Tribunal Criminal Tribunal for the Former Yugoslavia

Page 601

1 Wednesday, 21 March 2007

2 [Open session]

3 [The accused not present]

4 [Status Conference]

5 --- Upon commencing at 10.02 a.m.

6 JUDGE HOEPFEL: Good morning, everybody.

7 Madam Registrar, would you please call the case.

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

9 IT-03-69-PT, The Prosecutor versus Jovica Stanisic and Franko Simatovic.

10 JUDGE HOEPFEL: Thank you.

11 The appearances, please.

12 First the Prosecution.

13 MS. BREHMEIER-METZ: Good morning, Your Honour, for the

14 Prosecution trial attorney Doris Brehmeier-Metz, accompanied by trial

15 attorney Gregory Townsend, legal officer, Klaus Hoffmann, and case

16 manager, Carmela Javier.

17 JUDGE HOEPFEL: Thank you.

18 And Mr. Knoops.

19 MR. KNOOPS: Good morning, Your Honour. For the Defence of

20 Mr. Stanisic, Ms. Anne-Marie Verwiel, legal assistant in our case, and

21 myself, Geert-Jan Knoops, lead counsel.

22 JUDGE HOEPFEL: Thank you.

23 MR. JOVANOVIC: [Interpretation] Good morning, Your Honour. My

24 name is Zoran Jovanovic, Attorney-at-law, and I'm Defence counsel for the

25 accused Franko Simatovic. Thank you.

Page 602

1 JUDGE HOEPFEL: Yes, thank you. Mr. Jovanovic.

2 So welcome to this Status Conference, especially Doris

3 Brehmeier-Metz for the Prosecution who is now in charge of this case, as

4 Mr. Re is on a different case now. And the rest of the team seems to be

5 all new.

6 MS. BREHMEIER-METZ: That is correct, Your Honour.

7 JUDGE HOEPFEL: So for both accused themselves, as earlier, there

8 are still the Trial Chamber's decisions of 28 July 2004 in force, granting

9 them provisional release but requiring that the accused "remain within the

10 confines of the municipality of Belgrade," and "report each day to the

11 police in Belgrade at a the local police station to be designated by the

12 Minister of Justice."

13 I'm also reminding of the further conditions by just highlighting,

14 among others, the requirements for both accused, "not to have any contact

15 with the co-accused in the case; not to have any contact whatsoever in any

16 way interfere with any victim or potential witness or otherwise interfere

17 in any way with the proceedings or their administration of justice; and

18 not to discuss this case with anyone, including the media, other than with

19 his counsel, his respective counsel."

20 May I ask the Defence if the addresses of any of both accused have

21 been changed recently. Where is Mr. Stanisic living these days? May I

22 just clarify?

23 MR. KNOOPS: Your Honour, if the Court reminds from the

24 application to review the indigency decision of the registry, Mr. Stanisic

25 is not longer living in his residence where he lived before, due to the

Page 603

1 complications as set out in the application to review the indigency

2 decision.

3 As I recall, we did inform the Court about his new address. It is

4 in Belgrade.

5 JUDGE HOEPFEL: And this information is still correct, is still --

6 MR. KNOOPS: Yes, Your Honour. It's still correct.

7 JUDGE HOEPFEL: Thank you. And also nothing new with

8 Mr. Simatovic.

9 MR. JOVANOVIC: [Interpretation] That's right, Your Honour.

10 Mr. Simatovic still resides at the address that was specified in the

11 decision on -- on provisional release.

12 JUDGE HOEPFEL: Thank you. And just to add one thing we have to

13 keep in mind here. The fact that both accused are on this provisional

14 release does not relieve us from our obligation to exercise due diligence

15 in this pre-trial phase to get the case ready for trial. The fact that

16 this case has been in pre-trial for more than three years should be of

17 concern.

18 With regard to this Status Conference, I have received two

19 submissions: One filed on 15 March by. Mr. Jovanovic, who is expressing

20 his -- for Mr. Simatovic, who is expressing his consent that this Status

21 Conference will be held in his absence but in presence of his Defence

22 counsel, Mr. Jovanovic. And the other one filed on 20 March by Mr. Knoops

23 on behalf of Mr. Stanisic and to the same effect, mutatis mutandis.

24 The last Status Conference was held on 29 November 2006. A

25 Pre-Trial Conference, the first one, I think, for Ms. Brehmeier-Metz was

Page 604

1 held yesterday, and I appreciate the work of ALO, Linda Murnane, and with

2 regard to the preparation of today's Status Conference of LO Ruben

3 Karemaker.

4 This Status Conference follows the Work Plan I established by

5 order of 19 January 2007. We will discuss the following items. After the

6 preliminaries, we have, two, the health of the accused; three, pending

7 issues, pending motions, I mean; four, disclosure issues; five, other

8 trial preparation; and six, any other remaining matters.

9 As of now, I would like to inquire into the health of the accused.

10 May we please go into private session.

11 [Private session]

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 605











11 Pages 605-607 redacted. Private session















Page 608

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 THE REGISTRAR: We're in open session, Your Honour.

13 JUDGE HOEPFEL: Thank you, Madam Registrar.

14 And now to pending motions. There is this third Prosecution

15 motion for pre-trial protective measures for witnesses with confidential

16 and ex parte annexes filed on 1st of March, 2007.

17 The Defence for Mr. Jovica Stanisic responded to the motion on the

18 12th of March. On the 19th of March, the Prosecution sought leave to

19 reply to the Defence response and filed its reply as well. It seems there

20 are no further comments of the parties by now. Is this correct?

21 MS. BREHMEIER-METZ: It is correct for the Prosecution, Your

22 Honour.


24 MR. KNOOPS: That's correct, Your Honour, for the Defence of

25 Mr. Stanisic.

Page 609

1 JUDGE HOEPFEL: Mr. Jovanovic.

2 MR. JOVANOVIC: [Interpretation] Your Honour, the Defence of Franko

3 Simatovic has also filed a response to the third Prosecution motion of --

4 for protective measures.

