Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Wednesday, 14 June 2006

 2                          [Open session]

 3                          [Status Conference]

 4                          --- Upon commencing at 5.01 p.m.

 5            JUDGE ROBINSON:  Will the registrar call the case, please.

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

 7    This is the case number IT-04-81-PT, the Prosecutor versus Momcilo

 8    Perisic.

 9            JUDGE ROBINSON:  And may we have the appearances.

10            MS. SOMERS:  Thank you, and good afternoon, Your Honour.  For the

11    Prosecution, Susan Somers.  To my left, Ms. Carmela Javier, case manager;

12    to my right, Mr. Frederic Ossogo, trial attorney; and Mr. Rafael La Cruz,

13    legal officer.  Thank you.

14            JUDGE ROBINSON:  Thank you.

15            And for the accused.

16            MR. CASTLE:  James Castle, appearing on behalf of Momcilo

17    Perisic.  Appearing with me is Tina Drolec.  And our client is on

18    provisional release at this time.

19            JUDGE ROBINSON:  Thank you.

20            This is a Status Conference in respect of the case Prosecutor

21    versus Momcilo Perisic, and its purpose is to organise exchanges between

22    the parties to ensure the expeditious preparation of the trial.  We'll

23    also look at the status of the case and hear from the accused, if

24    necessary.

25            I begin first, Ms. Somers, with disclosure under Rule 66(A)(i),

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 1    supporting material to the indictment, and recall at the last Status

 2    Conference the disclosure was complete except for one document, which was

 3    subject to Rule 70 restrictions.  Can you update me on that, please?

 4            MS. SOMERS:  Your Honour, the situation is the same.  It is

 5    complete except for that one document, and we are seeking some way perhaps

 6    to find the same document through a non-Rule 70 source.  At this point,

 7    though, I cannot report further.  But it is being worked on by the Office

 8    of the Prosecutor.

 9            JUDGE ROBINSON:  Thank you.  I also recall that the Defence had

10    requested re-disclosure of certain tapes that were of poor quality.

11            MS. SOMERS:  Accomplished, Your Honour.

12            JUDGE ROBINSON:  That has been done?

13            MS. SOMERS:  Yes.

14            JUDGE ROBINSON:  Turn now to 66(A)(ii), witness statements.  What

15    is the position with regard to your witness statements, Ms. Somers?

16            MS. SOMERS:  The Prosecution has not put forth a preliminary

17    witness list.  However, pursuant to directions of the Chamber from the

18    last Status Conference, we indicated -- for purposes of prospective

19    92 bis, 89(F) witnesses, we supplied a list from -- they're principally

20    crime based and some expert witnesses.

21            From the standpoint of viva voce or additional witnesses, we have

22    not put forth a list.  It was discussed yesterday, Your Honour, at the

23    65 ter conference, and the Prosecution is prepared to formulate, subject

24    to addition/revision, such a list if that would be of assistance without

25    the direction of -- from the Chamber.  But we can also embellish upon the

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 1    suggestions that came from our 92 bis, 89(F) list, given that the crime

 2    bases, as Your Honour is aware, derive from the other cases, namely from

 3    Srebrenica, from Sarajevo, and from the Zagreb shelling which is reflected

 4    in the ongoing Martic case.  There will be transcript evidence also from

 5    that latter case that we will have to examine.

 6            The -- if that would be of assistance and satisfactory, then we

 7    are prepared to go ahead and from that list work -- I think any 66(A)(ii)

 8    list that we would formulate now would of necessity be subject to revision

 9    with contacting of witnesses, also subject possibly to some agreement.

10            We have -- as Your Honour is aware, we have sat down and attempted

11    to iron out some points of agreement, and if we are able to continue to

12    work at that pace, and I think we may be able to by the next --

13            JUDGE ROBINSON:  I believe matters are at the stage where perhaps

14    they should be more formalised.

15            Mr. Castle?

16            MR. CASTLE:  Yes, Your Honour.  In addition to a list of the

17    witnesses, I believe the Rule also calls for the production of witness

18    statements and that is of concern to us, and if I can, I'll explain why.

19            Originally in reviewing the 66(A)(i) submissions, there were a

20    number of witnesses identified, at least in those materials.  I believe

21    the number was -- I can tell the Court what the number was.  There were 58

22    witnesses identified in those materials.  Then we received the 92 bis,

23    89(F) document by the Prosecution that announced a number of other

24    witnesses; I believe it was total of 163.  Only 11 of the witnesses that

25    were in the original materials were reflected in this later list of 163

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 1    witnesses, and of the 163 witnesses that were in the 89(F), 92 bis

 2    document we did searches for statements, and only 53 of those witnesses

 3    were we able to find statements, either in -- on the EDS system, or in the

 4    materials that were specifically disclosed to the Defence.

