Tribunal Criminal Tribunal for the Former Yugoslavia

Page 856

1 Tuesday, 18 January 2005

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.16 p.m.

6 JUDGE BONOMY: Now, would the registrar please call the case.

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

8 This is the case number, IT-99-37-PT, the Prosecutor versus Milutinovic

9 Sainovic and Ojdanic.

10 JUDGE BONOMY: Can I have an indication, first of all, of the

11 parties appearing for the Prosecution.

12 MR. HANNIS: Thank you, Your Honour. My name is Tom Hannis. I

13 represent the Prosecution. On my left is Ms. Christina Moeller, who will

14 address issues regarding the expert the witnesses this afternoon. And on

15 my right is Ms. Susan Grogan.

16 JUDGE BONOMY: Thank you, Mr. Hannis.

17 For Mr. Milutinovic.

18 MR. O'SULLIVAN: Good afternoon, Your Honour. Eugene O'Sullivan

19 and Slobodan Zecevic appearing for Mr. Milutinovic.

20 JUDGE BONOMY: Thank you, Mr. O'Sullivan.

21 For Mr. Ojdanic.

22 MR. VISNJIC: Good afternoon, Your Honour. Tomislav Visnjic, on

23 behalf of General Ojdanic.

24 JUDGE BONOMY: Thank you, Mr. Visnjic.

25 And for Mr. Sainovic.

Page 857

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

2 Vladimir Petrovic on behalf of Mr. Sainovic.

3 JUDGE BONOMY: Thank you, Mr. Petrovic.

4 Now, gentlemen, because there was no 65 ter Conference, it may

5 take a little longer than normal to deal with this today, and I may seem a

6 little more at sea even than I normally am. So I'm looking to you for

7 possibly a little more assistance than would otherwise be the case.

8 And I'll try to deal with or raise at least the issues that I'm

9 aware of in some sort of logical order. My most recent involvement in

10 this case was the hearing for the recovery of documents from the various

11 NATO member states. All I can do today is indicate the state of play in

12 that motion.

13 The Chamber have already deliberated on the matter, and a

14 decision is in the course of preparation. What I can't say is how long

15 any further deliberations will take or when exactly the decision will be

16 issued, but I anticipate perhaps in about two weeks or so from now there

17 will be a decision on that matter. I don't think you can anticipate it

18 much before that certainly.

19 The second issue I would like to raise is the attempts that have

20 been made and are ongoing to try to reach agreement on certain facts. I

21 can see that there has been correspondence exchanged on that, and that has

22 gone on for some time. It has not so far been very productive, and what

23 I'd like to do is see whether any assistance can be offered in either

24 directing minds on the issue or, alternatively, deciding just how much

25 more effort ought to be put into it.

Page 858

1 Now, either the Prosecution or, I think, Mr. Petrovic, either of

2 you is -- is best placed, I think, as being most recently involved in

3 dealing with this. So which of you would like to try to bring me up to

4 date on that one?

5 Mr. Petrovic.

6 MR. PETROVIC: [Interpretation] Your Honour, thank you. I'll try

7 to provide you with information on the situation and I will try to provide

8 a lengthy explanation of the strategy followed by Defence counsel in this

9 matter.

10 From the very beginning of discussion on agreed facts, our

11 position has been to try and go beyond the contents of the indictment or

12 the pre-trial brief itself. The indictment and the pre-trial brief

13 contain a fairly minor number of facts. These facts are not very

14 extensive and don't have to do with the substance of our defence of

15 Mr. Sainovic. As a result, our approach has been that apart from

16 focussing on the contents of the indictment itself, we should also propose

17 certain facts that will certainly be examined at the appropriate time. So

18 we would not only like to deal with what is stated in the indictment. We

19 would also like to raise issues that we believe are of importance for the

20 defence of Mr. Sainovic, especially once we commence with the trial

21 stage.

22 For this purpose, we have already forwarded about three letters

23 referring to about 15 facts to the Prosecution. The first group of facts

24 was not accepted. The second group of facts was agreed to entirely, and

25 that's what is stated in the Prosecution pre-trial brief.

Page 859

1 Just before the Christmas recess, we also provided a list of a

2 third group of 18 facts, and a few days ago we received a preliminary

3 response from the Prosecution to that letter that we forwarded to them.

