Tribunal Criminal Tribunal for the Former Yugoslavia

Page 450

1 Thursday, 20 January 2005

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 3.03 p.m.

5 JUDGE KWON: Could the registrar call the case.

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

7 This is the case number IT-03-69-PT, the Prosecutor versus Jovica Stanisic

8 and Franko Simatovic.

9 JUDGE KWON: Appearances, please.

10 MR. GROOME: Good afternoon, Your Honour. Dermot Groome for the

11 Office of the Prosecutor, accompanied by Mr. David Re and Ms. Skye Winner,

12 our case manager.

13 JUDGE KWON: Thank you, Mr. Groome.

14 And for the Defence, please.

15 MR. KNOOPS: Your Honour, Geert-Jan Knoops, lead counsel for

16 Mr. Stanisic, and Ms. Melinda Taylor, legal assistant.

17 JUDGE KWON: Thank you.

18 MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honour. I am

19 attorney-at-law Zoran Jovanovic from Belgrade, appearing on behalf of

20 Franko Simatovic. Thank you.

21 JUDGE KWON: Thank you, Mr. Jovanovic.

22 It was on 23rd of September, last year, that we had the last

23 Status Conference. And since then I don't think there are many

24 developments; however, we'll go through several issues. It is my

25 understanding that there are no pending motions. Am I right?

Page 451

1 MR. GROOME: Not from the Prosecution, Your Honour.

2 MR. KNOOPS: No motions pending from the Defence in the case of

3 Mr. Stanisic, Your Honour.

4 JUDGE KWON: There are none.

5 I'm very pleased to note that the pre-trial briefs are submitted

6 in a timely manner from the Prosecution on 19th July last year with

7 corrigendum on 22nd July. And the Defence submitted their pre-trial

8 briefs on 18th of this month. However, I have to note and bring it to the

9 attention of the parties that the pre-trial brief of Mr. Stanisic was

10 filed confidentially and ex parte.

11 Can I hear from Mr. Knoops the reason for that, the reason being

12 why it has to be filed confidentially and in -- I think we can deal with

13 it in open session. Not -- without going into detail, and in particular

14 the reason for being ex parte. If you -- Mr. Knoops, you want to discuss

15 it in private session, you can say so.

16 MR. KNOOPS: Your Honour, I can just say that Your Honour is

17 familiar with the fact that certain Rule 70 materials are disclosed to the

18 Defence and which are now made part of the pre-trial brief. And we are

19 under an obligation to file these materials even indirectly, when they are

20 indirectly referred to on a confidential and ex parte basis. That is the

21 only reason why we were obliged to file the brief confidentially ex parte.

22 Because throughout the whole brief reference is made on several -- in

23 several sections to Rule 70 materials. And it makes for us problematic to

24 distinguish between non-confidential and confidential parts of the brief.

25 Therefore, we opted to file it in its entirety as a confidential ex parte

Page 452

1 document.

2 JUDGE KWON: I wonder -- yes, whether you have --

3 THE INTERPRETER: Microphone for the President, please.

4 JUDGE KWON: Thank you.

5 I wonder if you have endeavoured to get the permission from the

6 provider to disclose it to the co-accused.

7 MR. KNOOPS: We did, Your Honour, but without going into further

8 details in that respect, I would ask you to go into private session. But

9 I can only state in public that this obligation we are under as Defence,

10 this legal obligation, contractual obligation, also extends to the

11 disclosure of material to the co-defendant.

12 JUDGE KWON: At first I was concerned that in the future the

13 Defence of Stanisic may be asking the severance of the case, but it is not

14 the case?

15 MR. KNOOPS: No.

16 JUDGE KWON: I notice Mr. Groome was on his feet.

17 MR. GROOME: Your Honour, I did see what were, I thought, two or

18 three references to Rule 70 material. It would be the Prosecution's

19 position that in the interest of the public nature of the proceedings that

20 Mr. Knoops be required to file a redacted copy of his pre-trial brief that

21 eliminates the -- or redacts the references to the Rule 70 material.

22 JUDGE KWON: Thank you, Mr. Groome. That was exactly what I was

23 going to say.

24 Is it possible for the Defence?

25 MR. KNOOPS: That's possible, Your Honour.

Page 453

1 JUDGE KWON: And that's the -- would be in the interest of the

2 co-accused, I would say.

3 MR. KNOOPS: I hope so. That our arguments also may benefit for

4 the co-accused. So I have no problem confirming that with the accused,

5 with the client. And if that is convenient we will file a redacted form.