 5            Keeping in mind that we don't have a trial date but a trial date

 6    can occur and come up on a scheduling docket fairly quickly, given a

 7    number of circumstances that we have no control over, I want to try to be

 8    prepared for trial as soon as I can, and the first step of that is to know

 9    who the Prosecution's witnesses are and to be able to review the

10    statements of those witnesses.  This becomes even more important later on

11    when we're talking about experts, but I'll defer on that issue.

12            The other matter that the Prosecution raised was the contacting of

13    witnesses, and we have an agreement that any witnesses that they list we

14    will not contact until such time as we notify the Prosecution of whatever

15    provisions can be taken that seem to be necessary for that witness.  And

16    we have done that on a cooperative basis with the Prosecution at this

17    point.

18            I believe that addresses the issues raised by the Court and by the

19    Prosecution.

20            JUDGE ROBINSON:  Thank you, Mr. Castle.

21            I'm going to make an order, Ms. Somers, requiring the Prosecution

22    to provide copies of the statements of all witnesses that the Prosecutor

23    intends to call to testify at trial, and this includes 92 bis and 89(F)

24    witnesses and copies of all written statements.  And this should be

25    provided by Friday, the 18th of August.

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 1            I turn next to Rule 68, exculpatory material.

 2            MS SOMERS:  I'm sorry, Your Honour, may I -- I'll comment on the

 3    date.  Is the Chamber in a position to extend it a bit beyond that

 4    vacation period, if it's not too difficult or -- that would be --

 5            JUDGE ROBINSON:  This is beyond the vacation.  Because the

 6    vacation ends on the first week in August.  I had that in mind, yes.

 7            MS. SOMERS:  And if this witness list, the Chamber has said "all."

 8    Clearly it may have -- we may have to request either extensions for -- not

 9    so much extensions but revisions of it.  We'll do that in the appropriate

10    manner.

11            JUDGE ROBINSON:  Sufficient until the day.

12            MS. SOMERS:  Yeah, okay.

13            JUDGE ROBINSON:  Let us deal with that if and when it arrives.

14            Ms. Somers, Rule 68 exculpatory material.

15            MS. SOMERS:  We have our continuing obligations as we are aware,

16    and we believe ourselves to be in compliance.

17            JUDGE ROBINSON:  Mr. Castle, anything on this?

18            MR. CASTLE:  Your Honour, in our discussions yesterday it appears

19    if we have a difference of opinion not in the obligation to provide 68 --

20    Rule 68 material but in the manner in which that is provided, it is our

21    position that that has to be provided to us specifically and identified as

22    such by the Prosecution, and we find authority in that in the practice

23    directive issued by the President that stated so.

24            The Prosecutor's office, their position is that Rule 68 material

25    can be disclosed by its presence on the EDS system, which contains some

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 1    five million documents.  I believe that this issue is important enough

 2    that I had indicated to the Prosecution that I would file a pleading

 3    shortly addressing this issue, so they have an opportunity to address it.

 4    But it is our position, very briefly, that to have us look for it in a sea

 5    of documents of five million, some of which are not searchable because

 6    they're maybe handwritten or in a format that's not recognised by search

 7    engines is not a sufficient performance of the Prosecutor's obligations

 8    under Rule 68.

 9            JUDGE ROBINSON:  So, Ms. Somers, you take the position then that

10    exculpatory material can be provided in electronic form on the EDS.

11            MS. SOMERS:  Your Honour, I think my learned counsel opposite me

12    have simplified a little bit the position.  The discussion yesterday was

13    whether it was 68(i) or (ii).

14            JUDGE ROBINSON:  Or (ii), yes.

15            MS. SOMERS:  Right.  And we were discussing (ii), 68(ii).

16            JUDGE ROBINSON:  Oh, you're discussing (ii).

17            MS. SOMERS:  68(ii), right.

18            JUDGE ROBINSON:  Because that just deals with relevant material.

19            MS. SOMERS:  Principally 68(ii).  And there have been -- I think

20    it is less than clear, and Mr. Castle did send me a communication today

21    indicating he wants to discuss or hear from us on it.  And if the Chamber

22    is minded to give us time to try to discuss this rather than make it an

23    issue before the Court now, I would be appreciative, because if there is

24    some misunderstanding about how we're doing it, it would be probably more

25    convenient to have it worked out between the parties right now.

