed
22 amplification. I'm sure notice has been taken of those by Ms. Kravetz,
23 and the communication that has been occurring that each of you have
24 mentioned between Prosecution and Defence, we encourage to continue and
25 to complete this process as quickly as possible in the interests of
2 MS. KRAVETZ: Yes, Your Honour.
3 I just wanted to point out one issue with regard to disclosure.
4 There are a total of six witnesses who have been granted delayed
5 disclosure in the Milutinovic case, and those protective measures follow
6 through in this case, and those materials have not yet been disclosed to
7 the Defence in unredacted form because the protective measure in place
8 delayed disclosure 30 days prior to the start of trial. So once the
9 trial date is set, we will proceed to disclose those materials to the
11 JUDGE PARKER: Thank you very much, yes.
12 Well, we move now to the matter of agreed facts. I see that it
13 was mentioned in September, at the Rule 65 ter hearing, that the parties
14 had been able to reach agreement on a number of facts and documents.
15 There hasn't yet been filed any joint submission which sets those out.
16 Is there a problem there or is this simply a matter which will now be
17 dealt with?
18 MS. KRAVETZ: Well, we were actually waiting for direction from
19 the Trial Chamber in this respect, because the last we had heard was that
20 the Pre-Trial Judge was going to communicate the list of agreed documents
21 and agreed facts to the Trial Chamber. And we didn't know if the
22 preference of this Chamber was that we just file a joint motion,
23 attaching this list that had been prepared by the Pre-Trial Chamber or if
24 there was another preferred course of action, so that's simply the reason
25 why we haven't filed a motion yet.
1 JUDGE PARKER: I'm again a little confused. Are you saying that
2 there was a list given to the Pre-Trial Chamber?
3 MS. KRAVETZ: No. There was a list complied by the Pre-Trial
4 Judge, together with the senior legal officer that was working on the
5 case. We received both the list of agreed documents and agreed facts
6 from the Trial Chamber after the series of 65 ter meetings took place in
7 September and October, and we were told at the time that this was an
8 unofficial list from Chambers. And we're told that this list would be
9 passed on to the Trial Chamber.
10 I'm not aware of what happened after that. This was done all
11 through e-mail communication by the senior legal officer. So if the
12 preference of the Trial Chamber is that we file a joint motion, we're
13 more than happy to do so, because we would also like this matter to be
15 JUDGE PARKER: Well, thank you.
16 I think clearly the matter should be dealt with by way of a
17 formal joint filing so that both sides and the Chamber have a clear
18 record of both any matters of fact and any documents which are the
19 subject of agreement between the parties. Is that something that can be
20 dealt with by, shall we say, the 19th of January?
21 MS. KRAVETZ: Yes, Your Honour, we can comply with that deadline.
22 JUDGE PARKER: Thank you.
23 We'll ask, then, that the parties deal with that matter and file
24 their joint list by the 19th of January.
25 Can we turn now to a couple of relatively routine procedural
1 orders for the conduct of the trial.
2 Experience suggests that it is a practical arrangement, if an
3 order is made for the Prosecution to disclosure progressively during the
4 trial, its coming witnesses, on the basis that for the witnesses the
5 Prosecution intends to call in any given week of the trial, there should
6 be a disclosed list of those witnesses two weeks before the commencement
7 of that week; in other words, giving the Defence two weeks advance notice
8 of the witnesses to be called in each week of the trial.
9 Is there any submission about the practicality of that from
10 either Prosecution or Defence?
11 MS. KRAVETZ: Your Honour, the practice that we followed in the
12 Milutinovic case was that we would file a monthly list of witnesses to be
13 expected in the next two coming months, and we would file our list of
14 witnesses for the following week every Thursday of each week. So we
15 would give a week's notice of the witnesses that were to come and the
16 materials that were going to be tendered through the witnesses.
17 I don't know if this Chamber has a preference for that being a
18 two-week notice rather than a one-week notice period. The problem that
19 we may run into is that witnesses usually travel to The Hague for their
20 testimony not long before, and sometimes there are new exhibits that come
21 up that need to be notified to the Defence. So it may seem -- it may be
22 better to proceed on the basis of a one-week notice so that we don't have
23 to be later notifying or making amendments to the list that are filed
24 each Thursday.
25 JUDGE PARKER: Do you mean to say you get witnesses here a
1 week -- over a week earlier than they are called?
2 MS. KRAVETZ: No, not generally, but --
3 JUDGE PARKER: That's something I've never known in five years
5 MS. KRAVETZ: No, I didn't mean to say that, but I just mean to
6 say that if we proceed on a one-week notice, we have a better idea of the
7 material that will be used, and that list may be subject to less change
8 than if we proceed on a two-week notice. But I'm just speaking on the
9 basis of what had been our practice in the Milutinovic case.
