601 Wednesday, 21 March 2007
[The accused not present]
--- Upon commencing at 10.02 a.m.
JUDGE HOEPFEL: Good morning, everybody. Madam Registrar, would you please call the case.
THE REGISTRAR: Good morning, Your Honour. This is case number IT-03-69-PT, The Prosecutor versus Jovica Stanisic and Franko Simatovic.
JUDGE HOEPFEL: Thank you. The appearances, please.
First the Prosecution.
MS. BREHMEIER-METZ: Good morning, Your Honour, for the Prosecution trial attorney Doris Brehmeier-Metz, accompanied by trial attorney Gregory Townsend, legal officer, Klaus Hoffmann, and case manager, Carmela Javier.
JUDGE HOEPFEL: Thank you. And Mr. Knoops.
MR. KNOOPS: Good morning, Your Honour. For the Defence of Mr. Stanisic, Ms. Anne-Marie Verwiel, legal assistant in our case, and myself, Geert-Jan Knoops, lead counsel.
JUDGE HOEPFEL: Thank you.
MR. JOVANOVIC: [Interpretation] Good morning, Your Honour. My name is Zoran Jovanovic, Attorney-at-law, and I'm Defence counsel for the accused Franko Simatovic. Thank you. 602
JUDGE HOEPFEL: Yes, thank you. Mr. Jovanovic. So welcome to this Status Conference, especially Doris Brehmeier-Metz for the Prosecution who is now in charge of this case, as Mr. Re is on a different case now. And the rest of the team seems to be all new.
MS. BREHMEIER-METZ: That is correct, Your Honour.
JUDGE HOEPFEL: So for both accused themselves, as earlier, there are still the Trial Chamber's decisions of 28 July 2004 in force, granting them provisional release but requiring that the accused "remain within the confines of the municipality of Belgrade," and "report each day to the police in Belgrade at a the local police station to be designated by the Minister of Justice."
I'm also reminding of the further conditions by just highlighting, among others, the requirements for both accused, "not to have any contact with the co-accused in the case; not to have any contact whatsoever in any way interfere with any victim or potential witness or otherwise interfere in any way with the proceedings or their administration of justice; and not to discuss this case with anyone, including the media, other than with his counsel, his respective counsel."
May I ask the Defence if the addresses of any of both accused have been changed recently. Where is Mr. Stanisic living these days? May I just clarify?
MR. KNOOPS: Your Honour, if the Court reminds from the application to review the indigency decision of the registry, Mr. Stanisic is not longer living in his residence where he lived before, due to the 603 complications as set out in the application to review the indigency decision.
As I recall, we did inform the Court about his new address. It is in Belgrade.
JUDGE HOEPFEL: And this information is still correct, is still --
MR. KNOOPS: Yes, Your Honour. It's still correct.
JUDGE HOEPFEL: Thank you. And also nothing new with Mr. Simatovic.
MR. JOVANOVIC: [Interpretation] That's right, Your Honour. Mr. Simatovic still resides at the address that was specified in the decision on -- on provisional release.
JUDGE HOEPFEL: Thank you. And just to add one thing we have to keep in mind here. The fact that both accused are on this provisional release does not relieve us from our obligation to exercise due diligence in this pre-trial phase to get the case ready for trial. The fact that this case has been in pre-trial for more than three years should be of concern.
With regard to this Status Conference, I have received two submissions: One filed on 15 March by. Mr. Jovanovic, who is expressing his -- for Mr. Simatovic, who is expressing his consent that this Status Conference will be held in his absence but in presence of his Defence counsel, Mr. Jovanovic. And the other one filed on 20 March by Mr. Knoops on behalf of Mr. Stanisic and to the same effect, mutatis mutandis. The last Status Conference was held on 29 November 2006. A Pre-Trial Conference, the first one, I think, for Ms. Brehmeier-Metz was 604 held yesterday, and I appreciate the work of ALO, Linda Murnane, and with regard to the preparation of today's Status Conference of LO Ruben Karemaker.