4 Our position is that the preliminary response opens up the

5 possibility of engaging in further discussions on those facts. Some of

6 the facts have been agreed on, or in certain cases there's room to agree

7 on certain facts; whereas, there are certain facts that the Prosecution

8 will not agree on. But we believe that this is the right procedure that

9 we should follow. And the conclusion of this procedure -- the outcome of

10 this procedure should be that we will manage to agree on a large number of

11 facts.

12 The Prosecution has suggested a certain position that has been

13 accepted by the Defence.

14 The second letter that we forwarded had to do with what was

15 stated in the indictment itself. We believe that this is important, but

16 that we should go beyond the scope of the indictment or the facts

17 mentioned in the indictment. We will respond to the last letter that we

18 received from the Prosecution on the 14th of January. We will provide a

19 detailed response to that letter. And I believe that we will be able to

20 make headway.

21 JUDGE BONOMY: Thank you very much, Mr. Petrovic.

22 Now, Mr. Hannis, there doesn't seem to me on the face of it to be

23 anything wrong in principle with the Defence seeking and trying to reach

24 agreement with the Prosecution on matters which are outwith the strict end

25 of the indictment if it can be shown that these are relevant to the

Page 860

1 Defence case. I note from the letter that you sent to Mr. Petrovic that

2 you take quite a firm line that seeking such agreement is really beyond

3 what ought to be done here. Nevertheless, Mr. Petrovic seems to think

4 that the door is ajar.

5 Now, what is the Prosecution position?

6 MR. HANNIS: Well, Your Honour, it -- once the proposed facts

7 from the Defence go outside the boundaries of the indictment, it is harder

8 for us to find ourselves in the position of being able to agree to those

9 facts for a couple of reasons:

10 One is once it gets outside the scope of our document, frankly

11 I'm new to this case and I'm not familiar with all the background, so if

12 it's just a proposal of an agreed fact without some supporting document or

13 a reference to a witness statement or a transcript somewhere, it's really

14 hard for me to know whether that's something I can agree to.

15 Also, it's hard for me to know because I'm not fully familiar

16 with the defence in the pre-trial brief as to what aspect of the defence

17 it might agree to. It's also partly a matter of timing. Some of those

18 facts it seems to me might be more appropriate later in the case or might

19 be unnecessary later in the case.

20 JUDGE BONOMY: Can I take it though that you accept that it may

21 be appropriate to agree facts even though they are out with the terms of

22 the document if they are relevant to the Defence case. You accept that

23 principle.

24 MR. HANNIS: I do. I'm not categorically opposed to that

25 JUDGE BONOMY: Well, on that basis, it does seem to me there's room for

Page 861

1 progress to be made at least in further discussions and I don't think I

2 need to address the matter any further, at least so far as Mr. Sainovic is

3 concerned.

4 MR. HANNIS: No, Your Honour. And I hope our letter made it

5 clear to the Defence and to the Court that we were remaining recall open

6 to the possibility of further discussions.

7 JUDGE BONOMY: Thank you.

8 Now, is there a point to be made on behalf of either of the other

9 accused in relation to attempt to agree facts?

10 Mr. O'Sullivan.

11 MR. O'SULLIVAN: Yes. The -- so far as working with the

12 Prosecution, as part of our response to the Prosecution's pre-trial brief,

13 which was filed last September, we included in that response to the

14 Prosecution pre-trial brief the facts based solely on the indictment to

15 which we were prepared to stipulate. So we have not attempted or

16 discussed with the Prosecution anything outside the bounds of the

17 indictment itself and we've notified them of the facts we agree with in

18 the indictment.

19 JUDGE BONOMY: Mr. Visnjic, no -- nothing concerns you in this

20 area?

21 MR. VISNJIC: [Interpretation] Your Honour, we have also completed

22 the phase that had to do with agreed facts. But I would like to point out

23 that just before this Status Conference, we received a certain amount of

24 material from the Prosecution pursuant to Rule 68, and it might be

25 appropriate to re-launch this process because it's obvious that some of

Page 862

1 the information we were provided with is beneficial to the accused and it

2 might form the basis for new discussions with the Prosecution in relation

3 to some other facts.

4 JUDGE BONOMY: Thank you. I simply note that there may be

5 further discussion with -- with you, Mr. Visnjic.

6 Now, the next matter that may require clarification is the state

7 of play in relation to the witnesses whom the Prosecution propose to

8 present via Rule 92 bis.