5 JUDGE HOEPFEL: Thank you. Sorry, I didn't mention that and...

6 Yes.

7 Now, as this is part of the bigger group of disclosure issues, may

8 we go to this point.

9 As to disclosure, may I make this comment first: On 19 June 2006,

10 the Prosecution alerted the Chamber in a ex parte filing to the Chamber

11 regarding certain Serbian archives to which they had recently gained

12 access. It concerns over a thousand documents potentially relevant to

13 this case. During last 65 ter Conference before this one, which took

14 place yesterday, Mr. Re indicated he hoped to receive these documents in

15 January 2007. According to the Work Plan we established on the basis of

16 that by order of 19th of January, the Prosecution was supposed to disclose

17 these documents to the Defence no later than 1st of March, 2007.

18 During yesterday's Rule 65 ter Conference, Prosecution indicated,

19 however, that not all of the materials from the Belgrade archives have yet

20 been provided to the Prosecution, but also the materials from the archives

21 in Belgrade, which have been provided, have not yet been communicated to

22 the Defence, as these materials were provided subject to Rule 70, and the

23 Prosecution needs to obtain permission to disclose them.

24 This delay in disclosure of the relevant materials may

25 significantly impact on the Defence's preparations to be trial ready at

Page 610

1 the date indicated in the Work Plan.

2 May I therefore ask the parties for their comments.

3 Ms. Brehmeier-Metz, please.

4 MS. BREHMEIER-METZ: Yes, Your Honour. I should perhaps clarify,

5 first of all, that we did receive material from the VRS archives before

6 the 1st of March. We have, in the meantime, identified 25 of the

7 documents gained from the VRS archives as potentially relevant to the

8 indication, two of which, in our view, may also contain exculpatory

9 material.

10 Now, those documents we gained from the VRS archives were put on

11 EDS, and the storage was completed by the 20th of February this year. I

12 must, however, admit that for reasons within the Prosecution, for a

13 misunderstanding about who was supposed to do what, the Defence was

14 unhappily not informed about this before 1st March. I have, as for today,

15 provided a letter naming the indices within the EDS where all the

16 documents gained from the VRS archives have been stored and also naming

17 the ERNs of the documents that the Prosecution deems relevant for the

18 case.

19 The Prosecution has, yesterday, provided the Defence with the two

20 documents in hard copy that we deem potentially exculpatory. The

21 documents that we think may be of relevance for the case will be disclosed

22 to the Defence certainly with a disclosure of the 65 ter exhibit list. It

23 is most unfortunate that the Prosecution has missed the deadline, 1st

24 March, for those document. I can only apologise for that. And following

25 the SLO's proposal of yesterday's conference, the Prosecution intends to

Page 611

1 file a motion with respect to that. That relates to the VRS archives.

2 As for the Belgrade archives, the other Belgrade archives, as I

3 set out yesterday during the conference, the Prosecution received batches

4 full of documents after the 1st of March. Those documents were provided

5 to the Prosecution under Rule 70. The Prosecution has now, first of all

6 to check whether we have received all the documents that we required.

7 JUDGE HOEPFUL: Here it says under Rule 730.

8 MS. BREHMEIER-METZ: That must be a mistake; it's under Rule 70.

9 JUDGE HOEPFEL: Yes. Please go on. Sorry to interrupt.

10 MS. BREHMEIER-METZ: No, that's fine, Your Honour. We will have

11 to, first of all, check whether we received everything we requested. We

12 will then have to review the documents as to whether they are of potential

13 relevance to the case. They will have to be translated. We will also

14 have to check whether or not they contain potentially exculpatory

15 materiel, and that is why we are at the moment not able to comply with our

16 duty to disclose to the Defence all these documents.

17 We could, as 1st March, only disclose what we had, and those

18 particular documents arrived with the Prosecution only after 1st March,

19 and, as I say, had not been reviewed then. So the first step the

20 Prosecution have to take in this regard, of course, with due diligence and

21 as quickly as possible in order to speed up the trial, is to review those

22 documents; and once we have finished that, we shall try and find out any

23 problems that may be concerned with Rule 70 and try and solve those,

24 again, as quickly as possible, and after that, of course, comply with our

25 disclosure obligation.

Page 612

1 Thank you.

2 JUDGE HOEPFEL: Thank you very much. Before asking the Defence to

3 comment on that, I would think that changes a bit the situation we had

4 anticipated. The idea about these archives was, as put forward by Mr. Re,

5 that the whole materials would help to speed up the trial and, therefore,

6 I hope it will not occur the other way around and should be a productive

7 thing, shouldn't it?

8 And we will have to check now about these consequences.

9 Do you have directly, immediately now any comments, Mr. Knoops

10 and Mr. Jovanovic?

11 MR. KNOOPS: Thank you, Your Honour.

12 Your Honour, in this stage, I think it's fair to say that the

13 Defence of Mr. Stanisic will have to reserve its rights to challenge a

14 motion of the Prosecution seeking leave to deviate from the Work Plan,

15 simply because the admission of documents after this deadline could be

16 prejudicial to the accused. And in view of Rule 65 ter D in conjunction

17 Rule 65 under N, for November, the Pre-Trial Judge may upon a report to

18 the Trial Chamber inform the Court about any deviations from the

19 disclosure obligation in this regard, which may result in such as Rule 65

20 ter indicates in exclusion of testimonial or documentary evidence.

21 Now, apparently, the rationale of Rule 65 ter also envisions the

22 situation that deviation from a Work Plan could be prejudicial to the

23 accused; and considering the fact that the rule acknowledges certain

24 sanction, the Defence is mindful that we have to consider whether or not

25 to challenge such a motion. So in this stage I would just like to say

Page 613

1 that Defence will, of course, await the motion of the Prosecution and its

2 arguments, and then we'll respond to it in due course. But we'll reserve

3 the right of the accused to seek recourse to Rule 65 ter under N.

