Tribunal Criminal Tribunal for the Former Yugoslavia

Page 654

1 Friday, 23 November 2007

2 [Status Conference]

3 --- Upon commencing at 2.17 p.m.

4 JUDGE ORIE: Good afternoon to everyone.

5 Mr. Registrar, will you please call the case.

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

7 everyone in the courtroom.

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

9 Stanisic and Franko Simatovic.

10 JUDGE ORIE: Thank you, Mr. Registrar.

11 Could I have the appearances, Prosecution first.

12 MS. BREHMEIER-METZ: Good afternoon, Your Honour. For the

13 Prosecution, it's trial attorney Doris Brehmeier-Metz, accompanied by

14 trial attorney John Docherty, legal officer Klaus Hoffmann, and case

15 manager, Thomas Laugel.

16 JUDGE ORIE: Thank you, Madam Brehmeier.

17 For the Defence.

18 MR. KNOOPS: Your Honour, for the Defence of Mr. Stanisic, to my

19 left hand, Ms. Anne-Marie Verwiel legal assistant, and myself, lead

20 counsel, Geert-Jan Knoops.

21 Thank you.

22 JUDGE ORIE: Thank you, Mr. Knoops.

23 And for Mr. Simatovic.

24 MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honours. My

25 name is Zoran Jovanovic, and I'm the counsel for the accused Franko

Page 655

1 Simatovic.

2 JUDGE ORIE: Thank you, Mr. Jovanovic.

3 The case against the accused Stanisic and Simatovic has been

4 reassigned to Trial Chamber I. That's the reason why you have me in front

5 of you. The last Status Conference was held in July of this year.

6 The accused were not required to be present, so they are not here.

7 This Chamber has received a hand-over report pursuant to Rule 65

8 ter from the Pre-Trial Judge, Judge Hoepfel.

9 I do understand that, on the 21st of November, a 65 ter meeting

10 was held with parties and the senior legal. So I've been informed and

11 I've read the transcript of that meeting, and the first thing I'd like to

12 address is the health of the accused.

13 From what I understand, but please correct me if I'm wrong, Mr.

14 Jovanovic, that Mr. Simatovic's condition, medical condition, is without

15 serious problems.

16 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. It's not an

17 issue that we need to discuss. He did have some health problems, minor

18 ones. They are such that we agreed that it was not necessary to inform

19 the Trial Chamber about that.

20 JUDGE ORIE: Yes. Thank you for this information.

21 That might be a bit different, Mr. Knoops, as far as Mr. Stanisic

22 is concerned. But if you would like to go into private session to discuss

23 the health condition of Mr. Stanisic, please let me know, and then we'll

24 turn into private session.

25 MR. KNOOPS: Your Honour, I believe that would assist the Defence,

Page 656

1 if we could shortly switch to closed session.

2 JUDGE ORIE: Yes. Thank you.

3 [Private session]

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12 (redacted)

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Page 657











11 Pages 657-661 redacted. Private session.















Page 662

1 (redacted)

2 [Open session]

3 THE REGISTRAR: Your Honour, we're in open session.

4 JUDGE ORIE: Thank you, Mr. Registrar.

5 The next item on my agenda is disclosure, and there are a few

6 matters I'd like to discuss with you.

7 First of all, I do see that all disclosure under Rule 66(A)(i),

8 64(B) and 94 bis, expert witness statements [Realtime transcript read in

9 error "64 ter witness statements"], that all these disclosures have been

10 completed. Is that correctly understood?

11 MS. BREHMEIER-METZ: Your Honour, it is certainly correct in

12 relation to Rules 66(A)(i). I see it on the record that it says "64 ter

13 witness statements." I seem to have remembered that you said "94 bis,

14 expert witness statements."

15 JUDGE ORIE: Yes. I think I said "94 bis," which means expert

16 reports.

17 MS. BREHMEIER-METZ: That is correct. That was my understanding.

18 So the expert reports are completely filed, Your Honour.

19 In relation to Rule 66(B), the disclosure is ongoing in matters of

20 the Belgrade archives. We continue to inform the Defence about any

21 material that we are, on an ongoing basis, receiving from Belgrade. It is

22 stored on the Electronic Disclosure System, and we inform the Defence

23 continually about any archived material that we deem might be relevant

24 either under incriminating or, for that matter, exculpatory

25 considerations. So that is an ongoing procedure and will continue.

Page 663

1 JUDGE ORIE: Yes. You now include exculpatory material, which I

2 would usually deal with under Rule 68; and, of course, we'll come back to

3 that at a later stage. Exculpatory material requirements for disclosure,

4 especially as far as languages are concerned, might be a bit different

5 from general disclosure under Rule 68(ii).