9 Now, is there any assistance that the Court can provide at this

10 stage? I see Mr. O'Sullivan has, I think, taken the lead to some extent

11 on this subject. Do you, Mr. O'Sullivan, consider that there's any

12 assistance I can provide at this stage?

13 MR. O'SULLIVAN: With respect, I don't think so, Your Honour.

14 We've met with Mr. Hannis and Ms. Moeller just prior to this conference,

15 and I think we're at the stage where we can attempt to establish contact

16 with the group of 11, which are of particular importance and have

17 immediate importance to the -- this 92 bis process.

18 JUDGE BONOMY: In your note to Mr. Boas, you raise the question

19 of meeting witnesses without a representative of the Prosecution being

20 present, and you go on to say: "We note furthermore that two of the 11

21 witnesses are employees of NGOs or a government agency. One of them is an

22 unidentified Rule 70 witness, and we can see no reason why these

23 individuals should meet with the Defence." Do you mean should not meet

24 with the Defence?

25 MR. O'SULLIVAN: Should not.

Page 863

1 JUDGE BONOMY: Yeah. So you're satisfied that your own efforts

2 are sufficient at the moment to ensure that there's a -- satisfactory

3 arrangements made for you to take such information as you require from the

4 witnesses?

5 MR. O'SULLIVAN: Yes, I think. But as between the -- the

6 Prosecution and the Defence, we're on the right track.

7 JUDGE BONOMY: Thank you.

8 I take it also, Mr. Hannis there's nothing more I need do at this

9 stage?

10 MR. HANNIS: No, Your Honour, not at this stage.

11 JUDGE BONOMY: Okay. That takes me then to the subject of expert

12 reports.

13 Can I say, first of all, that -- that there is an issue over the

14 question whether the Trial Chamber can decide at this stage that an

15 expert's report should not be admissible. And we have submissions from

16 the parties on that.

17 That preliminary question, in other words, whether it's

18 appropriate at all for the Trial Chamber to meddle, especially when it's a

19 Chamber that may not be dealing with the trial, is one that will be

20 addressed by the Chamber in due course. And I -- I don't think I need to

21 look further at that.

22 But there are issues over, I think, four expert reports which are

23 not fully disclosed as yet. And I have to say that in regard to each of

24 them, I have fairly major concerns and, therefore, I'm look for

25 reassurance about how these should be dealt with. So, Mr. Hannis, I think

Page 864

1 I look to you on that one.

2 MR. HANNIS: Your Honour, Ms. Moeller is ready to deal with those

3 expert witnesses

4 JUDGE BONOMY: Yes, you made that clear.

5 Ms. Moeller.

6 MS. MOELLER: Yes, Your Honour. May I start with the latest

7 developments concerning one of the expert reports, the expert report for

8 the DNA expert, Mr. Alonso, where they completed disclosure as of today

9 with disclosing the English translation of the fourth component of his

10 report. So we could say that this report is now -- sorry, the B/C/S

11 version. The English version has already been disclosed a week ago. The

12 B/C/S version of the report. So the Defence is now in possession of the

13 complete report in English and B/C/S version. So there is no reason to be

14 concerned about this report any more.

15 JUDGE BONOMY: So should I now be making an order about the

16 responses of the Defence to the report of Mr. Alonso?

17 MS. MOELLER: Yes, Your Honour. According to Rule 94 bis, unless

18 you order otherwise, the Defence would now have 30 days to file their

19 notice to you regarding whether they want to cross-examine the expert, or

20 whether they accept the report as it stands. And we would assume that

21 this clock would be starting to tick now, unless you order otherwise, of

22 course.

23 JUDGE BONOMY: Thank you.

24 MS. MOELLER: Going on to the constitutional expert, you are

25 aware of the history, I think, from the Prosecution report we filed on the

Page 865

1 28th of October, 2004. And it has taken us quite a long time to actually

2 find a constitutional expert for the reasons we set out in the report,

3 actually going even back into the Milosevic case, where we had a similar

4 situation.

5 We informed you that in October last year we identified three

6 potential experts and we contacted one of them and entered into

7 discussions with him. Then we contacted the other two to try to find out

8 which would be the most suitable. And we managed to actually make our

9 determination and to meet with this expert last Thursday and Friday on the

10 13th and 14th. He was here in The Hague and we managed to discuss all the

11 details pertaining to his report and the conditions of his expert

12 testimony. And he agreed to accept our commission on that and to provide

13 the report.

