Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Wednesday, 15 February 2006

 2                          [Status Conference]

 3                          [Open session]

 4                          [The accused not present in court]

 5                          --- Upon commencing at 8.03 a.m.

 6            JUDGE ROBINSON:  Will the Registrar call the case, please.

 7            THE REGISTRAR:  Good morning, Your Honour.  Case number

 8    IT-04-81-PT, the Prosecutor versus Momcilo Perisic.

 9            JUDGE ROBINSON:  Thank you.  And the appearances.  For the

10    Prosecution.

11            MS. SOMERS:  Thank you, and good morning, Your Honour.  Sorry.

12    Thank you, and good morning, Your Honour and counsel.  I am Susan Somers,

13    senior trial attorney.  To my immediate right is Mr. Philip Weiner, trial

14    attorney.  To my further right Mr. Frederic Ossogo, trial attorney.  And

15    to my left, Ms. Carmela Javier, case manager.  Thank you.

16            JUDGE ROBINSON:  Thank you very much.  And for the Defence.

17            MR. CASTLE:  Jim Castle, appearing on behalf of Momcilo Perisic.

18    Also appearing with me is our case manager Trina Drolec.

19            JUDGE ROBINSON:  Thank you.  This is a Status Conference in

20    respect of the case the Prosecutor versus Momcilo Perisic, and its purpose

21    is to organise exchanges between the parties, to ensure the expeditious

22    preparation for trial, and to review generally the status of the case.

23            I have a number of matters to deal with.  I begin first with

24    pending motions.  No pending motions, so I understand, Mr. Castle, you may

25    have something up your sleeve, but we'll come to that later.

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 1            Disclosure 66(A)(i), supporting material to the indictment.  That

 2    is complete except for one document which was subject to Rule 70

 3    restrictions, and my understanding is that the Prosecution is making

 4    available the information from another source.  Is that so, Ms. Somers?

 5            MS. SOMERS:  We are endeavouring to do so, Your Honour.  It has

 6    not yet been effected, but we are endeavouring to see if that can be done,

 7    yes.

 8            JUDGE ROBINSON:  All right.  Thank you.  Yes.

 9            I understand that the Defence had requested redisclosure of

10    certain tapes that were of poor quality, and the Prosecution is in the

11    process of redisclosing those.  Is that so, Ms. Somers?

12            MS. SOMERS:  Yes, Your Honour, that is correct.  Thank you.

13            JUDGE ROBINSON:  Since -- you may as well stay on your feet,

14    Ms. Somers, to tell us about the witness statements and the number of

15    witnesses that you propose to call.

16            MS. SOMERS:  Your Honour, we are reviewing the overall numbers.

17    Since I've just come into the case, we are trying to take a look to see

18    what of those that we initially looked at would be appropriate.  There are

19    additional persons we intend to interview, and I would -- if the Court

20    will accept at this moment that I will not give a firm number because I

21    want to be able to know if these additional persons would be counted.  I

22    will -- if it is satisfactory, I will keep the senior -- the legal

23    officers apprised, of course as well as counsel.

24            JUDGE ROBINSON:  I believe at the last Status Conference the

25    information was that you'd have somewhere between 170 to 200 witnesses.

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 1            MS. SOMERS:  The sense that I have from that is that it is an

 2    outside figure, but I would like to be able to give the Court a better

 3    idea and also to be able to break down how many would be viva voce and how

 4    many there may be agreement on as to perhaps 92 bis or perhaps 89(F)

 5    inasmuch as there were also some experts from other cases mentioned.  You

 6    had been given a number, a higher number of experts as well.  So we would

 7    like to see who could be worked live, and this was discussed between

 8    counsel and also at the Status Conference.

 9            JUDGE ROBINSON:  When would you expect to have a final list of

10    witnesses?

11            MS. SOMERS:  I would ask for, hopefully, before -- hopefully

12    before the next set Status Conference.

13            JUDGE ROBINSON:  That's June.

14            THE PROSECUTOR:  I am trying to get enough concrete information,

15    A, about availability and to see how we can keep it from -- how to

16    streamline the case at trial, so if we can have methods other than live.