6 Then I understood that there was an issue with disclosure, in

7 terms of incomplete records of what exactly was disclosed, and that some

8 material was re-disclosed, which the Defence had some problems there

9 because they didn't know what was new and what was already disclosed, and

10 it would require them to go through all of this again to see whether that

11 was new material or already-disclosed material.

12 I now understood that the parties have resolved this problem; that

13 is, that tables are provided by the Prosecution to the Defence, which

14 clearly indicate what is new and what was already disclosed and when it

15 was disclosed.

16 I'm looking to both parties, Mr. Knoops, Mr. Jovanovic and you,

17 Ms. Brehmeier. Has this been resolved now finally been resolved, or are

18 we -- I mean, is there any dispute about it anymore? Whether it's

19 completed is another matter, but ...

20 MS. BREHMEIER-METZ: Perhaps I can answer this, Your Honour. We

21 have disclosed, prior to this Status Conference, a number of outstanding

22 translations and different things, and amongst this disclosure badge of

23 today is the disclosure of a spreadsheet pertaining to all 65 ter exhibit

24 list documents and giving their ERNs, both in B/C/S and in English, and

25 giving the disclosure date of both the B/C/S and the English version.

Page 664

1 I assume that the Defence will want to have a look at this

2 spreadsheet, which is a rather huge one, given the number of documents.

3 But for my assumption, it would be that the matter should be solved by

4 giving the spreadsheet to the Defence.

5 JUDGE ORIE: I think, at a 65 ter meeting, a sample page of this

6 spreadsheet was provided to the senior legal officer. Is this workable,

7 Mr. Knoops, Mr. Jovanovic?

8 MR. KNOOPS: Your Honour, at first glance, based on that sample,

9 we can confirm that this is workable for the Defence, and we are grateful

10 that the Prosecution assisted the Defence in this way. In the event we

11 would encounter any problems with those lists or spreadsheets, I assume

12 that we always can contact the Prosecution for further assistance.


14 MS. BREHMEIER-METZ: Certainly.

15 JUDGE ORIE: I see Ms. Brehmeier nodding yes.

16 Mr. Jovanovic, do you share the position taken by Mr. Knoops?

17 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. I have no

18 other comments to make. I agree with Mr. Knoops. My position is the

19 same.

20 JUDGE ORIE: Thank you, Mr. Jovanovic.

21 Then I move on, and that is, as a matter of fact, there are two

22 related issues, it appears; that is, that there is still quite some

23 material to be translated. We, I think, in June, the Chamber was informed

24 that there were a little over 2.000 pages still to be translated.

25 Recently, I think this was said at the 65 ter conference, that now

Page 665

1 the number of exhibits had increased considerably and that would have

2 resulted in some 6.400 pages still to be translated.

3 Ms. Brehmeier, could you, first of all, update the Chamber on the

4 outstanding translations?

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

6 As I said yesterday -- on Wednesday, during the 65 ter conference,

7 the exhibits that are outstanding -- whose translation are outstanding

8 amount to approximately 600 [Realtime transcript read in error "6.400"],

9 i.e., 295 English documents that need to be translated into B/C/S and 302

10 documents that need to be translated into English.

11 As Your Honour rightly points out --

12 JUDGE ORIE: I'm looking at the transcript, which says "amount to

13 approximately 6.400," but I think you said "600."

14 MS. BREHMEIER-METZ: Indeed, I did, Your Honour, yes.

15 JUDGE ORIE: But the number of pages I mentioned, I think you

16 mentioned also the day before yesterday, that is, the total number of

17 pages still to be translated, 6.400?

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


20 MS. BREHMEIER-METZ: So now that we are in agreement about the

21 numbers, Your Honour's pointed out that the number of documents has

22 mounted considerably from June onwards to now. This is due to the fact

23 that a number of archives have been opened to the Prosecution, so that a

24 further number of documents have become available to the Prosecution.

25 Now, these documents, of course, need to be disclosed and

Page 666

1 translated. That is one side of the matter. The other matter will, in

2 due course, be whether the Prosecution will seek leave to amend the

3 exhibit list and include parts of these documents to the exhibit list.

4 But that, as I say, is another matter.

5 Talking about translations, Your Honour will appreciate the

6 Registry's policy according to which the Stanisic/Simatovic case is still

7 not a priority case, even though we have been assigned to a Trial Chamber

8 now. The prioritisation of CLSS, first of all, the highest priority comes

9 to any case that is in trial, obviously.

10 Since early this month, this, of course, also includes the case

11 against Vojislav Seselj, which is a problem in itself when it comes to

12 translation. Another case that lies ahead of Stanisic-Simatovic in the

13 line, in matters of translation, is the case of Perisic, so that

14 Stanisic-Simatovic is still not a priority case in matters of translation.

15 That is a continuing problem we had to deal with and we continue

16 to deal with, so that I have to say that translations will remain an

17 ongoing problem in this case.

