Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Tuesday, 6 May 2008

 2                           [Status Conference]

 3                           [Open session]

 4                           --- Upon commencing at 2.15 p.m.

 5             JUDGE MOLOTO:  Good afternoon to everybody in and around the

 6     courtroom.

 7             Madam Registrar, would you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honour.  This is case number

 9     IT-04-81, the Prosecutor versus Momcilo Perisic.

10             JUDGE MOLOTO:  Thank you very much.

11             Can I take this opportunity just to welcome the parties to this

12     Status Conference and ask for the appearances, please, starting with the

13     Prosecution.

14             MR. HARMON:  Good afternoon, Your Honour.  Mark Harmon and

15     Evangelos Thomas appearing on behalf of the Prosecution; we're assisted

16     by Carmela Javier the case manager.

17             JUDGE MOLOTO:  Thank you very much.

18             For the Defence.

19             MR. CASTLE:  Good afternoon, Your Honour, Jim Castle appearing on

20     behalf of Momcilo Perisic, whose appearance has been waived for today.

21     Also appearing here today is Novak Lukic.

22             JUDGE MOLOTO:  Thank you very much.

23             Just to remind the parties that by order dated the 26th of March,

24     2008, I was assigned as the Pre-Trial Judge in this case.  As you have

25     said, Mr. Castle, we note that the accused is on provisional release and

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 1     he has waived his right to attend today's conference.  If I'm not

 2     mistaken I think I read in the filing that waived that right an

 3     indication that he may be on a videolink conference, if necessary.

 4             MR. CASTLE:  Yes, he would be available by videolink, if

 5     necessary.

 6             JUDGE MOLOTO:  But he's not going to be.

 7             MR. CASTLE:  He's not appearing by videolink.  It's just if there

 8     is a matter that we need to address with him.

 9             JUDGE MOLOTO:  Thank you very much.

10             I'm sorry, Mr. Castle, that causes me a little bit of confusion.

11     You say if there is a matter that we need to be discussed with him.  Are

12     you saying the videolink is ready to be switched on if need be?

13             MR. CASTLE:  That is my understanding.

14             JUDGE MOLOTO:  All right.  Thank you very much.

15                           [Trial Chamber and registrar confer]

16             JUDGE MOLOTO:  Mr. Castle, I'm advised to the contrary, that a

17     request had been for a teleconference link and that no arrangements have

18     been made for a videolink to be in place should one be necessary.  So it

19     does seem as if we are going to have to dispense with communicating with

20     the accused at all.

21             MR. CASTLE:  I stand corrected.  I also do not anticipate there

22     being a need to have any conversations with him.

23             JUDGE MOLOTO:  Okay.  Thank you very much, Mr. Castle.

24             While we're talking about the accused being on provisional

25     release, Mr. Castle, may I ask you to be exercising in your mind during

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 1     this conference and when we come to talk about the trial dates just think

 2     about the last request that you filed -- that was filed on behalf of the

 3     accused for changing of conditions of release, for visitation -- the

 4     dates of visitations.  You don't have to answer me right now.

 5             Okay.  Can we just move on to the next item, which is the reasons

 6     for this Status Conference.  The last Status Conference was held on the

 7     15th of January, 2008, and pursuant to Rule 65 bis of the Rules of

 8     Procedure and Evidence, a Status Conference shall be convened within 120

 9     days of the last Status Conference in order to organize an exchange

10     between the parties, to ensure exchanges between the parties solely and

11     to ensure the expeditious preparation for trial and to allow the accused

12     to raise issues in relation to the case.

13             Are there any issues that maybe you may want to raise with

14     respect to the health of the accused, Mr. Castle?

15             MR. CASTLE:  Not at this time.

16             JUDGE MOLOTO:  Not at this time.

17             To your knowledge he is in good health?

18             MR. CASTLE:  Yes, he is in good health to this point.

19             JUDGE MOLOTO:  Thank you very much.

20             Mr. Harmon, I don't think you have any contribution to make on

21     that position?

22             MR. HARMON:  We have nothing to say on that matter, Your Honour.

23             JUDGE MOLOTO:  Okay.

24             Can we then move on to pending motions.  There is a motion on

25     provisional release that was filed on the 2nd of May, 2008, by the

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 1     Defence requesting alteration of the conditions of provisional release.

 2     The Chamber would like to know whether the Prosecution intends to respond

 3     to this motion, Mr. Harmon.

 4             MR. HARMON:  We do not, Your Honour.

 5             JUDGE MOLOTO:  You do not.  Thank you very much.  In that event,

 6     then, an order will be issued in due course and again when we discuss the

 7     dates we'll try to tie that with this motion.  Okay.  Thank you very

 8     much.

 9             Then the next item was -- well, the next motion was on

10     adjudicated facts.  On 6th February 2007, the Prosecution filed the

11     Prosecution's motion for judicial notice of adjudicated facts concerning

12     Sarajevo, and in that motion it requests the Trial Chamber pursuant to

13     Rule 94 bis of the Rules to take judicial notice of 314 facts which have

14     been adjudicated in the Galic case.  And the Defence filed two responses,

15     and this motion is currently pending, but on the 23rd of May, 2007, the

16     Pre-Trial Judge indicated that the motion for admission of adjudicated

17     facts should be determined by the Trial Chamber that will hear the case.

18     The Trial Chamber has still not been constituted, but if I might give my

19     personal inclination, Mr. Harmon, I would prefer adjudicated facts to be

20     agreed to the extent possible.