This Status Conference follows the Work Plan I established by order of 19 January 2007. We will discuss the following items. After the preliminaries, we have, two, the health of the accused; three, pending issues, pending motions, I mean; four, disclosure issues; five, other trial preparation; and six, any other remaining matters. As of now, I would like to inquire into the health of the accused. May we please go into private session.
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THE REGISTRAR: We're in open session, Your Honour.
JUDGE HOEPFEL: Thank you, Madam Registrar. And now to pending motions. There is this third Prosecution motion for pre-trial protective measures for witnesses with confidential and ex parte annexes filed on 1st of March, 2007.
The Defence for Mr. Jovica Stanisic responded to the motion on the 12th of March. On the 19th of March, the Prosecution sought leave to reply to the Defence response and filed its reply as well. It seems there are no further comments of the parties by now. Is this correct?
MS. BREHMEIER-METZ: It is correct for the Prosecution, Your Honour.
JUDGE HOEPFEL: Please.
MR. KNOOPS: That's correct, Your Honour, for the Defence of Mr. Stanisic. 609
JUDGE HOEPFEL: Mr. Jovanovic.
MR. JOVANOVIC: [Interpretation] Your Honour, the Defence of Franko Simatovic has also filed a response to the third Prosecution motion of -- for protective measures.
JUDGE HOEPFEL: Thank you. Sorry, I didn't mention that and... Yes.
Now, as this is part of the bigger group of disclosure issues, may we go to this point.
As to disclosure, may I make this comment first: On 19 June 2006, the Prosecution alerted the Chamber in a ex parte filing to the Chamber regarding certain Serbian archives to which they had recently gained access. It concerns over a thousand documents potentially relevant to this case. During last 65 ter Conference before this one, which took place yesterday, Mr. Re indicated he hoped to receive these documents in January 2007. According to the Work Plan we established on the basis of that by order of 19th of January, the Prosecution was supposed to disclose these documents to the Defence no later than 1st of March, 2007. During yesterday's Rule 65 ter Conference, Prosecution indicated, however, that not all of the materials from the Belgrade archives have yet been provided to the Prosecution, but also the materials from the archives in Belgrade, which have been provided, have not yet been communicated to the Defence, as these materials were provided subject to Rule 70, and the Prosecution needs to obtain permission to disclose them. This delay in disclosure of the relevant materials may significantly impact on the Defence's preparations to be trial ready at 610 the date indicated in the Work Plan.
May I therefore ask the parties for their comments. Ms. Brehmeier-Metz, please.
MS. BREHMEIER-METZ: Yes, Your Honour. I should perhaps clarify, first of all, that we did receive material from the VRS archives before the 1st of March. We have, in the meantime, identified 25 of the documents gained from the VRS archives as potentially relevant to the indication, two of which, in our view, may also contain exculpatory material.
Now, those documents we gained from the VRS archives were put on EDS, and the storage was completed by the 20th of February this year. I must, however, admit that for reasons within the Prosecution, for a misunderstanding about who was supposed to do what, the Defence was unhappily not informed about this before 1st March. I have, as for today, provided a letter naming the indices within the EDS where all the documents gained from the VRS archives have been stored and also naming the ERNs of the documents that the Prosecution deems relevant for the case.
The Prosecution has, yesterday, provided the Defence with the two documents in hard copy that we deem potentially exculpatory. The documents that we think may be of relevance for the case will be disclosed to the Defence certainly with a disclosure of the 65 ter exhibit list. It is most unfortunate that the Prosecution has missed the deadline, 1st March, for those document. I can only apologise for that. And following the SLO's proposal of yesterday's conference, the Prosecution intends to 611 file a motion with respect to that. That relates to the VRS archives. As for the Belgrade archives, the other Belgrade archives, as I set out yesterday during the conference, the Prosecution received batches full of documents after the 1st of March. Those documents were provided to the Prosecution under Rule 70. The Prosecution has now, first of all to check whether we have received all the documents that we required.
JUDGE HOEPFUL: Here it says under Rule 730.
MS. BREHMEIER-METZ: That must be a mistake; it's under Rule 70.
JUDGE HOEPFEL: Yes. Please go on. Sorry to interrupt.