18 We're trying to, I can't say "solve this problem," but we're

19 trying to work on this problem, amongst others, by prioritising the

20 documents according to what we think is their relevance. We also try and

21 sort the documents out; large documents, that is. If we have, for

22 example, a document that contains 100 pages, it may well be that only ten

23 of these pages might be worth translating for this case, just to give an

24 example. So we would try and find those ten pages, identify them, and

25 have only those pages translated, certainly, to begin with.

Page 667

1 This is, of course, a process that takes its time. So,

2 unfortunately, I am still not able to report any considerable progress in

3 matters of translation.

4 JUDGE ORIE: If you've got one second ...

5 [Trial Chamber and usher confer]

6 JUDGE ORIE: Yes. So there seems to be two issues: First of all,

7 that you received quite a lot of new documents from these archives; and,

8 of course, the next question is: When do they have to be translated? I

9 do understand if you're talking about the 6.400 pages, that you do not

10 envisage, at this moment, that all of those would have to be translated.

11 MS. BREHMEIER-METZ: Your Honour, that may well be the case, but I

12 am afraid I am unable to give you an estimate at the moment as to how many

13 of these 6.400 pages might actually have to be translated. It may be

14 5.000, it may be 4.000, it may be 6.000. I am unable to give you a more

15 detailed number.

16 JUDGE ORIE: Yes. Of course, those documents that will be used as

17 exhibits, of course they need to be translated; whereas, disclosure under

18 Rule 68 does not always necessarily require translation. So, therefore, I

19 think it would be of utmost importance that it is determined as soon as

20 possible what is really in need of translation.

21 Priority of CLSS in relation to other cases, of course, still has

22 to be considered, and the Chamber might perhaps further speak with CLSS

23 about what priority exactly the Stanisic/Simatovic case will have. But

24 that's not something for this Status Conference to be discussed in full

25 detail.

Page 668

1 Now, experience tells us that, with the increase of number of

2 documents, sometimes the estimates on how much time case presentation will

3 take would also increase. Of course, that would be of great concern to

4 the Chamber. Perhaps not necessarily to be discussed in full at this

5 moment, since there is still a suggestion to downsize the indictment,

6 there's even an invitation, if more than a suggestion, but could you tell

7 us anything about your professional view on this matter, whether this

8 would influence the estimates given earlier?

9 I think that the estimate for the Prosecution's phase of the case,

10 that means examination-in-chief and cross-examination of witnesses, would

11 take approximately 250 hours. Is that affected in any way by this new

12 influx of documents?

13 MS. BREHMEIER-METZ: Might I just confer, Your Honour?

14 JUDGE ORIE: Yes, please do so.

15 [Prosecution counsel confer]

16 MS. BREHMEIER-METZ: Thank you, Your Honour.

17 Now, you want to know whether there is any chance that the number

18 of documents might affect the length of the Prosecution case; and since

19 that will be more material, I am afraid I'll have to say that might be the

20 case. I am, however, unable to at the moment give you an estimate as to

21 whether it will be a large impact or just a very minor impact. That also

22 has to be seen together with the question that Your Honour just raised,

23 the invitation to reduce the scope of the indictment.

24 That may well have an impact on the number of documents the

25 Prosecution may want to use, and the number of documents the Prosecution

Page 669

1 may want to use in addition to the ones as already filed will, of course,

2 be important in order to estimate whether and how much impact that will

3 have on the estimated Prosecution case time.

4 So the answer I would have to give you to your question is: It

5 may well be that there is an impact on the length of the Prosecution case,

6 but I am at the moment unable to say how high this impact may be.

7 JUDGE ORIE: Earlier, we had, in June, the Prosecution indicating

8 that there were some well over 2.000 pages still to be translated. How

9 many documents, how many pages have been sent to CLSS for purposes of

10 translation? I mean, how many documents are at the various desks in CLSS

11 in order to be translated? I mean, how many have been sent in?

12 MS. BREHMEIER-METZ: Your Honour, I understand the question. May

13 I just, again, confer.

14 [Prosecution counsel confer]

15 MS. BREHMEIER-METZ: Thank you, Your Honour.

16 If an exact figure is needed, we would have to conduct a search,

17 again, and come back to the Chamber, and we could do that, of course, in a

18 submission. I understand, however, that not all requests for translation

19 have been sent to CLSS yet. This, again, is due to the requirement of

20 CLSS to make priorisations prior to sending a translation request to CLSS.

21 In particular, when documents are requested whose page number exceeds 15

22 documents [sic], CLSS, as my understanding is, then requires a

23 prioritisation in advance, before sending a translation request.