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 1            But we have provided enormous quantities of material since our

 2    last conference, most of it referenced through the EDS and falling either

 3    under 66(B) or 68(ii).  But again, unless there is a need today to get

 4    into it, and we do distinguish between the two provisions.

 5            JUDGE ROBINSON:  Well, there is a distinction.

 6            MS. SOMERS:  Sure.

 7            JUDGE ROBINSON:  But be careful that you wouldn't be using the

 8    provisions of 68(ii) to avoid the requirements of 68(i).  It already

 9    wouldn't be presenting a sea of material in which there might be

10    exculpatory material under 68(ii) when, in fact, it should be presented

11    under 68(i).

12            Mr. Castle, what are we talking about, 68(i) or 68(ii)?

13            MR. CASTLE:  It was my understanding it was the 68(i), which was

14    the exculpatory material, and I do recognise there's a distinction,

15    because 68(ii) specifically states it can be done in electronic form,

16    whereas 68(i) does not so allow.

17            And I think that the way that we can resolve this is I would like

18    the opportunity to discuss this with the Prosecution, and if there is a

19    disagreement, then perhaps we will raise it by motion.  But what I would

20    like to see is that 68(i) material that is exculpatory is identified as

21    such and provided to us specifically, and 68(ii) material is something

22    separate and can be done electronically.

23            But I sympathise with the Prosecution.  I did not raise this with

24    them until yesterday and I, in all fairness, would like to give them an

25    opportunity to resolve this with me, if there is a difference of

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 1    understanding about what was said yesterday and give the parties an

 2    opportunity to try to resolve this without the Court's intervention.

 3            JUDGE ROBINSON:  Yes.  Well, then, try and resolve it, and if you

 4    can't, then perhaps you will file a motion.  I understand that the Defence

 5    invoked Rule 66(B).  That doesn't give rise to any issues?  No.

 6            MR. CASTLE:  No, Your Honour.

 7            JUDGE ROBINSON:  No.

 8            I turn next then to expert reports.  There is some confusion about

 9    the number of expert witnesses, Ms. Somers, that you propose to rely on.

10    Would you clarify that, please.

11            MS. SOMERS:  Your Honour, at the last conference, I think that I

12    myself had to check into the numbers, but the submission that we made to

13    the Chamber on some of the 92 bis matters indicate that there are expert

14    reports from the component cases that we would -- I have listed them, that

15    we would seek to introduce by way of 92 bis.  And they're from Galic, they

16    will be from Dragomir Milosevic, perhaps, if they have additional experts,

17    and the Srebrenica cases, as well as Martic.

18            The substantive case on perhaps what might be called -- I don't

19    want to use the term "linkage" with command and control experts, but there

20    are two command and control experts engaged by the Prosecution, and I am

21    not in a position to have reports filed yet, but those are the two that

22    Mr. Castle has referred to.  He is aware of who they are.

23            And there are additionally some -- I don't want to use the term

24    "summary," but some contextual expert opinion we will be seeking, not

25    unlike that which has been used in some of the major cases before the

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 1    Tribunal, for background and context.

 2            So the numbers reflect those from the other cases, particularly

 3    the forensic evidence.  I have indicated to counsel that we would not seek

 4    to reprove, in essence, the forensics or -- unless there are specific

 5    issues.  And they're demographics.  There have been historical experts

 6    that we think are helpful for this case.  And we have provided a couple of

 7    names so that the -- so that Mr. Castle can have a look through the JDB on

 8    the reports, and certainly as the list is more formalised, the actual

 9    reports, but that is how they are enumerated, both from the cases that go

10    into the Perisic case and the necessary ones from the issues of command

11    and control or the military aspects and context.

12            JUDGE ROBINSON:  Thank you.

13            Mr. Castle.

14            MR. CASTLE:  Yes, Your Honour.  Our -- we had filed a status

15    report with the Court that expressed some of our concerns with regards to

16    experts.

17            This case will be an expert-intensive case, perhaps not in the

18    numbers hopefully, but in the terms of their importance to the findings of

19    the Tribunal.  Most importantly is the two experts that have been

20    identified as command and control experts.  I believe there was -- it was

21    misspoken that their names had been provided to us, because we have not

22    received their names, but if those names are to be provided, that is only

23    one part of the problem.

24            The other part of the problem is getting the reports, because in

25    order for us to prepare our experts, to even employ our own experts, to

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 1    know what kind of experts to hire, we have to know what it is the

 2    Prosecution is presenting.  Because the Defence, in essence, reacts to the

 3    evidence that's presented against the defendant.  And so the sooner that

 4    we can be presented with those reports, the better off we are in our

 5    ability to prepare and be ready for trial.  And so we ask for this now,

 6    because we don't want to request delay later.

