Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 25 August 2011

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.34 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone in and around this

 7     courtroom.

 8             Madam Registrar, would you please call the case.

 9             THE REGISTRAR:  Good afternoon, Your Honours.  This is Case

10     number IT-09-92-PT, the Prosecutor versus Ratko Mladic.

11             JUDGE ORIE:  Thank you, Madam Registrar.

12             Could I have the appearances.  Prosecution first.

13             MR. McCLOSKEY:  Yes, good afternoon, Your Honour.  My name is

14     Peter McCloskey, and with me is Dermot Groome, Roeland Bos, and

15     Janet Stewart.

16             JUDGE ORIE:  Thank you, Mr. McCloskey.

17             For the Defence.

18             MR. LUKIC:  Good afternoon, Your Honour.  Branko Lukic and

19     Mr. Milos Saljic for the Defence.

20             JUDGE ORIE:  Thank you, Mr. Lukic.  Special word of welcome to

21     you both because you have taken over duties now from duty counsel, as I

22     understand, and Mr. Saljic, if I am well informed, is a legal consultant

23     to the Defence of Mr. Mladic.

24             MR. LUKIC:  Yes, Your Honour, you are right.

25             JUDGE ORIE:  Yes.  This is the first Status Conference in this

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 1     case.  And although I am sitting alone today, I inform the parties that a

 2     number of decisions that will be announced later have been taken by the

 3     Chamber as a whole.  The purpose of this Status Conference is to start

 4     organising the pre-trial phase of this case, including setting dead-lines

 5     for when certain tasks should be completed.

 6             The Chamber will expect both parties' full commitment to

 7     efficient pre-trial proceedings.  This also includes organising their

 8     support teams which will be needed since the parties will be expected,

 9     already from the beginning, to substantially contribute to the

10     preparation of this case for trial.

11             Mr. Mladic, I see you are touching your earphones.  Can you hear

12     me in an a language you understand or are there any difficulties?

13             THE ACCUSED: [Interpretation] Your Honour, I am just trying to

14     put my glasses on.  I apologise.  But I do hear you well.  Thank you.

15             JUDGE ORIE:  Thank you, Mr. Mladic.  Then I will wait a moment.

16             Then we will proceed.  At the outset, the Chamber notes that it

17     is seized of a motion by the Prosecution, which was filed on the 16th of

18     August to sever the indictment.  The Defence is due to respond to this

19     motion the 31st of August.  Normally it would be the 30th, but that's a

20     UN holiday; thus, it will be the 31st of August of this year.  The

21     Chamber's consideration of the motion does not prevent it, and also

22     should not prevent the parties, from proceeding with the pre-trial

23     planning in this case.

24             And the Chamber's pre-trial plan includes, first, completion of

25     disclosure by the Prosecution; then, dealing with any preliminary motions

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 1     that the Defence will file; making decisions in relation to

 2     Rule 73 bis(D); the parties agreeing on facts that are not in dispute;

 3     dealing with any motion on judicial notice of adjudicated facts; the

 4     parties filing their pre-trial briefs; the Prosecution filing its Rule of

 5     65 ter submissions; and the Prosecution start filing any motions pursuant

 6     to Rule 92 bis, 92 ter, and 92 quater.

 7             The Chamber will indicate dead-lines for some of these matters

 8     today.

 9             The Chamber is planning to hold monthly Status Conferences.

10     During a 65 ter meeting, which was held last week, the Pre-trial Judge

11     distributed a tentative schedule for Rule 65 ter meetings and Status

12     Conferences to be held during the autumn of 2011 and to the beginning of

13     2012.  The parties were asked to inform the legal officer of the Chamber

14     within one week of any concern they had with this schedule.  So, to the

15     extent the parties have not done so already, would you please do so by

16     the end of this day.  An informal communication will be sufficient for

17     this purpose.  I will at a later stage explain to the parties how we will

18     deal with informal communications as to how to put them on the record or

19     sometimes how to file them, but sometimes e-mail exchanges, informal

20     communications, assist in not losing time.

21             The Chamber will issue a scheduling order in due course with

22     regard to Rule 65 ter meetings and status conferences during the months

23     to come.

24             I move on to the next matter which is disclosure and preliminary

25     motions.  And I first would like to deal with Rule 66(A)(i) disclosure.

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 1     But before we continue, one second, please.

