Page 294
1 Tuesday, 24 April 2012
2 [Pre-Trial Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.08 a.m.
6 JUDGE ORIE: Good morning to everyone. Madam Registrar, would
7 you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-09-92-PT, the Prosecutor versus Ratko Mladic.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 We're here today to have the Pre-Trial Conference in the case
12 against Mr. Mladic. I'd like to have the appearances. Prosecution
13 first.
14 MR. GROOME: Good morning, Your Honours. Representing the
15 Prosecution today is myself, Dermot Groome, and I am accompanied by
16 Peter McCloskey, Roeland Bos and Ms. Janet Stewart.
17 JUDGE ORIE: Thank you, Mr. Groome. For the Defence.
18 MR. LUKIC: Good morning, Your Honours. I'm Branko Lukic and
19 together with me today is Mr. Miodrag Stojanovic, Radovan Djurdjevic,
20 Milos Saljic, and Nenad Petrusic for General Mladic.
21 JUDGE ORIE: Thank you, Mr. Lukic. May I take it that you have
22 explained to Mr. Mladic the purpose of the Pre-Trial Conference and that
23 it's slightly different from a Status Conference.
24 Then I'd like to start with the agenda and first deal with
25 disclosure under Rules 66(A)(ii) and Rule 65 ter.
Page 295
1 On the 10th of April, the Defence requested a postponement for
2 the start of the trial of 90 days and an order to the Prosecution to
3 compel the Rule 66(A)(ii) disclosure. The Chamber through an informal
4 communication shortened the response deadline and the Prosecution
5 responded on the 16th of April of this year. This matter was further
6 discussed at last week's Rule 65 ter -- there seems to be a problem with
7 Mr. Mladic receiving translation. We'll fix it.
8 Mr. Mladic, do you now -- thank you. Has translation been
9 missing on from the beginning?
10 If that is the case, perhaps I go back to the -- to the beginning
11 of this item.
12 Mr. Mladic, at the beginning I asked the parties to present
13 themselves. That is what the Prosecution and the Defence did. And then
14 I moved on, but you also may have missed my good morning to everyone.
15 That is hereby repeated. And then I moved on to the next agenda item,
16 and I'll restart that.
17 On the 10th of April, the Defence requested a postponement for
18 the start of the trial of 90 days and an order to the Prosecution to
19 compel Rule 66(A)(ii) disclosure. The Chamber through an informal
20 communication shortened the response deadline and the Prosecution
21 responded on the 16th of April. This matter was further discussed at
22 last week's Rule 65 ter meeting. At that meeting, the Prosecution
23 disclosed one of the -- in its view, one of the last batches of missing
24 translations. The parties had a further meeting about whether everything
25 had been disclosed, and the Prosecution also had a meeting with CLSS
Page 296
1 about the timeline of some outstanding translations.
2 The Chamber would like to receive the update -- an update from
3 the parties on these two meetings, that is, meeting with the parties and
4 the meeting with CLSS.
5 Mr. Groome.
6 MR. GROOME: Yes, Your Honour. On Friday, the 20th of April,
7 members of the Prosecution met with Mr. Lukic to address some of the
8 problems he's had in locating documents we have disclosed to the
9 Mladic Defence. Terry Cameron, an investigator who has the primary
10 responsibility for Rule 66(A)(ii) disclosure, spent some time showing
11 Mr. Lukic how to navigate the spreadsheet which contains an inventory of
12 all this material. Despite the fact that prior statements of witnesses
13 have already been disclosed, Mr. Lukic believes that he is unable to find
14 some and that he loses some important time looking for others.
15 Mr. Cameron has offered to produce a set of DVDs which will
16 contain all of the prior statements of Prosecution witnesses with the
17 exception of the transcripts of prior testimony, and he will organise
18 them into individual folders, one for each witness. These folders would
19 allow Mr. Lukic and the Mladic Defence to quickly identify the
20 Rule 66(A)(ii) material for each of the Prosecution witnesses.
21 I do want to make clear that for the most part, this material has
22 been disclosed and the official date of disclosure in the Prosecution's
23 view is the date when it was first provided to the Defence. The
24 Prosecution's provision of a DVD re-disclosing this material organised in
25 a way that facilitates the work of the Defence team is simply something
Page 297
1 the Prosecution is doing to promote the overall efficiency of the trial
2 process.
3 Second, during the course of the meeting Mr. Lukic identified a
4 document that the Prosecution identified it had disclosed and which
5 Mr. Lukic was certain that he was not in possession of. Mr. Lukic
6 invited Ms. Stewart to try to find it among the electronic files the
7 Prosecution provided. She was able to find this document in a matter of
8 seconds.
9 Ms. Stewart discussed with Mr. Lukic the different ways a
10 document can be located, and once again offered to be available via the
11 telephone or e-mail to any member of the Mladic Defence team who has
12 difficulty locating a document. I note that the Mladic Defence team has
13 just hired a new Case Manager, and Ms. Stewart has already made
14 arrangements to meet with that person later this week to facilitate the
15 process of resolving any residual issues.
16 So in the case of such a query, Ms. Stewart will verify that the
17 document in question has been disclosed, will assist the Defence in
18 locating it among material provided by the Prosecution, or in the event
19 that it has not been disclosed or it is simply more efficient to send a
20 copy, another copy, to the Defence, Ms. Stewart will do so.
21 Having said this now, yesterday Mr. Lukic brought to our
22 attention some other documents that he believes are missing from EDS.
23 Ms. Stewart examined that list last night and she does verify that in the
24 case of some documents, she too was unable to find them in EDS, and they
25 relate to transcripts. She's currently exploring that and hopes to be
Page 298
1 able to resolve it later in the day.
2 Your Honour, with respect to the meeting with CLSS, if I could
3 perhaps have a few moments to discuss that with some of my colleagues.
4 Perhaps Mr. Lukic has some observations on everything I've said so far.
5 JUDGE ORIE: Yes. I would have a question. The re-disclosure on
6 DVD witness by witness, when will that be completed, and are the
7 witnesses who will appear before the summer recess be prioritised.
8 MR. GROOME: Yes, Your Honour, they will be prioritised. We
9 expect to finish that process by this Thursday. Mr. Lukic -- I've spoken
10 with Mr. Lukic before today's hearing. He will have staff here in
11 The Hague and we will physically give him that DVD on Thursday.
12 JUDGE ORIE: Yes. Thank you for that answer.
13 Mr. Lukic, any response?
14 MR. LUKIC: Your Honour, as you know, we are sympathetic and we
15 understand the problems the Prosecution has with this vast -- vast amount
16 of documents they have to disclose to the Defence, but also we have to
17 primarily take care of the interests of our client, and we are of a view
18 that we cannot start the trial without having all necessary documents
19 that would be used in preparation of -- of the Defence.
20 Yesterday, we sent to the Prosecution illustrative and
21 demonstrative example of the transcripts we think are missing, and we
22 checked two pages of one spreadsheet. On those two pages, 74 transcripts
23 were listed. Out of these 74 transcripts that should have been disclosed
24 based on the Rule 66(A)(ii), 49 transcripts were unavailable and could
25 not be found either in EDS or in disclosed ZyLAB format. Twenty-five of
Page 299
1 those transcripts we were able to locate in English and without B/C/S
2 translation.
3 According to the Rule 66(A)(ii) and according to the prevailing
4 jurisprudence of this Tribunal, the disclosure must be in a language the
5 accused understands. So we think that it's crucial for our defence to
6 have all of these documents disclosed in both English and B/C/S, and it
7 hasn't happened yet. We co-operate with the Prosecution, as everybody's
8 aware. They are helping, but still, large amount of the documents we
9 have to have are still missing.
10 In the last 65 ter meeting, we discussed Rule 68(i) disclosure,
11 and we pinpointed what we are missing from these documents. We still
12 think that documents listed as 66(A)(ii), that large part of these
13 documents are still missing. On the last Status Conference on the
14 29th of March, we were told that the documents we were given on that day
15 contain vast majority of transcripts and documents should be disclosed to
16 us according to the Rule 66(A)(ii), and we received three batches, 12,
17 13, and 14.
18 In the batch 12, we found 44 documents that are disclosed based
19 on the Rule 66(A)(ii). None of these 44 documents are transcripts of the
20 prior testimony and only 3 of these 44 documents have translations. So
21 41 documents -- 41 documents are missing translations.