 7            With regards to the second kind of experts, which are the ones

 8    that were listed in the 89(F), 92 bis recent filing, recently, and I think

 9    yesterday, the Prosecution provided us with references to some of the

10    expert reports that we were able to obtain.  I still think there are some

11    outstanding, but it sounds like it shouldn't take very long at all,

12    because these experts have been used in the past and have produced reports

13    in the past for not only their identities but their reports to be turned

14    over to the Defence.

15            I have to tell the Court that the EDS system does not contain

16    expert reports.  Those reports are sometimes on the joint database,

17    because they've been admitted in other cases, but they're not on the EDS.

18    And so it's our request that these experts be identified and that their

19    reports be tendered, so that the Defence can be prepared in a reasonable

20    time period.

21            JUDGE ROBINSON:  Thank you, Mr. Castle.  Again --

22            Yes, Ms. Somers.

23            MS. SOMERS:  I know time and memory and obligations maybe have

24    intervened, but in correspondence to our office on the 26th of October,

25    2005, and I'll keep it not in the record, but in paragraph 4, counsel has

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 1    indicated that he is aware of who the experts are.  They're named actually

 2    in the correspondence, so perhaps there has just been an oversight.

 3            JUDGE ROBINSON:  Yes.  Well, in any event, I think we are at a

 4    stage where it is appropriate for me to make an order requiring the

 5    Prosecutor to provide the reports of any expert witnesses to be called,

 6    and the date that I will fix for this is Friday, September the 29th.

 7            MS. SOMERS:  Your Honour, I should have spoken before you made

 8    your -- if I may request that it may be perhaps into October because of

 9    who these individuals are, commitments, I must check them, and I'm happy

10    to report back to the Chamber, but I need to make sure that I don't commit

11    to something that I cannot deliver on.  I know I want your order to be one

12    that I can deliver.  So may I -- within the next days I will speak to

13    these individuals and confirm that that is doable.

14            JUDGE ROBINSON:  I will extend it by three weeks.

15            MS. SOMERS:  And which date would that make it, sir?

16            JUDGE ROBINSON:  That would take us to -- September 29th.  Friday,

17    the 20th of October.

18            MS. SOMERS:  Thank you.

19            Your Honour, on the -- on the -- what I will call summary of

20    witnesses, I may make a separate submission on time-frame because it -- I

21    have spoken to the in-house personnel who would be involved, and I want to

22    make sure that -- and I just added this yesterday, I just spoke of this

23    for the first time to the Defence, so I want to make sure that I can get

24    an indication from them as to their time-frame, and I will also, if it's

25    not possible within here, within this time limit, I will so notify or

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 1    request as to those individuals, an extension.  But as to the others, I --

 2    I appreciate the extension to October.

 3            JUDGE ROBINSON:  Very well.  So that's Friday, October the 20th.

 4            Pre-trial preparation, and Rule 92 bis and 89(F) evidence.  The

 5    order that I made earlier is comprehensive enough to cover those matters.

 6            MS. SOMERS:  Your Honour, what we had done is we made it the

 7    first -- the initial report and there will be additions to that as we go

 8    through the materials, so that we're trying to keep the live testimony to

 9    a minimum and then the appropriate motions will be made.  But as I

10    indicated, it was sort of first report, if that's satisfactory, as some of

11    those come up.  Because there will be people added to the list you will

12    get that were not indicated on the first, and that's because it was an

13    initial report based on the proposed use of those two Rules.

14            JUDGE ROBINSON:  Nothing on that?

15            MR. CASTLE:  No, Your Honour.

16            JUDGE ROBINSON:  What is the position, Ms. Somers first, on the

17    question of adjudicated facts and agreed facts?  You did comply with the

18    order which I made the last time to provide a report within two months

19    on -- on this issue.

20            MS. SOMERS:  We did, Your Honour.

21            JUDGE ROBINSON:  What is the status of the negotiations?

22            MS. SOMERS:  I think a bit frozen.  We've spent two full good

23    working days together, and our view is that there are -- for certain

24    points of agreement, there certainly is adequate material, and the Defence

25    takes a different perspective on it.  And what we submitted to the Chamber

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 1    reflects where we stand and that either -- I think we just showed position

 2    modified and it can reflect either we've lost ground on some of where we

 3    thought we were, or we've gained it.  But I was informed yesterday that

 4    counsel would -- and I should let him speak for himself, but that until

 5    there is more information, initially I think it was the concept of

 6    disclosure, yesterday I believe the term was statements.  We're not -- we

 7    don't seem to be able to move very far.  But I will, nevertheless, if we

 8    cannot reach agreement I will make a motion at the appropriate time for

 9    the -- or request for the admission of certain adjudicated facts.

