Page 36
1 Tuesday, 20 January 2004
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.12 p.m.
6 JUDGE KWON: Good afternoon. Could the Registrar please call the
7 case.
8 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honour.
9 Case Number IT-03-69-PT, The Prosecutor versus Jovica Stanisic and Franko
10 Simatovic.
11 JUDGE KWON: Thank you. Will both parties make their
12 appearances.
13 MR. GROOME: Good afternoon, Your Honour. For the Prosecution,
14 Dermot Groome and with me is case manager Skye Winner.
15 JUDGE KWON: Thank you, Mr. Groome. And for the Defence, please.
16 MR. KNOOPS: Good afternoon, Your Honour. For the Defence in the
17 case of Mr. Stanisic, Mr. Knoops, attorney-at-law in Amsterdam.
18 MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honours.
19 I'm Zoran Jovanovic, attorney-at-law from Belgrade defending
20 Mr. Simatovic.
21 JUDGE KWON: Thank you, Mr. Knoops and Mr. Jovanovic. Before we
22 begin, first of all, I'd like to wish everyone here a very Happy New
23 Year. This is the second Status Conference in this case. And prior to
24 this Status Conference, there have been two Rule 65 ter conferences
25 convened by Ms. Yvonne Featherstone, the Senior Legal Officer of this
Page 37
1 Chamber. And she has been informing me of the substantive content of
2 those conferences.
3 And let me deal -- start by dealing with a couple of outstanding
4 motions. Since the last Status Conference, the Chamber issued a decision
5 on 14th of November on the parties' preliminary motions on the form of
6 indictment. In that decision, the Chamber ordered the Prosecution to
7 submit an amended indictment to which the Prosecution complied on 9th of
8 December of last year. While the Trial Chamber has not yet issued a
9 decision on the submitted amended indictment, both of the Defence teams
10 filed a motion concerning an alleged defect in the amended indictment.
11 And the Prosecution has filed a joint response to these motions. And the
12 Chamber will render its decision in due course.
13 And for the next matter concerning a confidential filing, shall
14 we briefly go into private session.
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6 [Open session]
7 JUDGE KWON: Now, I'd like to turn to the issue of disclosure.
8 I understand that Rule 66(A)(i) disclosure is complete, but Rule 66(A)(ii)
9 disclosures are still outstanding. Can I hear the status of that from
10 Mr. Groome.
11 MR. GROOME: That is correct, Your Honour. Rule 66(A)(i) is
12 complete, and we are in the process and plan to imminently commence the
13 process of meeting our disclosure obligations under both 66(A)(ii) and 68,
14 and Rule 68. If I may, if it pleases the Court, I would explain the
15 proposal of the schedule that the Prosecution -- the schedule that the
16 Prosecution would propose for completion of that disclosure.
17 JUDGE KWON: Yes.
18 MR. GROOME: The Court may or may not know, since the last Status
19 Conference the Prosecution has -- the Prosecution team on the Stanisic
20 case has lost four professional staff and two legal interns. So we are
21 in the process of reconstituting the team. I expect in the near future
22 we will have a full complement of attorneys and other necessary staff,
23 but it has caused some problems in getting off to a start with our
24 disclosure obligations.
25 What the Prosecution is proposing, Your Honour, is that
Page 43
1 commencing in February we begin disclosure both of Rule 66(A)(ii) and Rule
2 68, and for every month thereafter continue to make a disclosure once a
3 month of both Rules 66(A)(ii) and Rule 68. We estimate that proceeding in
4 that way, we would be able to complete all of the disclosure under Rule
5 68 and Rule 66(A)(ii) --
6 THE INTERPRETER: Could you please slow down a little.
7 MR. GROOME: My apologies. That we would be able to complete all
8 of the disclosure for both 66 and 68 by July, before the summer break.
9 Prosecution also has a proposal with respect to the mechanics of some of
10 this disclosure. I don't know if the Chamber would like me to address
11 that now or to address it separately.
12 JUDGE KWON: What do you mean by mechanics? Yes, if you can
13 address that matter now.
14 MR. GROOME: Wherever possible, Your Honour, we will be
15 disclosing electronically. We will be providing compact disks with
16 search engines so the Defence may search whatever is disclosed to them.
17 In a case of material that is available either in the disclosure suite or
18 on the ICTY website -- for example, open session testimony of witnesses
19 in other proceedings -- what the Prosecution would propose to do is the
20 following: To meet our disclosure obligation by identifying the relevant
21 testimony or the relevant document to the Defence and allowing them to
22 download that material at their convenience directly from the source. So
23 it's a matter -- it's our position that there would be no tangible
24 difference between downloading it from a CD or downloading it from the
25 website. Of course, we'll be guided by the Chamber's views on this. But
Page 44
1 proceeding in that way would permit us to expedite the disclosure
2 process.