10 JUDGE PARKER: I think you are seeing two different approaches to
11 the same problem, each of which may have some merit and some demerit.
12 A month's notice, which you indicated was your basic, in my
13 experience would be prone to substantial modification as the month
14 progressed, and one week's notice would normally be quite short for the
15 Defence. Two weeks would be a better time for their more detailed
16 preparation for the particular witnesses.
17 [Trial Chamber confers]
18 JUDGE PARKER: On the assumption that there's no specific further
19 submission, I think we will stick with what we have found to be a
20 reasonable balance of these competing issues; that is, two weeks' notice
21 of the witnesses to be called.
22 Now, we will all appreciate that there will be times when, for a
23 variety of possible reasons, there has to be some departure from that
24 list, but that should not, from experience, be a frequent occurrence.
25 Now, in our practice, Ms. Kravetz, could I mention that the
1 notice given, we found useful for that to include an estimate of the time
2 the Prosecution anticipates to spend with that witness, and of course
3 then it would make an allowance for the time needed for cross-examination
4 in assessing the number of witnesses to be called in any particular week.
5 So if the notice can include the time the Prosecution anticipates for
6 evidence-in-chief, and that would be helpful.
7 There is also the question of documents to be used during
8 examination-in-chief and cross-examination. There are two needs here:
9 one, there must be time to allow the documents to be up-loaded into the
10 electronic court system so that they can be available when counsel calls
11 for them; and the other, of course, is to give notice to the other side
12 so that they can look at the document. The practice that I found has
13 worked quite well would be for the Prosecution at the moment - it will be
14 the same for the Defence later, but for the moment we're dealing with
15 Prosecution - that the Prosecution will give notice to the Defence team
16 and to the Court Registry officer of the documents it intends to use with
17 each witness 48 hours before the witness is called to give evidence, two
18 days' notice to the Defence and the Registry.
19 For documents which the Defence proposes to use in
20 cross-examination for a witness, the practice I have found practical in
21 previous trials is for the Defence to give the court officer, the
22 Registry, 48 hours' notice of its intention to use the document in
23 cross-examination; for ordinary witnesses, 24 hours' notice to the
24 Prosecution of an intention to use a document, but in the case of expert
25 witnesses, 48 hours' notice of an intention to use the document.
1 Is there any submission about the practicality of those
3 Ms. Kravetz?
4 MS. KRAVETZ: We have no problem with it.
5 JUDGE PARKER: Mr. --
6 MR. DJORDJEVIC: We agree also.
7 JUDGE PARKER: Thank you very much for that.
8 So the orders will be as indicated, and I think we can indicate
9 now that the same order will apply, but in reverse, when it comes to the
10 Defence case, so that you can understand that. That's in respect of the
11 matters we've dealt with; that is, the disclosure of witnesses that are
12 coming, and then notice of documents to be used during
13 examination-in-chief, and notice of documents to be used in
15 Is there any other particular matter that either Prosecution or
16 Defence wish to raise? If not, we will move to the big issue; that is,
17 the commencement date of the trial. But I give you an opportunity to
18 raise some other matter first.
19 MS. KRAVETZ: Your Honour, I just wanted to correct the record
20 with respect to the number of witnesses we intend to call. I notice
21 Your Honour was referring to 114. There are, in fact, 115 witnesses.
22 I also wanted to alert Your Honours that we anticipate to file a
23 motion sometime in mid-January to add a couple of more witnesses due to
24 ongoing investigations and problems in contacting these witnesses, we
25 weren't able to include those witnesses in the list that was filed on
1 Friday, so we will probably be submitting that to Your Honours sometime
2 towards mid-January.
3 JUDGE PARKER: These two additional witnesses, are not witnesses
4 at present on any version of your Rule 65 ter list; is that correct?
5 MS. KRAVETZ: No, they haven't been witnesses included in those
7 JUDGE PARKER: Very well. Well, that will be dealt with, on its
8 merits, when the motion is received. The Defence will have time to
9 reply, and then we'll deal with the matter.
10 The 114 was our count of the number. You believe it's 115?
11 MS. KRAVETZ: Yes, we were actually counting now, and we have
12 come up with 115, because --
13 JUDGE PARKER: Well, we each are looking at the same list. One
14 of us is probably more accurate than the other.
15 MS. KRAVETZ: We initially had 132, and in the last list we
16 dropped or withdrew 17 witnesses.
17 JUDGE PARKER: But I thought your 132 was modified to 131.
18 MS. KRAVETZ: I don't believe so, Your Honour.
19 JUDGE PARKER: That was my understanding. Anyhow, it matters
20 not. We have the presently-amended list, and that is it. Whether it's
21 114 or 115 will not make or break the matter.
22 We come now, then, to what is probably the most significant
23 issue, what should be the start date for the trial.