14 Now he informed us as to the disclosure deadline that he would

15 not be able to start preparing this report before February and that he

16 would need two months. So we are confident that we could disclose the

17 final report in early April or end of March. He's very much aware of the

18 urgency of this matter and promised us to do his utmost to speed it up,

19 but he's a very busy man, also teaching at the university, and has other

20 competing obligations in this regard.

21 JUDGE BONOMY: But you're paying attention to the current

22 evidence in the Milosevic trial, which -- which will have a direct

23 bearing, I imagine, on -- on the work of your constitutional expert.

24 MS. MOELLER: Yes, absolutely. And it was a very happy

25 coincidence that he was here actually last week when the evidence was

Page 866

1 already led in the Milosevic trial.


3 JUDGE BONOMY: One of the things that's emerging from that

4 evidence is there's a great deal of factual material about decisions taken

5 and alterations made to the rules of the constitution about which one, I

6 imagine, could stipulate what the exact impact of these might be. Maybe

7 then the question for exploration with the expert. But it seems to me

8 that -- that a great deal of time can actually be spent in court on

9 material about which there probably isn't any real issue between the

10 parties in either that case or this one. But, of course, if you have the

11 advantage of counsel in a case such as this one, then you may be able to

12 save a great deal of time by stipulating about the factual background on

13 which hopefully by the time your constitutional expert has completed his

14 work there really isn't much dispute.

15 MS. MOELLER: Yes, Your Honour. This is a very good suggestion

16 that we can take further with the Defence. Specifically pertaining to

17 these issues which haven't been addressed explicitly now, but we are

18 certainly ready to -- to enter into discussions on this point.

19 And I think the -- the report will really boil down to the

20 interpretation of these factual issues, and we will very much try to limit

21 it to these factors and not to -- to overburden it with unnecessary

22 factual considerations.

23 JUDGE BONOMY: Yes. I mean, what -- what the constitution of the

24 Republic of Serbia was and -- and how it was changed in relation to Kosovo

25 are matters which it now appears are clearly documented but -- but which

Page 867

1 in the course of the Milosevic trial has been very difficult to identify

2 the -- the best documentation on over quite a considerable period. So

3 that's -- there is useful current -- there are useful current developments

4 there for this case.

5 Now, there are two more to be dealt with.


7 JUDGE BONOMY: Could you deal with -- well, which one to deal

8 with.

9 MS. MOELLER: However you wish.

10 JUDGE BONOMY: Well, let's deal with the military expert.

11 MS. MOELLER: The military expert report, also you find our basic

12 submissions and our report filed on 28th October, 2004. And the problems

13 we described therein is that we have a number -- a high number of

14 outstanding documents that still need to be either translated or even

15 locked and summarily translated for the analyst to determine whether they

16 are of value or not to his report, and need to be considered or not.

17 According to the situation we described in the report, there are

18 375 documents that we received in February 2004. Now the status quo

19 relating to these documents is that they all have been locked and that

20 summary translations have been provided in the meantime so that the

21 military expert was able on the basis of the summary translations to

22 decide which of these almost 400 documents are really relevant. These are

23 59 documents, and they are still now awaiting the complete translation.

24 And then they, of course, need to be analysed by him and considered for

25 the report.

Page 868

1 Then there is another installment of documents we received only

2 later this year, which are 78 documents, and we are -- for these documents

3 we are at the stage they have been locked. They have been submitted to

4 the Evidence Unit. But we have not yet managed -- or the expert has not

5 yet managed to decide on the basis of summary translations which of these

6 documents are really needed for his report. So this is one step earlier

7 than regarding the other documents which were received in spring last

8 year.

9 JUDGE BONOMY: This does seem to be too open-ended, I think. All

10 three accused have been in detention now for a considerable period of

11 time. The expert we're dealing with here has provided reports in relation

12 to the matters which are the subject of this trial, also previously. But

13 at the moment, as I understand it in this case, there is no report at all.

14 There is some sort of general summary of -- of certain material but no --

15 no actual report. Is that -- is that correct?

16 MS. MOELLER: No, that's not the situation. For the military

17 expert, we have actually a report already. But it's not the final report.

18 It's not the updated version containing all these new documents. But

19 there is a report which contains more than 200 pages, I think, which has

20 been disclosed to the Defence on 18, 19, and 31st January 2003. So

21 they're in possession of these 200 pages of original report and the

22 underlying material as well.

23 JUDGE BONOMY: All right. Thank you. Now, what then about the

24 sexual assault expert?

