110825SE

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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.