24 The trial, of course, starts with an opening statement from the
25 Prosecution. There may then be, if they wish, although it is perhaps not
1 usual, for the Defence to make an opening statement, and then we would
2 proceed to the hearing of evidence, and that is something that, in a case
3 like this, we would be substantially in the hands of the Prosecution as
4 to the most practical point in the evidence at which to start in the
5 introduction of evidence.
6 The question of date is one which will be determined according to
7 the competing interests of the anxiety for the trial to start at the
8 earliest possible time, because that will enable it to conclude at the
9 earliest possible time, which is what the accused wishes, no doubt; and
10 it is certainty what is in the interests of all other accused who are
11 waiting to have their trials. The other competing interest is, of
12 course, fairness, and we have to balance those two considerations.
13 We're now in mid-December, and the question is when counsel can
14 be ready to commence the trial. Now, that doesn't mean that they need to
15 have completed their preparation in respect to every issue and every
16 witness. It means they must be in a reasonable state of readiness to
17 proceed in an orderly and effective manner through the trial, bearing in
18 mind that there will be time, as the trial progresses, for further
20 We would hear submissions as to what counsel think would be their
21 preferred starting date at this stage, if counsel wish to put
23 Mr. Hannis.
24 MR. HANNIS: Your Honour, based on my brief discussions with
25 Mr. Stamp before he had to leave, I would like to ask the Court to
1 consider a starting date of 9 February. I know that's a little farther
2 along than you wanted, based on your earlier remarks about starting this
3 trial in January. I don't have a lot to add to what I said earlier about
4 our concerns about when we would be able to start, but I think there is a
5 need for perhaps a couple of weeks longer than you would have liked. But
6 as I indicated, if you can give us those two weeks longer before the
7 start of the trial, I think it will pay benefits in the long run that
8 will be equivalent to two weeks or more in terms of how long it takes to
9 present the whole case.
10 Thank you.
11 JUDGE PARKER: Thank you, Mr. Hannis.
12 It is troubling to hear that submission, in view of the fact that
13 this case really has been ready for trial, on the view of the Pre-Trial
14 Judge, for some weeks. We're dealing -- we have today and are dealing
15 with the detailed evidentiary matters, but the idea that the Prosecution
16 might need now virtually another seven weeks to be ready to open its case
17 does seem unnecessarily generous.
18 MR. HANNIS: Your Honour, I would indicated that three of those
19 weeks are basically the Christmas recess, and as I indicated before, the
20 parties had an expectation that I think we were reasonably relying on,
21 that the trial wouldn't start before probably -- at the earliest, the 2nd
22 of February, given that there was another 65 ter scheduled for the 29th
23 of January, and that's, in essence, the basis of my submission.
24 Thank you.
25 JUDGE PARKER: Thank you.
1 Mr. Djordjevic.
2 MR. DJORDJEVIC: [Interpretation] Your Honour -- Mr. President,
3 Your Honours, the Defence team agrees with the proposal of the
4 Prosecution; of course, not for the same reasons that I have already
5 stated. Despite the festive season, which applies to our country as
6 well, we will have to use all of January to organise ourselves and
7 prepare properly for this trial. I think we will be able to be ready
8 even a few days before the date proposed, but certainly by the 9th of
10 We are facing practical problems. We have to settle down here,
11 find apartments, my colleague and I, find premises for our office, deal
12 with all that and then proceed to work in peace with due diligence as we,
13 of course, have to.
14 JUDGE PARKER: Thank you.
15 [Trial Chamber and legal officer confer]
16 MR. HANNIS: I'm sorry, Your Honour. Could I make one more
17 remark before -- I'm afraid you might make your final --
18 JUDGE PARKER: Before we set things in --
19 MR. HANNIS: Yes, if I may.
20 I want to suggest the possibility -- I don't know if you find
21 this helpful or not. I would suggest the possibility that we might be
22 able to make the Prosecution's opening statement and have a Rule 84 bis
23 statement of the accused, if he so desired to make one, after our
24 opening, perhaps the week of the 26th of January, and then we will have
25 started the trial, in essence. And then if we can have a brief recess at
1 that time and start the evidence on the 9th of February.
2 For appearances sake, I don't know if that's helpful, but that's
3 something I'd like to suggest to you.
4 Thank you.
5 JUDGE PARKER: Every move closer to the 12th of January is
6 helpful, Mr. Hannis.
7 [Trial Chamber confers]
8 JUDGE PARKER: We would like to thank counsel for their
9 submissions with respect to the opening date, and to indicate the anxiety
10 of the Tribunal, of which we are but a part, to have this trial commence
11 at the earliest possible date, in the interests of this accused, of the
12 general efficiency of our operation, and of those other accused whose
13 trials will follow from this, because a delay in this proceeding will
14 delay others.