17    So if that is acceptable to the Chamber, I can aim as that date and keep

18    the Chamber advised if that becomes a problem.

19            JUDGE ROBINSON:  I also understand that the number of witnesses

20    will be affected by the progress made in adjudicated facts and agreed

21    facts.

22            MS. SOMERS:  That is correct, Your Honour, and what I had raised

23    at our 65 ter Conference was some of the possibility of adjudicated facts

24    clearly is hinging on certain appellate decisions that -- on cases that

25    form part of this case, because the timetable for those is not clear, but

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 1    hopefully it would come, by estimate, maybe before the end of the year.

 2    That would be extremely helpful.  They particularly would concern some of

 3    the facts in the Galic case, which is one of the Sarajevo shelling -- the

 4    Sarajevo incidents, which are quite numerous, and also we'd like to be

 5    able to have the benefit of the law.  Again, it was raised --

 6            JUDGE ROBINSON:  Well, I would hope you would not necessarily wait

 7    on the judgement in the Galic case.

 8            MS. SOMERS:  No.  We're looking toward -- we're hoping that it

 9    will assist us, and perhaps at later point it may also have an effect on

10    whatever we are able to arrive at earlier.

11            JUDGE ROBINSON:  Generally my approach to setting time tables is

12    going to be influenced by the progress that I understand you are making on

13    adjudicated facts and agreed facts.

14            MS. SOMERS:  For Your Honour's information, a sort of a trial run

15    of adjudicated facts has been exchanged with the initial responses, so we

16    are trying -- I'm waiting to have the CD on that available so we can look

17    at it, lay it out and see even if there are partial points of agreement

18    which would be of great assistance.  But counsel, my learned counsel

19    opposite and this team have begun that process but we have not made enough

20    progress and I believe when addressed later, counsel may indicate that

21    it's premature for him.

22            JUDGE ROBINSON:  Yes.  Well, I'll come to that later.

23            MS. SOMERS:  Okay.  Your Honour, may I -- at this moment, I'm

24    sorry, you asked earlier about pending motions.  I am reminded that there

25    is one motion in the Milosevic case that I think is still pending before

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 1    Your Honour.  Other than that, I see no other pending motions.

 2            JUDGE ROBINSON:  Yes.  That's -- that's true.

 3            MS. SOMERS:  Thank you, sir.

 4            JUDGE ROBINSON:  And I am to say the Trial Chamber will deal with

 5    that as expeditiously as possible.

 6            On Rule 68, mitigating and exculpatory material, what is your

 7    report on that?

 8            MS. SOMERS:  It is ongoing, and we have been -- we have had a

 9    positive working arrangement with the Defence.  We are using the EDS, and

10    at our last -- at our first meeting with the Defence, in order to try to

11    make the system work better, we have invoked the assistance of the

12    technical people on that, and we're going to keep working with the Defence

13    with the intervention of the technical people to make sure that they are

14    able to have the access that they require.  The process, of course, is

15    ongoing.

16            JUDGE ROBINSON:  Yes.  Mr. Castle, anything to say on that?

17            MR. CASTLE:  Your Honour, we have had some difficulties with EDS,

18    and I have to be frank with the Court that we've had some difficulty with

19    that system.  However, we're quite satisfied with the efforts being made

20    by the OTP to assist us in attempting to get around those problems, and at

21    this time we're not asking for any assistance or intervention by the Court

22    in that regard, and we're hopeful that we will not have to.

23            JUDGE ROBINSON:  I take account of that.  I understand that the

24    Defence has invoked Rule 66(B), and a letter has been sent to the

25    Prosecution.

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 1            MS. SOMERS:  Yes, sir.

 2            JUDGE ROBINSON:  Now, expert reports under 94 bis.  Ms. Somers,

 3    how many expert reports are you preparing?

 4            MS. SOMERS:  Of the new group -- and the reason I distinguish,

 5    sir, is because this case is composed of other existing cases, and the

 6    number that Your Honour had been given earlier includes - and I believe

 7    the number was 15 - includes case -- reports from those cases.  At the

 8    present time, we are looking at two additional ones specific to this case.