3 JUDGE KWON: As long as they consent to that method of
4 disclosure.
5 MR. GROOME: Yes, Your Honour. I will discuss it then --
6 JUDGE KWON: Let's set aside the Rule 68 disclosure a moment, and
7 let's concentrate on 66(A)(ii) disclosure. Is there any observation from
8 the Defence team on the -- regarding the method of disclosure Mr. Groome
9 just mentioned?
10 MR. KNOOPS: Not on behalf of the Defence of Mr. Stanisic. Thank
11 you.
12 JUDGE KWON: Mr. Jovanovic.
13 MR. JOVANOVIC: [Interpretation] Thank You, Your Honour. We had
14 discussed this issue with at the 65 ter meeting so I suppose you are
15 familiar with the result. As for the disclosure method suggested by
16 Mr. Groome, we do, indeed, have access to this website of the Tribunal,
17 and the Defence does not need to be advised specially of which witnesses
18 these are. However, I believe that the transcripts available on the site
19 of the Tribunal are not sufficient in themselves. We cannot analyse the
20 testimony of one witness without having received his witness statements
21 in advance. I have nothing against following the website of the ICTY,
22 but I believe it is slightly unusual for the Prosecution to not deliver
23 everything that concerns a particular witness, and leave the Defence
24 teams only with what is available on the website. I believe, therefore,
25 the Prosecution should make an effort to identify the witnesses as
Page 45
1 suggested by Mr. Groome, but also disclose everything available in
2 connection with those witnesses.
3 JUDGE KWON: Yes, Mr. Groome.
4 MR. GROOME: Your Honour, I apologise if I wasn't clear enough.
5 Obviously 66(A)(ii), my obligations under that encompass far more than
6 simply what's available publicly on the website. We will, of course,
7 then, be providing electronic copies of witness statements and any other
8 material that would be covered by Rule 66(A)(ii), without question.
9 JUDGE KWON: So the list or index you're proposing to disclose
10 is -- will work as a kind of search tool or courtesy tool for the
11 Defence, and the full disclosure will follow. Am I correct in
12 understanding so?
13 MR. GROOME: I'm not sure, Your Honour. Perhaps if I can put it
14 in other words. Let's say there's Witness A, and Witness A perhaps has
15 testified in the Milosevic trial. What we will be providing to Defence
16 counsel as soon as we are able is a list that says "Witness A testified
17 on this date and his testimony is publicly available." And then as soon
18 as we are able, we will be providing Witness A's statement and any other
19 disclosable material in electric form which is not readily available from
20 the website.
21 JUDGE KWON: Is there any objection from the Defence in receiving
22 the statement in electronic form?
23 MR. JOVANOVIC: [Interpretation] Your Honour, none whatsoever as
24 far as the form of disclosure is concerned, whether electronic or
25 otherwise. The only thing that matters to the Defence is that we cannot
Page 46
1 do with the transcripts available only on the website. It is something
2 for the public domain, but that is not sufficient for preparing our case.
3 Of course, we have nothing against receiving documents in electronic
4 form.
5 JUDGE KWON: My understanding is that is exactly what the
6 Prosecution plans to do. And let's call it the offering the list or
7 index of first disclosure, when do you think the first disclosure can be
8 done?
9 MR. GROOME: Proposing to begin in February, Your Honour, and
10 then continuing every month thereafter.
11 JUDGE KWON: Mm-hmm. And --
12 MR. GROOME: Your Honour, if I may just --
13 JUDGE KWON: In all, it will be complete by the end of July.
14 MR. GROOME: Yes, Your Honour. If I could just add the following
15 observation: One of the reasons why I decided upon this is it allows us
16 to commence disclosure as soon as possible given the circumstances that
17 we face, and ensures that the Defence receives a steady stream of
18 documents rather than receiving an overwhelming number on a date
19 determined by the Chamber, but that they receive a steady stream of
20 documents so they can work in preparing their Defence.
21 JUDGE KWON: And there must be some sensitive statements or
22 security-concerned statements the Prosecution is seeking for protective
23 measures.
24 MR. GROOME: That is correct, Your Honour. And the Prosecution
25 would ask or would plan, again, trying to balance -- is planning, my
Page 47
1 apologies, is planning to file a protective measures' motion that would
2 encompass nearly all of the witnesses or all of the witnesses that we
3 presently know about and intend to call by the middle of April. And we
4 are calculating that from the time that we believe our obligations in the
5 Milosevic have receded a bit and gives us about four weeks to make our
6 final contacts with the witnesses and to put together a comprehensive
7 application for protective measures. That, also, Your Honour, I believe
8 would give -- taking into account the time the Chamber would need to
9 decide that motion, would still allow us to complete the disclosure,
10 according to what I've proposed, on schedule.