21             Yes, Mr. Harmon.

22             MR. HARMON:  Your Honour, of course that would be my preference

23     as well, but to date counsel and I have had discussions about certain

24     facts that relate to the indictment, particularly Srebrenica.  There have

25     been agreed-upon facts in respect of Srebrenica.  The discussions over a

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 1     year ago stopped in respect of agreements of the parties in terms of

 2     facts.  Now, that's not to say that we will not reach further agreements

 3     in the meantime, but for purposes of trial planning, obviously it's in

 4     the interests -- in our interests to know what is going to be adjudicated

 5     and what is not.  If one examines the motion that we filed in February of

 6     2007, we, you will see, Your Honour, and the Trial Chamber will see, that

 7     there are nine scheduled incidents that -- for which we ask that the

 8     Court make a decision.  Obviously the effect of reaching a decision on

 9     that will impact on our ability to plan and could well shorten the trial.

10     I don't have at my disposal how many witnesses would be eliminated with

11     this, but it seems to me, Your Honour, that given that we have had over a

12     year where we have not been able to -- it's not that we haven't been able

13     to reach agreements, we haven't had those conversations.  And I'm told by

14     Mr. Castle and Mr. Simic that the possibility exists, but that's only a

15     possibility.  And for our purposes, it's very, very important that this

16     motion be decided before the trial commences.  Obviously if we are able

17     to reach agreements before the commencement of trial, we'll bring that

18     immediately to the Court's attention.  But I think I will strive, I can

19     make an undertaking to Your Honour, I'll strive to participate in such

20     discussions constructively.  I'm anxious to reach agreements, but

21     obviously I'm limited in what I can do.

22             JUDGE MOLOTO:  I really would like to encourage the parties to

23     continue negotiating.  I personally have a philosophical problem with

24     admitting adjudicated facts.  In another case when this accused in that

25     case was not represented in that case and we don't even know whoever was

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 1     being tried in that case was trying to implicate this accused, we really

 2     don't know.  And that's why I'm encouraging the parties to try as far as

 3     it is possible to reach agreement, particularly because the Defence is

 4     objecting to those -- to the admission of those adjudicated facts, you

 5     know.  So it makes it a little difficult to go over that philosophical

 6     problem.

 7             Okay.  Do you have anything to add on to that, Mr. Castle?

 8             MR. CASTLE:  The only thing that I would add is to explain to the

 9     Court what the impediment to further agreements is so that we all

10     understand what the problem is.  When the Defence first engaged in this

11     process, we agreed to a number of the -- the admission of a number of

12     documents, a number of statements, then we proceeded to agree to a

13     certain facts that were related to the Srebrenica portion of the

14     indictment.  It was our hope that with those agreements there would be a

15     concomitant reduction in the exposure our client faced, that there would

16     be some reduction on the part of the Prosecution or that a 73 bis

17     decision would reduce the number of counts that our client faced at

18     trial, but that didn't happen.  And that's what stopped the negotiation

19     because the negotiation was a one-way street of the Defence agreeing to

20     facts that literally would lean towards his conviction without anything

21     in return.  I have to let the Court know, we're not trying to stall for

22     the purposes of stalling, it's just that negotiations normally have to

23     take place in a situation where there is give and take.

24             And I won't say Mr. Harmon has been completely unreasonable, I'm

25     not saying that.  Part of the problem is we don't sit down and talk

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 1     because we're in different countries and different locations.  I'm

 2     hopeful when we're -- our Defence team is here and we're able to sit

 3     down, Mr. Harmon, perhaps his wisdom can prevail upon us.  But that

 4     essentially is what our problem is here.

 5             JUDGE MOLOTO:  I hear what you say, but let me make these two

 6     comments.  It seems to me what you consider as a reason for agreeing

 7     facts is somewhat slightly different from what is normally expected.  I

 8     think you agree a fact because you believe that fact is fact, not because

 9     you are plea bargaining.  But when you say you want a two-way street it

10     seems to me that you are plea bargaining.

11             The next point I would like to make is that we are not yet at the

12     stage of 73 bis.  We are still getting there, and most probably the

13     Prosecution is going to be asked to reduce its indictment one way or the

14     other when we get to that stage.  So I would try and encourage you to

15     look at the facts and see whether this is a fact that you can accept that

16     has taken place, it exists, and is there a need really to call a witness

17     to establish it.  You know, I think that should be the consideration.

18     Thank you very much.

19             Can we leave that point on the understanding that the parties

20     will carry on negotiating and trying to find each other on the

21     adjudicated facts?

22             MR. CASTLE:  Yes, Your Honour.

23             JUDGE MOLOTO:  Thank you very much.

24             MR. HARMON:  Yes, that's certainly acceptable.  Thank you.

25             JUDGE MOLOTO:  Thank you.

Page 142

 1                           [Trial Chamber and legal officer confer]

 2             JUDGE MOLOTO:  My apologies, I'm being advised that, in fact, the

 3     73 bis decision has been taken on the 15th of May, 2007.  You are aware

 4     of that, Mr. Castle?

 5             MR. CASTLE:  [Microphone not activated]

 6             JUDGE MOLOTO:  You didn't hear.  I was just apologising for

 7     misstating the situation.  I thought we hadn't reached the 73 bis stage

 8     yet, but I'm advised that that decision was taken on the 15th of May,

 9     2007.

10             MR. CASTLE:  That's my understanding.

11             JUDGE MOLOTO:  And that in fact some -- either incidents or

12     charges were cut out of the indictment.  Can you confirm that,

13     Mr. Harmon?

14             MR. HARMON:  The indictment was reduced as per the order of the

15     Pre-Trial Chamber.

16             JUDGE MOLOTO:  To which then I would just say, Mr. Castle, that

17     if indeed you are looking for something in return you have heard that bit

18     through that 73 bis decision already.

19             MR. CASTLE:  The only thing I would note is that actually there

20     was nothing cut out of the indictment at all.  The only thing that was

21     cut was that Mr. Harmon had been requested to bring in other bad acts or

22     other acts that were not charged in the indictment, and the trial was

23     reduced in the eyes of the Court by saying, We're issuing a ruling that

24     absent some compelling showing of relevancy that the Prosecution would

25     not be allowed to bring in evidence of these other acts.  So not a single

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 1     count was eliminated in that -- I think that's a fair statement of the 73

 2     bis decision.