6 JUDGE KWON: So that -- whether it be called redacted, unredacted,

7 or public version, when do you think you can file it?

8 MR. KNOOPS: Say within a week.

9 JUDGE KWON: Two weeks time.

10 MR. KNOOPS: Two weeks okay, yes.

11 JUDGE KWON: Then we shall move on to the matter -- issue of

12 disclosure briefly. I don't think there are serious issues in relation to

13 66 disclosure. If you can briefly brief me on the status, Mr. Groome.

14 MR. GROOME: Your Honour --

15 JUDGE KWON: 66.

16 MR. GROOME: There were no outstanding issues. Mr. Knoops in his

17 brief yesterday raised a couple of matters which I've asked Ms. Skye

18 Winner to investigate overnight and I just have a report on those. So if

19 it pleases the Court, I will run through those three items.

20 JUDGE KWON: Yes. I was able to read that part as well, so if you

21 could respond to that.

22 MR. GROOME: One of the issues was the translations of some

23 intercepts, the English translations of the original B/C/S intercepts.

24 These English translations to these documents had been previously provided

25 on the DVDs which had been provided to the Defence. When I read this

Page 454

1 query by Mr. Knoops, I did some investigation and was somewhat surprised

2 to learn that English translations of original B/C/S documents are not

3 always on the EDS system. They have not made the system current to

4 include those yet. It is still a project that is being worked on. To

5 facilitate the Defence's ability to get to those translations, however,

6 Ms. Winner has provided another CD with a complete set of the transcripts

7 of the intercepts in their original B/C/S, in their English translation,

8 and has formulated a complete index which should make it quite easy for

9 the Defence to put their hand on the English translation.

10 JUDGE KWON: So it has been already provided to the Defence?

11 MR. GROOME: It has been already provided.

12 JUDGE KWON: It can be confirmed by the Defence right now?

13 MR. KNOOPS: You're referring to the CD-ROMs just provided?

14 MR. GROOME: Yes.

15 MR. KNOOPS: Yes, they've just been provided, Your Honour.

16 JUDGE KWON: Yes. And then General Vasiljevic's interviews?

17 MR. GROOME: Previously the Prosecution had provided the Defence

18 with a video of the interviews which were conducted both in English and in

19 B/C/S. We are now in possession of an English transcript of the video and

20 for the convenience of Defence we have provided that today.

21 However, Ms. Winner, in checking the disclosure with respect to

22 General Vasiljevic, has discovered that there is another

23 interview that was conducted by a member of the Office of the Prosecution

24 on the 8th of February, 2002, which had not been previously disclosed. An

25 English copy of that transcript was provided today and a copy of the

Page 455












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 456

1 videotape will be disclosed to both accused before the end of January.

2 JUDGE KWON: I hope that will resolve the matter.

3 Any comments on that from the Defence?

4 MR. KNOOPS: No, Your Honour. I can confirm that we received the


6 JUDGE KWON: Mr. Jovanovic?

7 MR. JOVANOVIC: [Interpretation] The same applies to me, Your

8 Honour. I have no questions to raise in relation to this matter.

9 JUDGE KWON: Thank you.

10 Other matters.

11 MR. GROOME: Your Honour, the third query raised by Mr. Knoops in

12 his brief had to do with the status of some translation of some documents

13 referred to in the Prosecution pre-trial brief. These documents are now

14 translated and have been turned over today, and they number 94 documents.

15 I would remind the Chamber, however, that we are still outstanding

16 143 exhumation documents or missing person reports. They have been

17 provided in B/C/S. For the most part these documents just contain

18 information about the name of the victim and certain information which is

19 easily discernible even without the translation.

20 I would also inform the Court that we are getting most of them

21 back, and they are in the process now of just being redacted to see if

22 there is any witness address information or any information which should

23 be redacted from them before they are disclosed. So I would expect by the

24 end of February or sometime sooner all of those 143 exhumation reports

25 will have been turned over in their English translation.

Page 457

1 JUDGE KWON: Very well.

2 Previously I was informed the number of reports was 154.

3 MR. GROOME: Yes, Your Honour. That's why I'm an attorney and not

4 a mathematician. It was my subtraction which was in error. But it is

5 143, and again we hope to have them available before the end of February.

6 JUDGE KWON: What would be the situation in relation to the SDS

7 Assembly minutes?

8 MR. GROOME: As I noted in my pre-trial remarks, they have --

9 translation has been requested of those. It's been requested some time

10 ago. Because of it volume of work that CLSS is facing, it has been

11 assigned a low priority. Many of those sessions are exhibits in pending

12 trials now. So it is my hope that because they are needed for cases that

13 are ongoing now, that it will be -- their priority will be elevated. But

14 I have little control over the priority that they are being given

15 currently in terms of being translated.