25 MS. MOELLER: The sexual assault expert in the situation is the

Page 869

1 following: For her the situation is a bit different from the

2 constitutional expert, for instance, because she is not an academic

3 person; she's a field worker. And the situation that she has never

4 testified as an expert witness before has created some more complications

5 than actually discussing and designing her report than it has with other

6 experts. That's why we weren't in a position to disclose the final

7 version at the time we filed our pre-trial submissions in June 2004 but

8 only an outline of her report.

9 Due to her also competing other professional obligations for

10 Medicum Mondialo [phoen], where she works in the field offices with

11 victims in Kosovo and elsewhere, she could only meet us again here at The

12 Hague in December last year to finalise our discussions on -- on the

13 amendments to her report.

14 In particular, what we were missing in her report were additional

15 facts and some data from -- from the work of Medica Mondiale, which we

16 think is crucial for the Trial Chamber to have.

17 We discussed with her the possibility of obtaining these

18 additional aspects, and she agreed that she could do so within two months

19 as she had to go back to colleagues in the field office providing this

20 data in particular. This is why we request that -- to be allowed to

21 disclose this report in early March.

22 And I'm -- we are in contact with -- with the expert, and she has

23 reconfirmed with me just recently that she will be able to provide the

24 report in late February or early March.

25 JUDGE BONOMY: What is the nature of this evidence?

Page 870

1 MS. MOELLER: The nature of this evidence, it's relating to the

2 sexual assault charges that are contained --

3 JUDGE BONOMY: Yes, but --

4 MS. MOELLER: -- in the indictment, and it gives a general

5 background on the problems faced in dealing with these specific crimes in

6 the context of the Kosovarian culture and society. Because I think -- we

7 think -- the Prosecution thinks that this is a very important aspect for

8 the Trial Chamber to consider when evaluating the evidence we can present.

9 JUDGE BONOMY: I thank you, Ms. Moeller.

10 Mr. O'Sullivan.

11 MR. O'SULLIVAN: I would have comments on the military expert,

12 Your Honour, which as you know is the subject of a pending motion and

13 response from the Defence.

14 The problem we have with -- with the request by the Prosecution

15 is that they requested that you allow them to file the military expert

16 report only after a trial date is set in this matter, and we see no reason

17 for any delay whatsoever once the expert has had an opportunity to work

18 with the translations, and it appears that that process is moving along

19 quickly. And we think the expert should file his report as soon as

20 practicable and not have any time frame for disclosure based on a trial

21 date.

22 As for the sexual assault --

23 JUDGE BONOMY: Just before you go on to that, just give me a

24 moment.

25 [Trial Chamber and legal officer confer]

Page 871

1 JUDGE BONOMY: Mr. O'Sullivan, just to be clear about this, you

2 say that there's a motion from the Prosecution to be allowed not to

3 disclose this report until after the trial date has been set or after the

4 trial has commenced?

5 MR. O'SULLIVAN: I believe the motion requests that the -- Philip

6 Coo's report be disclosed once the trial date is set, and we've responded

7 to that by saying that there's no basis for any such delay and that when

8 he's --

9 JUDGE BONOMY: What's the date of that motion?

10 MR. O'SULLIVAN: I believe it was October last year. And our

11 response followed within the two weeks.

12 JUDGE BONOMY: There's a filing, I think, submitted on the 28th

13 of October. Is that the document -- that document contains a motion, does

14 it?

15 MR. O'SULLIVAN: That's the one, Your Honour, yes.

16 [Trial Chamber and legal officer confer]

17 JUDGE BONOMY: Yes, Mr. Hannis.

18 MR. HANNIS: Your Honour, I'm looking at page nine, paragraph 17,

19 and it says: "The Prosecution submits it would be in the interests of

20 justice if he were allowed to submit the final version of his military

21 expert report at a time closer to the tile trial date once it is set,"

22 meaning once the trial date is set.

23 JUDGE BONOMY: Thank you.

24 Mr. O'Sullivan, on the other expert, anything else to be said?

25 MR. O'SULLIVAN: Just on the sexual assault expert, I have to

Page 872

1 confess that it's a little unclear to me exactly what this -- the purpose

2 of the report is or what the tenor of this report is going to be.

3 JUDGE BONOMY: The timing now looks not out of the way in view of

4 the fact that there's no date set for the trial as yet.