MS. BREHMEIER-METZ: No, that's fine, Your Honour. We will have to, first of all, check whether we received everything we requested. We will then have to review the documents as to whether they are of potential relevance to the case. They will have to be translated. We will also have to check whether or not they contain potentially exculpatory materiel, and that is why we are at the moment not able to comply with our duty to disclose to the Defence all these documents.
We could, as 1st March, only disclose what we had, and those particular documents arrived with the Prosecution only after 1st March, and, as I say, had not been reviewed then. So the first step the Prosecution have to take in this regard, of course, with due diligence and as quickly as possible in order to speed up the trial, is to review those documents; and once we have finished that, we shall try and find out any problems that may be concerned with Rule 70 and try and solve those, again, as quickly as possible, and after that, of course, comply with our disclosure obligation. 612 Thank you.
JUDGE HOEPFEL: Thank you very much. Before asking the Defence to comment on that, I would think that changes a bit the situation we had anticipated. The idea about these archives was, as put forward by Mr. Re, that the whole materials would help to speed up the trial and, therefore, I hope it will not occur the other way around and should be a productive thing, shouldn't it?
And we will have to check now about these consequences. Do you have directly, immediately now any comments, Mr. Knoops and Mr. Jovanovic?
MR. KNOOPS: Thank you, Your Honour. Your Honour, in this stage, I think it's fair to say that the Defence of Mr. Stanisic will have to reserve its rights to challenge a motion of the Prosecution seeking leave to deviate from the Work Plan, simply because the admission of documents after this deadline could be prejudicial to the accused. And in view of Rule 65 ter D in conjunction Rule 65 under N, for November, the Pre-Trial Judge may upon a report to the Trial Chamber inform the Court about any deviations from the disclosure obligation in this regard, which may result in such as Rule 65 ter indicates in exclusion of testimonial or documentary evidence. Now, apparently, the rationale of Rule 65 ter also envisions the situation that deviation from a Work Plan could be prejudicial to the accused; and considering the fact that the rule acknowledges certain sanction, the Defence is mindful that we have to consider whether or not to challenge such a motion. So in this stage I would just like to say 613 that Defence will, of course, await the motion of the Prosecution and its arguments, and then we'll respond to it in due course. But we'll reserve the right of the accused to seek recourse to Rule 65 ter under N. Thank you.
JUDGE HOEPFEL: Thank you very much. This is well understood. Mr. Jovanovic.
MR. JOVANOVIC: [Interpretation] Your Honour, I fully agree with the position of my learned colleague. The Defence of Franko Simatovic will oppose the disclosure of evidence after the deadline set in the Work Plan. From what the Prosecutor has said, it is impossible to know whether the delay is justified. The indictment was confirmed in May 2003. It has been four years since these proceedings started. We don't know when the Prosecution submitted its request to the government of Serbia for this material. We don't know what the history of this is.
Prosecutor David Re last year was granted a delay for the consolidated pre-trial brief precisely for purposes of searching the archives. The Defence was not informed of this process, and I see no reason why the Prosecution could not have informed both of the Chamber, the Pre-Trial Judge, and the Defence of any reasons why disclosure could not be completed by the 1st of March.
It is only after the expiry of this deadline and after this issue was raised at yesterday's 65 ter Conference that the Prosecutor has stated reasons for the failure to disclose this material. They used the same explanations as before, that they received this material only recently, that they did not receive all the materials, and that they would not be 614 able to respond in compliance with the order. The Defence will certainly mention all this in its response to the Prosecution motion asking for a delay in the deadline set in the Work Plan.