16 JUDGE KWON: Very well. If you can comment on the Defence request

17 for hard copies of Rule 66 materials.

18 MR. GROOME: Your Honour, there's just one other disclosure

19 matter, if I might, before --


21 MR. GROOME: If it pleases the Court, just to conclude this

22 portion.

23 Mr. Knoops also raised the point of footnote 291 in the

24 Prosecution pre-trial brief which was a document he was not in possession

25 of. That has been turned over today as well.

Page 458

1 JUDGE KWON: Thank you.

2 MR. GROOME: Now, with respect to hard copies, Your Honour, as the

3 Court is well aware the ICTY as an institution is moving towards an

4 electronic courtroom and electronic disclosure. All of these documents

5 have been provided on a CD-ROM and most of them in the EDS system, but for

6 the exception -- some exceptions. So the Prosecution is not in the

7 position to dedicate the resources that would be required to print them

8 out and organise them for the Defence.

9 I would also note that a year ago we had a Status Conference on

10 this case, and I had first proposed at that stage about the electronic

11 disclosure and it was fully discussed, and both the Defence counsel agreed

12 to receiving the material in electronic format then. Since that time now

13 it has become a policy of the Tribunal to deal with these matters

14 electronically, and so I must decline Defence's request to produce hard

15 copies of all those materials.

16 JUDGE KWON: Is the problem actually the matter who will take the

17 burden of locating the documents and making photocopies of them?

18 MR. GROOME: Well, Your Honour, the documents are all provided now

19 on CD-ROMs. If the Defence want a copy of that, they can simply print out

20 those documents and they will have them, or perhaps come to some

21 agreement with the Registry that somebody else -- that's sent out to some

22 outside vendor to print those documents. But the Prosecution does not

23 maintain a hard copy of what Mr. Knoops has in electronic format. We have

24 the exact same electronic format. So in terms of the mechanics of taking

25 those electronic files and printing them and putting them into binders

Page 459

1 there is absolutely no savings of work. It would require us the exact

2 same amount of time. And as Mr. Knoops pointed out in his brief

3 yesterday, he estimates that that would be several hundreds of hours of

4 work. That's not a resource that I have available to me at this time to

5 do that.

6 JUDGE KWON: Mr. Knoops' suggestion seems to be that in the

7 Prosecution's office there must be hard copies and making a photocopy of

8 them they be easier than printing out them -- the documents, but it is not

9 the case as you put it just now?

10 MR. GROOME: Yes, Your Honour. It would be tantamount to saying

11 go down to the library and find the book and then take the book and

12 photocopy it. If Mr. Knoops is looking for the most efficient way to make

13 hard copies, I would suggest that the simplest and most efficient way is

14 to simply print them from the disk. They are the exact same ones that may

15 be scattered in files in other cases. That would be even a more enormous

16 task, to go and pull out the discovery -- in other cases identify the

17 particular documents that have been provided electronically and then to

18 make photocopies of them.

19 JUDGE KWON: And it is only for my information. But is search

20 possible in that CD?

21 MR. GROOME: Yes, they are searchable CDs, Your Honour.

22 JUDGE KWON: They are not just scanned documents?

23 MR. GROOME: Some of them are image files, Your Honour, but they

24 are organised by the witness to who they pertain to. So Ms. Winner has

25 organised that CD, so each witness has their own independent folder and

Page 460

1 all the disclosure falls in under that witness. So it is not a matter of

2 the documents being provided in any disorganised way.

3 JUDGE KWON: Thank you, Mr. Groom.

4 Mr. Knoops, any observations?

5 MR. KNOOPS: Your Honour, if I may, the reference the Prosecutor

6 makes to our remark a year ago, that's of course correct. But since then

7 the Defence is confronted with a growing amount of documents and therefore

8 this request was made in view of the growing amount of documents. The

9 problem for us still remains the search of certain documents on the

10 CD-ROMs, especially for the accused where I also ask your attention to his

11 medical situation. Perhaps we can come later to that issue.

12 We were under the impression that most of the materials referred

13 to in this case were identical or almost identical to the materials served

14 in the case as mentioned in my brief in -- on page 6 under section D. And

15 perhaps that -- if that is the case, that Defence is allowed to get copies

16 of the materials available from the Prosecution already in a printed form.