22 In batch 13 we found only documents dealing with Rule 68. So
23 this batch cures no mis-disclosure of the documents based on the
24 Rule 66(A)(ii).
25 We also emphasise in our motion that documents disclosed in this
Page 300
1 batch are not searchable since the data given to us in the spreadsheet is
2 different from the data that the documents are marked with. In this
3 batch, we can find -- in the spreadsheet we can find the name, but the
4 documents are marked with ERN numbers, and there is no -- a single
5 ERN number in this spreadsheet. But still there is no documents
6 disclosed based under Rule 66(A)(ii).
7 Batch 14 purports to identify 75 out of 687 [Realtime transcript
8 read in error "57 out of 600"] documents as witness statements or
9 transcripts presumably under Rule 66(A)(ii), although the Prosecution
10 fails to cite any Rule. However, for 56 out of 75 of these documents so
11 listed, these documents themselves cannot be found and are not included
12 in the disclosure batch. The entire batch has been processed by hand,
13 and it has been confirmed that these documents do not exist on there.
14 Also what we found interesting is that the Prosecution claims
15 that there is no translations for some documents, but in this batch,
16 193 documents are originally B/C/S documents, and we have English
17 translations of those documents, but we don't have B/C/S original
18 documents.
19 We have to admit that there were really great efforts on both
20 sides to resolve these matters, but the methods used by now did not cure
21 all the downfalls of the disclosure. We are always waiting at the
22 Status Conference for the next few days something to be disclosed. We
23 were promised that it would be disclosed to us in folders, witness by
24 witness, the documents in connection with -- with the witnesses. We are
25 grateful if we receive those, but still, even according to the
Page 301
1 Prosecution, the transcripts from the trial of those witnesses will be
2 missing. So for us it's not acceptable, and it would be a great
3 impediment for the Defence to prepare any witness for cross-examination.
4 So we still urge the Trial Chamber to enter an order granting the
5 relief requested in our notice pursuant to Chamber direction of
6 29th of March 2012, an urgent motion to compel, or to order the
7 Prosecution that they cannot call any witness 90 days after the complete
8 disclosure for every witness they want to call to testify in front of
9 this Chamber or any Chamber that would be in charge of the trial.
10 I have much more to add to the documents based on Rule 66(A)(ii),
11 exhibits disclosed according to Rule 64, and still we have problems with
12 EDS as well. So if you -- if you find it necessary, I can deliberate on
13 that much more in coming hours.
14 JUDGE ORIE: Mr. Lukic, it seems that the problems are still such
15 that we couldn't resolve them here by going into further detail, so
16 therefore I would -- I'd first like to hear -- perhaps I have a few
17 questions and then further hear from the Prosecution, and this may
18 trigger any need to -- to further meetings and to see to what extent the
19 problems can be resolved and to what extent the announced new
20 re-disclosure of DVDs in relation to the witnesses, although not
21 transcripts, will remedy the problem.
22 MR. LUKIC: Thank you, Your Honour.
23 JUDGE ORIE: One question about translation of transcripts.
24 Where are we exactly with audio disclosure of the B/C/S of the
25 transcripts?
Page 302
1 MR. LUKIC: Maybe the Prosecution can start on this point.
2 Thanks.
3 JUDGE ORIE: Yes. Let me see whether that was -- apart from that
4 I had another very practical matter, which is that I think the
5 transcript -- one second, please.
6 [Trial Chamber confers]
7 JUDGE ORIE: Yes. There seems to be some small contradiction
8 between page 7, line 3, which refers to 57 documents out of 600, whereas
9 in line 5 it is 56 out of 75. I think you said that batch 14 purports to
10 identify 75 out of 600 documents, Mr. Lukic.
11 MR. LUKIC: Bear with me for a second, Your Honour.
12 JUDGE ORIE: Yes.
13 MR. LUKIC: 75 out of 687.
14 JUDGE ORIE: Yes, that is a small -- either you misspoke or it
15 was mistranscribed.
16 MR. LUKIC: That's very possible because I spoke in English, yes.
17 JUDGE ORIE: Mr. Groome, my question to Mr. Lukic was about audio
18 disclosure of the B/C/S originals of the transcripts.
19 MR. GROOME: Your Honour, that process is under way now and the
20 Prosecution expects by the end of this week to disclose audio files of
21 all of the prior testimony of the first 23 witnesses and the project will
22 continue to -- to create those disks for the remaining witnesses and I
23 expect that that will be done shortly thereafter.
24 JUDGE ORIE: Yes. Thank you for that information. Apart from
25 this audio disclosure, any further comments on what Mr. Lukic brought to
Page 303
1 our attention a minute ago?
2 MR. GROOME: Just briefly, Your Honour, and I would agree with
3 the Chamber's view that the level of detail probably is -- is -- this
4 hearing's not conducive for resolution of each of these on a
5 document-by-document basis. I would point out some inaccuracies, though.
6 Mr. Lukic referred to spreadsheet batch number 12 and stated that it did
7 not have the ERN numbers. Ms. Stewart called up the document here
8 before -- before us, and we could see the ERN numbers. So I believe
9 there might be some error in that.
10 With respect to being able to find English translations but not
11 being able to find the B/C/S originals, I would point out that it is not
12 necessarily true that the original and the translation is disclosed at
13 the same time. I believe what's happened in this case is the Prosecution
14 disclosed the original as soon as it was able, and it was in a batch
15 later on that it disclosed the translation, and again we can assist
16 Mr. Lukic in pairing them up to connecting them.
17 With respect to the -- the CLSS meeting, the Prosecution has not
18 had an opportunity to sit down with CLSS yet, but Ms. Stewart has been in
19 communication with them, and we are receiving some of the translations
20 that were outstanding, and we will pursue that matter further.
21 Your Honour, if I could suggest a practical way to proceed. Now
22 that the Mladic Defence has a designated Case Manager, we will be
23 providing the re-disclosure of the statements organised according to
24 witness in the folders this Thursday. Can I suggest that this Friday
25 that both the Mladic Defence and the Prosecution spend the entire day, if
Page 304
1 necessary, to go through that inventory and to definitively ascertain
2 whether or not the disclosure for these witnesses has been completed, and
3 the Prosecution would undertake to file a report with the Chamber early
4 next week about the result of that meeting so that once and for all
5 there's some clarity about what has been disclosed and what remains to be
6 disclosed.
7 JUDGE ORIE: Mr. Lukic, apart from your request and your request
8 for the Chamber to order something, would this be a -- would you accept
9 this offer that -- to receive on Thursday the full re-disclosure DVD and
10 then sit together on Friday?
11 MR. LUKIC: Your Honour, as you know, we always co-operate with
12 the Prosecution. We are always grateful whatever they disclose to us.
13 Only I want to emphasise, I don't know, I couldn't find here in the
14 transcript, but batch 13 is missing ERN numbers, not 12. It's the fact
15 is batch 12 and 14 contain ERN numbers, but batch 13 does not.
16 And one more thing I just want to add to this, that search we
17 performed in the last couple of days shows that we are missing
18 66 per cent of English transcripts, let alone B/C/S translations. So
19 it's not only that we are missing B/C/S, we are missing 66 per cent of
20 searched transcripts in English.
21 JUDGE ORIE: You mean searchable. Searchable transcripts --
22 MR. LUKIC: No, we searched and we found --
23 JUDGE ORIE: You've searched --
24 MR. LUKIC: -- that 66 per cent is missing in English.
25 JUDGE ORIE: Yes. I think it comes down to -- apart from all the
Page 305
1 good efforts the parties are making and the Chamber really appreciates
2 your cooperative attitude, Mr. Lukic. I think the real issue is whether
3 missing translations or missing originals, whether that's the exception
4 which confirms that overall disclosure is close to complete or whether --
5 what's -- what's the exception? What's the rule? I think that would be
6 the main thing to find out these days, and again I don't think that at
7 this Pre-Trial Conference we could make such progress that we could
8 resolve it, so we have to do it out of court, and we'll, of course,
9 consider your requests and your repeated request for either full
10 disclosure 90 days before the first witness to appear or the postponement
11 of the start of the trial.