4 Thank you.

5 JUDGE HOEPFEL: Thank you very much. This is well understood.

6 Mr. Jovanovic.

7 MR. JOVANOVIC: [Interpretation] Your Honour, I fully agree with

8 the position of my learned colleague. The Defence of Franko Simatovic

9 will oppose the disclosure of evidence after the deadline set in the Work

10 Plan. From what the Prosecutor has said, it is impossible to know whether

11 the delay is justified. The indictment was confirmed in May 2003. It has

12 been four years since these proceedings started. We don't know when the

13 Prosecution submitted its request to the government of Serbia for this

14 material. We don't know what the history of this is.

15 Prosecutor David Re last year was granted a delay for the

16 consolidated pre-trial brief precisely for purposes of searching the

17 archives. The Defence was not informed of this process, and I see no

18 reason why the Prosecution could not have informed both of the Chamber,

19 the Pre-Trial Judge, and the Defence of any reasons why disclosure could

20 not be completed by the 1st of March.

21 It is only after the expiry of this deadline and after this issue

22 was raised at yesterday's 65 ter Conference that the Prosecutor has stated

23 reasons for the failure to disclose this material. They used the same

24 explanations as before, that they received this material only recently,

25 that they did not receive all the materials, and that they would not be

Page 614

1 able to respond in compliance with the order. The Defence will certainly

2 mention all this in its response to the Prosecution motion asking for a

3 delay in the deadline set in the Work Plan.

4 Thank you.

5 JUDGE HOEPFEL: Thank you very much, Mr. Jovanovic. Also this is

6 well understood; and, of course, this concern shows how important it is

7 that the Prosecution stays in touch with the Chamber should any problems

8 arise, to facilitate an adjustment of the Work Plan, if necessary, but the

9 Work Plan stands, and Prosecution will have to make the case now a

10 priority. It is, in part, a question of allocation of resources within

11 the Office of the Prosecutor, as I see it. At least from now on with

12 this awareness, it should be possible to change the situation.

13 We will come to similar aspects when discussing now translations.

14 Let me make this general comment. Prosecution indicated yesterday

15 during yesterday's 65 ter Conference that there are still many

16 translations outstanding; for example, translations of 20 witness

17 statements. I would like to structure this issue of translation as

18 follows: First, Rule 66(A)(i), supporting material to indictment.

19 According to the Work Plan, the Prosecution should have complied with its

20 obligations under this rule completely at this point.

21 As was indicated by SLO Linda Murnane during yesterday's 65 ter

22 Conference, it is suggested that the Prosecution file a motion with the

23 Pre-Trial Judge indicating where deadlines set out in the Work Plan were

24 not met and proposals to find a solution as to ensure that disclosure is

25 completed as soon as possible.

Page 615

1 It is suggested that the motion be as detailed as possible so that

2 the Chamber has a full overview of the all the materials that should have

3 been disclosed to the Defence according to the Work Plan and indicating

4 when these materials can be disclosed. That is a general remark. Again,

5 where Prosecution believes that a deadline cannot be met, the parties need

6 to file -- or the Prosecution needs to file a notice with the Court.

7 You want to comment on translations in this connection?

8 MS. BREHMEIER-METZ: Yes, Your Honour, if I may.

9 The Prosecution is fully aware that this case has had a lot of

10 time delays in it, and the Prosecution is very much interested in getting

11 this case forward as soon as possible. However, there are a lot of cases

12 with higher priority insofar as they are already on trial. That is one of

13 the reasons why, coming back to translation issues, there are a lot of

14 translation requests that have to be dealt with, with a higher priority,

15 and it comes from that, that the Prosecution in this case has so far been

16 unable to comply with its obligation to provide translations in the manner

17 set out yesterday.

18 It is my understanding that Prosecution requests for translation

19 in the case of Stanisic and Simatovic are regularly rejected, that is the

20 term used by CLSS for reason of further translation requests that have

21 higher priorities because the cases are at trial. I shall, of course, try

22 and solve this issue. However, I'm afraid I will not be able to do that

23 as speedily as perhaps the Court or the other party, other parties'

24 Defence, may wish. I am afraid that we'll continue to be a problem with

25 this case.

Page 616

1 I fully agree with what Your Honour said about getting the trial

2 forward and giving this case further priority, and the Prosecution is

3 aware that this obligation rests with us. I am, however, not in a

4 position to, at the moment, name a date at which translation -- the

5 translation issue may be resolved. Nevertheless, I shall follow Your

6 Honour's proposal and file a motion indicating -- or covering all the

7 issues Your Honour has just mentioned.

8 I am afraid that is at the moment all I can say on this issue.

9 JUDGE HOEPFEL: Thank you very much, Ms. Brehmeier-Metz. And I

10 consider this a serious situation. There is no logic in itself to argue

11 that cases which are on trial would enjoy priority to a case which is

12 awaiting trial. That should be made clear.

13 So I suppose this will cause some discussion behind the scenes.

14 Mr. Knoops or Mr. Jovanovic, you want to comment on that?

15 MR. KNOOPS: Your Honour, with reference to the Rule 65 ter

16 Conference yesterday, the Senior Legal Officer requested the Defence to

17 look into their own documents with respect to the exact amount of

18 outstanding translations, including the 1st of March disclosure deadline.

19 We have informed the Prosecution through two letters of the 5th of March

20 of the missing documents, including translations, and as far as we were

21 able to detect we missed 28 statements under Rule 66.

22 Also we referred to a letter of 7th of March to the Prosecution in

23 which we have indicated what documents are still outstanding in terms of

24 translation and missing documents in general. Therefore, the Defence

25 is -- is assisting the Prosecution insofar as the Defence is possible, and

Page 617

1 at this moment we cannot indicate what ramifications the delay in

2 translation could have on our own pre-trial preparations.

3 So here I should also emphasise that have I to reserve the rights

4 of my defendant to ask the Court for any further legal consequences or any

5 other additional pre-trial preparation possibility for the Defence,

6 depending on the outcome of the full disclosure.

7 Thank you.

8 JUDGE HOEPFEL: Yes, please do. And comment also in written form

9 on that.

10 MR. KNOOPS: Of course, Your Honour, we will respond to the motion

11 of the Prosecution in due course, indeed.

12 JUDGE HOEPFEL: Thank you.

13 Mr. Jovanovic.

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

15 The Defence for Franko Simatovic does not have any comment on this

16 in principle, as it is obviously impossible for us to have any impact on

17 the translations, because this lies within the hands of the Prosecution to

18 deal with this matter.