 9    They have not been undertaken fully.  There are efforts and things are

10    begun, but we have not moved substantially along in that direction yet.

11    It is in the process.

12            JUDGE ROBINSON:  But we need to have a time frame.  What is your

13    time frame for --

14            MS. SOMERS:  For indicating who they are or --

15            JUDGE ROBINSON:  Yes.

16            MS. SOMERS:  If the Chamber will also permit until the next Status

17    Conference, then we'll be able to have hopefully more than just -- we

18    should be -- if the individuals are the persons we are going to engage,

19    then we should at least have some substantial progress toward the actual

20    report.  So if that is an acceptable time frame.  At least to begin to get

21    things really moving, and again I want to make sure that I have the number

22    that we would require and speak with -- and also let counsel know which

23    persons we're looking at from other cases.  I have begun the inquiry into

24    that and that will be one of the things that I would report to the legal

25    officers and to counsel on.

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 1            JUDGE ROBINSON:  Yes.  Thanks.  I turn now to the Yugoslav Rule 92

 2    bis and 89(F).  Are you in a position, Ms. Somers, to indicate to what

 3    extent you will be utilising these procedures?

 4            MS. SOMERS:  We would like to do that.  The Prosecution would be

 5    in favour of trying to in order to streamline any future trial.  The

 6    Defence has raised certain matters which I believe, when Your Honour gives

 7    the Defence the floor, it will inform you of, but we are hopeful that

 8    certainly because of the nature of this case being composed of so many

 9    other existing cases it would certainly be a useful and efficient

10    mechanism.  Of course, whether or not cross-examination is going to be

11    invoked also makes -- will have a bearing on the overall trial time, but

12    the tool itself we will try to use to the maximum extent feasible given

13    the nature of witnesses, depending on what the issues go to, if they fall

14    appropriately.

15            JUDGE ROBINSON:  But you have no estimate at this stage of the

16    extent to which you'll be using it?

17            MS. SOMERS:  Not without agreement of the Defence.  We'd like to

18    try to have a -- without having to go through motions necessarily.  That

19    may end up being the case, but if we can try to agree on certain witnesses

20    and then those that there may be some disagreement on, maybe we may need

21    the intervention, but at this point we haven't been able to sit down on it

22    yet, again because of the state at which the disclosure and the case is

23    at.

24            If the Chamber would like a report, a periodic report as we have

25    the next conference, I can do that, or I can do it at intervals before the

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 1    next Status Conference, as the Chamber sees helpful.

 2            JUDGE ROBINSON:  Yes.  It just seems to me that too many things

 3    are being put off to the next Status Conference.  I think I will require a

 4    report within a month.

 5            MS. SOMERS:  On the ...?

 6            JUDGE ROBINSON:  On the use that you'll be making of these

 7    procedures under 92 bis and 89(F).

 8            Mr. Castle?

 9            MR. CASTLE:  Yes, Your Honour.  On behalf of the Defence, we

10    believe that 89(F) and 92 bis will be used extensively in this case.  The

11    difficulty at this point is deciding which particular facts will be

12    admitted pursuant to either one of these two rules.  Unfortunately, we're

13    in a situation where the cart is a little bit in front of the horse for

14    us, and our situation is that many of the facts which we believe will be

15    admitted under these two Rules are facts which are derived from these

16    related cases, and the disclosure concerning these related cases has not

17    yet made it to our offices.  And based on our investigation of the case, I

18    don't believe there's going to be substantial opposition to the use of

19    these two Rules with regards to crime based evidence, the crime based

20    evidence in the three locations, as I don't see this case to be focused on

21    those factual issues but, rather, the command responsibility and linkage

22    issues.  But I have to do my job first as counsel for Mr. Perisic and look

23    into these crime based facts before I can make any final decision on an

24    agreement.