 2                           [Trial Chamber and registrar confer]

 3             JUDGE ORIE:  As I said, I will start with Rule 66(A)(i)

 4     disclosure.  On the 12th of August the Defence filed a motion for you

 5     enlargement of the time to file preliminary motions.  That motion sets

 6     out the procedural history, in particular with regard to the hand-over of

 7     disclosed material from duty counsel to permanent counsel.  The Defence

 8     requests 25 days to file preliminary motions counting from the date of,

 9     and I quote, "full and appropriate compliance of Prosecution regarding

10     disclosure of all supporting material."  This matter was discussed at the

11     Rule 65 ter meeting which was held on the 18th of August and the parties

12     informed the Chamber then that full disclosure pursuant to Rule 66(A)(i)

13     had taken place earlier on that same day.

14             What then remains is for the Chamber to decide on the number of

15     days the Defence has to file its preliminary motions counting from the

16     18th of August of this year.  The Prosecution responded to the motion on

17     the 23rd of August, 2011, and deferred to the Chamber's discretion with

18     regard to the remedy sought.

19             Having considered that a large part of the disclosure was made

20     through the hand-over from duty counsel to permanent counsel already on

21     the 8th of August 2011 but that the complete disclosure was made only on

22     the 18th of August, the Chamber grants the Defence request.  And the

23     Chamber hereby instructs the Defence, to file its preliminary motions, if

24     any, by the 12th of September, 2011.

25             I move on to Rule 68 disclosure.  As discussed during the

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 1     Rule 65 ter meeting last week, if Chamber will also set a dead-line for

 2     the disclosure of Rule 68(i) material, that is exculpatory material.  At

 3     the meeting I informed the Prosecution that the Chamber had November in

 4     mind, and the Prosecution was asked for their position on the dead-line

 5     and it stated that it would be in a position to provide the Chamber with

 6     that today.  I therefore would like to invite the Prosecution to present

 7     its position in relation to a time-limit for Rule 68(i) disclosure.

 8             Mr. McCloskey.

 9             MR. McCLOSKEY:  Yes, Your Honour.  We have, of course, been

10     looking studiously into this, and we had a very good meeting yesterday

11     with Mr. Lukic where we have set out our intention to provide not only

12     Rule 68 but all the relevant discovery materials in this case on a hard

13     disk that he gave us, and that process will begin within the next few

14     days.  And we expect - for example the Srebrenica disclosure - witness

15     statements, the complete file to be able to provided to Mr. Lukic within

16     the amount of time it takes to transfer that, which is a day or two.

17             The Karadzic-related materials that are basically the same as the

18     current Karadzic case is -- will be a little more difficult because there

19     is Rule 70 material laced in that.  So providing the larger discovery

20     material electronically we have to see if there is Rule 70 material that

21     we first need to get clearance from, but in both those large discovery

22     packages, which we intend to get to the Defence within a matter of days

23     if -- without the Rule 70 problems, there is clear lists of Rule 68

24     material, and that should be - and I am just giving you my best

25     estimate - at least the 90 per cent solution for Rule 68 material.

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 1             JUDGE ORIE:  Yes, could I interrupt you for a second.  I

 2     specifically focussed on Rule 68(i) because the next item on my agenda

 3     would - and I will read that already to you so we can then return to

 4     68(i), that the Chamber leaves to the parties to agree on law electronic

 5     disclosure is to be carried out technically in this case and, in this

 6     respect should the parties encounter problems, they are invited to

 7     address the Chamber as soon as possible.  That's about, I would say, EDS

 8     disclosure, what remains after 68(i).

 9             The primary concern, and my question specifically was about

10     Rule 68(i), exculpatory material, because the Chamber wants to avoid at a

11     high cost that exculpatory material is not sought for systematically and

12     that later on in the case that it emerges where we expect the Prosecution

13     to systematically review their material on the existence of any

14     exculpatory material.  So that's where we mention specifically November.

15     We suggested November and that's where I specifically asked your position

16     on.

17             MR. McCLOSKEY:  Absolutely.  I understand, Mr. President, and

18     the -- so my view is that 90 per cent of the identified Rule 68 material

19     will be provided within a matter of, hopefully, days, and we are

20     endeavouring and we have begun the process of a systematic review, a

21     Mladic-specific systematic review, and Mr. Roeland Bos is in charge of

22     and has begun to make that review as you have noted.  And we have yet to

23     be able to give you a -- have enough numbers and volume in mind to be

24     able to give you a very accurate time-period by which that will be

25     reviewed.  We are realigning staff, we have realigned staff for this most

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 1     crucial of jobs, and we will continue to do so.  And we will endeavour to

 2     get this done by November.  I certainly hope we can.  We will intend, as

 3     we've, I think, mentioned, we would like to offer you information and

 4     reports on how we are doing so you can follow this process, but right now

 5     we have not yet been able to dig deeply enough into the material to give

 6     you an accurate idea of the number of documents that may be involved.