19 JUDGE HOEPFEL: Thank you. But the pressure which comes from such

20 a conference may help you, I hope, at least.

21 May I come to witness statements, Rule 66(A)(ii). Also here the

22 Prosecution should have complied with all its obligations under the Work

23 Plan at this point in time. I suppose there are no new comments on that?

24 May I look around? Do you want to comment on that?

25 MS. BREHMEIER-METZ: I should only like to mention that the

Page 618

1 Prosecution has, of course, not disclosed the statements of the witnesses

2 that we seek protective measures for in the latest motion. We do, of

3 course, keep that behind until we have a decision, and following that

4 decision we shall then disclose either redacted or unredacted statements.

5 That is the only comment I should like to make on that. Thank

6 you.

7 JUDGE HOEPFEL: Yes, of course. Thank you.

8 I suppose that this will be covered, in fact, also by your

9 comments on the motion, and you will not have extra comments now.

10 MR. KNOOPS: No, thank you, Your Honour.

11 JUDGE HOEPFEL: Mr. Jovanovic.

12 MR. JOVANOVIC: [Interpretation] No, none. Thank you, Your Honour.

13 JUDGE HOEPFEL: Thank you.

14 Now, a very important chapter is disclosure under Rule 68 and

15 translations in connection with that.

16 Prosecution should have compiled with all its obligations under

17 the Work Plan at this point. Yesterday's 65 ter Conference and already

18 the last Status Conference held on 29th of November, 2006 showed there's

19 an issue of these two Milosevic letters. At that time of our last Status

20 Conference, the Prosecution was still awaiting Rule 70 clearance from the

21 providing government. By today that clearance seems to still not have

22 been provided.

23 MS. BREHMEIER-METZ: Yes, Your Honour, that is correct. We are

24 still awaiting a reaction from the provider, but I'm confident that it

25 won't last very long.

Page 619

1 JUDGE HOEPFEL: So I don't know the basis on which you are

2 confident, but I hope you can communicate that confidence to the providing

3 government and urge them to finish that issue.

4 Any comments from your side?

5 MR. KNOOPS: Your Honour, just to briefly refer to the fact that

6 the Defence is in this moment, at this moment, not aware whether the

7 search in the Belgrade archives could result in any Rule 68 materials. I

8 think that is, first of all, to note.

9 Secondly, there was a decision of the Chamber of last year

10 relating to the Milosevic confidential materials, which fall within the

11 indictment, and Defence is still not aware about any Rule 68 disclosures

12 on the basis of that ruling of Your Honour's.

13 And, lastly, the Defence will request the Court also to give

14 access or to order access to the closed session materials in the Martic

15 case, which may comprise also certain Rule 68 material. So it is fair to

16 say that in this moment, the disclosure of Rule 68, although it's still an

17 ongoing process as we know, I think still relies on any further research

18 into these three sets of materials, but for all I think the Belgrade

19 archives and the confidential Milosevic materials.

20 JUDGE HOEPFEL: Thank you, Mr. Knoops.

21 Mr. Jovanovic, any further comments?

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

23 No. At the 65 ter Conference yesterday, the Defence for

24 Mr. Simatovic only told the Prosecution that the list of the Rule 68

25 material delivered to the Defence does not contain all the material. The

Page 620

1 earlier Prosecution team had disclosed several interviews by suspects in

2 accordance with Rule 68. Therefore, they had disclosed more than had

3 been, in fact, specified in the Prosecution letter to the Defence.

4 JUDGE HOEPFEL: Thank you. As this is a comprehensive obligation

5 and ongoing obligation, here we don't have at least deadlines. On the

6 other hand, Prosecution, Ms. Brehmeier-Metz had, in fact, mentioned before

7 in connection with the VRS archives that are two documents and have been

8 disclosed, I understand, and you want to react to that?

9 MS. BREHMEIER-METZ: Just briefly, Your Honour.

10 First of all, to, in fact, say that we did disclose two

11 potentially exculpatory documents yesterday, and that, of course, we are

12 aware that Rule 68 disclosure is an ongoing obligation for the

13 Prosecution. The only thing I should like to add in this context further

14 is that it is my understanding that the Rule 68 material in Milosevic has,

15 in fact, been disclosed to the Defence already. I shall, however, check

16 that; and if necessary, come back.

17 JUDGE HOEPFEL: Yes, please. And may I ask both parties maybe you

18 could when filing inter-parties communication copy to us at the Chambers,

19 so that we can look into the matter continuously. I may come back to that

20 in a moment.

21 Now, I just want to mention Rule 66(B). How about inspection of

22 books, documents, and other tangible objects? Is there any issue?

23 Looking to the Prosecution.

24 MS. BREHMEIER-METZ: None that I'm aware of, Your Honour.

25 JUDGE HOEPFEL: Thank you.

Page 621

1 Is there anything?

2 MR. KNOOPS: None, Your Honour. Thank you.


4 MR. JOVANOVIC: [Interpretation] No, thank you, Your Honour.

5 JUDGE HOEPFEL: Thank you.

6 Now, as to Rule -- to the Rule 94 bis, expert reports. During the

7 last Status Conference held on 29 November 2006, the "Strinovic exhumation

8 reports" were an issue as they were still not translated. As Mr. Re was

9 of the opinion there was no "priority" in translating them, he asked the

10 Defence to communicate to him whether there was any need to translate

11 these reports. Yesterday, we learned that the Stanisic Defence, indeed,

12 has sent a letter to the Prosecution on 5th of March, 2007 requesting a

13 translation of the exhumation report.

14 Will that happen?

15 MS. BREHMEIER-METZ: Of course, that will happen, Your Honour. As

16 you pointed out quite rightly, we received the Defence request on 5th

17 March. Until then, we had in agreement with the Defence not pursued this

18 matter further. Unfortunately, the exhumation reports have so far been

19 tendered in B/C/S in other courts in other trials only, so that the

20 Prosecution will have to request new or basically initial translations.

21 That, again, leaves us with a translation issue and I could repeat what I

22 said before, but I don't think that is really necessary. We will,

23 however, pursue the matter now.