 3             JUDGE MOLOTO:  No count was eliminated, but were incidents within

 4     counts cut out?

 5             MR. CASTLE:  No incidents within counts were cut out.  Only -- to

 6     give the Court an idea, there was a number of witnesses that were

 7     endorsed by the Prosecution which related to other events, namely, many

 8     in the Sarajevo region.  And the Court reviewed the number of witnesses

 9     as being indicative of the scope of the trial and attempted to reduce the

10     scope of the trial by a third and did so not through reducing counts or

11     crime bases, but by issuing an order indicating that absent compelling

12     reasons that the Prosecution would not be able to call those additional

13     witnesses that related to other events that were not charged in the

14     indictment.

15             MR. HARMON:  [Microphone not activated]

16             THE INTERPRETER:  Microphone for Mr. Harmon, please.

17             MR. HARMON:  There were a number of schedules in particular in

18     respect of Sarajevo I think there are 21 scheduled incidents.  In the

19     documents that we had filed with the Court, we sought to lead other acts

20     in addition to the 21 scheduled incidents and we were instructed by the

21     Trial Chamber that we would not be able to do so unless we had a

22     compelling reason and we sought leave of the Court to do so.  So as a

23     result of that we were able to reduce, per the Court instruction, the

24     scope of the evidence, the volume of evidence that was being led.  It did

25     not result in the elimination of a single count because the counts stayed

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 1     whether or not there was other act evidence.  So in terms of what was

 2     reduced and what we were instructed to do we have complied fully with the

 3     Court's order.  We have not to date filed any motions seeking leave of

 4     the Court to admit other act evidence.

 5             JUDGE MOLOTO:  This other evidence is the evidence that was

 6     outside the 21 scheduled incidents?

 7             MR. HARMON:  Yes.  For example, Your Honour, what came -- one

 8     issue is we have 21 scheduled incidents of shelling and sniping.  Now, we

 9     allege in the indictment there's a campaign of fire directed at civilian

10     targets, both shelling and sniping.  To establish the campaign, we sought

11     to introduce additional evidence that would support the 21 acts.  And the

12     Court said to us in clear terms, You are at this point in time precluded,

13     but not forever, from introducing that other act evidence.  If you have a

14     compelling need to do so, you make an application to the Trial Chamber.

15     So the elimination of the other act evidence did not result in the

16     elimination of any counts in the indictment, but it resulted in a

17     reduction in the trial that the Pre-Trial Chamber then was facing.

18             JUDGE MOLOTO:  I speak subject to correction, but the rule on

19     reduction of the case does not necessarily require reduction by way of

20     cutting out counts, it just wants you to reduce the scope of the case.

21     To show -- the idea is to shorten the estimated length of the

22     examination-in-chief for some witnesses, and the Court may order that the

23     number of witnesses the Prosecutor may call and the number -- the time

24     available to the Prosecutor for presenting evidence.  It doesn't call

25     upon the Prosecution to cut out counts as I understand it.

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 1             MR. HARMON:  We have the same understanding, Your Honour.

 2             JUDGE MOLOTO:  Thank you.

 3             So -- and you say you've complied with the 73 bis decision of the

 4     Pre-Trial Chamber?

 5             MR. HARMON:  We did, Your Honour.

 6             JUDGE MOLOTO:  Thank you very much.

 7             And to that extent, Mr. Castle, you have heard the quid pro quo

 8     that you are looking for.  Okay.

 9             Just as a final parting note on this, I remind the parties once

10     again to please try to reach agreement on those adjudicated facts.

11             Then there is the motions pursuant to Rules 92 bis, ter, and

12     quater.

13             Again, at the Status Conference of the 15th of January this year

14     it was anticipated that the decision of these motions would be taken in

15     due course by the Trial Chamber that will hear the case.  Again, I'm also

16     inclined to say that matter of admitting evidence is a matter for a

17     Trial Chamber not just a Pre-Trial Judge.  I don't know whether the

18     parties have anything to say, Mr. Harmon, on the issue.

19             MR. HARMON:  No, Your Honour, I have nothing to add.

20             JUDGE MOLOTO:  Mr. Castle?

21             MR. CASTLE:  No, Your Honour.

22             JUDGE MOLOTO:  All I can say is we will try to reach a decision

23     as soon as the Trial Chamber is constituted, and give a decision.

24             And there was a motions to amend exhibit and witness lists.  I

25     think two motions are pending before the Chamber regarding the 65 ter

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 1     exhibit list, being the Prosecution motion for leave to file a third

 2     supplement Rule 65 ter list with annex A filed confidentially on the 28th

 3     of February, 2008, and Prosecution motion for leave to file a fourth

 4     supplemental Rule 65 ter exhibit list with annex A filed confidentially

 5     on the 28th of March, 2008.  No response has been filed by the Defence

 6     for the motion of the 28th of February, while a response for the motion

 7     of the 28th of March has been -- was filed on the 10th of April.

 8             Mr. Castle, is there -- does that response suffice for both

 9     motions or does the --

10             MR. CASTLE:  The response only dealt with the second of the

11     motions.  The first one we did not have objections to, so we did not file

12     a response to it.

13             JUDGE MOLOTO:  Thank you very much.  That clears the point.

14             Okay.  Just out of an abundance of caution, could we move into

15     private session, please.

16                           [Private session]

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23                           [Open session]

24             THE REGISTRAR:  We're in open session, Your Honours.

25             JUDGE MOLOTO:  Thank you very much.

Page 153

 1             The next item relates to disclosure issues.  It is the Chamber's

 2     general impression that the Prosecution has complied with all its

 3     obligations pursuant to Rule 66(A).  Are you able to confirm that,

 4     Mr. Harmon?

 5             MR. HARMON:  Well, we believe we have, Your Honour.

 6             JUDGE MOLOTO:  But for the summaries of the French witness

 7     statements?