 7     It's clearly thousands, and we have got staff on this project and coming

 8     on this project, and we are hopeful that November will be something where

 9     we can give you an adequate assurance for that.

10             So we are definitely trying, whether I can promise you that -- we

11     can't promise that but we certainly can go for that.

12             JUDGE ORIE:  I am not seeking promises, I am seeking your

13     position on a dead-line to be set by the Chamber.  What I do understand

14     is that you are explaining to me that you are doing your utmost best and

15     that November is likely to be possible.  This may guide the Chamber in

16     setting a dead-line, because that's what we have on our minds.

17             MR. McCLOSKEY:  Thank you.

18             JUDGE ORIE:  In view of your response, I will first discuss this

19     briefly with my colleagues, but you should not be surprised if the

20     Chamber would choose the 15th of November as the dead-line.  Keep that

21     already in the back of your mind.  And, of course, whatever dead-line we

22     set, and that is a systematic review of the existing material and any

23     exculpatory material, that the obligation pursuant to Rule 68(i) is, of

24     course, a continuing one, and that any exculpatory material the

25     Prosecution would receive following the dead-line should be disclosed as

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 1     soon as practical, as the rules tell you and us.

 2             MR. McCLOSKEY:  Yes, Your Honour.

 3             JUDGE ORIE:  I already dealt with the other Rule 68 disclosure.

 4     I do understand that the parties have had a fruitful meeting on that

 5     subject, and I only repeat we leave it, for the time being, in your

 6     hands, without setting specific dead-lines or giving any further

 7     guidance, but if there is any problem do not hesitate to address the

 8     Chamber if you cannot resolve it yourself.

 9             Then, I would like to move on with the following element of the

10     trial preparation in the pre-trial phase, and I am talking about agreed

11     facts.

12             The Chamber considers that a part of an efficient pre-trial

13     proceeding is to identify such issues that are not in dispute between the

14     parties.  Doing so at an early stage will save time and resources later

15     on.  And the Chamber expects the parties' full commitment in this

16     respect, and it expects that discussions between the parties on this will

17     commence immediately.

18             The Chamber invites the parties to start any negotiations by

19     looking at each sentence of the paragraphs 1 through 3 of the indictment

20     which concern personal details and positions allegedly held by the

21     accused, and identify whether there is agreement about the facts

22     mentioned therein.  I would say it's a relatively simple start.  A second

23     area could be, for example, paragraph 88, which relates to the existence

24     of an armed conflict during events relevant to the indictment.  But the

25     parties could also start reviewing details with regard to the crime base

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 1     for the purpose of identifying undisputed facts.  I add to that that

 2     undisputed facts does not necessarily mean that there is still some

 3     dispute about what triggered these facts to happen, but that's separate.

 4     You can agree on facts and you can disagree on what caused these facts to

 5     come into existence.

 6             The Chamber also instructs the parties to regularly file progress

 7     reports on their meetings in this regard until the beginning of the

 8     trial.  The first progress report should be filed on the 19th of

 9     September, and after that reports should be filed regularly one week

10     before the planned 65 ter meetings.  The progress reports should address

11     which facts have been the subject of discussion and a summary of what

12     keeps the parties apart in relation to those facts.  And the progress

13     reports will be addressed at the Rule 65 ter meetings and the following

14     Status Conferences.

15             And depending on the progress of the discussions between the

16     parties, the Chamber might also organise separate out-of-court meetings

17     to deal with these issues.

18             I move on to the next matter that I would like to briefly raise

19     with you, that is Rule 73 bis (D).  On the 1st of June of this year, the

20     Prosecution filed its second amended indictment, and under

21     Rule 73 bis (D) of the rules, the Chamber may, after having heard the

22     Prosecution, invite the Prosecution to reduce the number of counts

23     charged in the indictment and may fix a number of crime sites or

24     incidents comprised in the charges in respect of which evidence may be

25     presented.

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 1             The Chamber may do so following the disposal of any preliminary

 2     motions, if any, filed by the Defence.  The Chamber notes already now

 3     that in the Karadzic case on the 8th of October, 2009, the

 4     Pre-Trial Chamber accepted the Prosecution's proposals to remove a number

 5     of municipalities and a number of incidents from the indictment.  Three

 6     of the municipalities were cut from count 3, persecution, in the Karadzic

 7     case, being Bosanska Krupa, Kalinovik, and Kotor Varos -- no, I make a

 8     mistake.  Three of the municipalities that were cut from the Karadzic

 9     case still remain now in the Mladic indictment, as do a number of

10     incidents listed in schedules A, B, C, D, and E, and G.  Considering the

11     similarities between the Karadzic case and the Mladic case, the Chamber

12     would expect the Prosecution to address, in its Rule 73 bis (D)

13     submissions, why municipalities and incidents cut from the Karadzic case

14     remain in the Mladic indictment.