24 JUDGE HOEPFEL: Thank you. And I also could repeat that I

25 answered and -- yes.

Page 622

1 And also please would you copy us in such cases when communicating

2 intra-parties.

3 Is there any aspect of the expert reports other than what we

4 discussed now, or do you want to comment on that, Mr. Knoops.

5 MR. KNOOPS: No, thank you, Your Honour. Only to refer again to

6 the explanation yesterday by the Defence during the Rule 65 ter Conference

7 the reason why we decided after all to request the Prosecution to have a

8 translation in English available in view of the discussions on the

9 adjudicated and agreed facts. That was the reason why we felt obliged to

10 request after all this translation.

11 Thank you.

12 JUDGE HOEPFEL: Yes, that is understood.

13 And Mr. Jovanovic, as to expert reports, do you have any issue?

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

15 In connection with expert Strinovic and his report, the Defence

16 explained its position yesterday based on what Mr. David Re said. In view

17 of the fact that the report is in B/C/S, the Defence is able to work on

18 it; but if the details of that report are to be subjected to discussion on

19 agreed facts, then we will certainly need a version there English. And

20 for this reason, I support the request made by the Defence of

21 Mr. Stanisic.

22 JUDGE HOEPFEL: Thank you. Speaking of these expert reports, in

23 general, I understand there was an issue, Mr. Jovanovic, concerning the

24 reaction of the Defence to any expert reports, as you appear to have filed

25 a general notice for cross-examination -- for cross-examining all experts,

Page 623

1 and the question seems to have arisen how to deal with new reports.

2 I understand you were informed yesterday, we'll have to react to

3 any such new reports by a submission whether Defence accepts or rejects

4 the report, accepts or rejects CV of the expert, and whether or not you

5 want to cross-examine the expert.

6 Is there any issue open from yesterday, Mr. Jovanovic?

7 MR. JOVANOVIC: [Interpretation] No, thank you, Your Honour.

8 Yesterday, at the 65 ter Conference, the Defence received clarification of

9 this issue. It is true that in previous disclosure procedures there was

10 successive disclosure of experts. We would first get a version in English

11 and only then in B/C/S, and it was agreed that the Defence does not have

12 to respond each and every time. But yesterday the suggestion was made,,

13 and the Defence will file its submission presenting its position within

14 the time-limit that has been set.

15 JUDGE HOEPFEL: Thank you.

16 Speaking of time-limits, given the absence in the Work Plan of a

17 deadline for 92 bis expert reports, the Prosecution requested whether the

18 Pre-Trial Judge wishes to set a deadline. I, indeed, would propose such a

19 deadline and would propose it to be the 15th of May, 2007, as a deadline

20 for these 94 bis expert reports. This, as a modification of the Work

21 Plan, will be done in a written order to that effect.

22 You wish to comment on that issue?

23 MS. BREHMEIER-METZ: Very briefly, if I may, Your Honour.

24 The 15th of May would cause some problems for the Prosecution. I

25 understand that the Prosecution's in-house expert reports will need time

Page 624

1 until 1st July to finish their reports, so the Prosecution would, of

2 course, be happy if this deadline proposed by Your Honour just now might

3 be set a little further down the line, so to say.

4 JUDGE HOEPFEL: Thank you. We will consider that.

5 Any comments?

6 MR. KNOOPS: Your Honour, we leave it totally in the discretion of

7 Your Honour's hand.

8 JUDGE HOEPFEL: Thank you. Mr. Jovanovic.

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

10 comment.

11 JUDGE HOEPFEL: Thank you.

12 MS. BREHMEIER-METZ: Your Honour, if I may, a further comment on

13 that.


15 MS. BREHMEIER-METZ: I'm sorry to be a by the troublesome.

16 Looking at the Work Plan, the Prosecution has the obligation to

17 file its motions relating to 92 bis, 92 ter, and quater until the 21st of

18 May. Those motions may amount to some 80 witnesses, so if we also have a

19 deadline 15th May for the expert reports that would cause considerable

20 problems for the Prosecution.

21 JUDGE HOEPFEL: Yes, I can see that and understand that.

22 Let me now go to that issue anyway. As to further pre-trial

23 preparation, first, the possible use of 92 bis or 92 ter evidence.

24 Mr. Re, during the last two Status Conferences, indicated an intention as

25 to preparing, he called it packages of such evidence under 89(F) or Rule

Page 625

1 92 ter, quater in relation to every witness. And on 29th of November of

2 last year, we heard that he was, I quote, "about one quarter of the way

3 through."

4 What is requested in the Work Plan would be to file the statements

5 and transcripts in hard copy or in electronic format and to file the 92

6 bis motion requesting admission of these documents, according to the

7 deadline.

8 According to the present Work Plan, the Prosecution is required,

9 as you mentioned, by 21st of May, 2007 to file recent -- a recent motion

10 requesting admission of written testimony in accordance with Rules 92 bis,

11 92 ter, and 92 quater. I would like it point out that I'm considering

12 the following: In light of recent jurisprudence, leaving these motions to

13 be determined by the Trial Chamber, there is actually no need at this

14 point for the Prosecution to file such a motion requesting admission of

15 the proposed 92 bis witnesses.

16 So the question arises if they want to be relieved from that

17 deadline only concerning the motion, it would still apply to the filing of

18 the documents. So an order modifying or clarifying that Work Plan in this

19 regard would be prepared along this approach.

20 Do you have a special view on that?

21 [Prosecution counsel confer]

22 JUDGE HOEPFEL: Ms. Brehmeier-Metz.

23 MS. BREHMEIER-METZ: Yes, Your Honour.

24 Actually, we will, of course, continue to prepare these 92 bis, 92

25 ter and quater packages, using Mr. Re's expression. So the Prosecution

Page 626

1 would actually prefer to try and comply with the Work Plan as set out for

2 the moment; and if the Prosection for some reason may be unable to meet

3 the deadline, the Prosecution would rather then apply for an extension of

4 the deadline.