12 MR. LUKIC: Thank you, Your Honour.
13 JUDGE ORIE: Mr. Groome.
14 MR. GROOME: Your Honour, simply to add that now that Mr. Lukic
15 has said that it was batch 13, Ms. Stewart has called that up and again I
16 can see the ERN numbers. So there must be some problem in the use of the
17 Excel spreadsheet. I'll seek to clarify that with Mr. Lukic over the
18 break.
19 With respect to the transcript of testimonies, this was brought
20 our attention yesterday. Ms. Stewart did a random check and we do
21 acknowledge that some transcripts are missing. We will seek to remedy
22 that as soon as possible. I would point out and ask the Defence to
23 consider using -- all of these transcripts are available from the ICTY
24 web site with the exception of material in private session, so I'd ask
25 the -- the Lukic Defence to consider that this should not delay their --
Page 306
1 their preparations, and as soon as the Prosecution is able, we will
2 verify that we have disclosed the transcripts or we'll obtain them,
3 transcripts which do include any private session evidence.
4 MR. LUKIC: Your Honour, if I may, thanks. Batch 13 has three
5 parts. First part is "Zavidovici," and it's dealing with the Rule 68, I
6 think. Just a second.
7 JUDGE ORIE: Exculpatory.
8 MR. LUKIC: 68. Exactly, Your Honour. Second part says "Hum"
9 and "Cover." It's also dealing with 68. In those two parts we can find
10 the ERN numbers. The third part says "Witnesses," and in this part we
11 don't have ERN numbers, and those -- this part is supposedly 66(A)(ii),
12 if it says "Witnesses," although we don't have any mentioning of the Rule
13 this was enumerated by. But in this third part we don't have any ERN
14 numbers and can be checked right now if the Prosecution --
15 JUDGE ORIE: Well, Mr. Lukic, you will understand that that the
16 Chamber is unable at this moment to verify --
17 MR. LUKIC: I do, Your Honour.
18 JUDGE ORIE: Most likely we will sit together soon and two
19 screens, Prosecution screen, Defence screen, and say, okay, this is what
20 the Prosecution can find and that is what the Defence can find. And then
21 we have to deal with those matters out of court.
22 Then, Mr. Groome, as far as --
23 MR. GROOME: Your Honour --
24 JUDGE ORIE: Yes. Let's first try to finish the -- what was just
25 said. Mr. Groome has offered to sit together with you, after disclosure
Page 307
1 on Thursday, on Friday and see now whether everything has been completed.
2 I think the wisest thing for the Chamber to do is to wait for your report
3 which we'll then presumably receive on Monday, but Monday is Queen's Day,
4 so therefore it would be Tuesday morning. That would be fine. If -- if
5 not, a short report could be received on Friday at close of business.
6 MR. GROOME: Your Honour, I would propose to send an e-mail
7 Friday to quickly summarise what took place Friday and then sometime on
8 Tuesday to file a more detailed report.
9 JUDGE ORIE: Yes. Mr. Lukic.
10 MR. LUKIC: Agreed, Your Honour.
11 JUDGE ORIE: And then we'll wait for that before we take any
12 further steps.
13 [Trial Chamber confers]
14 JUDGE ORIE: Then we will move on. I had one question. The CLSS
15 consultation, that was about the 48 documents, some 200 pages for the
16 pre-summer witnesses and another 531 for after the -- for other
17 witnesses. Is that --
18 MR. GROOME: Yes, Your Honour. And as I've said, we are starting
19 receive translations. Perhaps in this report that we'll file Tuesday
20 I'll provide the most up-to-date information with respect to the
21 statuses.
22 JUDGE ORIE: So that we know where we are as far as quantity is
23 concerned.
24 MR. GROOME: Yes, Your Honour.
25 JUDGE ORIE: Okay. Then I move on. On the 12th of April, the
Page 308
1 Defence alleged that half of the documents on the Prosecution's
2 65 ter exhibit list, and we're now moving from 66(A)(ii) to 65 ter, that
3 half of the documents had not been disclosed yet and requested a delay in
4 the start of the trial and an order to disclose these documents in a
5 searchable format. At the Rule 65 ter meeting, the Prosecution
6 represented that all of these exhibits had been disclosed and the issue
7 was then further clarified. We also then heard that the parties would
8 discuss the matter among themselves on specific issue of disclosure of
9 65 ter documents.
10 To what extent what you've just told the Chamber already covers
11 this 65 ter disclosure? Mr. Lukic.
12 MR. LUKIC: I have to disagree with my colleagues from across,
13 and I have to tell you that there is nothing new in the e-court.
14 Metadata is still missing, and we cannot choose which document is
15 necessary to read first and which documents we don't have to read since
16 this metadata is missing.
17 JUDGE ORIE: Yes.
18 MR. LUKIC: It's not done yet.
19 JUDGE ORIE: Let me first see. You say there's nothing new in
20 e-court. We discussed at the 65 ter meeting that a large number of
21 documents would have been uploaded and would have been released. Is that
22 case meanwhile and where are we in terms of percentages?
23 MR. LUKIC: Maybe it has been done yesterday.
24 JUDGE ORIE: Yes. If -- you didn't find anything on e-court, and
25 Mr. Groome will tell us --
Page 309
1 MR. LUKIC: E-court is empty.
2 JUDGE ORIE: Yes. That's what I mean. You find an empty
3 e-court --
4 MR. LUKIC: There's nothing.
5 JUDGE ORIE: -- and Mr. Groome is now going to tell us what
6 happened with the uploading of exhibits in e-court.
7 MR. GROOME: Thank you, Your Honour. Last Friday morning, the
8 ITSS section, the Information Technology Systems people from the Registry
9 copied over the files to be uploaded. This process took approximately
10 four hours. Beginning on Saturday morning, they ran the programme to
11 upload all of the exhibit files into the e-court systems. The computers
12 were hard at work until about noon on Sunday when the entire process
13 failed. There was uncertainty as to why this happened. It may have been
14 due to the volume of exhibits that were being processed.
15 The second attempt was made yesterday morning at 9.00. This time
16 the computer specialists attempted to upload only a portion of the
17 exhibit list in the hope of overcoming the problems they experienced over
18 the weekend. This attempt involved approximately 6.000 exhibits on the
19 list. The computers worked up until just before 5.00 last evening when
20 again the uploading procedure failed.
21 It appears the programme is having difficulty in matching
22 translations to the underlying exhibits. Prosecution staff met with the
23 Registry's computer staff yesterday and assigned to this project to
24 discuss the problems experienced to date. The Registry staff are
25 actively working on what appears to be a problem with the programme's
Page 310
1 ability connect translations to the original documents. We remain in
2 close contact with them and are ready to assist in this process in any
3 way we can.
4 There are plans to reattempt an upload sometime today. If the
5 Chamber wishes, I will send an e-mail to the Chamber and the Mladic
6 Defence with current information as we receive it about today's efforts
7 to upload the exhibits into the e-court system. They have realised that
8 they are unable to upload the entire 65 ter list in one attempt, and they
9 will now do it in batches. I am unable to say at this time how long this
10 batch process will take.
11 [Trial Chamber confers]
12 MR. GROOME: Your Honour, could I just supplement my submission
13 with one matter.
14 JUDGE ORIE: Please do so.
15 MR. GROOME: I do want to recall for the Chamber that on the
16 13th of April, the Prosecution filed the witness list for the first
17 segment of its case, and in that confidential annex the Prosecution
18 provided all of the 65 ter numbers of the exhibits that it intends to use
19 with the first 23 witnesses. So I would take issue with the Mladic
20 Defence's assertion that it is unable to identify which exhibits it
21 should work with. I believe that the Mladic Defence has all of the
22 information it needs to identify the exhibits that will be used with the
23 witnesses prior to the summer break. Thank you, Your Honour.
24 JUDGE ORIE: And that would include any witness statements?
25 MR. GROOME: This would be simply the exhibits, Your Honour, for
Page 311
1 the 65 ter list.
2 JUDGE ORIE: Yes.
3 MR. GROOME: The --
4 JUDGE ORIE: Of course, for Rule 73 -- Rule -- and 92 ter
5 witnesses, of course, the statements would become exhibits.
6 MR. GROOME: Yes, Your Honour. And if the Chamber will recall,
7 at an earlier Status Conference the Chamber had ordered or directed us
8 not to put those on the exhibit list but to put them as part of the
9 92 ter or bis application.