JUDGE HOEPFEL: Thank you very much, Mr. Jovanovic. Also this is well understood; and, of course, this concern shows how important it is that the Prosecution stays in touch with the Chamber should any problems arise, to facilitate an adjustment of the Work Plan, if necessary, but the Work Plan stands, and Prosecution will have to make the case now a priority. It is, in part, a question of allocation of resources within the Office of the Prosecutor, as I see it. At least from now on with this awareness, it should be possible to change the situation. We will come to similar aspects when discussing now translations. Let me make this general comment. Prosecution indicated yesterday during yesterday's 65 ter Conference that there are still many translations outstanding; for example, translations of 20 witness statements. I would like to structure this issue of translation as follows: First, Rule 66(A)(i), supporting material to indictment. According to the Work Plan, the Prosecution should have complied with its obligations under this rule completely at this point. As was indicated by SLO Linda Murnane during yesterday's 65 ter Conference, it is suggested that the Prosecution file a motion with the Pre-Trial Judge indicating where deadlines set out in the Work Plan were not met and proposals to find a solution as to ensure that disclosure is completed as soon as possible. 615 It is suggested that the motion be as detailed as possible so that the Chamber has a full overview of the all the materials that should have been disclosed to the Defence according to the Work Plan and indicating when these materials can be disclosed. That is a general remark. Again, where Prosecution believes that a deadline cannot be met, the parties need to file -- or the Prosecution needs to file a notice with the Court. You want to comment on translations in this connection?
MS. BREHMEIER-METZ: Yes, Your Honour, if I may. The Prosecution is fully aware that this case has had a lot of time delays in it, and the Prosecution is very much interested in getting this case forward as soon as possible. However, there are a lot of cases with higher priority insofar as they are already on trial. That is one of the reasons why, coming back to translation issues, there are a lot of translation requests that have to be dealt with, with a higher priority, and it comes from that, that the Prosecution in this case has so far been unable to comply with its obligation to provide translations in the manner set out yesterday.
It is my understanding that Prosecution requests for translation in the case of Stanisic and Simatovic are regularly rejected, that is the term used by CLSS for reason of further translation requests that have higher priorities because the cases are at trial. I shall, of course, try and solve this issue. However, I'm afraid I will not be able to do that as speedily as perhaps the Court or the other party, other parties' Defence, may wish. I am afraid that we'll continue to be a problem with this case. 616 I fully agree with what Your Honour said about getting the trial forward and giving this case further priority, and the Prosecution is aware that this obligation rests with us. I am, however, not in a position to, at the moment, name a date at which translation -- the translation issue may be resolved. Nevertheless, I shall follow Your Honour's proposal and file a motion indicating -- or covering all the issues Your Honour has just mentioned.
I am afraid that is at the moment all I can say on this issue.
JUDGE HOEPFEL: Thank you very much, Ms. Brehmeier-Metz. And I consider this a serious situation. There is no logic in itself to argue that cases which are on trial would enjoy priority to a case which is awaiting trial. That should be made clear.
So I suppose this will cause some discussion behind the scenes. Mr. Knoops or Mr. Jovanovic, you want to comment on that?
MR. KNOOPS: Your Honour, with reference to the Rule 65 ter Conference yesterday, the Senior Legal Officer requested the Defence to look into their own documents with respect to the exact amount of outstanding translations, including the 1st of March disclosure deadline. We have informed the Prosecution through two letters of the 5th of March of the missing documents, including translations, and as far as we were able to detect we missed 28 statements under Rule 66. Also we referred to a letter of 7th of March to the Prosecution in which we have indicated what documents are still outstanding in terms of translation and missing documents in general. Therefore, the Defence is -- is assisting the Prosecution insofar as the Defence is possible, and 617 at this moment we cannot indicate what ramifications the delay in translation could have on our own pre-trial preparations. So here I should also emphasise that have I to reserve the rights of my defendant to ask the Court for any further legal consequences or any other additional pre-trial preparation possibility for the Defence, depending on the outcome of the full disclosure.
JUDGE HOEPFEL: Yes, please do. And comment also in written form on that.
MR. KNOOPS: Of course, Your Honour, we will respond to the motion of the Prosecution in due course, indeed.
JUDGE HOEPFEL: Thank you. Mr. Jovanovic.
MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. The Defence for Franko Simatovic does not have any comment on this in principle, as it is obviously impossible for us to have any impact on the translations, because this lies within the hands of the Prosecution to deal with this matter.
JUDGE HOEPFEL: Thank you. But the pressure which comes from such a conference may help you, I hope, at least.
May I come to witness statements, Rule 66(A)(ii). Also here the Prosecution should have complied with all its obligations under the Work Plan at this point in time. I suppose there are no new comments on that? May I look around? Do you want to comment on that?