5 The Prosecution is -- or intends to make use of 92 bis and ter as

6 much as possible, in order to speed the trial. The Prosecution also

7 intends to make use of 92 quater for any witness that the Prosecution

8 would have intended to call, however cannot do because the witness is

9 dead. Particularly, the letter will have a certain impact on the trial,

10 so the Prosecution would actually prefer to continue preparing all this,

11 and once we have finished also file a motion for admission, being well

12 aware of the situation that Your Honour has just indicated, that the

13 current jurisprudence at the Tribunal tends to leave such a decision to

14 the Trial Chamber rather than to the Pre-Trial Judge.

15 JUDGE HOEPFEL: Thank you.

16 Do you have any comments?

17 MR. KNOOPS: Yes, Your Honour. Thank you.

18 First of all, it was my understanding of yesterday's Rule 65 ter

19 Conference that considering the importance in this case of admission on

20 non-admission of statements under 92 bis, that that decision preferably

21 from the prospective of the Defence would have to be rendered by the full

22 Bench.

23 Now, in view of the fact that the Prosecution informed us today

24 that it intends to seek leave to admit statements from 80 witnesses, it

25 could also be quite impractical if the Bench would receive per witness a

Page 627

1 package and would have to render on each occasion a decision on the

2 admission or non-admission. In other words, it could be practical in this

3 case, in view of the amount of witnesses the Prosecution intends to file

4 under Rule 92 bis, in combination with the importance of some of the

5 underlying statements, also considering the testimony of a -- or at least

6 two deceased witnesses, potential witnesses, that from the Defence

7 perspective, we would like to receive all those statements in one package

8 and respond to it in one response motion because it also will relate to,

9 of course, quite some legal arguments.

10 Now, if it's Your Honours' view that under the current

11 jurisprudence the Trial Chamber at the trial will dispose of such

12 requests, then it could be in this case quite impractical, in view of the

13 amount of statements which are now announced to us today. However, we --

14 we still feel that considering again the importance of the matter, that

15 preferably the full Bench would have to decide on the admission.

16 So, in other words, the suggestion of the Prosecution to continue

17 with the Work Plan, of course, not to say anything now about timetable,

18 would also be -- would have the preference of the Defence. In other

19 words, we would beforehand, before the trial starts, know exactly which

20 statements from which witnesses will be admitted or not admitted under

21 Rule 92 bis and the other rules mentioned in the Work Plan.

22 I could imagine from the Defence perspective as well that

23 considering the importance of the matter and the fact that it relates to

24 80 persons just announced by the Prosecution that the Chamber could

25 reconsider the timetable as such, but the initial idea of filing a motion,

Page 628

1 a Prosecution motion seeking leave to admit those statements way before

2 the trial starts having the Defence filing a response, for us it would be

3 quite practical also in terms of the trial preparations.

4 JUDGE HOEPFEL: Thank you very much. This is well understood, and

5 it's actually interesting to learn now more about the amount concerned.

6 Do you have anything to add, Mr. Jovanovic?

7 MR. JOVANOVIC: [Interpretation] No, thank you, Your Honour. The

8 Defence of Franko Simatovic has an identical position to that put forward

9 by my colleague. Thank you.

10 JUDGE HOEPFEL: Thank you for all your contributions now to this

11 issue, and I will consider that. I just wanted to add that, of course, it

12 would not be the Pre-Trial Judge himself but always the full Bench to

13 decide on these motions.

14 MR. KNOOPS: Not to say, Your Honour, that he we don't have trust

15 your pre-trial work.

16 JUDGE HOEPFEL: No, but I consider myself not authorised to do

17 that.

18 MR. KNOOPS: For the mental importance for the Defence of this

19 decision for, and the impact on the trial, that is basically why we seek

20 for a decision on of the full Bench on this issue. Thank you.

21 JUDGE HOEPFEL: Absolutely. You wanted to add something

22 Ms. Brehmeier-Metz.

23 MS. BREHMEIER-METZ: I should just like to add the following. The

24 number of 80 witnesses having been mentioned by Mr. Knoops several times,

25 I would just like to clarify and stress that, of course, is it just an

Page 629

1 estimate from the Prosecution. What remains to be said is that we intend

2 to make use of these provisions as much as possible, because, again, we

3 think that this will facilitate the trial in a great deal.

4 And the other thing mentioned by Mr. Knoops, I understand that the

5 Rules put a certain obligation on the Defence to come back to the

6 Prosecution within 14 days once the Prosecution has filed such a motion.

7 The Prosecution is happy with any delay, in that the Prosecution does not

8 insist on the Defence to come back and react to any motion within 14 days,

9 and I understand the Rules not as being a mandatory obligation for the

10 Defence but, rather, a non-mandatory -- I'm sorry, I'm missing the words.

11 JUDGE HOEPFEL: No, that is clear. And please feel free to then

12 also articulate your needs in terms of time to reply to these motions,

13 once filed.

14 MR. KNOOPS: Thank you, Your Honour.

15 I'm very much obliged to my learned colleagues from the

16 Prosecution side. Indeed, I think it's reasonable to anticipate that an

17 extensive request of the Prosecution under Rule 92 bis et al will, of

18 course, result in a considerable work of the Defence, both legally and

19 factually to adequately respond to this important request which may have

20 an impact on the trial, as such.

21 Therefore, we would like to ask the Honourable Chamber to take

22 into consideration to grant leave in this specific occasion for a

23 time-limit to respond to it, longer than the 14 days. If I could speak

24 freely now, I would say it's not unreasonable to ask the Defence to

25 respond in four weeks, so the time-limit should perhaps be extended

Page 630

1 instead of two weeks to four weeks.

2 I think this -- this may be manageable for my Defence team. I'm

3 not speaking for my learned colleague Mr. Jovanovic. This is just a

4 suggestion right now without having spoken, of course, with my co-counsel

5 and the rest of my Defence team. But if the court could at least think

6 about an option in this regard, we would be very grateful.