10 JUDGE ORIE: Yes.
11 MR. GROOME: And depending on the outcome of that, then it would
12 be added to the 65 ter.
13 JUDGE ORIE: Yes. The question is whether they would be
14 available to the -- identifiable and available to the Defence at this
15 moment.
16 MR. GROOME: Well, all of the -- that would be identified in the
17 66(A)(ii) identification, Your Honour.
18 JUDGE ORIE: Yes. Yes. And -- the Chamber would like to receive
19 a daily report on the progress made in the uploading, because if you say
20 we'll now make an effort to do it in batches and if until now even if you
21 split it up it has failed to be successful, the Chamber would like to --
22 in whatever format, you may send us an e-mail copied to the Defence so
23 that on a daily basis the Chamber is informed about any progress made,
24 because during the last 65 ter meeting, it was clear that the uploading
25 into e-court would resolve at least some of the concerns the Defence has.
Page 312
1 So therefore we'd like to be informed about it on a daily basis.
2 MR. GROOME: The Prosecution will send the report by e-mail every
3 day at 4.00, Your Honour.
4 JUDGE ORIE: Every day. Thank you, Mr. Groome, for that. We'll
5 then further see what happens in the days to come and as you -- as we
6 indicated already at the 65 ter meeting, if need be, the Chamber or the
7 Presiding Judge would sit together with the parties and see where the
8 real problems are and whether and how they can be resolved.
9 Then ...
10 [Trial Chamber and Legal Officer confer]
11 JUDGE ORIE: Mr. Groome, in the -- in the e-mail you would send
12 on Friday on Rule 66(A)(ii) and then the report to be received by the
13 Chamber on Tuesday, would you include to the extent useful also
14 information about any 65 ter disclosure apart from the uploading.
15 MR. GROOME: Yes, Your Honour.
16 JUDGE ORIE: Yes. Then I move on to my next item, which is
17 Rule 68 disclosure.
18 On the 10th of April, the Prosecution requested that it be
19 allowed to include the disclosure of Serbian MUP documents initially
20 scheduled to be disclosed in March 2012 to include it in its disclosure
21 of the 27th of April. The Prosecution argued that this was necessitated
22 by the volume of this collection. On the 19th of April, the Chamber
23 accepted this change in schedule for this disclosure batch and that
24 matter is hereby put on the record.
25 Then I will move on, the next item on my agenda being the
Page 313
1 Rule 73 bis decision.
2 The Chamber will now issue its decision under Rule 73 bis (C) of
3 the Rules in relation to the number of witnesses and the time available
4 for the Prosecution to present its case. The Chamber has considered the
5 Prosecution's submissions on possible reductions to its witness list.
6 These submissions were made on the 26th of March at the Rule 65 ter
7 meeting, which was held on the 26th of March, and the Status Conference
8 held on the 29th of March.
9 The Prosecution's witness list contains 411 witnesses and it
10 requests 200 hours for examination-in-chief. Regarding the Prosecution's
11 two requests for additions to its witness list, the Chamber notes that
12 the proposed addition of witnesses in relation to the Defence's alibi
13 notice has been put on hold. The other motion requested the addition of
14 two proposed expert witnesses. Having considered the parties'
15 submissions and considering that the request was made before the
16 Chamber's Rule 73 bis (C) decision, the Chamber accepts the addition of
17 these two witnesses to the Prosecution's witness list. As a result, the
18 Chamber takes as a starting point that the Prosecution requests to
19 present 413 witnesses in 200 hours.
20 The estimates in the Prosecution's witness list indicate an
21 average of about one hour of examination-in-chief for each Rule 92 ter
22 witness. The Chamber had previously given guidance that in principle,
23 examination-in-chief of Rule 92 ter witnesses should be limited to
24 30 minutes. In light of other guidance issued on the presentation of
25 evidence, the Chamber considers that the Prosecution will use the
Page 314
1 additional time, that is the additional 30 minutes, to tender related
2 documents with its witnesses. The Chamber therefore accepts the
3 Prosecution's estimates.
4 In its submissions on possible reductions to its witness list,
5 the Prosecution indicated that the fact that the witness is the sole
6 survivor of an incident may have played a role in its determination not
7 to propose that witness as a Rule 92 bis witness. The Chamber considers
8 that the determination to propose witnesses under Rule 92 bis should be
9 based on the legal test for admission under that Rule and not on concerns
10 that the Chamber may want to generally assess the credibility of sole
11 survivor witnesses. Any specific concerns in relation to the credibility
12 of a witness may, however, play a role when the Chamber decides on a
13 Rule 92 bis motion. Nonetheless, not having seen the exact evidence to
14 be tendered under Rule 92 bis, the Chamber is reluctant to intervene in
15 such determinations at this stage and refrains from making specific
16 suggestions in this regard.
17 Further, the Chamber previously announced that it would not
18 accept the inclusion of a witness whose identity has not been
19 communicated to the Chamber. The Prosecution disclosed the identity of
20 the one remaining Rule 70 witness to the Chamber and to the Defence in
21 its 11th of April, 2012, pre-trial report. While the Rule 65 ter (E)(ii)
22 information remains to be provided, the Chamber accepts the inclusion of
23 this witness on the Prosecution's witness list.
24 Overall, the Chamber accepts the Prosecution's witness list and
25 sets the number of Prosecution witnesses to 413. The Chamber notes that
Page 315
1 the sum of the Prosecution's individual time estimates for
2 examination-in-chief of its witnesses does not exactly match the
3 requested 200 hours, but nevertheless sets the number of hours available
4 to the Prosecution to 200. In making this determination, the Chamber
5 carefully considered the resulting implications on the overall length of
6 this case.
7 As part of its power to control the mode and order of presenting
8 evidence, the Chamber will closely monitor the time efficiency of the
9 witness examinations and the Chamber will intervene when necessary.
10 The Chamber stresses that it expects the Prosecution to drop or
11 not tender the evidence of a considerable number of witnesses as a result
12 of the Chamber's decisions taking judicial notice of adjudicated facts,
13 agreements reached for the Defence, and other decisions issued by the
14 Chamber, for example, in relation to the authenticity of intercepts.
15 Other decisions by the Chamber, for example, in relation to 92 bis
16 motions, may also have an impact on the time needed for the Prosecution
17 to present its case, and the Chamber will consider any requests made in
18 this respect.
19 And this concludes the Chamber's decision under Rule 73 bis (C)
20 of the Rules.
21 I then move on to my next item, which is the -- relates to the
22 guidance for the trial proceedings. It clarifies and amends the guidance
23 with regard to tendering and presentation of evidence.
24 At the Status Conferences of the 10th of November and the
25 8th of December, 2011, the Chamber, having considered written submissions
Page 316
1 of the parties, issued its guidance on the tendering and presentation of
2 evidence pursuant to Rules 92 bis, 92 ter, and 92 quater, as well as
3 through bar table submissions. The Chamber decided to issue its guidance
4 relatively early in the pre-trial phase of the case so as to allow both
5 parties to prepare the presentation of their cases accordingly.
6 On the 2nd of April, 2012, the Prosecution filed its submissions
7 on the Trial Chamber guidelines requesting that the Chamber conduct an
8 en banc hearing on the matter of tendering and presentation of evidence.
9 On the 3rd and the 13th of April, the Prosecution filed four motions
10 pursuant to Rule 92 bis and 92 ter, which addressed certain matters dealt
11 with in the Chamber's guidance. On the 16th of April, the Defence
12 responded to the Prosecution's submissions. It argued that the
13 Prosecution was in fact requesting reconsideration of the guidance and
14 that the submissions should be dismissed for not meeting the standard for
15 reconsideration. It further requested the Chamber to deny the request
16 for an en banc hearing.
17 Also on the 16th of April, the Defence filed a motion requesting
18 that the Chamber dismiss the Prosecution's Rule 92 ter motions in
19 relation to witnesses RM-505 and RM-516 as being noncompliant with the
20 guidance, or in the alternative, to stay the Defence response deadline
21 until there was a resolution to the Prosecution's guidelines submissions.
22 At the Rule 65 ter meeting of the 19th of April, the Presiding Judge
23 informed the parties that the Chamber would set the response time with
24 regard to Witnesses RM-505, RM-516, and RM-321 in due course.