15             The Prosecution should expect the invitation pursuant to

16     Rule 73 bis (D) towards the second half of November of this year.

17             I move on to adjudicated facts.  The Chamber expects the parties

18     to file any motion for judicial notice of adjudicated facts, that is by

19     the Prosecution or Defence, during the pre-trial proceedings.  By

20     deciding on such a motion early on, this will allow the Prosecution to

21     take the facts into account when compiling its 65 ter submissions, and in

22     particular its witness list.

23             The Chamber does not expect the parties to file such a motion

24     before dealing with preliminary motions and any decision pursuant to

25     Rule 73 bis (D).  Nevertheless, the parties are instructed, in particular

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 1     the Prosecution, to start the preparations for any such motion as soon as

 2     possible and be ready for filing in December of this year.  The Chamber

 3     does understand that these preparations may be affected by the parties'

 4     discussions on agreed facts.

 5             I move to other pending issues.  On the 31st of May, 2011,

 6     Radovan Karadzic filed a motion seeking access to confidential material

 7     in this case.  The Prosecution responded on the 22nd of June, 2011.  Also

 8     duty counsel responded explaining that he was not in a position to

 9     comment since disclosure had not been completed at that time.

10             Now, permanent counsel is appointed and disclosure has been

11     completed and, in the present circumstances, the Chamber instructs the

12     Defence to respond to the motion filed by Mr. Karadzic by the 8th of

13     September 2011, being two weeks from today.

14             I have addressed all the matters which I had on my agenda, and I

15     would like to invite the parties to address the Chamber on any issue they

16     would like to raise.

17             Prosecution first.

18             Mr. McCloskey, any matters you would like to raise.

19             MR. McCLOSKEY:  No, Your Honour, I think we are in good shape.

20             JUDGE ORIE:  Mr. Lukic, any matter you would like to raise,

21     already to inform Mr. Mladic that if there is any matter he would like to

22     raise, he will have an opportunity to do so.  But first, Mr. Lukic.

23             MR. LUKIC:  Your Honour, I think you covered everything we

24     discussed in the 65 ter meeting, so we don't have anything new.  I will

25     ask my client if he wants to add something.

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 1             JUDGE ORIE:  Yes, of course.  Mr. Mladic has not attended the 65

 2     ter meeting, so if you would like to take instructions or see whether

 3     there are any instructions to be taken, please do so.

 4             MR. LUKIC:  Your Honour, Mr. Mladic said if you are interested

 5     you can -- he can explain his health problems right now, but it should be

 6     probably dealt in a closed session.

 7             JUDGE ORIE:  If we would -- if Mr. Mladic would like to raise his

 8     condition, his physical condition, his health, he's -- if he would prefer

 9     to do that in --

10             MR. LUKIC:  At least in private session.

11             JUDGE ORIE:  In private session.

12             MR. LUKIC:  Private session, yes.

13             JUDGE ORIE:  We will do that in private session.

14             Madam Registrar, we move into private session.

15                           [Private session]

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

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18   (redacted)

19                           [Open session]

20             THE REGISTRAR:  We are in open session, Your Honour.

21             JUDGE ORIE:  Thank you, Madam Registrar.

22             I referred to a few matters which were raised by Mr. Mladic; that

23     is, that he would prefer that handcuffs and belt would be taken off.

24     That is on the record.  It will be considered by those responsible for

25     it.

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 1             And, Mr. Mladic, then, I have to explain you one thing, that

 2     security, within the premises of this Tribunal and within the UNDU is the

 3     responsibility of the Registry; however, transportation between the

 4     Detention Unit and the premises of the Tribunal here are not the

 5     responsibility of the Registry but are the responsibility of the Dutch

 6     authorities.

 7             Your observations will be conveyed to both of them.

 8             Then, is there any further matter?  I am looking at the

 9     Prosecution, I am looking at you, Mr. Lukic, we have heard from

10     Mr. Mladic who has no further matters to raise.

11             This then concludes -- let me see.  Yes.  This concludes this

12     Status Conference.  I earlier announced that the Chamber will issue a

13     scheduling order in due course, but I already can inform you now that the

14     next Status Conference will be held on the 6th of October, 2011, and the

15     next Rule 65 ter meeting will be held on the 3rd of October of this year.

16             We therefore adjourn until the 6th of October 2011, half past

17     2.00 in the afternoon in this same courtroom, too.

18                           --- Whereupon the Status Conference adjourned at

19                           3.23 p.m., to be reconvened on Thursday, the

20                           6th day of October, 2011, at 2.30 p.m.