7 JUDGE HOEPFEL: Yes, thank you. We will certainly consider that.

8 And do you agree, Mr. Jovanovic?

9 MR. JOVANOVIC: [Interpretation] Yes, thank you, Your Honour.

10 First of all, I wish to thank the Prosecution for their very fair

11 attitude. The Defence has intended to file a request for the extension of

12 the time frame, and it's good to know the position of the Prosecution.

13 The Defence for Franko Simatovic would like to reserve their right

14 to seek extension of the deadline once we receive the decision and then we

15 will look into it to see if the extension is indeed necessary. Thank you.

16 JUDGE HOEPFEL: Yes. Once you receive the motion, you mean, it is

17 meant. Yes.

18 And I would just suggest that you file your request once such a

19 motion is filed so the Bench can rule then on them. And this will also be

20 preferable to receive a package than of statements which allows the

21 Defence and the Bench to see the factual and legal issues in one picture.

22 May I now change to the next issue. That would be adjudicated

23 facts, agreed facts and stipulations on the indictment.

24 According to the Work Plan, on 1st of May, 2007; one, the parties

25 are required to file a joint submission on agreements on matters of law

Page 631

1 and fact; and, two, the Prosecution should file a motion requesting either

2 judicial notice of facts of common knowledge or the admission of

3 adjudicated facts.

4 Now, experience shows there is a need for the parties to meet

5 probably several times in order to discuss the issue of agreed and

6 adjudicated facts. As discussed in yesterday's 65 ter Conference, the

7 deadline of 1st of May, as set out in the Work Plan for their joint

8 submission on agreed facts, may not be met.

9 Will the parties at least agree as to this challenge and will they

10 file a notice with the Court if they believe this deadline will not be

11 met, indicating what the efforts of the parties have been, and to come up

12 with an alternative proposal?

13 MS. BREHMEIER-METZ: Indeed, Your Honour, yes. That has been the

14 idea.

15 After yesterday's 65 ter Conference we have realised that both

16 Defence counsel are prepared to start talks about agreed facts, about

17 possible agreed facts and we do realise that leaving us with some six

18 weeks before the 1st of May is a tight time schedule. However, we should

19 certainly, first of all, that is, certainly the view of the Prosecution,

20 start talking about, for example, which areas of the case might indeed be

21 worth discussing and try and see where we get.

22 I think there might be a chance that we would be able to reach

23 agreement. If not agreement then certainly a decision that we could

24 inform the Court about, so that at the moment, I think we should leave the

25 Work Plan as it stands.

Page 632

1 The Prosecution certainly intends to comply with its duty under

2 the Work Plan to file a motion on adjudicated facts and facts of common

3 knowledge. We do, however, see that separate from the question of agreed

4 facts, and as for agreed facts, we think it might be worth while to start

5 discussions with Defence first and see where we get before we decide on

6 whether or not to ask for any extension of that particular deadline.

7 JUDGE HOEPFEL: Yes, thank you. Indeed these are separate issues.

8 And as to the potential agreed facts, it will be absolutely necessary to

9 meet.

10 The Defence, please, would you like to comment on that?

11 MR. KNOOPS: Your Honour, I can confirm that the Defence of Mr.

12 Stanisic is it prepared as it always has been to engage in any discussions

13 or further discussions on adjudicated and agreed facts.

14 As Your Honour may know from the past, there were efforts to reach

15 agreement. There were draft submissions filed by both parties, so we will

16 continue with those discussions, although I have personally my doubts

17 whether the Work Plan setting forth the date of the 1st of May where we

18 are supposed to inform the Chamber of where agreement has been reached of

19 matters of law and fact, whether that can and will realistically be done

20 on all the matters of law and fact.

21 But we could, of course, continue with the joint effort and inform

22 the Court before the 1st of May on which issues we have reached agreement

23 and on which issues we still have to speak further with the parties.

24 JUDGE HOEPFEL: Very well, thank you.

25 You want to add anything?

Page 633

1 MR. JOVANOVIC: [Interpretation] Yes, thank you, Your Honour.

2 At the yesterday's meeting the Defence put forth a suggestion to

3 the learned friends from the Prosecution to present their positions both

4 with regard to adjudicated and agreed facts. It was agreed that we should

5 meet at the end of April on that matter, and try to work on these facts.

6 We also decided that we should, at the end this process, inform the Court

7 of our progress, and then possibly ask for the ask for the extension of

8 the deadline.

9 Now, the position of the Defence is that the Prosecution proposal

10 will embrace a great deal of matters from the crime base. Since the crime

11 base in case is extensive, the Defence will need more time to go through

12 all these events and then put forth their position.

13 The adjudicated facts that would be proposed by the Prosecution

14 will not take that much time. Of course, the Defence reserves their right

15 to present their views with regard to adjudicated facts. I believe that

16 quite soon we can expect the handing down of judgements that might be

17 relevant to this case, like, for instance, the Martic judgement. In this

18 context we might consider admitting or accepting some of the facts

19 adjudicated in that case in this case as well.

20 Thank you.

21 JUDGE HOEPFEL: Yes, I think have heard of this case. Thank you,

22 and maybe it would be advisable to meet not only at the end of April but

23 to have first meeting already earlier and to then have second meeting and

24 then and give an intermediate report at least by the 1st of May.

25 MS. BREHMEIER-METZ: Certainly, Your Honour.

Page 634

1 I remember from yesterday's conference that 15th of April was

2 mentioned an a possible meeting deadline, so we'll keep that.

3 JUDGE HOEPFEL: Thank you, yes. That sounds reasonable.

4 And this issue will, of course, also influence the anticipated

5 length of trial and the trial date, and, therefore, I will make this now

6 the next issue.

7 Ever since 21st of July, 2003, the Prosecution estimate has been

8 that its case will take four to six months; but at the last Status

9 Conference, it appeared not to be clear if said figure to relate to the

10 Prosecution case or to the whole trial. Due to the arrival of the new

11 Prosecution team, I will not touch on this issue now, but yet my prior

12 concern is to make the case trial-ready.

13 Basis for the proceedings, at this time, I would like to remind of

14 that, is as the operative indictment, the second amended indictment of 20

15 December 2005. Is this correct?

16 MS. BREHMEIER-METZ: I am reminded, Your Honour, that it is the

17 revised second amended indictment of May 2006.