24 So it may well be that, although we estimate the number of pages

25 to be translated with 6.400, that the number of translation requests that

Page 670

1 CLSS actually already has received amounts to a much lesser amount of

2 pages.

3 JUDGE ORIE: You earlier said when documents are requested whose

4 page number exceeded, and then I take it you wanted to say "15 pages,"

5 rather than "15 documents."

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

7 JUDGE ORIE: Yes. Now, could you give me an estimate on -- you're

8 talking about 6.000. How many, approximately? You said you can't give a

9 precise figure. What would you expect to be on the desks of CLSS at this

10 moment, approximately? You said not all of them may have been sent in

11 yet. Are we talking about 2.000, 1.500, 3.000, 500?

12 MS. BREHMEIER-METZ: Your Honour, I would suggest that we would

13 possibly postpone the answer to this question perhaps to the end of the

14 Status Conference. We will need to check all our information that we

15 have. I would suggest that I can try and come back to you with an answer

16 to this question by the end of the Status Conference; or if that should,

17 for whatever reason, not be possible, to submit a report as soon as

18 possible to the Chamber and give you the answer to the questions that you

19 have requested.

20 JUDGE ORIE: Yes. Well, the Chamber has sought information from

21 CLSS, and that information is that for both OTP and the Defence, roughly

22 100 pages are in the process of translation and another 100 are pending

23 translation, which would mean that that's a relatively very small number

24 of the totality of documents.

25 The awareness of the Chamber on how translation issues can

Page 671

1 influence the course of the proceedings. The Chamber would like to

2 receive further and detailed information about whatever category of

3 documents you could think of; that is, documents recently received but

4 still to be considered, whether translation will be requested at all,

5 perhaps documents of which the OTP has already decided that it wants them

6 to be put on the 65 ter exhibit list.

7 I'm just now naming two categories. But in order to make further

8 progress, it is very important that this is well organised and that

9 priority is given, of course first of all, to those documents that you

10 expect you'd like to be on the exhibit list.

11 I immediately add to that that the experience exists also in this

12 Tribunal that sometimes, of the documents on the 65 ter exhibit list, that

13 sometimes half of them are finally tendered into evidence. So, therefore,

14 even if you'd say you'd like to have them on the exhibit list, to

15 carefully review whether you really need them, whether they are

16 repetitious, whether they are more of the same, because this case, which

17 is, I think, declared more or less ready for trial, is, of course, if this

18 translation is not resolved, is not yet ready for trial.

19 Would you please, on short notice, give detailed information to

20 the senior legal officer, and also to the extent that it has not yet been

21 done, to make clear what your work plan is; that is, whether you first

22 start with getting a rough impression of what these documents say that you

23 have received and that have not been translated yet, what your policy will

24 be in sending them to CLSS to receive full translations.

25 It is a matter also because it might have an impact, as you said

Page 672

1 before. It could have a minor impact on the case presentation, but, of

2 course, it could also have a huge impact on the case presentation; and, of

3 course, the Chamber would like not to be surprised by future developments,

4 but would rather be informed about the work plan you developed in that

5 respect.

6 Yes?

7 MS. BREHMEIER-METZ: Very well, Your Honour.

8 JUDGE ORIE: Is there anything the Defence would like to raise in

9 relation to translation issues?

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

11 JUDGE ORIE: Mr. Jovanovic.

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

13 JUDGE ORIE: The reason why I was raising the exhibits issue,

14 Ms. Brehmeier, was also because I looked at your estimate for the case

15 presentation. I did understand that the total estimate of the

16 Prosecution's case, so that is up to the conclusion of the Prosecution's

17 case, that your estimate was five to six months. That's an estimate that

18 was given before. Is that still valid as matters stand?

19 MS. BREHMEIER-METZ: I will have to repeat, Your Honour, what I

20 have said before, and that is: Yes. That is the estimate that is still

21 valid, provided we have the case that we talk about, provided there is no

22 cut on the indictment, and also provided we have to call all our witnesses

23 in the mode that we -- or in a viva voce manner.

24 I have already pointed out, during the last conferences, that

25 there are two major possible impacts on length of the Prosecution case.

Page 673

1 One is the introduction of evidence in written form, pursuant to Rules 92

2 bis and ter. As Your Honour will know, we have filed many motions in that

3 respect; and if all those motions were granted, that would, of course,

4 have an impact on the length of the trial. The other impact, the other

5 possible impact on the length of the trial, as seems possible, is the

6 question of the health of Mr. Stanisic, which may well lead to a reduced

7 number of hours that the Court can actually sit. That, of course will

8 also have an impact.

9 JUDGE ORIE: That's understood.

10 MS. BREHMEIER-METZ: Now, the third possible impact on the length

11 of the trial will, of course, be anything that follows the Chamber's

12 invitation to reduce the scope of the indictment.