 8             MR. HARMON:  Well, obviously with that exception.

 9             JUDGE MOLOTO:  That's right.  So once that -- you confirm that

10     once that has been disclosed, those have been disclosed, you will have

11     complied.

12             MR. HARMON:  And one additional.  We have a previous Court order

13     that permits us to disclose the witness statements, three witness

14     statements, to the Defence 30 days before the commencement of trial, so

15     that's another category of statements.

16             JUDGE MOLOTO:  That's right.  Sure.  Okay.  Thank you very much.

17             Mr. Castle, any comment?

18             MR. CASTLE:  No comment.

19             JUDGE MOLOTO:  No comment.  Good.

20             Then the Rule 68 obligations, that's an ongoing obligation and I

21     would imagine that the Prosecutor is continuously disclosing to the

22     Defence whatever needs to be disclosed.

23             Are you happy in that line of disclosure, Mr. Castle, so far?

24             MR. CASTLE:  We're not aware of any exculpatory material that has

25     not been turned over.

Page 154

 1             JUDGE MOLOTO:  Thank you very much.  That is very helpful to

 2     know.

 3             And let's then move on to Rule 66(B).  Now, according to the

 4     order establishing a work-plan issued on the 11th of October, 2006, the

 5     Prosecution should have complied with all its obligations under this rule

 6     at this point I would imagine.

 7             MR. HARMON:  Yes, Your Honour.

 8             JUDGE MOLOTO:  Okay.  And on the 31st of October, 2007, the

 9     Prosecution filed a report on outstanding translations in this case

10     pursuant to an order of the Chamber issued on the 19th of September,

11     2007.  In that report the Prosecution indicated approximately 9.000 pages

12     of documents remaining to be translated, and the Prosecution indicated

13     that that translation would be complete by the 31st of January, 2008, and

14     that if it was not complete the Prosecution would give a report.  No

15     report has been received.  Can this Chamber assume that that -- those

16     translations are complete?

17             MR. HARMON:  Those translations I believe are complete.  They

18     were complete by the dead-line imposed by the Trial Chamber.  The other

19     issue, however, I wanted to alert Your Honour to is that we have had

20     ongoing litigation with Serbia to get additional documents that we deem

21     relevant to this Prosecution.  And the Court can see as a result of the

22     filing of 54 bis motions that we've had some difficulties in getting full

23     compliance.  The motions before Your Honour on 54 bis are not the first

24     set of 54 bis motions that we have filed.  What does that mean?

25             In terms of the production of documents, some of which are

Page 155

 1     voluminous to us, when we finally get them they are not translated for

 2     us.  So we are faced with, again, a problem with translation of those

 3     relevant documents.  We have taken extraordinary measures to ensure that

 4     we can get those documents translated as soon as possible, and then when

 5     they get translated their benefit to me as the Prosecutor and we disclose

 6     them to the Defence immediately.

 7             So we've also -- we've also undertaken a regime that when I get

 8     documents that I think are relevant in B/C/S I give them to the Defence

 9     before I get them translated.  Because on the Defence team the Defence

10     has people who read the language and can study the documents.  So in one

11     sense they're often better advanced than I am in terms of understanding

12     the content of those documents, but in order to ameliorate any issues

13     that could be raised by any issues that might affect the ability of this

14     trial to go forward, we've taken positive steps to disclose them

15     immediately to the Defence in B/C/S.

16             JUDGE MOLOTO:  Okay.

17             MR. HARMON:  That's where we are in terms of translations, Your

18     Honour.  I don't want the Court to be misled believing that all the

19     translations that are relevant to this case have been completed.  The

20     9.000 pages were on time.

21             JUDGE MOLOTO:  I understand that very much, Mr. Harmon.  The

22     question really related to the 9.000 pages.  You have just told me those

23     have been translated, those have been disclosed.

24             MR. HARMON:  Yes.

25             JUDGE MOLOTO:  Obviously any material that is not currently in

Page 156

 1     your possession or that has recently come into your possession and still

 2     needs to be translated still has to be translated before it can be

 3     disclosed.

 4             MR. HARMON:  Yes.

 5             JUDGE MOLOTO:  That's quite understandable.

 6             And I'm sure you understand that too, Mr. Castle.

 7             MR. CASTLE:  Yes, Your Honour.

 8             JUDGE MOLOTO:  It's just a practical notion.

 9             MR. CASTLE:  Yes, and just for the Court to know, I have no

10     evidence that the Prosecution has been dilatory in an attempt to get

11     documents translated, but other cases in this Tribunal have absorbed

12     resources that would ordinarily be available to have items translated.

13     We have been working with the Prosecution to identify items that we need

14     translated and the ones that we have a high priority on, and I belive

15     that process is continuing to work well.

16             JUDGE MOLOTO:  Thank you so much.

17             Agreed matters of law or facts.  On the 1st of May the parties

18     files a joint submission on agreed matters of law.  On the 1st of June,

19     2007, again the parties filed a joint submission on agreed facts.  All

20     agreed facts relate to the crimes allegedly committed in Srebrenica.

21     These agreed facts are recorded by the Chamber pursuant to Rule 65 ter

22     (H) of the Rules of Procedure and Evidence and the Chamber encourages the

23     parties to further develop the area of agreed facts to the extent

24     possible.

25             Is there any comment that you would like to make on that item,

Page 157

 1     Mr. Harmon, on agreed facts?

 2             MR. HARMON:  No, Your Honour.

 3             JUDGE MOLOTO:  Nothing.

 4             Mr. Castle?

 5             MR. CASTLE:  No, Your Honour, we'll just keep the Court informed

 6     as we go along if there's any changes in that.