11 JUDGE KWON: If the Registrar has the calendar with her right
12 now? Or... I note the 20th of July is -- I'm sorry. 19th of July is
13 Monday.
14 So Mr. Groome, what do you think about my ordering that 19th of
15 July is the deadline for 66(A)(ii) disclosure?
16 MR. GROOME: The Prosecution is grateful for that amount of time,
17 and we'll do our best to comply with it.
18 JUDGE KWON: Let's think about the -- I understand there's an
19 (Redacted)
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21 MR. GROOME: Your Honour, my learned friend Mr. Jovanovic had
22 asked that we deal with this matter in private session. I don't know if
23 Mr. Jovanovic wants to be heard on it first.
24 JUDGE KWON: Very well. Then let's go into private session,
25 please.
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22 [Open session]
23 JUDGE KWON: Thank you.
24 Do you think you can complete this disclosure earlier than the
25 66(A)(ii) disclosure, or you're suggesting to complete this at the same
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1 time?
2 MR. GROOME: I'm suggesting that it be put on the same schedule,
3 Your Honour, but I have a query that I would put to my colleagues that
4 may help us expedite this process. We've provided the Defence with
5 search terms that we believe will assist us in locating and identifying
6 Rule 68 material in our collection. Many of those search terms are the
7 same search terms that were used in the Milosevic case. If the Defence
8 agrees to accept the results of those search terms without a separate
9 review, the disclosure of Rule 68 material can begin sooner.
10 The difference in what they will receive is that they perhaps may
11 receive a few additional documents. There is material that may be Rule
12 68 in the Milosevic case that would not be Rule 68 material in this
13 particular case. I cannot imagine a situation where the reverse of that
14 is true. So if the Defence are willing to accept the results of our
15 search terms for the Milosevic case, we can begin almost immediately to
16 turn over a large portion of that Rule 68 material.
17 JUDGE KWON: I would very much encourage the cooperation in that
18 matter from the Defence. But is there any comment from the Defence on
19 this issue?
20 MR. KNOOPS: Your Honour, thank you for this opportunity to
21 remark.
22 At this moment, the Defence has no additional search terms
23 provided to the Prosecution. We cannot exclude, of course, that these
24 terms could emerge during the disclosure process. So we have to reserve
25 our right to file additional search terms. We did file, the Defence for
Page 54
1 Mr. Stanisic, did file a preliminary list with agreed and disputed facts.
2 Therefore, they could potentially enhire [sic] several search
3 terms. But at this stage, we have no additional remarks for the search
4 list.
5 JUDGE KWON: Thank you very much. Then, the same date will be
6 ordered as the deadline for the exculpatory material.
7 And then I'd like to hear any comments, report on expert reports
8 in this case.
9 MR. GROOME: Your Honour, just prior to the proceedings beginning
10 today, the Prosecution turned over the materials with respect to three of
11 the experts. We are in the process of completing the work with the
12 experts, the other experts.
13 JUDGE KWON: How many in all? I'm sorry to interrupt you.
14 MR. GROOME: We anticipate five experts all together,
15 Your Honour. So that would leave two. Not only have we provided today
16 the expert reports, but we've provided CDs with all of the underlying
17 documents that were relied on by some of the experts. I'm sorry, one of
18 the experts. All of the underlying that that expert relied upon. It's
19 our intention to disclose the others as soon as they come available. I'm
20 unable at this time to give the Court a definitive date as to when the
21 other two reports will be completed.
22 JUDGE KWON: Can it be safe if I order the same date for the
23 deadline of the expert also?
24 MR. GROOME: Certainly, Your Honour.
25 JUDGE KWON: I think I dealt with most of the important issues
Page 55
1 related to the disclosure. Are there any matters the parties wish to
2 raise at this moment?
3 MR. KNOOPS: There's one additional matter, Your Honour, the
4 Defence wants to point to, and I think it belongs to the confidentiality
5 of the provisional release motion, so I would respectfully request to go
6 to private --
7 JUDGE KWON: Let's go into private session.
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15 [Open session]
16 JUDGE KWON: Yes, Mr. Jovanovic.
17 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. Just a
18 brief comment with respect to disclosure pursuant to Rule 68. I consider
19 that something that can be brought under Rule 68 in this case does not
20 automatically mean that it can come under the same rule in a different
21 case, in the Milosevic case, for example. So I don't think any
22 automation ought to be applied. It oughtn't to be automatic.