13 Leaving all that aside, the only thing that I can say for the time

14 being, Your Honour, is, yes, five to six months.


16 Now, on the basis of the information you've given until now, have

17 you calculated how much time, on average, examination-in-chief of a

18 witness would take? So let's just assume that nothing changes at this

19 moment.

20 MS. BREHMEIER-METZ: In the Prosecution's 65 ter witness list, as

21 was filed in April of this year, Your Honour, we have given estimates of

22 length of each examination of each witness, and that estimate, provided

23 nothing changed, would still stand.

24 JUDGE ORIE: Yes. I'm asking you because, upon a relatively

25 simple calculation, it would mean that, on average - and I'm now only

Page 674

1 talking about viva voce witnesses - that on average, a witness would take

2 less than two hours, which would perhaps not be a bad performance. But

3 I'm more interested in how realistic this expectation is. That's the

4 reason why I'm asking.

5 I mean, it could well be that you say, "No." Of course, the

6 Chamber hasn't thoroughly now gone through witness summaries, et cetera.

7 But one hour and 45 minutes which would be -- first of all, would you

8 agreed that that's the result? Let me try to put it to you.

9 Of course, I perhaps would be on the strict side. But if you're

10 talking about five months, that would be -- no. We are talking about 250

11 hours for the whole, and that would be approximately five months. Now,

12 that would mean 125 hours, if we would decide a matter which of course

13 still has to be decided, or if we would give equal time to Prosecution and

14 the two Defence teams. Sometimes the Defence gets a bit less than the

15 Prosecution. Sometimes they're considering that some of the

16 cross-examination might cover issues which are relevant for both accused.

17 But if you would start on the basis of equality, then 250 hours

18 would mean 125 hours in chief. Of course, you lose some time on -- you

19 lose some time on procedural issues, et cetera, et cetera. But

20 calculating all this with, as I understand, 69 or 70 viva voce witnesses

21 would finally result in less than two hours, or close to two hours, each

22 witness.

23 I'm not saying that this is not -- would not be a good idea, but I

24 just am trying to test the sense of reality, because it's better to test

25 it prior to trial than to find out during trial.

Page 675

1 Give it some thoughts.

2 MS. BREHMEIER-METZ: I'd be happy if I could give it some thought,

3 Your Honour.


5 MS. BREHMEIER-METZ: But I wouldn't say that Your Honour is

6 totally wrong.

7 JUDGE ORIE: Well, that's always very nice to hear, that I'm not

8 totally wrong. No, no. It's nice.

9 Okay. Then I think we have sufficiently discussed, then, the

10 matters of translation and timing.

11 Has the Defence already developed some thoughts on how much time

12 the Defence would need for cross-examination, compared to the time in

13 examination-in-chief? That might be difficult where we have no final

14 overview, perhaps.

15 Mr. Knoops.

16 MR. KNOOPS: Thank you, Your Honour.

17 Speaking for the Defence of Mr. Stanisic, unfortunately we cannot

18 give any indication as to the length of the cross-examination of the

19 Prosecution witnesses.


21 Mr. Jovanovic.

22 MR. JOVANOVIC: [Interpretation] The same here, but we would also

23 like to say that there will be a lot of common things. The Defence teams

24 of both accused already have the same expert for military issues, and I

25 can inform you that the two Defence teams are working together on the

Page 676

1 number of common issues. We believe that some of the answers in the

2 cross-examination would be enough for both the Defence teams. But I can't

3 tell you with any certainty how long it will last. Taking into account

4 the number of witnesses, the Defence team cannot give you the exact time

5 that they will need.

6 JUDGE ORIE: No. Although yours is also in the witness list,

7 isn't it? Ms. Brehmeier just referred to the -- I don't know exactly.

8 Ms. Brehmeier, you referred to the, when I asked you about the

9 estimates of the witnesses, you said a list that was filed --

10 MS. BREHMEIER-METZ: In April this year, Your Honour.

11 JUDGE ORIE: Yes. I don't have at this moment a clear

12 recollection of that. But that April list, would that give you -- would

13 that be a tool for you to further develop thoughts on what you might need?

14 I mean, you've got names, you know of positions of persons, and

15 information persons may have as far as you know at this moment.

16 MR. KNOOPS: Your Honour, this is referring to the Prosecution

17 list, which also includes some reference to the potential time for

18 cross-examination allocated in view of the Prosecution to the Defence

19 teams. Roughly, I could say that some of the allocated times for

20 cross-examination are, in our humble submission, not realistic.

21 I believe that there are indeed several Prosecution witnesses who

22 might be subjected to longer cross-examination in time as the

23 examination-in-chief, simply because of the topics which those Prosecution

24 witnesses are suggested to raise.