25 With regard to the request for a hearing, the Chamber considers
Page 317
1 that the parties and the Chamber have addressed the tendering and
2 presentation of evidence during numerous Rule 65 ter meetings and
3 Status Conferences in the course of several months. The parties have had
4 the opportunity to make submissions on this matter on more than one
5 occasion, and they have done so. At this stage, the Chamber does not
6 consider that there is a need for a special hearing.
7 Due to the nature the guidance as opposed to a decision, the
8 Chamber has decided not to treat the Prosecution's submissions as a
9 request for reconsideration. That said, the Chamber is not inclined to
10 review its guidance as a whole as it was issued after hearing the parties
11 and following careful consideration. The Chamber will use the parties'
12 latest submission as an opportunity to review certain parts of its
13 guidance and, where necessary, clarify or modify it as appropriate. As
14 the Chamber has stated previously, and I refer to transcript page 138,
15 should the parties consider that exceptions to the guidance are necessary
16 for certain witnesses or certain documents, they should make specific
17 requests in relation to those. The Chamber does not consider the
18 Rule 92 bis and ter motions filed to date as falling within this
19 category. Should the Prosecution make such requests, the Chamber will
20 deal with them on a case-by-case basis.
21 The Chamber set out its considerations underlying the guidance at
22 the Status Conference of the 10th of November, 2011, and I refer in this
23 respect to transcript page 106. These considerations include that each
24 party is responsible for presenting its case in a clear and
25 comprehensible manner and that the Chamber does not accept a flood of
Page 318
1 evidentiary material only to find itself sorting through that material to
2 determine if and how it is relevant to a party's case. The Chamber
3 issued its guidance as part of its obligation pursuant to Article 20 of
4 the Statute to ensure that the trial is fair and expeditious and that the
5 proceedings are conducted in accordance with the Rules of Procedure and
6 Evidence.
7 In considering the most appropriate mode of presenting evidence
8 in order to ensure a fair and expeditious trial, the Chamber does not
9 only take into account the time needed for examination-in-chief. The
10 Chamber also needs to consider, for example, the time needed for
11 cross-examination, re-examination, and questions from the Bench, as well
12 as the time needed for the Chamber to read and evaluate evidence outside
13 court. Taking these factors into account means that under certain
14 circumstances, it is more appropriate and expeditious to call a witness
15 viva voce instead of hearing him pursuant to Rule 92 ter. The Chamber
16 previously indicated this possibility on transcript pages 204 and 205.
17 One example in this respect is Witness RM-505. In its
18 Rule 92 ter motion for this witness, the Prosecution seeks to tender a
19 90-page witness statement and 38 associated exhibits. In addition, the
20 Prosecution indicates that it would need two hours for
21 examination-in-chief. The Defence points out, and the Prosecution
22 acknowledges, that the Rule 92 ter motion contravenes the Chamber's
23 guidance. In the alternative, the Prosecution proposes to call the
24 witness viva voce for an examination-in-chief of 7.5 hours.
25 For this particular witness, when assessing overall the most
Page 319
1 expeditious mode of testimony, the Chamber has considered the estimated
2 time for examination-in-chief, cross-examination, re-examination,
3 questions from the Bench, as well as the time needed for the Chamber to
4 read and evaluate the documentary evidence outside court. The Chamber
5 has further considered the amount of evidentiary material, including both
6 witness statement and time in court for examination-in-chief, that the
7 Prosecution would require for the proposed two options. In this respect,
8 the Chamber notes that in its experience, a witness statement of 90 pages
9 contains far more evidentiary material that can be elicited from a
10 witness in court during 5.5 hours. That's the 7.5 minus the 2 under
11 Rule 92 ter. This means that the witness statement contains much more
12 information than what the Prosecution intends to rely on for its case.
13 Considering this, the Chamber instructs the Prosecution to refile a
14 condensed Rule 92 ter witness statement in accordance with the guidance
15 or to adduce the witness's evidence viva voce. Accordingly, the portion
16 of the Defence's motion of the 16th of April in relation to this witness
17 is therefore moot.
18 The Chamber will now address some specific points in its guidance
19 as raised by the Prosecution. These are: First, the tendering of
20 associated exhibits with Rule 92 ter witnesses; secondly, the limitation
21 to one witness statement for each Rule 92 bis and 92 ter witness; and
22 thirdly, the Chamber's preference for tendering witness statements
23 instead of transcripts from previous cases under Rule 92 bis,
24 Rule 92 ter, or 90 -- 92 quater.
25 With regard to the first point, the Chamber refers to its
Page 320
1 guidance as set out at transcript page 108. The Chamber emphasises that
2 the guidance does not limit the Prosecution in the amount of exhibits it
3 may tender through a Rule 92 ter witness, but it does set out that
4 tendering should be done in court with the witness as opposed to merely
5 attaching the exhibits to a witness statement. The tendering of multiple
6 documents is a ground for a party to request more time for
7 examination-in-chief than the 30 minutes indicated in the guidance, and
8 the Prosecution has made use of this possibility, requesting on average
9 approximately one hour per Rule 92 ter witness. In this respect, I refer
10 the parties to the discussion held at the 65 ter meeting of the
11 20th of February of this year, at transcript pages 215 and 216. The
12 Chamber has considered this in its Rule 73 bis (C) decision, which I
13 delivered a few moments ago.
14 The Chamber further notes in this respect that if documentary
15 material exists that supports what a witness stated, that it may not
16 always be necessary to tender it. If there's no dispute about the
17 reliability of the relevant part of the statement, the Chamber may well
18 do without this material. Further, the Chamber would not expect a
19 cross-examining party to easily challenge a witness statement in respect
20 of matters which are well supported by documentary material, which is
21 often brought to the cross-examining party's attention together with the
22 witness statement itself. If the cross-examining party nevertheless
23 decides to challenge such facts of that portion of the statement, the
24 Prosecution could still seek to tender the documentary material during
25 re-examination.
Page 321
1 The Chamber now turns to the second point, namely, the limitation
2 to one witness statement for each Rule 92 bis and 92 ter witness. The
3 Prosecution argues that this is impracticable for a number of witnesses
4 who have provided multiple statements, all containing information
5 relevant for the Prosecution's case. The Chamber notes that the
6 Prosecution's arguments in paragraph 6 to 9 of its submission do not
7 appear applicable to Rule 92 ter witnesses. For such witnesses, the
8 Prosecution may choose in its view the best statement and elicit the
9 remaining evidence from the witness in court. If the Prosecution
10 considers that it is not possible within the time they have requested for
11 that witness, it could take a new witness statement as proposed by the
12 Chamber in its guidance at transcript page 107.
13 With regard to Rule 92 bis witnesses, the Chamber has considered
14 the Prosecution's submissions and amends its previous guidance in the
15 following way: In addition to the one witness statement, the Chamber
16 will accept one or more additional short supplemental witness statements,
17 either in existence or still to be taken, dealing with specific issues or
18 corrections to the original statement. And the Chamber also extends this
19 amendment of the guidance to Rule 92 quater witnesses.
20 The Prosecution has indicated that taking new witness statements
21 results in "significant and unnecessary expenditure of time and
22 resources" and that it would impose unnecessary inconvenience on
23 witnesses. The Chamber is aware that the guidance could require further
24 time and work for the Prosecution to prepare the presentation of its
25 case, including taking new witness statements. As mentioned, this is why
Page 322
1 the Chamber decided to issue the guidance at a relatively early stage of
2 the pre-trial phase. Although the Chamber understand the concerns raised
3 by the Prosecution, it does not consider that they are generally
4 applicable to all witnesses and the Prosecution could therefore address
5 such concerns with the Chamber on a case-by-case basis.
6 I now turn to the Chamber's third point, namely the preference in
7 the guidance for tendering witness statements under Rule 92 bis, 92 ter,
8 and 92 quater rather than transcripts from other cases.
9 The Prosecution argues that this portion of the guidance is
10 contrary to the Tribunal's Rules and jurisprudence. This is incorrect.