 7             JUDGE MOLOTO:  Thank you very much.

 8             Again, like with adjudicated facts, the Chamber still encourages

 9     the parties to agree as many facts as possible.  That will help to

10     shorten the trial also.

11             Let's deal with the little difficult question of the anticipated

12     length of the trial and the trial date.  On the 23rd of May, 2007, the

13     Prosecution estimated that if none of its Rule 92 bis motions are

14     granted, and assuming that there is a sitting of five days a week in the

15     normal course of business with very few interruptions, the entire length

16     of the trial will last a year and a half.

17             You confirm that, Mr. Harmon?

18             MR. HARMON:  Your Honour, may I just amplify that.  Yes, I

19     confirm that I said that on the 23rd of May and that has been raised in

20     subsequent conferences, in 65 ter conferences, and I believe the last

21     Status Conference as well.  Obviously both parties want to reduce this

22     trial.  We --

23             JUDGE MOLOTO:  That's a good start.

24             MR. HARMON:  No, I think we genuinely -- the parties have been

25     willing to work together, have been unable to do so because there's a

Page 158

 1     vast distance between Denver, Colorado, and The Hague.  We're now here

 2     and when Mr. Castle and his team get installed, I think we will work hard

 3     to try to reduce this in a more understandable systematic way than we

 4     have been able to do so far.  The 15 months obviously is an estimate.  I

 5     was asked on the 23rd of May to speculate, and it's very, very difficult

 6     to speculate to -- when you have literally hundreds of motions that are

 7     outstanding and have not been decided.  So that -- I want to reinforce,

 8     Your Honour, that this was a best guess possible.  We will try to make it

 9     shorter than that, but I can also envision if there are no agreements and

10     there are -- we have to establish crime base material that I think is not

11     really contested, but if we have to go through the exercise then it will

12     take some time and it may well go over 15 months.  That was my best

13     estimate then.  It remains my best estimate.  I think we'll come in

14     shorter than that.

15             JUDGE MOLOTO:  Mr. Harmon, can I try and tie your hands behind

16     your back a little bit.  You started very well by saying it is

17     everybody's intention and wish to shorten the case.  You end up by saying

18     it might go little beyond by 15 months.  I want to cut that part out.

19     That's where I want to tie your hands.  And I do by saying the best

20     estimate you were asked to make, and as I read out that little paragraph,

21     was made on the assumption that none of your 92 bis and ter and quater

22     motions were granted and that therefore your entire case was going to be

23     viva voce.  In other words, it was on a worst-case-scenario basis.

24             MR. HARMON:  Your Honour, I accept that.

25             JUDGE MOLOTO:  You accept that.

Page 159

 1             MR. HARMON:  I accept that.

 2             JUDGE MOLOTO:  So if it wasn't a worst-case scenario basis, I

 3     don't anticipate going beyond your worst case.

 4             MR. HARMON:  No, Your Honour, when I was asked this question

 5     yesterday by the Senior Legal Officer, I went back and read my comments

 6     and I said that the trial would last with all those conditions 15 months.

 7     But I was -- what I was trying to say and I didn't say it well enough

 8     was, the Prosecution case in chief would last 15 months.  I can't speak

 9     for the Defence case and how long that is going to take.  Whether that is

10     incorporated in -- whether the Trial Chamber understands the Defence case

11     to be rolled into the 15-month estimate certainly wasn't by intention

12     because I can't speak for the Defence.  I stand by a 15-month estimate

13     outside for the Prosecution's case in chief, but the length of the trial

14     I can't speak for the Defence.

15             JUDGE MOLOTO:  That's a major departure, Mr. Harmon, I must say.

16             MR. HARMON:  Well --

17             JUDGE MOLOTO:  If I may reiterate to you the last bit of the

18     sentence that I said to you, the estimate was that the entire length of

19     the trial will last a year and a half.  Now, I'm not suggesting I'm

20     quoting you.  I'm suggesting this is the impression that this Chamber is

21     left with, that is the entire length of the trial.  Now, if you say 18

22     months for just the Prosecution phase, now are you saying that on a

23     one-to-one basis we are likely to be here for three years?

24             MR. HARMON:  I hope not, Your Honour.  I've been through one

25     trial that lasted 32 months, and I don't care to repeat it.  What I was

Page 160

 1     trying to say and what I can control in my estimate is the Prosecution's

 2     case.  Mr. Castle and I never discussed at that point in time how long

 3     the Defence case would last.  I don't know how long the Defence case is

 4     going to last, and I don't think it would be, quite honestly, something

 5     you would want to rely on me estimating the length of the Defence case.

 6     I can tell you that 15 months is -- was a -- my best guess under those

 7     conditions for the Prosecution case.  That's what I can say, and I think

 8     it will come in, assuming we reach some agreements, I think it will come

 9     in shorter than that.  We will endeavour to make it come in shorter than

10     that.  But perhaps, you know, the -- I shouldn't be speaking for the

11     Defence in terms of how long their case will last because that's not --

12     I'm not in a position to do so, Your Honour.

13             JUDGE MOLOTO:  That's true, and I would imagine that the Defence

14     usually does make that estimate at the opening of the Defence case.

15             MR. HARMON:  I'm sure they do, Your Honour.

16             JUDGE MOLOTO:  Not at this stage.

17             MR. HARMON:  Absolutely, Your Honour.

18             JUDGE MOLOTO:  So there's no point in trying to even engage

19     Mr. Castle on the point, on an estimation of their case.

20             MR. HARMON:  Of course --

21             JUDGE MOLOTO:  We can't do that at this stage.

22             Anyway, let's sort of go through the implications of what you are

23     saying.  When one calculates the length of time one bears in mind that we

24     have a 52-week year.  We have various recesses and adjournments during

25     the year that effectively bring about a working year to something like 41

Page 161

 1     weeks.  And 41 weeks on the assumption that you sit five days at 3.5

 2     hours a day brings you to something like 720 hours in a year.  I see you

 3     shaking your head.