17 With respect to the preparation of the Defence and the trial, it

18 simply seems to be far more efficient to have the printed version of

19 certain documents. And indeed it -- our modest estimation is that it will

20 indeed take several hundred hours for the Defence to print all the

21 documents out. Yet, we have to go through all these documents with the

22 accused. And also in the interest of his position this request is made.

23 And I ask specifically your attention, Your Honour, to footnote 5 of our

24 brief on page 6 belonging to section D, whereby we interpreted the current

25 situation as embracing the obligation of the Prosecution to disclose hard

Page 461

1 copies of the -- at least the Rule 66 materials. We do agree that such an

2 obligation does not exist or cannot be interpreted pursuant to Rule 68,

3 but we hold the view that the Rule 66 materials should be provided to the

4 Defence in a hard copy form.

5 JUDGE KWON: Sorry to interrupt you, Mr. Knoops. I don't think we

6 can go further when the Prosecution is saying that they don't have the

7 hard copies either. They may have some materials, witness statements, and

8 making photocopy of them may be easy. But in relation to the items they

9 don't have in possession, there would be some difficulty. Printing out

10 from the CD-ROM is maybe much easier.

11 MR. KNOOPS: Well, also considering the quite restricted -- the

12 Defence is working under, we would like to forward the suggestion to the

13 Honourable Trial Chamber to look for a possibility that within the

14 Tribunal there will be a facility for printing out materials for

15 Prosecution and Defence.

16 JUDGE KWON: Thank you.

17 MR. KNOOPS: Just a request and a suggestion.

18 JUDGE KWON: Since this matter involves a very interesting issue,

19 whether the obligation on the part of the Prosecution is satisfied by

20 e-disclosure or whether they have to further provide hard copies, I think

21 the matter is in the end for the Chamber to decide. But before that, if

22 the parties can negotiate and make the best of it, and then, Mr. Knoops,

23 it is for you to draw the matter to the attention of the Chamber and then

24 the Chamber will consider the matter.

25 MR. KNOOPS: Thank you, Your Honour, for your consideration.

Page 462

1 Thank you.

2 JUDGE KWON: And expert report, it's done, and except for the

3 translation of Dr. Tabeau's report.

4 MR. GROOME: That's correct, Your Honour.

5 JUDGE KWON: And --

6 MR. GROOME: It has been requested and as soon as it is available

7 it will be disclosed.

8 JUDGE KWON: And in his memorandum, Mr. Knoops suggested that

9 Prosecution to draft a list of suggestions which the Defence would

10 consider in due course. Is the Prosecution minded to do that?

11 MR. GROOME: Your Honour, are you referring to the suggestion with

12 respect to 92 bis or with respect to adjudicated facts?

13 JUDGE KWON: Agreed facts and adjudicated facts.

14 MR. GROOME: If I could answer the Court's question with perhaps a

15 question to the Court. After reading the pre-trial brief of Mr. Knoops,

16 there are facts, there are assertions in there that the Prosecution would

17 be prepared to agree to. One of the ways we could proceed, and I want to

18 seek the Chamber's guidance on this, if I file an application indicating

19 which assertions that are made in that pre-trial brief that the

20 Prosecution will not contest, will agree to, is the Chamber prepared to

21 rule on that and make those agreed facts for the purposes of this trial?

22 JUDGE KWON: Or you can also put some questions to the Defence

23 whether they agree or not.

24 MR. GROOME: I thought this might be more expedient since I

25 already have what Mr. Knoops has asserted to be a fact; for example, this

Page 463

1 law existed and it meant this, that if I were to say, okay, the

2 Prosecution agrees with that, does not contest that, that that could then

3 become a fact that does not have to be litigated at the trial. Perhaps

4 that would be a expedient way to at least identify some of the clearly

5 uncontestable facts.

6 JUDGE KWON: Speaking from myself, I think we need some more

7 specific agreement by the parties.

8 Any observation from Mr. Knoops?

9 MR. KNOOPS: Well, Your Honour, I support the suggestion of the

10 Prosecution that first step to come to a potential agreement on the 92 bis

11 materials but also the agreed and stipulated facts could be that the

12 Prosecution based on the pre-trial brief indeed indicates what they can

13 agree or cannot agree. And I think I recall the session, the last

14 Rule 65 ter conference session whereby I proposed to the legal officer of

15 your Honourable Trial Chamber to first file a pre-trial brief and enable

16 the Prosecution to assess the brief in view of potential agreed or

17 disputed facts. So in line with this status -- this Rule 65 ter

18 conference, that could be the first step to come to some mutual agreement

19 on certain agreed and stipulated facts. I do agree, of course, with your

20 Honourable Trial Chamber that it would probably not be the end list, but

21 it could be a first -- first start.