11 The Rules and the Tribunal's jurisprudence set out various permissible
12 ways in which the parties may tender evidence in their cases. They do
13 not compel the Chamber to admit transcripts from previous cases or any
14 other specific form of testimony. Acting under its obligation to ensure
15 that a trial is fair and expeditious, the Chamber has discretion to
16 direct the parties towards what it considers to be the most appropriate
17 forms of tendering of evidence. Pursuant to Rule 90(F) of the Tribunal's
18 Rules of Procedure and Evidence, the Chamber shall exercise control over
19 the mode and order of interrogating witnesses and presenting evidence so
20 as to make this effective for the ascertainment of the truth and to avoid
21 needless consumption of time.
22 The Chamber acknowledges the arguments advanced by the
23 Prosecution in terms of the evidentiary strength of transcripts of prior
24 testimony. However, at paragraph 17 of its response, the Defence
25 directly points to some of the problems with transcripts from previous
Page 323
1 proceedings:
2 "Transcripts are often lengthy and explore issues outside of the
3 specific charges of the indictment and can include cross-examination that
4 is incompatible with the defence sought by the specific accused of the
5 trial in which it is proffered."
6 Therefore, the Chamber does not find any reason to modify its
7 guidance with regard to the tendering of transcripts.
8 In its Rule 92 bis motion for Witness RM-078, the Prosecution
9 seeks to tender transcripts of testimony over seven days, meaning about
10 600 transcript pages, from another case and 41 associated exhibits. In
11 its witness list, however, the Prosecution presented this as a
12 Rule 92 ter witness who would be heard for 1.5 hours of
13 examination-in-chief. The Chamber presumes that the Prosecution
14 intended, pursuant to the guidance, to tender a witness statement
15 pursuant to Rule 92 ter. If so, between the two options mentioned, the
16 more efficient way to hear this witness appears to be pursuant to
17 Rule 92 ter. And in this respect, the Chamber has considered not only
18 the time needed for it to read and evaluate the evidence out of court but
19 also the amount of evidentiary material, including both witness
20 statements and time in court for examination-in-chief, that the
21 Prosecution would require for the two options.
22 Another option for the Prosecution would be to take a new witness
23 statement and tender this pursuant to Rule 92 bis. The Chamber therefore
24 directs the Prosecution to refile the Rule 92 bis motion in accordance
25 with the guidance, to replace it with a Rule 92 motion in accordance with
Page 324
1 the guidance, or to make specific submissions as to why an exception to
2 the guidance is warranted for this particular witness.
3 In addition to the two Rule 92 bis and ter motions already
4 specifically referred to, the Chamber expects the Prosecution to consider
5 whether the other two Rule 92 ter motions would stand or whether they
6 should be refiled. The Chamber instructs the Prosecution to inform the
7 Chamber and the Defence about this within one week from today.
8 And this concludes the Chamber's statement and decision on this
9 matter.
10 I -- Mr. Groome.
11 MR. GROOME: Your Honour, the Prosecution thanks the Chamber for
12 the serious consideration it has given of its submissions on -- we do
13 remain concerned, but we will raise this on a case-by-case basis as
14 suggestion by the Chamber.
15 Your Honour, it would be helpful for the Prosecution to know or
16 to hear the Chamber's -- what -- in a little greater detail what is the
17 standard of exceptional circumstances or compelling reasons for variance
18 from the guidance, so that when we do make submissions in this, we have a
19 clear understanding of the legal test that will be applied for variance
20 from the guidance.
21 JUDGE ORIE: We'll consider that. We'll first of all consider to
22 what extent it is possible to identify exactly what exceptional
23 circumstances are, because it's a rather abstract term, and if we think
24 we're able to do so, we'll give your further guidance which the Chamber
25 first has to consider what is possible and what is not possible in this
Page 325
1 context.
2 MR. GROOME: And I would hope that the Chamber recognises that
3 it's equally abstract and difficult for the Prosecution to know how to
4 fashion these -- these specific applications because of the lack of
5 specificity, but I appreciate the Chamber's considering it further.
6 JUDGE ORIE: Yes. We'll do that.
7 It seems that one of the Judges has a problem with his computer.
8 One second, please.
9 [Trial Chamber and Registrar confer]
10 [Trial Chamber confers]
11 JUDGE ORIE: The computer problem most likely will be fixed soon.
12 We will continue with the next item on my agenda which is
13 cross-examination estimates for viva voce and Rule 92 ter witnesses.
14 The Defence has requested an amount of time equal to that of the
15 Prosecution to examine viva voce witnesses and an increased amount of
16 time for cross-examination of Rule 92 ter witnesses with a lot of
17 documents tendered through them.
18 As already stated at the last Status Conference, the Chamber will
19 not set any strict limits. What was given were estimates, and it goes
20 without saying that if circumstances are such that more time is
21 reasonable, it will be granted on a case-by-case basis.
22 Just as an explanatory note, the 60 per cent estimate was based
23 on prior experience of cross-examination time used for viva voce
24 witnesses in single accused cases. Naturally, the Chamber will carefully
25 monitor all witness examinations and decide on appropriate times used.
Page 326
1 The focus of such monitoring will be whether examination relates to
2 relevant matters in dispute and how efficiently they are conducted.
3 In this regard, Mr. Lukic, I remind you that if you already
4 expect large deviations from these estimates for specific witnesses, you
5 should notify the Prosecution and the Chamber of your estimated time
6 needed for cross-examination as soon as possible, that is, in relation to
7 that specific witness.
8 I move on to the next item on my agenda, which is a Defence
9 pre-trial brief request.
10 In paragraph 48 of its pre-trial brief, the Defence makes the
11 following request:
12 "The Defence would like to point out that the Prosecution's
13 pre-trial brief makes inappropriate references to matters that are
14 outside the temporal, geographic, and/or subject-matter scope of the
15 indictment. These matters even include allegations of criminal conduct
16 by Mr. Mladic that are outside of the scope of the indictment. This
17 practice by the Prosecution is wholly improper, and the Defence takes
18 objection to the same and requests that the passages be stricken and
19 dismissed as inappropriate. In the alternative, the Defence seeks
20 postponement of the trial and additional time to prepare for these new
21 charges, once properly alleged with specificity, pursuant to the existing
22 ICTY jurisprudence."
23 And there are similar requests in other paragraphs of the
24 Defence's brief.
25 Mr. Lukic, the indictment is the primary accusatory instrument,
Page 327
1 and any other accusatory instrument cannot add charges or material facts
2 amounting to charges. The Prosecution's pre-trial brief particularises
3 the alleged case against an accused and can assist the Defence in its
4 preparations. Criminal liability is measured by considering whether
5 evidence has been proven the allegations contained in the indictment, not
6 in the pre-trial brief. The requests are therefore denied.
7 In addition, references to matters that are outside the temporal,
8 geographic, and/or subject-matter scope of the indictment are not per se
9 irrelevant to the indictment. For example, background information may be
10 important to understand or to contextualise later events.
11 The Prosecution has informed the Chamber, and I'm moving to my
12 next item on the agenda, has informed the Chamber in its witness order
13 that it would need six hours for its opening statement. Six hours are
14 hereby granted.
15 The Defence also informed the Chamber on the 20th of April that
16 neither it nor the accused wish to make a statement at this stage of the
17 proceedings.
18 Now, what I'm telling you next is, as matters stand now -- of
19 course the Chamber will further consider possible consequences of the
20 disclosure problems, but I'm not anticipating in any way on the outcome
21 of that -- of those further deliberations on that matter, but as matters
22 stand now, for various reasons, the Chamber has decided to start the
23 trial, again if not at that date is changed, but to start the trial -
24 again, if not that date is changed - but to start the trial on the
25 16th of May rather than on the 14th of May, and therefore as it is
Page 328
1 scheduled now, we would hear the Prosecution's opening statement on the
2 16th and the 17th of May.
3 I move on to -- no. Perhaps it's better to take a break now. I
4 am at point 9 of my agenda, which in total has 14 points, and I think the
5 most time-consuming we have already behind us.
6 We'll take a break, and we will resume at 5 minutes to 11.00.
7 --- Recess taken at 10.30 a.m.
8 --- On resuming at 10.58 a.m.
9 JUDGE ORIE: We'll continue with this Pre-Trial Conference. The
10 next item on my agenda is witness scheduling.