 4             MR. HARMON:  [Microphone not activated]

 5             As you're talking, Your Honour, I'm doing some calculations

 6     myself.  No disrespect intended.

 7             JUDGE MOLOTO:  Not a problem, not a problem.  Indeed my

 8     calculations are also a rough calculations, and I would appreciate being

 9     corrected as I go along.  Okay.

10             Now, the Chamber is also aware that the estimated time is still

11     subject to further revision in light of the pending motions.

12             Anyway, based on the revised witness list filed by the

13     Prosecution on the 28th of June, 2007, and the required hours indicated

14     therein, the Chamber has calculated an estimated time of 907 hours for

15     the direct examination of Prosecution witnesses.  It is a striking

16     difference and -- considering that the Prosecution took steps in

17     accordance with the Chamber's Rule 73 bis decision to reduce the

18     estimated time of 950 hours by 169 hours in relation to the Sarajevo

19     component of the case.  And then I think it should also be borne in mind

20     that the same amount of time for cross-examination and perhaps something

21     like 25 per cent for re-direct, questions from the Bench, et cetera,

22     should be added to that estimated time.  That overall number would then

23     come to something like 2.040 hours, which corresponds to nearly three

24     years only -- for the Prosecution case only.

25             MR. HARMON:  I can assure you, Your Honour, we don't intend to

Page 162

 1     lead evidence for three years in our case, and we will find ways to

 2     reduce three years so all the parties are satisfied.

 3             JUDGE MOLOTO:  Okay.

 4             Can I then suggest or make a contribution to what you are going

 5     to do to cut down to make sure that we are not here for three years.  If

 6     we try to ask the Prosecution to stay within nine months to complete its

 7     case, which would give you 540 hours for the Prosecution phase; in other

 8     words, something like 220 hours for direct, 220 for cross, 100 for

 9     re-examination, something like that roughly.  How would that work out?

10             MR. HARMON:  I would have to study those figures, Your Honour, in

11     light of our witness list and other matters, but I will certainly study

12     that --

13             JUDGE MOLOTO:  Please --

14             MR. HARMON:  -- very carefully.

15             JUDGE MOLOTO:  -- do and the Prosecution is invited and once

16     studied that to file a witness list in accordance with those indications

17     and how they've studied them.  Would you like to tie yourself to a

18     time-line on the witness list?  I'm being kind.  I don't -- I'm not

19     imposing the time-line.  I want you to tie yourself.

20             MR. HARMON:  May I get back to you on that, Your Honour.  I just

21     don't know the schedules of my team at this point.  I know I'm going to

22     be away a period of time in the next two weeks and I need to find out

23     what other peoples' schedules are.  If I can get back to you on that.

24             JUDGE MOLOTO:  How soon can you get back?

25             MR. HARMON:  Just think --

Page 163

 1             JUDGE MOLOTO:  [Microphone not activated]

 2             Let me throw a two-week timeline to you which you can put into

 3     equation as you talk to your staff.

 4             MR. HARMON:  Let me just look at the calendar I have in front of

 5     me, Your Honour.

 6             JUDGE MOLOTO:  Please.

 7             MR. CASTLE:  Your Honour, if it's possible.

 8             JUDGE MOLOTO:  Yes, Mr. Castle.

 9             MR. CASTLE:  I don't want to be a pessimist, but if one's to look

10     at the indictment it is enormous.  We have I think it's 32 endorsed

11     experts in the case, almost 10.000 exhibits that include almost 100.000

12     pages of material.  The constituent cases that make up parts of this each

13     took in excess of two years to try, the constituent parts, the Sarajevo,

14     each part.  On top of that we're dealing with the political structure and

15     the military structure of three different armies and the

16     inter-relationships of those three armies.  We're going to try to the

17     best of our ability to cut down on a lot of the crime base evidence,

18     but -- and I have never had a trial here before so guessing the estimate

19     is a pure guess.  But I don't know how this trial's going to be shorter,

20     the people that were the subordinates, the alleged subordinates, of my

21     client's trials.  I don't know how that's possible when the linkage

22     evidence is going to be more difficult to prove.  I just want to let the

23     Court know that I fear that despite everyone's best efforts that the

24     trial may last longer than we anticipate it.

25             JUDGE MOLOTO:  That's true.  We do factor that in, Mr. Castle.

Page 164

 1     All what we are doing here is our best guesstimate.  It's not even an

 2     estimate, it's just a guesstimate, and it's subject to change as we go

 3     along.

 4             MR. CASTLE:  The only reason I bring that up and it's perhaps our

 5     hope is that 73 bis doesn't indicate that the Court only gets one

 6     opportunity to reduce the size of the Prosecution's case.

 7             JUDGE MOLOTO:  Okay.

 8             MR. CASTLE:  I think it can be used a number of times in the case

 9     as need be.  And so with that in mind we have no other comment.

10             JUDGE MOLOTO:  Your comment is noted.  Thank you, Mr. Castle.

11             Yes.

12             MR. HARMON:  Your Honour, if I could inform the Court by the 20th

13     of May, if that would be acceptable.

14             JUDGE MOLOTO:  Thank you.

15             MR. HARMON:  That is essentially two weeks.

16             JUDGE MOLOTO:  Thank you.  20th of May.  Thank you.  We'll note

17     that.

18             MR. HARMON:  Thank you.

19                           [Trial Chamber and legal officer confer]

20             JUDGE MOLOTO:  Mr. Harmon, I suppose you referred to hundreds of

21     motions outstanding.  Do I understand by that to mean -- to refer to the

22     92 bis, ter, quater and -- motions and the witnesses individually?