25 If Your Honours are inviting the Defence to comment on that time

Page 677

1 list, so to say, from the Prosecution's initiative, we are happy to

2 comment. But it's in this stage also for the Defence quite difficult to

3 exactly say what time, in terms of cross-examination, we would seek for

4 the Prosecution witnesses.

5 What Mr. Jovanovic just pointed to is correct. Of course, we, as

6 Defence, will try to coordinate the cross-examination of the Prosecution

7 witnesses, in terms of the prevention of overlap. But, in general, what I

8 just indicated, some of the time limits which are indicated in the

9 Prosecution's timetable are, in our view, not realistic for some of the

10 witnesses.


12 [Trial Chamber and legal officer confer]

13 JUDGE ORIE: The parties are invited to pay further and thorough

14 attention to this matter as well. The Chamber will also do that. And, of

15 course, one should also keep in mind that sometimes witnesses who start as

16 92 bis application sometimes suddenly become 92 ter witnesses, which of

17 course take additional time.

18 Let's leave it to that for the time being, but it seems that still

19 quite some work has to be done in respect of these scheduling issues.

20 The Chamber is used to work on the basis of realistic calculations

21 and invites the parties also to provide realistic calculations to the

22 Chamber. If the Chamber rules on these matters, the Chamber will also

23 provide calculations.

24 Then I'd like to move on to, first of all, with Rule 68

25 disclosure. One of the issues still pending is the decision by which the

Page 678

1 Stanisic Defence was granted access to all non-public testimony and

2 exhibits pertaining to the charges against Jovica Stanisic or the

3 co-accused, Franko Simatovic, which are part of the Milosevic case.

4 Now, a decision was at that time taken that, first, the consent of

5 witnesses should be sought; and that if the consent was not obtained, that

6 the confidential material would be provided in a redacted form.

7 Ms. Brehmeier, could you inform me where matters stand at this

8 moment in relation to this matter?

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

10 We have, in the meantime, tried to contact the witnesses, of

11 course. We have reached six witnesses out of a total number of 54 that

12 the Prosecution has identified as falling under the scope of the order.

13 Six of these witnesses have, in the meantime, given their consent, and the

14 material has been disclosed to the Prosecution.

15 I believe a total number of seven other witnesses have not granted

16 consent, so that we have, in the meantime, disclosed redacted versions of

17 the material in question to the Defence. We continue, following the

18 orders, trying to receive consent and acting accordingly following the

19 order, as I say.

20 JUDGE ORIE: Yes. Now, this decision has been given in March

21 2005. Do I understand that you have contacted six plus seven makes

22 thirteen, which is exactly 25 per cent of 52. That's one quarter. In two

23 and a half years, that would make, for the totality, ten years.

24 As I said, I am used to working on the basis of calculations.

25 How are you going to resolve that, Ms. Brehmeier?

Page 679

1 MS. BREHMEIER-METZ: If I can perhaps explain, Your Honour, the

2 decisions were, as of mid this year, unknown to the members of the

3 Prosecution team as it stands now. It was Mr. Jordash for Mr. Stanisic

4 who brought this up again and finally made clear to us what we were

5 supposed to do.

6 That is why, for the number of witnesses Your Honour has just

7 pointed out, it did, indeed, take such a very long time after the

8 decisions were rendered. However, as I say, this was due to the fact that

9 the Prosecution team was unaware of the decision. None of the Prosecution

10 team were members of the team in 2005, and that is how this came about.

11 This is not an excuse, just an explanation.

12 Ever since we have been made aware of this decision, we tried and

13 contacted the witnesses, and we continue to do so. So, basically, since

14 mid-2007, we have reached 13 witnesses, so that this might change Your

15 Honour's calculation.

16 JUDGE ORIE: Yes, then it makes four times half a year makes two

17 years; one and a half years still to go. That would be my new

18 calculation. Of course, it's of some concern to the Chamber that the

19 decision - and I was referring to the Stanisic decision of 2005; I was not

20 referring to the Simatovic decision of 2003 - that this remained unnoticed

21 for such a long time, where it may have such an impact on the course of

22 the proceedings.

23 The Chamber will further consider how to deal with this matter,

24 because it really causes great concern. I mean, if you have not

25 approached the witnesses, what is there to do? Would it be unfair to the

Page 680

1 witnesses to disclose, in redacted form, where the witness have not in

2 accordance with the ruling been approached? That, of course, would and

3 could create quite a lot of problems before the start of the trial.

4 So, therefore, first of all, the Chamber would like you to -- the

5 Chamber would like you to intensify your efforts in this respect, and the

6 Chamber itself will also consider how to resolve this outstanding issue.

7 Yes, I do understand that the issue of whether it would cover only

8 Prosecution witnesses or also Defence witnesses has been discussed. The

9 Chamber will further consider the matter, but wants very much the parties

10 to be aware that this is a very problematic area.