15 We are conscious that there may have been some impression in the
16 minds of counsel that the trial need not start until February. Although
17 the date, the 29th of January, mentioned by Mr. Hannis, as we understand
18 it, was merely for a continuation of the consideration that was being
19 given to the various 92 bis witnesses, and that is an evidential matter
20 that, in the ordinary course, can be and usually is dealt with as in the
21 early stages of the trial and not before the trial commences.
22 We also take into account a matter that has not been mentioned by
23 counsel, and that is no criticism of counsel; that is, the availability
24 of courtrooms, because counsel will be aware we have but three
1 Actually sitting at the moment, there are six trials, which means
2 that, by and large, the courtrooms are fully occupied each week. Now,
3 that programme for the courtrooms has been pretty well established for
4 most of January. We are, though, in a position to obtain some sitting
5 days in the last week of January and throughout February, but at least at
6 the end of January and in the early stages of February, we would expect
7 that we will have either three or four days a week, rather than five,
8 available in a courtroom.
9 As February progressing, one and then a little later a second
10 trial will complete evidence, and we will then be able to sit five days a
11 week. But at the early stages, we anticipate we will only have three or
12 four days available.
13 That then -- the availability of courts is a factor we need to
14 take into account. It's also a factor relevant to the degree of
15 preparation which is necessary. If the sitting will only be for three or
16 four days, there will be more time for detailed preparation in the course
17 of what is a slower-than-usual start to the trial.
18 Taking those matters into consideration, the Chamber feels that
19 it would be wise, in view of the number of issues about evidence that
20 we've dealt with today, to arrange for a continuation of this pre-trial
21 hearing merely adjourned to continue for final tidying up on Monday, the
22 26th of January, for an opening statement to be listed for the following
23 day, Tuesday, the 27th; if necessary, that flowing over to the next day.
24 But we would then anticipate that the Prosecution should be prepared to
25 lead evidence in that last week of January and in the first week of
1 February, bearing in mind when the court programme is published, the
2 number of days that are actually allocated to this trial. So that rather
3 than expecting evidence to be lead for each day of the first two weeks,
4 when the programme for courts is published, the Prosecution and Defence
5 will find that there are only three or four days, so the scale of
6 evidence will be reduced accordingly.
7 So, in short, we would commence on Monday, the 26th, with the
8 finalisation of this pre-trial conference so that all matters then that
9 are causing difficulty can be looked at and any corrective orders made.
10 Opening statements commence the following day. They may conclude in the
11 one day, or they may go over to the following day, and then at a reduced
12 scale, evidence to be led in the weeks to follow by the Prosecution.
13 Now, we trust those arrangements, although they will, of course,
14 demand some special attention by counsel, put them under some pressure to
15 be ready. Nevertheless, we trust that they will prove to be reasonable
16 and fair arrangements and will ensure that the trial can get underway in
17 an ordered and competent manner. And as we've indicated, we expect that
18 the pace of the trial will pick up during February to a full five days a
19 week as other trials reach the end of their evidence.
20 If there is no other matter from either counsel ...
21 MR. HANNIS: If I may, Judge, thank you for that. That's
22 helpful. I think we'll all be flexible, and I think we can work with
24 I was looking at the calender for January, and I'd seen that most
25 of the courtrooms were full. I saw the mysterious trial number 7
1 appearing on a Monday here and a Friday there.
2 JUDGE PARKER: It appeared first on the 12th of January, so you
3 came here under that threat.
4 MR. HANNIS: Yes. I had seen that trial number 7 on the calender
5 for some time prior to now as well.
6 Your Honour, I would note that if, in the first week or two, we
7 may only be sitting on Mondays and Fridays, I would ask that we may need
8 the Trial Chamber's help with victim witness [sic]. Depending on which
9 witness we call earlier in the case, they sometimes have rules that they
10 don't want to bring witnesses more than five days before they testify and
11 they don't like them sitting here too long. If they're not able to
12 finish a witness on Monday, then the issue is do they go back to the
13 region and then come back, those kinds of things I just bring to your
14 attention that we'll have to face.
15 JUDGE PARKER: Thank you for that, Mr. Hannis.
16 I did indicate that the programme is being adjusted during the
17 last week of January. The present indication is Monday and Friday, but
18 there will be more days available, and you will have to wait for the
19 amended programme to come out. Similarly, in early February there will
20 be dates more available, and we will expect three or four days each of
21 those weeks.
22 Very well. May we thank counsel for their assistance and all for
23 their attendance.
24 We wish you the compliments of the season, and we look forward to
25 proceedings of this adjourned pre-trial hearing on the 26th of January
1 and for the commencement of the trial itself on Tuesday, the 27th of
3 That being so, we will now adjourn. Thank you all.
4 --- Whereupon the Pre-Trial Conference adjourned
5 at 3.40 p.m.