5 MR. O'SULLIVAN: Correct.

6 JUDGE BONOMY: Correct.

7 MR. O'SULLIVAN: And just so it doesn't slip by, Your Honour,

8 that we do have a response to that October filing of the Prosecution.

9 JUDGE BONOMY: You said that -- you say it's before the Trial

10 Chamber. Is there any reason why I can't deal with it?

11 MR. O'SULLIVAN: There's none, no. You can deal with it.

12 JUDGE BONOMY: Mr. Visnjic, anything to be said on this?

13 MR. VISNJIC: [Interpretation] Your Honour, I only wish to add

14 that we have been informed by Ms. Featherstone that there is a possibility

15 that a trial date might be set within about eight weeks after we receive

16 notice that it's been set. I only wish to say that should this really

17 happen, we will certainly not be in a position to be prepared unless

18 Philip Coo's report is disclosed before that date or before that notice.

19 Thank you.

20 JUDGE BONOMY: Thank you.

21 Mr. Petrovic.

22 MR. PETROVIC: [Interpretation] Your Honour, I will be very brief.

23 I have two points I wish to make: First, the Defence of Mr. Sainovic

24 feels that what Mr. O'Sullivan has said is reasonable and noteworthy. We

25 feel that the Trial Chamber should set a precise deadline for the

Page 873

1 disclosure of the military expert report and all other expert reports.

2 Secondly, I wish to say that with all due respect and

3 understanding for the heavy obligations on our learned friends, it seems

4 to me that the competing professional duties of their experts should not

5 cause undue delay for our clients, in view of the fact that Mr. Sainovic

6 has been in detention for almost three years. Someone's professional

7 obligations are not sufficient reason to prevent more efficient

8 disclosure. With all due respect and all understanding for the

9 difficulties of our learned friends.

10 JUDGE BONOMY: I think, Mr. Petrovic, your point -- your last

11 point is well made. I think it's resolved -- well, the issues are

12 resolved in relation to the other experts by the passage of time alone.

13 But there is an issue outstanding in relation to Mr. Coo.

14 Ms. Moeller, does this -- the Prosecution have control over the

15 prioritising of translation?

16 MS. MOELLER: Your Honour, unfortunately, very little, if any.

17 The situation in general with regard to translations is that all

18 proceedings which are not in trial have no priority. So we are

19 generally -- all our requests are not handled as priority requests as long

20 as we are in pre-trial stage.

21 And with regard to particular translations, it is very difficult

22 to track actually with the Translation Unit and to receive some response

23 as to when translations can be expected. We tried to do that with regard

24 to the documents I just referred to regarding Phil Coo, the 59 documents,

25 and we got a rather weak answer that it may be March this year. But we

Page 874

1 are more or less in the hands of the Translation Unit in this regard.

2 And maybe to give you the full picture of the situation, it's

3 also worth mentioning that in last summer there was a period of about

4 eight weeks when there was a full stop in translation of even accepting

5 new requests. We couldn't even hand in new requests for new translations

6 for a period of almost two months because they were so overburdened. And

7 we can only with very good reasons require to be put on an urgent -- on --

8 to -- sorry, to request to have special urgency for -- for a particular

9 document.

10 JUDGE BONOMY: Thank you.

11 MR. O'SULLIVAN: Your Honour, there -- there may be one avenue

12 that we could explore. One would think that the Philip Coo report is also

13 important to the Milosevic proceedings. And that case is in trial. And

14 so if there's a way to move these documents up the list, it may be in the

15 related trial.

16 JUDGE BONOMY: Well, you have to bear in mind that that trial is

17 already in the Defence phase and what we're talking about here is a report

18 by a Prosecution expert who gave evidence some time ago.

19 What I shall do in relation to that matter is have the Trial

20 Chamber consider it in the context in which you initially indicated it had

21 been presented in October.

22 So far as the others are concerned, I envisage that the next

23 Status Conference will be around the 14th of April. So I shall order a

24 disclosure of the report by the constitutional expert by the 7th of April.

25 And I shall order disclosure of the report of the sexual offence expert by

Page 875

1 the 20th of March. And I simply note that as far as Mr. Alonso is

2 concerned, the clock is already ticking and that no one's made a motion to

3 any other effect.

4 Now, the next item I have noted is an application by the

5 Prosecution for modification of the reporting regime with an associated

6 motion on behalf of Mr. Ojdanic for disclosure.