11 Now I'd like to move to the next issue, the next issue being what

12 I'd like to call "the Milosevic letters."

13 The Milosevic letters, I understand the three letters, one of

14 which was public already and two others were provided under Rule 70. And

15 I also understand that the Prosecution is seeking the consent of the UK

16 authorities to disclose these two letters, and that for one of these

17 letters, consent was already given, but not for the other.

18 Could you update us, Ms. Brehmeier, on how matters stand in this

19 respect?

20 MS. BREHMEIER-METZ: To begin with, the situation has been set out

21 very clearly and quite correctly by Your Honour. That is exactly the

22 case. One letter has been disclosed in the meantime. As for the other

23 letter, for which consent is still outstanding, Judge Hoepfel made it

24 clear in the last Status Conference that he considered this a matter of

25 great urgency.

Page 681

1 We have then passed on his concerns to the UK authorities, again

2 stressing that this should be dealt with urgently. So the UK authorities

3 are well aware of the urgency of the matter. They have, however,

4 requested us to let them take further prerequisite steps before they can

5 decide on whether or not consent will be given in this matter.

6 I will, following the Status Conference, again ask the UK

7 authorities whether or how far they have come with their considerations.

8 JUDGE ORIE: May I ask you, and perhaps also ask the Defence, what

9 their position is on the following matter: Rule 70 protects a state

10 against using evidence of documents they have provided for the purpose of

11 generating other evidence enabling further investigations, rather than

12 this material to be provided to the Tribunal for the use in court, to be

13 used as exhibits.

14 Could you explain to me how or what could be the argument by a

15 government to lift the Rule 70 restrictions in one case? That means to

16 allow the Prosecution to use that material, protect it against being used

17 in evidence, and just to be used for further investigations. And to deny

18 the same in another case, is it the UK government, in your view, which

19 decides here in which case what evidence can be used, or is it the UK

20 government who, in your view, could decide whether or not they want to

21 protect their material from being used in evidence and to be used only for

22 the limited purposes. That seems that that stage is now behind us,

23 because the UK government has given such consent.

24 Now, have you ever discussed or has the OTP ever discussed with

25 the UK government what their position is as the UK government determining

Page 682

1 that the material could be used in one case, but not in another case?

2 I'm just trying to understand the Rule, and I'm trying to

3 understand what you are seeking at this moment and what the conversation

4 between the OTP and the UK government could be.

5 MS. BREHMEIER-METZ: What I can say, in relation to this, Your

6 Honour, is that from the very first moment that we have requested the UK

7 to give their consent in this case, we have pointed out to them that the

8 information has been disclosed in the case against Slobodan Milosevic

9 already, so that we personally couldn't necessarily see any reason why

10 consent should not be given again.

11 We have constantly made the United Kingdom aware of this

12 situation, and what I might also like to point out is that they have not

13 yet denied consent, but that they are still considering it.

14 JUDGE ORIE: And since when are they considering it,

15 approximately?

16 MS. BREHMEIER-METZ: I think approximately since early this year,

17 but I'd have to go back into my documents.

18 JUDGE ORIE: Yes. The Chamber will consider what we might have to

19 do if a decision on the consent requested would not follow soon.

20 I'm just new in the case. So, therefore, when you say "early this

21 year," my legal staff informs me that it was in 2005. As I said before,

22 whenever it comes to figures, I like precision very much.

23 So would you please -- Perhaps these remarks could perhaps also

24 assist you. The Chamber would very much like this matter to be resolved

25 or to hear what the reasons were; whereas, so far as I was concerned you

Page 683

1 do not understand when it's disclosed in one case, what the reasons could

2 be that it's not to be disclosed in another case, and the same question

3 came to my mind.

4 Therefore, the Chamber is not urging you to intensify your

5 efforts, because I do understand that you are already making great

6 efforts. But the Chamber would then encourage the UK officials,

7 authorities to speed up decision-making in relation to this matter.

8 MR. KNOOPS: Your Honour, excuse me.


10 MR. KNOOPS: If I could assist the Chamber in this regard, with a

11 short remark on behalf of the Defence for Mr. Stanisic.

12 Indeed, as Your Honour rightly observed, the Defence has asked for

13 attention for disclosure of this document already quite some time ago.

14 But it might be helpful for the Prosecution to look into the legislative

15 history of Rule 70(B), which as Your Honour know was added to the Rules in

16 October 1994.

17 When you look into that history of Rule 70(B), it doesn't restrict

18 the matter of consent to just one case. As Your Honour has observed, the

19 British government has given consent for disclosure, of course, with

20 protection of the source. So if consent is not obtained from the British

21 government, we, as Defence, believe that such consent is not necessary to

22 disclose these documents.