22 Thank you.

23 JUDGE KWON: To prompt the procedure, I would be encourage the

24 Prosecution to initiate the procedure to produce some agreed facts.

25 MR. GROOME: We will do that, Your Honour. Thank you.

Page 464

1 JUDGE KWON: Yes, Mr. Jovanovic.

2 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. In

3 relation to this issue, I would like to point out that if there are facts

4 that my colleague Mr. Groome would be disposed to agree to, facts in the

5 pre-trial brief, then Franko Simatovic's Defence must also be informed

6 about this, because agreed facts is something that concerns all parties.

7 I'm not sure how we can verify this, given the fact that the motion was

8 filed confidentially and ex parte.

9 JUDGE KWON: That is a matter, of course. And you will be handed

10 over the public version excluding the Rule 70 matters in due course, very

11 soon, I would assume.

12 I think I've done all of my agenda I've noted down. Is there any

13 further matters for the parties to raise?

14 MR. GROOME: Your Honour, just related to this, Mr. Knoops also

15 raised the issue of 92 bis. I do have some observations on that if it

16 pleases the Court now.

17 JUDGE KWON: Yes, please.

18 MR. GROOME: I believe Mr. Knoops's position on this matter is

19 that if the Prosecution would indicate to the Defence which particular

20 portions of a witness's testimony it will seek to introduce via 92 bis,

21 then the Defence will be in a position to indicate its agreement or

22 challenge of that particular mode of taking the witness's testimony.

23 Can I ask my learned colleague if that accurately reflects his

24 position on that matter?

25 JUDGE KWON: Yes, please. I didn't follow that part.

Page 465

1 Mr. Knoops.

2 MR. KNOOPS: Thank you, Your Honour. Thank you for the question,

3 my learned colleague.

4 Indeed it's the suggestion -- it's the suggestion from the side of

5 the Stanisic Defence, that confronted with the potential list of Rule 92

6 bis materials it could be a start that the Prosecution perhaps could

7 indicate whether the Rule 92 bis materials they intended to admit will

8 comprise certain statements as a whole or certain statements by way of

9 portions. We don't have, in other words, any indication as to the amount

10 of Rule 92 bis materials as referred to in the Rule 65 ter witness list of

11 the Prosecution. So the only thing we ask for is perhaps some more

12 specific guidance from the side of the Prosecution as to the amount of the

13 92 bis materials and perhaps the portions of certain materials, or perhaps

14 that the Prosecution thinks to file all of the materials mentioned here in

15 its entirety at trial. And based on this guidance, the Defence is able to

16 indicate whether or not they can admit to the Rule 92 bis materials, which

17 the Prosecution intends to file.

18 I hope that I clarified the point.

19 MR. GROOME: Your Honour, if I could give the Prosecution's

20 response to that.

21 JUDGE KWON: Yes. Whether it is intending -- it is minded to

22 introduce 92 bis statement at all, yes, please.

23 MR. GROOME: On the 9th of July last year, the Prosecution filed a

24 document entitled Prosecution's list of witnesses pursuant to 65 ter

25 (E)(ii). That document contained a summary of the testimony of each of

Page 466

1 the witnesses that the Prosecution intends to call. It also included a

2 table indicating which witnesses the Prosecution will be seeking to admit,

3 at least part of their testimony under the Rules of 92 bis or 89(F). If

4 you look at the summary of any of those witnesses who we have indicated it

5 is our intention to make use of 92 bis, you will see that some of the

6 summary is printed in italics and some is printed in standard text. Any

7 of the text that has been printed in italics is that portion of the

8 testimony that the Prosecution will seek to introduce via 92 bis. So if

9 the Defence can review that document and indicate to the Prosecution which

10 of those italics portions it is to willing to agree be taken under 92 bis,

11 which ones it will seek to challenge, we will then be in a position then

12 to bring appropriate submissions and applications before the Trial

13 Chamber.

14 JUDGE KWON: Mr. Groome, did you indicate at that -- in the

15 document dated 9th of July whether Prosecution is going to introduce those

16 statements without cross-examination or not?