23             MR. HARMON:  Your Honour, yes.  I referred to approximately 44,

24     92 bis decisions that have to be taken in respect of individual witnesses

25     where we have attached to the 92 bis motion a schedule identifying the

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 1     parts of the written evidence for which we seek admission; and the

 2     exhibits in respect of 92 ter, there's approximately 80 -- one motion but

 3     a schedule with 85 individual decisions that have to be taken; 92 quater

 4     there are approximately ten separate motions before the Court.

 5             JUDGE MOLOTO:  Thank you very much.  We understand that.  I was

 6     just getting scared that there may be hundreds of motions that the Court

 7     is not aware of.  Now I understand what you are talking about.

 8             MR. CASTLE:  [Microphone not activated]

 9             JUDGE MOLOTO:  Thank you, Mr. Castle.

10             As for the date of trial, can we start by saying that the parties

11     should perhaps try to be ready to start the trial in earnest shortly

12     after the summer recess.  The Chamber considers holding a

13     Pre-Trial Conference and opening statements just before the summer recess

14     if it's possible.  And depending on what the parties -- how the parties

15     feel about this, the Chamber would like to propose Monday, the 21st of

16     July, 2008, for Pre-Trial Conference; and Thursday, the 25th of July,

17     2008, for opening statements.

18             There might -- and while we are on that, Mr. Castle, if I may

19     just find out at what stage of the trial would the Defence like to make

20     an opening statement, if they do wish to make a statement at all?

21             MR. CASTLE:  We've been talking about that and we have not yet

22     made a decision.  In the event that we did wish to avail ourselves of an

23     opening statement, we do not anticipate it to be an extremely long one.

24     I guess that's a loaded term, but I'm talking not -- I mean, half a day

25     maximum.  But we have not made a decision fully on that yet.

Page 166

 1             JUDGE MOLOTO:  Okay.  Is there a possibility that you can -- that

 2     you might make a decision in favour of making an opening statement before

 3     the opening of the Prosecution trial -- case?

 4             MR. CASTLE:  There is a possibility of that, Your Honour.

 5             JUDGE MOLOTO:  There is a possibility.

 6             MR. CASTLE:  I know that's not normally the practice of Defence

 7     here, but sometimes I'm less Orthodox.

 8             JUDGE MOLOTO:  You -- it's up to you.

 9             Okay.  The reason I ask this question is because just in case the

10     opening statement of the Prosecution takes the entire 25th of July, then

11     we should be able to provide the 26th for you to make your opening

12     statement.  Otherwise, if you want to make it at the opening of the

13     Defence case, that's your choice.

14             MR. CASTLE:  That's alright, Your Honour.

15             JUDGE MOLOTO:  Do you suggest that we make provision for the 26th

16     of July?

17             MR. CASTLE:  I would suggest so.

18             JUDGE MOLOTO:  We will do that.  Thank you so much.

19             But again, I understand from the parties that you agree to this

20     date so that a Scheduling Order can be issued.

21             MR. HARMON:  That's agreeable, Your Honour.

22             JUDGE MOLOTO:  Is that agreeable?

23             MR. CASTLE:  That's agreeable.

24             JUDGE MOLOTO:  Now, the start of the actual trial, that's what we

25     need to talk about and then bear in mind the defendant's -- the accused's

Page 167

 1     motion.  The Chamber at this stage is not able to give clear guidance for

 2     the simple reason that there are still the Delic commitments.  And the

 3     anticipation, however, is that within a month or so after the recess we

 4     should be able to start full blast with the trial; that is, end of

 5     August/beginning of September.  It's a rough indication.  We will

 6     re-visit that in due course as we see the progress in the other case.

 7             Is that reasonable and agreeable to the parties.

 8             Mr. Harmon.

 9             MR. HARMON:  May I just clarify something, Your Honour, just so

10     it's clear in my own mind.  The recess I think will end in --

11             JUDGE MOLOTO:  Third week of August.

12             MR. HARMON:  -- August?

13             JUDGE MOLOTO:  August -- I'll tell you --

14             MR. HARMON:  20 -- it may be the --

15             JUDGE MOLOTO:  I'll tell you.

16             MR. HARMON:  Thank you.  It may be August 15th, Your Honour, is

17     when the recess ends.

18             JUDGE MOLOTO:  Is that it?

19             MR. HARMON:  That's what I'm told, it ends on the 15th.  So.

20             JUDGE MOLOTO:  Yes, yes.  You are right, it ends on the 15th.

21             MR. HARMON:  Okay.  I'm clear now reading Your Honour's --

22             JUDGE MOLOTO:  Right.

23             MR. HARMON:  -- comments.

24             JUDGE MOLOTO:  So we say we could start trial end of

25     August/beginning of September somewhere in there.

Page 168

 1             MR. HARMON:  Okay.  That's clear.  Thank you.

 2             JUDGE MOLOTO:  That's a rough estimate.

 3             That said, are you looking at the visitations of the accused to

 4     the -- do you need a private session for this?

 5             MR. CASTLE:  No we don't.

 6             JUDGE MOLOTO:  Okay.

 7             MR. HARMON:  I'm sorry.  Your Honour, may I just return to the

 8     date of the opening statement because looking at the calendar, it's been

 9     brought to my attention that the 26th is a Saturday.

10             JUDGE MOLOTO:  The 25th --

11             MR. HARMON:  The 25th is a Friday.  In the court schedule the

12     Prosecution opening statement on the 25th of July and the Defence for the

13     26th, but the 26th is a Saturday.  So ...

14                           [Trial Chamber and legal officer confer]

15             JUDGE MOLOTO:  Thank you for bringing that to our attention,

16     Mr. Harmon.

17             Could we shift then the opening statements by the Prosecution to

18     Thursday, the 24th, and then any possible Defence opening on Friday, the

19     25th?  Is that okay?