23 I understand the importance in the Milosevic case, of course, and
24 the Prosecution's attitude towards it, the database that can be used for
25 other trials as well, such as witness statements and other exhibits and
Page 57
1 evidence with respect to the circumstances and facts. But I just simply
2 believe that we can't apply the criteria automatically, those that hold
3 true in the Milosevic case and this case, too. One must take all the
4 elements into consideration.
5 And just one more point with respect to the problem that I -- a
6 problem I encountered, and I brought this up at a meeting we had. The
7 Trial Chamber and you, Your Honour, are a member of that Trial Chamber
8 made a ruling that I be allowed access to transcripts and evidence from
9 the Milosevic trial. However, after that ruling, I approached the
10 registry in November and again in December, and called them up several
11 times on the phone asking them for a list of exhibits and witnesses that
12 were produced during the Milosevic trial and which related to Bosnia and
13 Croatia. I have received no response to the present day. So you gave me
14 access. You allowed me to have insight into them, whereas the registry
15 simply does not wish to inform me what witnesses were heard during the
16 Milosevic trial and which exhibits were tendered.
17 So let me repeat: I consider that I cannot rely on the website
18 of the Tribunal alone or the televised trial of the Milosevic case in
19 order to gain access to things that are relevant to me. So quite simply,
20 I would ask the registry to allow me to have access to that matter. I
21 have made the same motion with respect to the Samac case. The
22 Prosecution has not yet responded. I am awaiting their response. Thank
23 you.
24 JUDGE KWON: Thank you. I will look into the second matter. And
25 the first issue will be noted by the Prosecution. Yes.
Page 58
1 MR. GROOME: I don't mean to interrupt the Chamber, I just want
2 to make an observation regarding the Rule 68.
3 JUDGE KWON: Please go ahead.
4 MR. GROOME: Of course our Rule 68 obligation is unique to this
5 case, and we undertake it with full vigour. What I'm simply speaking
6 about are those search terms which are identical. And perhaps it will
7 help Mr. Jovanovic if I give a concrete example. One of the terms that
8 was searched, was, let's say, Red Berets for the Milosevic case, and all
9 the documents that had that word in it were then read by trained people
10 to identify any material that was exculpatory, or Rule 68, for the
11 Milosevic case. That would include any material that because of the
12 legal theory of that case that would have exculpated either Mr. Stanisic
13 or Mr. Simatovic.
14 So what I have proposed is that if Mr. Jovanovic will accept
15 those documents that are now ready to be given, we are willing to do that
16 almost immediately. If Mr. Jovanovic would prefer that we go through
17 those documents again and pull out those documents that are only
18 exculpatory to Mr. Milosevic and not to his client, then that will take a
19 considerable amount of time and will slow down the process. That is all
20 I'm suggesting when I made that proposal.
21 JUDGE KWON: Very well. Then the last issue will be the next
22 Status Conference.
23 MR. KNOOPS: Your Honour.
24 JUDGE KWON: Yes, Mr. Knoops.
25 MR. KNOOPS: Would you allow me to ask my client if he has other
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1 issues to be made before you --
2 JUDGE KWON: Yes, please.
3 MR. KNOOPS: -- close the session with a next date.
4 JUDGE KWON: Yes, please.
5 MR. KNOOPS: Thank you.
6 [Defence counsel and accused confer]
7 MR. KNOOPS: Thank you for your time. And sorry for the
8 interruption. Mr. Stanisic has no additional comments and questions to
9 the Chamber or the Prosecution. Thank you.
10 JUDGE KWON: Before we set the date for the next Status
11 Conference, given that the Prosecution was given sufficient time to
12 complete its obligation for disclosure, is it possible for the
13 Prosecution to file its pre-trial brief at the same date, which means the
14 end of July?
15 MR. GROOME: Yes, Your Honour.
16 JUDGE KWON: So 19th of July.
17 MR. GROOME: Yes, Your Honour.
18 JUDGE KWON: So it will be so ordered. Then can I ask the
19 Defence how much time you need for the preparation of pre-trial brief on
20 the Defence side after you receive the Prosecution's pre-trial brief? If
21 I can -- but that can be dealt with at the next Status Conference, not
22 right now.
23 MR. KNOOPS: So you don't want an answer yet right now.
24 JUDGE KWON: If you can, please.
25 MR. KNOOPS: I think we will confer together with respect to the
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1 time, if you don't mind. Thank you.
2 JUDGE KWON: Then the next Status Conference should be held
3 before 19th of May this year. And I think that's the deadline. So a
4 scheduling order will be issued when the time approaches, around 19th of
5 May.
6 Unless there's anything, this hearing is adjourned.
7 --- Whereupon the Status Conference adjourned
8 at 4.03 p.m.
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