17 MR. GROOME: Yes, Your Honour. I have a copy of the table - if it

18 helps the Court, and I believe -- I think one is being handed up to you

19 now - for each witness the Prosecution has indicated whether it is our

20 intention to take the evidence viva voce, completely 92 bis, or partially

21 92 bis'd. For those witnesses that we've indicated will be partially

22 92 bis'd or entirely 92 bis'd, if you look at their summary later in the

23 document you will see that the paragraphs that are italicised are those

24 paragraphs which the Prosecution submits would be appropriately taken

25 under 92 bis.

Page 467

1 JUDGE KWON: Will that answer be sufficient to Mr. Knoops?

2 MR. KNOOPS: Thank you, Your Honour. That clarifies the position

3 of the Prosecution and enables the Defence to respond. Thank you.

4 JUDGE KWON: Any other matters?

5 Is there any other matters for the parties to raise?

6 Mr. Jovanovic.

7 MR. JOVANOVIC: [Interpretation] Your Honour, in relation to

8 disclosure, I have nothing further to say. However, the Defence has

9 informed the OTP, given the fact that we did not hold a 65 ter meeting,

10 about an issue that we wish to raise. The same has been done by my

11 colleague, Mr. Knoops.

12 We have a list of 24 persons submitted to the Defence team by the

13 Republic of Serbia, Ministry of Justice. These persons are persons that

14 the indicted must not get in touch with during the --

15 MR. GROOME: I'm not able to hear the translation anymore. I

16 don't know if anyone else is experiencing the same problem.

17 JUDGE KWON: I'm hearing. But you have to turn up the volume.

18 If Mr. Jovanovic says some words in order for Mr. Groome and

19 others to follow.

20 MR. JOVANOVIC: [Interpretation] Of course. Of course.

21 I will repeat. The issue that the Defence wishes to raise at this

22 time --

23 JUDGE KWON: Are you following, Mr. Groome?

24 MR. GROOME: Yes, Your Honour.

25 JUDGE KWON: If you could repeat.

Page 468

1 MR. JOVANOVIC: [Interpretation] Of course, of course, Your Honour.

2 The Defence wishes to raise the following question. It's about a

3 list containing the names of 24 persons submitted to the Defence by the

4 Ministry of Justice of the Republic of Serbia. The list actually contains

5 the names of persons that the accused must not contact during their

6 provisional release. The list was submitted at the request of the

7 Defence. The Defence has managed to find out that such a list is in

8 existence and that it was submitted to members of the Ministry of Interior

9 of the Republic of Serbia at a meeting with representatives of the ICTY in

10 Belgrade.

11 This list was forwarded to the Defence 25 days after it was given

12 to the Ministry of Interior of the Republic of Serbia. It contains, as I

13 said, 24 names. Only a few of the names are the same as those mentioned

14 on the 65 ter list of the OTP. The remaining persons were not indicated

15 as potential witnesses pursuant to 65 ter. In relation to some of these

16 persons, there is no indication whatsoever of these persons in the OTP's

17 pre-trial brief. Therefore, this begs the question: What is the status

18 of these persons? And why exactly is the OTP trying to prevent the

19 accused from contacting these persons in that case. What the Defence

20 wants to know is whether the OTP has any particular status in mind for

21 these persons and what the role of these persons will be in the course of

22 further proceedings.

23 I will confine myself to citing two examples in relation to

24 problems that may or may not arise from these actions. No motion was

25 addressed to the Chamber that the Defence would then respond to. It was

Page 469

1 forwarded directly to the police by the ICTY office in Belgrade, and

2 immediately after the Defence team found out that such a list was in

3 existence we filed a request for the list to be forwarded to us, noting

4 also that we would be raising this issue at a Status Conference before the


6 In relation to one person, the name was stated incorrectly;

7 therefore, the Defence can only assume who this person is. In relation to

8 a different person, his function or official position is cited as

9 financier. This is something that is not indicated in the pre-trial

10 brief. This person is a close relation of one of the accused, and for 25

11 days he had not been informed that he was not supposed to contact this

12 person. Fortunately, this person currently resides abroad, so therefore

13 no contact was ever established.

14 So what the Defence wishes to have is an update on the exact

15 status of these persons, and if any changes have been made to their

16 status, we would want to know whether they would have any role in these

17 proceedings.

18 What follows is that statements by these persons should be

19 discussed. If indeed these persons do not have the status of witnesses in

20 this case, the question remains why there must be no contact between the

21 accused and these persons.

22 In relation to another issue that was raised in this letter in

23 relation to the fear that exists for the personal safety of the accused

24 Franko Simatovic, the Defence contacted the OTP before this Status

25 Conference, and we have obtained all the information that we deemed

Page 470

1 necessary. Therefore, we no longer have a need to swell on this

2 particular issue. Thank you.