18 JUDGE HOEPFEL: The revised second amended indictment, sorry, May

19 2006.

20 MS. BREHMEIER-METZ: It's the 15th of May, Your Honour.

21 JUDGE HOEPFEL: Yes. Thank you. So that was an oversee. We will

22 also take care to change that on the home page of the Tribunal.

23 Now, do you want to comment on that? No.

24 As to other matters -- as to any other special matters, during the

25 65 ter Conference held yesterday, Mr. Knoops indicated this -- that his

Page 635

1 team of experts would like to have access to the Prosecution's electronic

2 disclosure system.

3 The Prosecution has asked the Defence to come up with a list of

4 such experts that would require access, and that they would review which

5 experts could access. Is this being worked out?

6 MS. BREHMEIER-METZ: First of all, Your Honour, that is indeed the

7 Prosecution's position. We have not received a list of names yet; but as

8 soon as we will receive it, we will continue.

9 JUDGE HOEPFEL: Sure. Is that well understood this way.


11 MR. KNOOPS: Thank you, Your Honour. I'm much obliged to my

12 learned friend from the Prosecution. We will in due course provide the

13 Prosecution with the name at least one expert who has already been

14 approved by the registry and maybe other names, but we will follow this up

15 as soon as possible, and we could be very grateful if the Prosecution

16 could consider access to that expert who has been already approved by the

17 Registry.

18 Thank you.

19 JUDGE HOEPFEL: Yes, please. So you will communicate this in a

20 clear form to Prosecution.

21 Mr. Jovanovic do you have --

22 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. I would

23 only like to clarify that this is the expert who was appointed based on

24 the joint request of the two Defences for Mr. Stanisic and Simatovic.

25 This is an expert who will provide expertise on behalf of both Defence

Page 636

1 teams, and that is where the Defence for Mr. Simatovic is also very much

2 interested in obtaining access to the EDS for this witness.

3 JUDGE HOEPFEL: Yes, thank you for your comment. I had

4 anticipated that.

5 During yesterday's conference, Prosecution also indicated that it

6 plans to re-disclose in connection with publishing its 65 ter list.

7 However, they will indicate in a separate column which evidence has been

8 previously disclosed where possible to reduce the amount of time that the

9 Defence must take to review these re-disclosed materials. Is this

10 correct?

11 MS. BREHMEIER-METZ: That is correct, in general, Your Honour. It

12 may not -- well, first of all, we do indeed intend to re-disclose all

13 material in connection with our 65 ter exhibit list, simply to be on the

14 safe side. We understand it is a request to indicate whether material has

15 been disclosed before, so we will follow that.

16 We may, however, not do it in a way as indicated by Your Honour,

17 meaning adding a column to the 65 ter list. We consider other ways.

18 However, there will be a way both manageable for the Prosecution as well

19 as for the Defence to indicate which exhibits have been disclosed before.

20 JUDGE HOEPFEL: Thank you very much. That indeed will help. On

21 the other hand, I'm asking myself why, then, a re-disclosure will be

22 necessary, but it may serve the Defence in this way in any case.

23 MR. KNOOPS: Thank you, Your Honour.

24 It could for the sake of completeness be a good idea such

25 re-disclosure, but indeed we would like to stress that during the last

Page 637

1 couple of months the Defence has strenuously worked on getting all the

2 exhibits in our on system and case mapping system; and if we would receive

3 a re-disclose without such an indication, it would face the Defence with a

4 huge burden to recheck everything again. And in view of the fact that

5 Your Honour is aware, the Defence such as the Prosecution is working

6 without a little or no resources.

7 We would very much appreciate, although we acknowledge it will

8 take an additional effort from the Prosecution side, but we would very

9 much appreciate if such a column or any other form of indication what has

10 been disclosed in terms of exhibits previously. That would greatly help

11 the Defence in rechecking its documents.

12 Thank you.

13 JUDGE HOEPFEL: Yes, of course. This would otherwise lead to a

14 very unnecessary exercise for the Defence, I guess.

15 Any comments from your side, Mr. Jovanovic?

16 MR. JOVANOVIC: [Interpretation] No, thank you, Your Honour. I

17 also feel that this would be very useful if we were to be told what

18 material had been disclosed and when.

19 JUDGE HOEPFEL: Thank you. If this is now set, I would like to

20 come to the last detail, which came up yesterday during the 65 ter

21 Conference.

22 Ms. Brehmeier-Metz, you inquired how you should interpret, as

23 state in the Work Plan, that you should "indicate with respect to each

24 witness any material which will be tendered through the witness," in

25 relation to the 65 ter witness list.

Page 638

1 I would like to comment on that by saying that the Prosecution

2 should indicate on its exhibit list through which witness they intend to

3 tender the document, if you can live with this clarification.

4 MS. BREHMEIER-METZ: Thank you very much, Your Honour. That

5 indeed clarifies the matter and the Prosecution is grateful. Thank you.

6 JUDGE HOEPFEL: You're welcome.

7 As this concerns only the Prosecution, I guess there's no comment

8 necessary from your side. But let me start with your side, what other

9 issues would you like to discuss?

10 MR. KNOOPS: Your Honour, at this moment, we as Defence for

11 Mr. Stanisic have no other matters to raise with Your Honours.

12 Thank you.

13 JUDGE HOEPFEL: Thank you.

14 And Mr. Jovanovic.

15 MR. JOVANOVIC: [Interpretation] Your Honour, likewise, we have no

16 further issues to raise at this point in time. Thank you.

17 JUDGE HOEPFEL: Thank also you. And it seems we are at the end of

18 our conference.

19 As for a date for the next meeting, at least today it is to be

20 said according to the Work Plan this would be the last Status Conference

21 that will be held before the Pre-Trial Conference. Of course, this will

22 be up to the real development.

23 Thank you all, including the team, including court reporter.

24 Sometimes we spoke a little fast - and sometimes unclear - and including

25 the interpreters.

Page 639

1 Wish you a good day. The Court is adjourned.

2 --- Whereupon the Status Conference adjourned at

3 11.45 a.m.