23 JUDGE ORIE: Of course. Now an attempt has been made to obtain

24 consent, and that started far before this Trial Chamber was involved in

25 this case. The elegant way is to first see whether a decision is taken by

Page 684

1 the UK government. If a decision is not taken or if it's an unfavorable

2 decision, then the Chamber will have to consider whether and how to

3 proceed with this matter.

4 Then I would like to turn to another item, and that's pending

5 motions.

6 I think there are two motions pending at this moment. The one is

7 the Prosecution's motion for judicial notice of adjudicated facts, which

8 was refiled in mid-May of this year. The other one is the Prosecution's

9 motion for admission of statements, pursuant to Rules 92 bis, ter, and

10 quater, which was also filed in May of this year.

11 These matters will be decided not now, although quite a lot of

12 work is done on it. As often happens before this Tribunal, final decision

13 on these matters are usually taken by the Bench that finally hears the

14 case. Since that Bench is not yet composed, that means of course we have

15 at this moment a Bench of the three permanent Judges of Trial Chamber I.

16 But that is not necessarily the Bench that will hear the case.

17 Therefore, there's another matter. The other matter is since the

18 invitation to reduce the size of the indictment, that of course also may

19 have some influence on the decision of these motions, because perhaps some

20 of the facts are not relevant anymore. That is in different in relation

21 to agreed facts.

22 Now, the Prosecution has submitted -- it made a submission on

23 agreed facts in June of this year. The Chamber does understand that

24 during the 65 ter meeting, that the Stanisic Defence has not opposed the

25 proposed agreed facts. It was not a joint motion.

Page 685

1 But, Mr. Knoops, is it correctly understood that there is no

2 opposition as far as the Stanisic Defence is concerned?

3 MR. KNOOPS: Indeed, Your Honour, the Prosecution, with consent of

4 Defence, has included our correspondence with Prosecution in this

5 respect. So the Chamber may assume that the Stanisic Defence agrees with

6 the facts which are included in the Prosecution motion. And for

7 efficiency reasons, we didn't file a motion ourselves or a joint motion.

8 JUDGE ORIE: That's fine. Then it's not under assumption anymore

9 at this moment, and the Chamber establishes at this moment that the

10 Stanisic Defence does not oppose the proposed agreed facts filed on the

11 15th of June, 2007.

12 Mr. Jovanovic, have you expressed your views already on the agreed

13 facts? I mean, are they also agreed by the Simatovic Defence?

14 MR. JOVANOVIC: [Interpretation] Yes, Your Honour, in the same way,

15 having been in direct communication with the Prosecution, we have reached

16 an agreement. The Prosecution, along with the Defence, has submitted a

17 report to the Trial Chamber.

18 JUDGE ORIE: Yes. Then that's then also established, that the

19 agreed facts, as submitted by the Prosecution, that both Defence teams

20 agree that they are agreed.

21 These were the matters I had on my agenda.

22 There's one observation to be made. It is still quite uncertain

23 when the trial in this case will start. The Chamber expects that within

24 some two to three weeks from now on, that we might have more information

25 which would allow us to give a better estimate on when the trial could

Page 686

1 start, so most likely before Christmas.

2 Any other matters? Ms. Brehmeier, is there anything you'd like to

3 raise at this moment?

4 MS. BREHMEIER-METZ: I just, if I may, give Your Honour a very

5 recent update on the number of pages translation for which is requested.

6 We have requested a number of, in total, 1.685 pages to be

7 translated by CLSS or by DVU.

8 JUDGE ORIE: Yes. They are all still pending?

9 MS. BREHMEIER-METZ: Yes, they are, Your Honour.

10 JUDGE ORIE: Yes. Then we'll have to double-check the information

11 we have received and to find out which information is right. That doesn't

12 change anything of what I said earlier, that the Chamber would very much

13 like to receive from you a kind of work plan on how to proceed with

14 documents which still may need partial or integral translation.

15 Anything else, Ms. Brehmeier?

16 MS. BREHMEIER-METZ: Other than that, nothing. Thank you, Your

17 Honour.

18 JUDGE ORIE: Mr. Knoops.

19 MR. KNOOPS: Nothing, Your Honour, from the Defence of

20 Mr. Stanisic. Thank you.

21 JUDGE ORIE: Thank you.

22 Mr. Jovanovic.

23 MR. JOVANOVIC: [Interpretation] No, nothing, Your Honour, nothing

24 with respect to the Simatovic Defence. Thank you.

25 JUDGE ORIE: Thank you.

Page 687

1 Then I'd like to thank the parties for their cooperative approach

2 and their attendance, and we will adjourn sine die.

3 --- Whereupon the Status Conference concluded at

4 3.39 p.m.