3 JUDGE KWON: Thank you, Mr. Jovanovic.

4 Yes, Mr. Knoops.

5 MR. KNOOPS: Your Honour, I was indeed also about to raise this

6 matter, but I was under the impression that you first wanted to deal with

7 the whole agenda for today. But as you may have noted, the Defence in the

8 case of Mr. Simatovic did address the same issue in our brief of yesterday

9 under section A, in which section we also elaborated on the potential

10 ramifications of this so-called order. And we also delineated our view

11 that this so-called order is violating the rules of your Tribunal. And

12 also we indicate that we feel seriously endangered by this action which

13 also is potentially undermining the proper Defence preparation. And

14 therefore we proposed in the Defence of Mr. Stanisic for the prompt

15 intervention of the Honourable Trial Chamber or, alternatively, we are

16 ready file and are able to file a motion to this extent because we think

17 this relates to a very principal matter which goes at the heart of the

18 Defence preparation. And therefore you find on pages 1 until 3 of our

19 brief several suggestions to that extent. And our brief in section A

20 closes with the readiness of the Defence to file an official motion to

21 that extent which could enable your Honourable Trial Chamber to rule on

22 this rather fundamental issue.

23 Thank you.

24 JUDGE KWON: To clarify, it is different from the regime of

25 protection of a witness?

Page 471

1 MR. KNOOPS: Yes.

2 JUDGE KWON: And speaking for myself, I have never heard of this

3 kind of list or order. And, Mr. Knoops, you suggested there for reasons

4 of judicial economy you suggest the Chamber to resolve the matter without

5 filing a written motion. But given the significance of the matter, I

6 would rather encourage the parties to put it in a written filing in order

7 for the Chamber to consider the matter.

8 But before that, if you have anything to say, Mr. Groome on this

9 matter.

10 MR. GROOME: Your Honour, it was brought to my attention in

11 Mr. Knoops's briefing yesterday when I was provided also a copy of the

12 letter and Mr. Jovanovic earlier today provided me with a copy of the

13 letter he received. I have found out some details, but if it is the

14 Court's wish to take this important matter in writing, it probably is

15 better for me to further investigate what exactly occurred and to put it

16 in a written submission to the Court.

17 JUDGE KWON: But if you could tell us what it is about briefly and

18 orally now.

19 MR. GROOME: Well, what I have been able to discover, Your Honour,

20 is that after the Appeals Chamber affirmed this Trial Chamber's

21 provisional release of the two accused in Belgrade, the field office of

22 the ICTY was contacted by members of the Serbian/Montenegrin government,

23 and they formally requested that that representative of the Tribunal

24 provide them with the names of all the witnesses, including the protected

25 witnesses, in this case. That person forwarded that request to the

Page 472

1 investigator responsible for the case. That investigator thought it was

2 inappropriate to, in that manner, disclose the names of protected

3 witnesses and declined to do so, but did offer a list of names of people

4 that he thought there might be some concern if there was contact between

5 the accused and these people. And that information was then in turn

6 provided to the government officials that requested it.

7 The OTP did not initiate this correspondence. It was a request by

8 the government. And OTP has made no request whatsoever to the government

9 with respect to restricting any additional restrictions on the accused

10 outside of what the Court has ordered.

11 What I might contribute to this discussion is in fairness to the

12 government is that aside from their undertakings to the Chamber, they also

13 have a legitimate police function to perform and to protect their

14 citizens. When these two gentlemen were provisionally released, there was

15 some reaction in Belgrade; in fact, one of the most prominent human rights

16 activists publicly stated that she had information that these two men had

17 engaged in the intimidation of witnesses.

18 It's not for -- I would urge the Court to get more information

19 from the government of Serbia, I think that in the event that they may be

20 more involved here. Again, they may be exercising legitimate lawful

21 restrictions completely aside from what -- and not simply just simply

22 interpreting the Chamber's order.

23 From the Prosecution's view, we have no role to play in the

24 regulation of the terms of their provisional release. The Court has

25 issued a clear order on that. If the government of Serbia and Montenegro

Page 473

1 were hoping that the Prosecution would clarify your order, well, that is a

2 misdirected request. We have no role to play in that and believe that

3 it's a matter between the Chamber, the Defence, and the governmental

4 authorities.

5 JUDGE KWON: Thank you, Mr. Groome.

6 I would prefer the matter to be taken more seriously and prudently

7 by way of written filing, unless the parties wish to raise urgently at

8 this stage.