25            I've made it quite clear, I believe, in all of our informal

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 1    discussions, in our Rule 65 ter Conferences, and I believe perhaps in the

 2    Status Conferences this is our attitude towards the use of these two

 3    rules, that we do think it is wise and judicious use of the Court's time

 4    to invoke these two Rules for a number of facts, that we are in a position

 5    right now in the life of this case that it is difficult to pinpoint the

 6    facts with certainty that we will be willing to agree upon.

 7            Ms. Somers reflected to the Court that we have a document that has

 8    been exchanged which is a list of -- of agreed upon facts that we've been

 9    exchanging, and we've agreed to sit down in extensive meetings and to go

10    over those facts one by one and perhaps actually even divide up those

11    facts to try to streamline this case.

12            That's what I can report at this time.

13            JUDGE ROBINSON:  Thank you.  Well, I come now to adjudicated or

14    agreed facts, but we have been discussing that to some extent.  But would

15    you just tell me precisely where you are with this, Ms. Somers.  I

16    understand the Defence, they have produced a list, a chart listing the

17    facts that they might agree to or might not agree to?

18            MS. SOMERS:  Your Honour, what the Defence has done is, in

19    response to the list that was sent out by the Prosecution, there are maybe

20    comments which are helpful that may be partially no.  So we have an

21    indication of where there are complete differences and then where there

22    are some points of agreement, which is why I think that the approach that

23    Mr. Castle and I have discussed about sitting down as to what aspect of a

24    particular fact could be agreed to will certainly be of assistance.  If it

25    saves even 15 minutes of trial time, it will be helpful.  But the document

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 1    is out, we have a response, and we are now -- I know that because counsel

 2    is not based here we will have to do a lot either through electronic or

 3    with his local assistants, but the process is -- has been -- has begun.

 4            I also want to inform the Chamber that I have only been appointed

 5    recently to this case and so ask for a bit of -- I apologise if there is

 6    less than the complete ability to give you the total history.  I've tried

 7    to read into it as quickly as possible.  We have two new members.  We are

 8    making it our business to make sure we're familiar with --

 9            JUDGE ROBINSON:  It is occurring to me that this is a matter in

10    respect of which a report would be appropriate, so I'm going to require

11    that a report be submitted on this question within two months.

12            MS. SOMERS:  Of the adjudicated --

13            JUDGE ROBINSON:  Within two months.

14            MS. SOMERS:  Of the adjudicated facts?

15            JUDGE ROBINSON:  Yes.

16            MS. SOMERS:  Would the Chamber allow it to be a preliminary

17    report, because as more information is disclosed, clearly it will be an

18    ongoing --

19            JUDGE ROBINSON:  Yes, it will be the first report.

20            MS. SOMERS:  Thank you.

21            JUDGE ROBINSON:  At the last Status Conference I had indicated

22    that I would be setting a schedule for the filing of pre-trial briefs, but

23    in view of the discussions that have taken place today, I will not do so.

24    I have set dates for -- for two reports, and when those reports are

25    submitted, I'll study them and determine what the next step should be.

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 1            In the meantime, the next Status Conference must be convened on or

 2    before the 15th of June, and I'm going to set Wednesday, the 14th of June,

 3    as the date for that Status Conference.

 4            Is there any other matter?  Mr. Castle?

 5            MR. CASTLE:  No, Your Honour.

 6            JUDGE ROBINSON:  Yes.  Ms. Somers?

 7            MS. SOMERS:  It can be done, I think, through your legal officers.

 8    Counsel and I were discussing one motion -- one order that came out from

 9    the Chamber and we need clarification about exactly what the Chamber

10    intends for the breadth of disclosure.  I didn't think it was terribly

11    clear in the order, so if we need -- if we need, we will just speak with

12    your legal officer.

13            JUDGE ROBINSON:  This is an order that the Trial Chamber has made?

14            MS. SOMERS:  Yes, sir.  And I can do that, but I wanted to let you

15    know that we'll raise it and ask for clarification.  Thank you.

16            JUDGE ROBINSON:  Yes.  Thank you.  There being no other matters,

17    the hearing is adjourned.

18                          --- Whereupon the Status Conference adjourned

19                          at 8.24 a.m.