7 Perhaps I ought to hear in this instance, first of all, from

8 Mr. Visnjic.

9 MR. VISNJIC: [Interpretation] Your Honour, yesterday the

10 Prosecution filed a response to our motion. I received the response

11 today, as I was away yesterday. We will probably be filing our reply to

12 this response in the near future, and I believe that we will then present

13 our final arguments in that reply. So at this point in time, I have

14 nothing to add to what is already stated in the motion, and I received the

15 response shortly before this Status Conference, so I really haven't had

16 the time to examine the matter.

17 JUDGE BONOMY: All right. Thank you, Mr. Visnjic.

18 Mr. Hannis.

19 MR. HANNIS: Your Honour, with regard to that matter, I guess

20 we'll await their reply.

21 As far as the reporting regime, we just suggested that change

22 because we thought it was a more efficient use of resources. The witness

23 is in a position where matters don't change much from month to month and

24 it seems a waste of time for the Court to have to read nothing new,

25 nothing new.

Page 876

1 JUDGE BONOMY: One even more efficient use of resources might be

2 for you to delete the witness from the list, since you haven't found him

3 or her. And this is a witness you can't trace; is that right?

4 MR. HANNIS: No, Your Honour. We -- we -- I hesitate to speak

5 more fully for -- for security reasons.

6 JUDGE BONOMY: Yes, indeed.

7 MR. HANNIS: But I think we -- we know where this witness is.

8 It's a matter of how we go about contacting him.

9 JUDGE BONOMY: Now, the motion from Mr. Ojdanic suggests some

10 doubt about whether there are any other witnesses whose identity has not

11 been disclosed to the Defence. I mean, is there uncertainly about what

12 the issues are on this subject?

13 MR. O'SULLIVAN: Your Honour, there are some -- on our witness

14 list, I think the very last number, 144, refers to some Rule 70 witnesses

15 for whom we do not have approval from the Rule 70 providers about the --

16 the terms and conditions under which those witnesses will be allowed to

17 testify according to them, and we have to make applications according to

18 what those providers require of us.

19 We've been told by one of the providers that they won't address

20 our application with regard to their witness until we have a trial date in

21 this case because their position on what they will allow and what they

22 would require will depend on the point in time where we are when the

23 witnesses would be anticipated to appear.

24 But it would be our intention, Your Honour, in that event -- it

25 would not be a matter of us notifying the Court and the Defence, that now

Page 877

1 we know who this Rule 70 witness is and we'd like to put him on tomorrow.

2 We won't -- we won't do that. We won't interfere with the Defence's right

3 to have adequate time to prepare to deal with those witnesses when they

4 know who they are.

5 JUDGE BONOMY: Thank you.

6 Mr. Visnjic, one point that's made by the Prosecution is that you

7 have stated on record that you will not start investigation and

8 preparation of the Defence case in the absence of additional funding

9 before the trial stage of the case is entered.

10 Now, has that changed?

11 MR. VISNJIC: [Interpretation] Your Honour, if I have the request

12 before me, it was at the Status Conference on the 12th of May, 2004.

13 In the meantime, the situation has changed in that we have been

14 granted additional funds. And even in such a situation, even if we did

15 not have sufficient funds, I believe that it is our right to select items

16 and give priority to certain items when preparing for the case and it is

17 nevertheless the Prosecution's obligation to disclose material in good

18 time.

19 JUDGE BONOMY: The reason I'm asking questions about this is this

20 is one of these issues that do crop up quite a lot in this Tribunal, I've

21 discovered very quickly, which on the face of them should not require the

22 intervention of a Trial Chamber or a Judge -- a Pre-Trial Judge. It

23 should be possible for sufficient exchange to take place between

24 Prosecution and Defence, for responsible counsel to take responsible

25 decisions about how much an issue must be pressed, a reasonable position

Page 878

1 of the Prosecution is, in seeking to delay disclosure.

2 I make these remarks in the hope that this issue might be

3 resolved. But if it's not, then I think it's simply one that I will have

4 to deal with. I don't think this is for the Trial Chamber. It's one I

5 will deal with on the basis of the written filings, once you've responded,

6 as you indicate, Mr. Visnjic.

7 But could I suggest that before you respond, it might be worth

8 having a word with the Prosecution to see if in fact there is a real issue

9 here that -- if the -- if the evidence is important enough or the -- the

10 lack of time might turn out to be significant enough for this to be an

11 issue that requires the intervention -- or my intervention. For the

12 moment, I simply note the position.