11 In the notification of the 13th of April of 2012, of upcoming
12 witnesses, the Prosecution indicated for a number of witnesses changes in
13 their modes of testimony or estimated times for examination-in-chief. In
14 light of that but also in light of the Chamber's Rule 73 bis (C) decision
15 and other decisions delivered today, the Prosecution is hereby instructed
16 to file a revised Rule 65 ter witness list no later than the 10th of May,
17 2012. In addition, as a result of decisions issued during this
18 conference, the Prosecution may also want to amend its order of upcoming
19 witnesses and, if so, is instructed to file an amended notification.
20 [Trial Chamber confers]
21 [Trial Chamber and legal officer confer]
22 JUDGE ORIE: The amended notification should be filed by the
23 2nd of May.
24 Now, the Chamber was a bit concerned about another 400 pages to
25 be refiled, et cetera, so if there would be a practical way to only file
Page 329
1 those pages or those numbers of witnesses, items on the list which
2 undergo any changes, that the Chamber would accept such a notification
3 and not to have all the 400 pages copied again so as to save paper.
4 MR. GROOME: Your Honour, there is a chart near the beginning of
5 the filing which simply has the mode of testimony and the estimated time.
6 Would be changing -- an amended version of that be sufficient to provide
7 the Chamber with the information it seeks?
8 JUDGE ORIE: I think it would. I have not clearly on my mind
9 exactly what else could be -- because we have new witnesses to be added
10 to the Rule 65 ter list, for example, so that could not just be an
11 amendment, but we should find practical ways of notifying the Chamber of
12 what has changed and at the same time to avoid a waste of paper.
13 MR. GROOME: If the Chamber will recall, after we filed this
14 originally, we -- a Rule 70 provider gave us clearance to provide the
15 information with respect to about, I think, seven or eight witnesses
16 which we then provided in sheets that could be inserted into the first
17 main filing. Would that be acceptable to the Chamber?
18 JUDGE ORIE: I think any practical -- any practical solution as
19 the one you suggest would -- would be acceptable for the Chamber.
20 Mr. Lukic, no problem, I take it that we all try to avoid wasting
21 paper.
22 MR. LUKIC: Yeah. We don't need nothing more than this.
23 JUDGE ORIE: Yes, thank you.
24 Then another matter is the access to public exhibits during the
25 trial, which is my next point on the agenda.
Page 330
1 The Chamber has considered how to honour the public nature of the
2 trial best while also ensuring that protective measures are safeguarded.
3 Now, normally public exhibits are only available through the Tribunal's
4 web site after the rendering of the judgement. The Chamber will take the
5 following approach to requests for access to public exhibits: Once a
6 request is received by the Registry, the Registry will distribute it
7 among the parties.
8 The parties then have an opportunity to review whether any of the
9 requested documents' public status is in need of a change. If so, the
10 parties should submit an application to the Chamber for a status change
11 within two weeks of being provided with the request.
12 In the absence of any such application, the Registry shall make
13 the relevant documents available to the applicant.
14 Should the parties need more time than two weeks to review
15 whether a certain request requires status changes, they are invited to
16 request an extension of time from the Chamber.
17 I move on to the next item, dealing with documents marked for
18 identification.
19 During the presentation of evidence, some tendered documents may
20 require further deliberations by the Judges before a decision on
21 admission can be taken. Usually, such documents are then marked for
22 identification. In addition, documents may be marked for identification
23 if translations are pending or objections have been insufficiently
24 addressed. The Chamber encourages the parties to proactively raise with
25 the Chamber at the end of each witness's testimony any documents
Page 331
1 remaining marked for identification with a view to resolving any
2 outstanding issues.
3 Next item deals with a motion to add 123 documents to the
4 Prosecution's 65 ter exhibit list.
5 On the 2nd of March, the Prosecution identified 123 documents
6 inadvertently left out of its exhibit list. On the 29th of March, the
7 Chamber announced that it interpreted this as a request for addition to
8 the Prosecution's exhibit list and gave the Defence two weeks to respond.
9 The Defence responded on the 12th of April, not opposing the addition.
10 Considering the early stages of this case and the fact that the Defence
11 does not oppose the additions, the Chamber grants the addition of these
12 123 documents to the Prosecution's exhibit list.
13 The last item before we move to any other business on my agenda
14 deals with the Rule 65 ter (E)(i) and (iii) submissions.
15 At the last Status Conference, the Prosecution was instructed to
16 file its first Rule 65 ter (E)(i) and (iii) submissions by the
17 27th of April. Any further filings in relation to subsequent evidence
18 shall be made on the same day as the bimonthly agreed facts report.
19 I have dealt with all matters on my agenda. What now remains is
20 any other business to be raised by the parties.
21 Mr. Groome.
22 MR. GROOME: Just one brief matter, Your Honour. We have spent a
23 fair bit of time talking about guidance, but it has been the practice of
24 some Chambers to issue other guidance with respect to the notification of
25 witnesses, notification of exhibits that will be used in direct
Page 332
1 examination and cross-examination. I note that it has been
2 Judge Moloto's practice in the Delic and Perisic cases and it has been
3 your practice in the Stanisic and Simatovic case. The Prosecution
4 submits that having such guidance encourages efficiency and
5 predictability for the Prosecution and Defence, and the Prosecution is
6 wondering whether it is the Chamber's intention to issue a guidance
7 document on such matters or is it the Chamber's wish that the parties
8 discuss the matter and see if there is an agreed set of procedural rules
9 to govern such minor matters?
10 JUDGE ORIE: Yes. Of course, the parties are all encouraged to
11 seek an agreement. Not to say that -- whether such agreed practice would
12 be accepted by the Chamber is, of course, another matter. You refer to
13 the guidance given by the Chamber presided over by Judge Moloto and by
14 myself. We'll certainly share our experience with the third Judge who is
15 Presiding Judge on another case as well to see whether we take the
16 initiative, but the Chamber always welcomes any agreed practice proposed
17 by the parties for the Chamber to adopt, but we'll consider it ourselves
18 as well.
19 MR. GROOME: Thank you, Your Honour.
20 JUDGE ORIE: Then, Mr. Lukic, any matter you would like to raise
21 in addition to what has been dealt with?
22 MR. LUKIC: You mean for the end of this conference or --
23 JUDGE ORIE: Well, whether it will be the end of this conference
24 is still to be considered by the Chamber, but it is the last point at the
25 agenda of today's hearing dealing with the Pre-Trial Conference.
Page 333
1 MR. LUKIC: I was in communication with my office in Belgrade,
2 and I have to admit that I didn't follow fully what was on the agenda at
3 the end of this discussion. Is it 65 ter?
4 JUDGE ORIE: No, any other matter you'd like to raise. Let me --
5 let me clarify the following: The Chamber has considered whether we
6 should conclude this Pre-Trial Conference today or whether we should
7 schedule, after having adjourned this Pre-Trial Conference, we should
8 schedule a continuation of the Pre-Trial Conference somewhere next week
9 once having received both the brief report on Friday afternoon, then
10 knowing whether the 27th of April disclosure was successful or not. I
11 mean, we have heard today of a few instances of failed attempts to
12 achieve what was anticipated that would be achieved. So therefore, the
13 Chamber might wish to continue next week having heard more about the DVD
14 disclosure on Thursday, the meeting, all of the Friday, the report to be
15 presented on Friday afternoon, the perhaps more extensive report to be
16 filed on Tuesday morning, and to see whether there may be a need to
17 continue this Pre-Trial Conference to fairly deal with all the matters
18 raised.
19 So therefore I'm not seeking at this moment to -- to re-open the
20 65 ter unless there's any new developments since one hour ago, but in
21 general, item 14 of my agenda is any other business to be raised by one
22 of the parties.
23 MR. LUKIC: I have to apologise that I was psychically absent
24 again. Yes, now I understand what you meant, Your Honour, and as you
25 know, every conference is connected with travelling for the Defence, so
Page 334
1 if you have to have the next conference, we have to know it in advance
2 because we have to announce our travel to OLAD.
3 JUDGE ORIE: Yes.
4 MR. LUKIC: Please, if you know today when should we travel, it
5 would be also very helpful for us if it's the beginning of next week or
6 the end of next week, and we are ready to come whenever you order us to
7 do so.