9 MR. KNOOPS: Your Honour, we are ready to file a motion already

10 next week to this extent.

11 JUDGE KWON: Yes. The Chamber will consider the matter.

12 Any other matters?

13 MR. KNOOPS: Sorry --

14 MR. GROOME: After you, sir.

15 MR. KNOOPS: The final matter is probably not for a public session

16 to elaborate on but just to draw the attention of the Trial Chamber to --

17 JUDGE KWON: I've noted the -- some confidential matters you've

18 raised in your brief.

19 MR. KNOOPS: Yes.

20 JUDGE KWON: But --

21 MR. KNOOPS: If --

22 JUDGE KWON: My question is whether you have to raise it in a

23 Status Conference or is it enough for you to file a written filing drawing

24 the attention of the Chamber to what you've written down in your brief?

25 MR. KNOOPS: Thank you, Your Honour.

Page 474

1 The letter is indeed the case. This is for just by way of

2 information of the Honourable Trial Chamber and the Prosecution about the

3 status quo on the specific topic. I refer to section D of my brief. I

4 will not rephrase it in public. If the Trial Chamber appreciates, and the

5 Prosecution, we can file the whole report we referred to in section B of

6 our brief in its entirety with a motion to the extent as suggested in our

7 brief. But we thought it is appropriate to raise the matter -- at least

8 bring the matter to the attention of Your Honour in a view of the topic

9 which was also on the agenda on the anticipated length of the trial,

10 et cetera. So we are happy to leave it as it is, bring it to your

11 attention, and we can deal with the topic in a written filing.

12 JUDGE KWON: Yes, please.

13 Mr. Groome.

14 MR. GROOME: Your Honour, I would ask that any request to change

15 the conditions of provisional release be done in writing so we can have a

16 full opportunity to respond carefully to it.

17 JUDGE KWON: The Prosecution didn't respond to the earlier motion

18 from the Defence in relation to the variance -- variation of the status in

19 relation to the provisional release?

20 MR. GROOME: Yes, Your Honour, we took no opposition to that, but

21 this seems to be somewhat different. If Mr. Knoops is seeking an oral

22 variation of that order, the Prosecution would like to know more details

23 about where it is proposed that the accused is permitted to go and for

24 what period of time and perhaps some further assurances from the

25 government that they will be able to fulfill their obligations to the

Page 475

1 Chamber.

2 JUDGE KWON: Sorry. I'd like to be clear about this. You're

3 referring to his visit to his mother's grave?

4 MR. GROOME: No, Your Honour. What I'm referring to at this point

5 is what Mr. Knoops has referred to just recently and is in his brief about

6 the accused being allowed to leave Belgrade for additional medical care.

7 It is that matter.

8 JUDGE KWON: Thank you.

9 It will be put into writing?

10 MR. KNOOPS: Yes, Your Honour, we will put it into writing.

11 JUDGE KWON: So the Prosecution will be able to respond to that.

12 MR. KNOOPS: Yes.

13 JUDGE KWON: Thank you.

14 MR. GROOME: I have one additional matter.

15 JUDGE KWON: Yes, please.

16 MR. GROOME: It has recently come to my attention that the

17 Stanisic Defence has made contact with a former member -- a former senior

18 member of the Office of the Prosecutor and solicited confidential

19 information about events surrounding the surrender of another accused.

20 I'm not sure to what end this was done, but I must insist if there is

21 information that the Stanisic Defence believes is important, relevant, and

22 is in possession of the Office of the Prosecutor or has to do with former

23 employees acting in their official capacity, that he make an official

24 request, rather than soliciting it from employees who are still bound by a

25 duty of confidentiality.

Page 476

1 JUDGE KWON: Defence must have heard that.

2 MR. KNOOPS: Yes, that's correct, Your Honour. But it was in no

3 way meant to circumvent any rule, and we were already notified by the

4 particular person to make an official filing to that extent. So we will

5 ask the Prosecution officially to perhaps cooperate on this issue, which

6 is already referred to in the pre-trial brief. Thank you.

7 JUDGE KWON: Are there any other matters for the Defence to raise?

8 MR. JOVANOVIC: [Interpretation] No. Thank you, Your Honour.

9 JUDGE KWON: Final matter will be the next Status Conference. I

10 was informed that that would be 20th of May, 2005. I would like to have

11 it on Thursday, 19th of May, at 3.00. If there -- should there be a

12 change, I'll let the parties know.

13 The hearing now -- is now adjourned.

14 --- Whereupon the Status Conference

15 adjourned at 3.52 p.m.