10            I also am hopeful that before this trial starts we will have

11    benefit of the Galic decision, which would be very useful, I think, in

12    this case, and any other pending Srebrenica matters that will be helpful.

13    So ...

14            JUDGE ROBINSON:  Yes, Mr. Castle.

15            MR. CASTLE:  Your Honour, I agree in part and disagree in part

16    with the statements of opposing counsel.  We have now 158.000 pages of

17    disclosure materials that were specifically disclosed to the Defence.

18    Over 125.000 of that was given since the last Status Conference.  As hard

19    as we can work, it is impossible for us to get through in three months'

20    period of time.

21            A lot of the agreed upon facts as stated are allegations --

22    literally what it is is a list of the parts of the indictment broken down,

23    and the indictment was written in a very argumentative and conclusory

24    fashion, and so a lot of those facts we cannot agree to, and there is

25    going to be a problem with that.

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 1            With that said, where I see substantial opportunity for agreement

 2    is in the stipulation to the admission of transcripts perhaps, statements

 3    made by witnesses, expert reports, things of that nature, that we don't

 4    have yet or we haven't had the opportunity to review yet.  What those

 5    reports mean, however, I believe are subject to interpretation and

 6    argument.  And that is where I want to preserve on behalf of my client the

 7    ability to argue at trial, because an indictment, by its nature, is

 8    argumentative.  It's arguing for a position and for a conclusion and

 9    because of that it's often written in a fashion that's really not

10    agreeable by both sides, whereas the constituent facts that the

11    Prosecution relies upon for that -- for a particular portion of the

12    indictment can be stipulated to and still allow the Defence to argue that

13    it has a different conclusion.

14            And I can give the Court an example.  In the indictment it

15    indicates that there was essentially a lot of intelligence information

16    that would give our client the knowledge that war crimes had been

17    committed by certain individuals that are named as subordinates.  What the

18    disclosure shows, on the other hand, is that there are reports, and

19    nowhere in those reports that we've received is there any indication of

20    any war crimes.

21            So the conclusion that the Prosecution draws in its indictment,

22    that this information showed knowledge, we can't agree to.  But we may

23    very well be able to agree to the admission of these intelligence reports

24    themselves.  And that's just one example.

25            JUDGE ROBINSON:  That's fair enough.  I don't think they could be

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 1    expecting you to agree to something as essential as that.

 2            MR. CASTLE:  What we have talked to them about is stipulating to

 3    the admission of exhibits, and that these exhibits are the way that we

 4    would prefer to proceed as opposed to the conclusions that can be drawn

 5    from those exhibits.  And so I believe there is room for substantial

 6    progress in this regard, and we're happy to sit down with it, with the

 7    Prosecution and discuss this.  Today or this time period was a bit

 8    premature for us to make any substantial progress on because we frankly

 9    have limited resources with which to review these documents.  And what

10    we're trying to work with the Prosecution is for them, at some point,

11    we're not asking for any Court intervention at this time, to give us a

12    list of the documents that they wish us to stipulate for admission, or

13    statements, or expert reports and look to see if we can stipulate to

14    those.  And the ones that we don't, then perhaps there is an 89(F), 92 bis

15    motion that can be filed by the Prosecution and we can litigate its

16    admissibility.

17            But that's the way the Defence prefers to proceed.  And I believe,

18    once again, we can make substantial progress in that regard.

19            JUDGE ROBINSON:  This is a criminal trial and what I expect from

20    both parties is a good-faith effort to try to narrow the issues down as

21    much as possible.

22            I've considered the question of setting a time for the filing of

23    the pre-trial briefs, but I still believe it is not the right time yet to

24    make such an order.  And so I keep that matter under consideration.

25            The next Status Conference has to be held before Friday, the 13th

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 1    of October.  And I would set Wednesday, the 4th of October as the date for

 2    the next conference.

 3            Do you have other matters to raise?  Ms. Somers.

 4            MS. SOMERS:  I don't, sir.  Thank you very much.

 5            JUDGE ROBINSON:  Mr. Castle.

 6            MR. CASTLE:  No, Your Honour.

 7            JUDGE ROBINSON:  Thank you very much.  The hearing is adjourned.

 8                          --- Whereupon the Status Conference adjourned at

 9                          5.33 p.m.