8 JUDGE ORIE: We have to compare the agendas of the Judges, but if
9 we have a continued Pre-Trial Conference, most likely, but then as I said
10 we still have to compare the agendas of the Judges, it would be most
11 likely on Thursday, having received the reports on Monday which would
12 enable us to see even whether there would be any need for a further
13 65 ter meeting between and then perhaps to continue in open court on
14 Thursday. But again, this is to some extent speculative not having
15 compared all the agendas yet, and perhaps there is a need to move other
16 hearings to other times. We have to look at the availability of
17 courtrooms, et cetera. So it's a very practical matter, but this is a
18 very soft indication.
19 MR. LUKIC: Okay. Thank you, Your Honour.
20 JUDGE ORIE: Yes. Any other matter to be raised by any of the
21 parties?
22 Perhaps Mr. Mladic would --
23 MR. LUKIC: If I could confer with my client, Your Honour.
24 JUDGE ORIE: Yes, please do so, if he wants to -- you to raise
25 any further matter.
Page 335
1 [Defense counsel and accused confer]
2 MR. LUKIC: I don't have anything more, Your Honour, but as it's
3 usual on those conferences, if you can allow Mr. Mladic to say something.
4 JUDGE ORIE: Well, it's not that usual at a Pre-Trial Conference,
5 but let me just confer with my colleagues.
6 [Trial Chamber confers]
7 MR. GROOME: Your Honour, your microphone is on.
8 [Trial Chamber confers]
9 JUDGE ORIE: Mr. Lukic, as I said before, it's -- it's not common
10 that the accused addresses the Bench during the Pre-Trial Conference, so
11 first, would you further consult with your client to see whether the
12 matter he wants to raise is a matter which could be appropriately be
13 raised by you. If that is the case, then address us on that matter. If
14 it is a matter of a more personal character, exceptionally the Chamber
15 would allow the accused to raise a matter within three minutes, again,
16 and discuss with him what is appropriately raised even by the accused on
17 a Pre-Trial Conference. So -- but the first preference would be that you
18 raise matters. If that's really not feasible, then we'll exceptionally
19 allow for three minutes. Please.
20 [Defense counsel and accused confer]
21 MR. LUKIC: Your Honour, Mr. Mladic would like to address you
22 briefly on his ability to follow trial for hour and a half or five days a
23 week. So it would be better for you to hear this from his mouth than --
24 than -- better than I explain it in his name.
25 [Trial Chamber confers]
Page 336
1 JUDGE ORIE: Mr. Lukic, the issue raised is certainly a matter
2 which would be in need of proper written submissions if it leads to
3 any -- if it -- if the Defence is seeking to adjust the trial schedule.
4 Nevertheless, the Chamber allows Mr. Mladic, expecting you to follow up
5 in the appropriate way, and you know how to do it, submissions with
6 whatever references to whatever sources of -- of knowledge, medical
7 reports, whatever. We expect you to follow that up, but Mr. Mladic, if
8 he wants to raise the matter within the next three minutes from a more
9 personal point of view, we allow him to do so.
10 Mr. Mladic, you've got three minutes, and you may have understood
11 that the matter, although we'd like to hear what you want to tell us,
12 that it is a matter with quite a bit of technicalities where Mr. Lukic
13 knows and will advise you better how to follow this up.
14 You are asking for five. Let's agree on four, Mr. Mladic, and
15 then -- yes. Okay. I'll look at the clock. A brief submission.
16 Please, you may continue -- or you may proceed. Please switch on your
17 microphone.
18 THE ACCUSED: [No interpretation]
19 JUDGE ORIE: Mr. Mladic, we are now in the -- one second. One
20 second. We are now in the same position as you were in at the beginning
21 of this hearing today, because we did not receive --
22 THE ACCUSED: Excuse me.
23 JUDGE ORIE: One second. We --
24 THE INTERPRETER: Can you hear now?
25 JUDGE ORIE: Yes. We now receive translation. Could you please
Page 337
1 restart.
2 THE ACCUSED: Okay. [Interpretation] All right. Mr. Orie,
3 gentlemen Judges, all of you gentlemen, since I am pushing 70, I'm very
4 old. Every day I'm more infirm and weaker. I'm speaking now about my
5 health and ability to concentrate.
6 You have spoken a lot calmly today. Some of the terms used are
7 totally unfamiliar to me. I've never heard them before. You are great
8 professionals, and if there is justice in the world, and there must be
9 because it has been God-given, you must appreciate that as an old man I
10 cannot follow this for 90 minutes during the day five days a week.
11 Some of the things I have retained. For instance, Mr. Groome
12 asks for 413 plus 2 plus another 13 witnesses. I can't deal with this
13 that way. I want to see it on paper. Is he asking -- is he talking
14 about living or dead witnesses.
15 America is a great power. I respect America as a State. It
16 created both the NATO and this Tribunal. They must be paying Mr. Groome
17 and everyone else here. It's not important to me how long I will live,
18 100 years or 10 --
19 JUDGE ORIE: Mr. Mladic, I'm going to interrupt you. I allowed
20 you to deal with a matter which was announced, that is your ability to
21 follow the proceedings. Who is paying Mr. Groome or who is paying
22 Mr. Lukic is not a matter which is relevant at this moment.
23 THE ACCUSED: [No interpretation] [Overlapping speakers]
24 JUDGE ORIE: One second. Would you please limit yourself to the
25 issue you announced you would deal with. I already can assure you that
Page 338
1 Mr. Lukic knows in detail which of the 413 witnesses are appearing in
2 court, whether there will be statements. He can inform you about all of
3 that, and he also can explain the terms, because no one outside the
4 profession would know all of the terms irrespective of whether you're 70
5 or 35. That's exactly the reason why you are assisted not only by
6 Mr. Lukic but by the whole of your Defence team.
7 Please continue and focus on your ability to follow the
8 proceedings.
9 THE ACCUSED: [Interpretation] Thank you very much. I have to
10 focus better.
11 Gentlemen, when I mention my age, I would like to ask the
12 following: There are seven cameras here, and there are perhaps some
13 secret ones as well. I would like to ask Mr. Lukic and all of you, and
14 if necessary, I'll write it down in my cell, this request that during the
15 trial, for as long as you allow me, I want to say certain things into the
16 camera.
17 On the internet and what I receive in my cell on the TV, please
18 don't put any longer that picture from when I was arrested in Belgrade,
19 when they caught me, when I was looking weak and infirm. I have
20 recovered a bit, and I want to be seen standing up. I want to be seen by
21 my many friends and my people. I want them to see that I have livened up
22 a bit, that my health is getting better. And I want my enemies to die of
23 envy. I am not going to go into who's my friend and who's my enemy now.
24 Something else. You mentioned that on the 30th of this month is
25 Queen's Day. May I congratulate you on that Queen's Day but I don't know
Page 339
1 which Queen, Queen Beatrix or the one in London.
2 JUDGE ORIE: Mr. Mladic, would you focus on what I allowed you to
3 do, that is talk about a topic. Queen's Day is a UN holiday where the
4 Tribunal is closed. That's what I want to say about it.
5 Now, focus again on your ability to follow the proceedings, and I
6 noticed that you have used already three out of your five minutes.
7 Please focus on that.
8 THE ACCUSED: [Interpretation] All right. Two more minutes.
9 Milos, sorry that I'm addressing you as an old friend and comrade.
10 Gentlemen, I don't want to insult or offend you Judges as
11 professionals, and I don't want to offend the Defence or the Prosecution
12 or anyone. To me you are a panel of the NATO, and what I was saying
13 about the TV and the internet, I want them to show me the way I am now.
14 JUDGE ORIE: Mr. Mladic, you are moving away from the subject
15 matter you intended to raise. Mr. Lukic is aware of -- can find
16 information about the instructions for our people for the cameras. You
17 have used your time, and if there's any follow-up needed for the matter
18 you raised, that is your ability to follow the proceedings - the Chamber
19 is happy to hear that you feel a bit better compared to the situation
20 when you arrived in The Hague - Mr. Lukic will know how to give a
21 follow-up.
22 Now, this -- I couldn't say -- thank you Mr. Mladic for your
23 observations.
24 I'm not going to say that this concludes the Pre-Trial
25 Conference. I'll just say that we will adjourn, and it may be that we
Page 340
1 have concluded the Pre-Trial Conference. We will inform you as soon as
2 possible about a possible continuation in the beginning of next week.
3 We stand adjourned.
4 --- Whereupon the Pre-Trial Conference adjourned
5 at 11.28 a.m.
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