13 Now, the last point I've noted is that each of the accused has

14 again applied for provisional release. I -- all I can do, I think on

15 that, is indicate how it will be treated.

16 A history of -- of the applications which have already been made

17 and the determinations that have been made will be prepared. And against

18 that background, I will consider each of these applications.

19 I suspect I will then remit them to the Trial Chamber for further

20 consideration. That will be dealt with fairly soon, in view of the

21 significance of the issues that are raised by such applications. But in

22 view of the history, it may take a little time for the -- certainly for me

23 to become completely familiar with the background and for the Chamber to

24 deal with these. But hopefully, again, within the course of the next two

25 weeks or so it will be possible to address these issues.

Page 879

1 Now, that completes the agenda that I had noted for this

2 conference. Is there any matter any counsel wishes to raise?

3 MR. HANNIS: Your Honour.

4 JUDGE BONOMY: Mr. Hannis.

5 MR. HANNIS: I in the e-mail responses for additional matters by

6 the Prosecution, I had referred to one document we had received relating

7 to the accused Mr. Sainovic. It actually pertains more to the issue of

8 provisional release because it pertains to some proceedings ongoing in the

9 Belgrade district court in which there apparently is a request for his

10 presence at this time. And I perhaps should have better filed it as a --

11 as a supplement -- a supplementary pleading. But because we were here and

12 we were all going to be together, I had just mentioned that. And I'm

13 happy to follow the Court's direction as to whether I should simply submit

14 that document as a annex or a supplement to the pleadings filed in

15 connection with his motion for provisional release.

16 JUDGE BONOMY: Thank you.

17 MR. HANNIS: Two other things, Your Honour, regarding the expert

18 reports. I think you set the date for the sexual assault expert to file

19 her report by the 20th of March, which I believe is a Sunday.

20 JUDGE BONOMY: Oh. Do you want the 18th or later?

21 MR. HANNIS: The 21st, if possible, Your Honour.

22 JUDGE BONOMY: The 21st of March.

23 MR. HANNIS: And related to the expert reports, Your Honour, I

24 think those deadlines are fine, based on our discussions with the expert.

25 I think they'll have no problem getting the reports completed by that

Page 880

1 date. I have less confidence in whether or not we'll be able to have a

2 translation in the language of the accused by those dates because of the

3 bottleneck we discussed before, but we will make our best efforts.

4 JUDGE BONOMY: Thank you.

5 [Trial Chamber and legal officer confer]

6 JUDGE BONOMY: I'm sorry, Mr. Hannis. I'd overlooked the point

7 you make about the attendance of Mr. Sainovic at Belgrade. Are you saying

8 that the Prosecution will be seeking to have him transferred to attend

9 there?

10 MR. HANNIS: No, Your Honour. I only indicated that that request

11 had been sent to the Registrar and to our office as well. And with regard

12 to the issue of provisional release and what conditions he might be

13 released upon, it seemed to be a factor that needed to be considered by

14 the Court. Because I don't know what would be required of him in

15 connection with that if he were provisionally released here.

16 JUDGE BONOMY: Is it mentioned in your response on the question

17 of provision until release?

18 MR. HANNIS: No, it's not because we didn't have it at hand at

19 the time we filed that motion.

20 JUDGE BONOMY: I think you ought to make a filing in relation to

21 this so that it's not lost sight of in considering the questions of

22 provisional release.

23 MR. HANNIS: I will do that, Your Honour, thank you.

24 MR. PETROVIC: [Interpretation] Your Honour, with your leave, I'd

25 just very briefly like to address an issue.

Page 881

1 The crimes that -- what my colleague has been speaking about are

2 mentioned in the second and third request for provisional release.

3 Unfortunately, my colleagues omitted to provide a response to that. I

4 believe this is an opportunity for them to respond in an appropriate way.

5 Thank you.

6 JUDGE BONOMY: Thank you, Mr. Petrovic.

7 Any other matter?

8 MR. HANNIS: Not from the Prosecution, Your Honour.

9 JUDGE BONOMY: All right. Thank you very much, gentlemen.

10 The next Status Conference, I indicated earlier, could be the

11 14th of April, unless anyone has a particular reason for avoiding that

12 date.

13 Very well. I fix the next Status Conference for Thursday, the

14 14th of April at 3.00 p.m. Meanwhile, the court is now adjourned.

15 --- Whereupon the Status Conference adjourned

16 at 4.11 p.m.