20             MR. HARMON:  That's fine, Your Honour.

21             JUDGE MOLOTO:  Thank you so much.

22             MR. CASTLE:  That's fine.

23             JUDGE MOLOTO:  I must also make a note.

24             Thank you so much.

25             That said, Mr. Castle, do you find any need to change the dates

Page 169

 1     or to do anything to that motion?

 2             MR. CASTLE:  Yes.  Our request for alterations in the terms of

 3     provisional release asked for three separate periods of time, the third

 4     of which took place in July.  We would withdraw the request for that

 5     third period at this point in time.  If something changes and we're not

 6     going to be in court, we'll re-raise it by a separate motion.  We also

 7     would anticipate filing a motion allowing our client to return to his

 8     country by the summer break, but we'll do that by separate motion also.

 9             JUDGE MOLOTO:  Thank you very much, Mr. Castle.

10             Are there any issues that the parties would like to raise?  That

11     brings me to the send of the formal agenda by the Chamber.  Is there

12     anything that the parties would like to raise.

13             Mr. Harmon?

14             MR. HARMON:  Nothing.  Thank you, Your Honour.

15             JUDGE MOLOTO:  Mr. Castle.

16             MR. CASTLE:  Yes, Your Honour, just briefly.

17             The -- we're on the verge of trial and one of the considerations

18     always is how prepared the sides are for trial.  And I need to make a

19     record on what our situation is.  Now, I'm not asking for an extension of

20     the trial date, but I think that we need to put on the record what our

21     situation is.  Our client is facing a very, very large indictment, three

22     different years of war, three different locations, three different

23     armies, it's part of the Slobodan Milosevic case, it's portions of the

24     Galic case, the Krstic case, the Martic case, all rolled into one.  It's

25     I believe the second-largest indictment in terms of scope that's been at

Page 170

 1     this Tribunal.  We're the only Defence team because Mr. Milosevic didn't

 2     choose -- he chose to represent himself, we're the only Defence team that

 3     has been found in that position.  We have been saddled with the exact

 4     same budget that Defence counsel have in multiple Defence cases have and

 5     can share multiple versions of that same budget and add them on to each

 6     other to defend their clients.  We're faced against a Prosecution team

 7     that will have a number of lawyers on their team, and they have on-staff

 8     military experts that are on staff and have been working on this case or

 9     portions of this case over a decade.  That's what we're faced with.

10             In addition, myself and co-counsel for the last year have not

11     been compensated for our work.  We have been able to compensate our staff

12     but not the lawyers for any of our work.  So we're in that position.  So

13     to say that we're ready for this trial would not be accurate, we're not,

14     but each day that the trial doesn't happen the disparity and the gap and

15     the inequality of arms gets -- becomes greater because the Prosecution

16     continues to work, which I would expect them to do; and I don't fault

17     them for doing, but we can't.  And so we wish to go to trial starting in

18     July because it's our best moment to because if we wait any longer the

19     gap will be larger and larger and larger.  And I bring this to this

20     Court's attention.  I have to the prior Court and we have made numerous

21     requests to expand it, but there is an element of unfairness that will

22     pervade this case based upon the fact that we're not going to be on equal

23     footing.  And that is how we will start the case.  And anything this

24     Court can do to encourage the registry to provide additional resources I

25     think will not only have the benefit of providing the defendant with a

Page 171

 1     fair trial, but frankly will also make the trial go smoother and lead to

 2     more agreements and more resolutions.

 3             I bring that to this Court for its consideration.

 4             JUDGE MOLOTO:  Let me hone in on your request to the Court to

 5     encourage the registry to provide additional resources.  Do I understand

 6     you to say that -- you're talking of monetary resources?

 7             MR. CASTLE:  Yes.

 8             JUDGE MOLOTO:  I may be wrong, but from the little experience I

 9     have on that issue it doesn't seem as if we, the Court, is able to do

10     anything unless and until something's placed before the Court on that

11     matter.  Usually that's a matter that Defence counsel negotiates with

12     OLAD and what have you, and if Defence counsel feels dug-in by OLAD then

13     you put your case before us and we look at it -- I don't even know the

14     rating of the case.  I haven't heard anything about this case, whether

15     it's level A, B, or C, or -- what do they call them?  1, 2, or 3, I can't

16     even remember now.  It looks like there are three levels.  I don't even

17     know what level of complexity this case enjoys with OLAD.  And I would

18     imagine what you have said to us in terms of the enormity of the case,

19     the complexity of the case, the scope of the case, those are all points

20     in motivation for reconsideration by OLAD for that I suggest to you, you

21     put before the Court.  And I can suggest to you if and when you are still

22     not satisfied, only then you can come before us.  But there is no way

23     without a -- at least a written motion that the Court would intervene.

24             MR. CASTLE:  Yes, Your Honour, and I wasn't actually asking for

25     any specific relief at this time.  I just wanted the Court to know before

Page 172

 1     we began this venture that there may be times when we may need delays or

 2     more time.  And I did not want our acceptance of the trial date to be

 3     viewed as an affirmation that we are as prepared as we should be --

 4             JUDGE MOLOTO:  -- no, I understand.  Thank you very much.

 5             Is that all that you wanted to raise?

 6             MR. CASTLE:  That is all, Your Honour.

 7             JUDGE MOLOTO:  Do you have any comment to make on that,

 8     Mr. Harmon?

 9             MR. HARMON:  I do not, Your Honour.

10             JUDGE MOLOTO:  And you still have nothing to raise from the

11     Prosecution's side?

12             MR. HARMON:  Nothing, Your Honour, thank you.

13             JUDGE MOLOTO:  In that event, that brings us to the conclusion of

14     today's Status Conference.  The court stands adjourned until further

15     notice.  Court adjourned.

16                           --- Whereupon the Status Conference

17                           adjourned at 3.30 p.m.