MS. BREHMEIER-METZ: I should only like to mention that the 618 Prosecution has, of course, not disclosed the statements of the witnesses that we seek protective measures for in the latest motion. We do, of course, keep that behind until we have a decision, and following that decision we shall then disclose either redacted or unredacted statements. That is the only comment I should like to make on that. Thank you.
JUDGE HOEPFEL: Yes, of course. Thank you. I suppose that this will be covered, in fact, also by your comments on the motion, and you will not have extra comments now.
MR. KNOOPS: No, thank you, Your Honour.
JUDGE HOEPFEL: Mr. Jovanovic.
MR. JOVANOVIC: [Interpretation] No, none. Thank you, Your Honour.
JUDGE HOEPFEL: Thank you. Now, a very important chapter is disclosure under Rule 68 and translations in connection with that.
Prosecution should have compiled with all its obligations under the Work Plan at this point. Yesterday's 65 ter Conference and already the last Status Conference held on 29th of November, 2006 showed there's an issue of these two Milosevic letters. At that time of our last Status Conference, the Prosecution was still awaiting Rule 70 clearance from the providing government. By today that clearance seems to still not have been provided.
MS. BREHMEIER-METZ: Yes, Your Honour, that is correct. We are still awaiting a reaction from the provider, but I'm confident that it won't last very long. 619
JUDGE HOEPFEL: So I don't know the basis on which you are confident, but I hope you can communicate that confidence to the providing government and urge them to finish that issue.
Any comments from your side?
MR. KNOOPS: Your Honour, just to briefly refer to the fact that the Defence is in this moment, at this moment, not aware whether the search in the Belgrade archives could result in any Rule 68 materials. I think that is, first of all, to note.
Secondly, there was a decision of the Chamber of last year relating to the Milosevic confidential materials, which fall within the indictment, and Defence is still not aware about any Rule 68 disclosures on the basis of that ruling of Your Honour's.
And, lastly, the Defence will request the Court also to give access or to order access to the closed session materials in the Martic case, which may comprise also certain Rule 68 material. So it is fair to say that in this moment, the disclosure of Rule 68, although it's still an ongoing process as we know, I think still relies on any further research into these three sets of materials, but for all I think the Belgrade archives and the confidential Milosevic materials.
JUDGE HOEPFEL: Thank you, Mr. Knoops. Mr. Jovanovic, any further comments?
MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. No. At the 65 ter Conference yesterday, the Defence for Mr. Simatovic only told the Prosecution that the list of the Rule 68 material delivered to the Defence does not contain all the material. The 620 earlier Prosecution team had disclosed several interviews by suspects in accordance with Rule 68. Therefore, they had disclosed more than had been, in fact, specified in the Prosecution letter to the Defence.
JUDGE HOEPFEL: Thank you. As this is a comprehensive obligation and ongoing obligation, here we don't have at least deadlines. On the other hand, Prosecution, Ms. Brehmeier-Metz had, in fact, mentioned before in connection with the VRS archives that are two documents and have been disclosed, I understand, and you want to react to that?
MS. BREHMEIER-METZ: Just briefly, Your Honour. First of all, to, in fact, say that we did disclose two potentially exculpatory documents yesterday, and that, of course, we are aware that Rule 68 disclosure is an ongoing obligation for the Prosecution. The only thing I should like to add in this context further is that it is my understanding that the Rule 68 material in Milosevic has, in fact, been disclosed to the Defence already. I shall, however, check that; and if necessary, come back.
JUDGE HOEPFEL: Yes, please. And may I ask both parties maybe you could when filing inter-parties communication copy to us at the Chambers, so that we can look into the matter continuously. I may come back to that in a moment.
Now, I just want to mention Rule 66(B). How about inspection of books, documents, and other tangible objects? Is there any issue? Looking to the Prosecution.
MS. BREHMEIER-METZ: None that I'm aware of, Your Honour.
JUDGE HOEPFEL: Thank you. 621 Is there anything?
MR. KNOOPS: None, Your Honour. Thank you.
JUDGE HOEPFEL: Okay.
MR. JOVANOVIC: [Interpretation] No, thank you, Your Honour.
JUDGE HOEPFEL: Thank you. Now, as to Rule -- to the Rule 94 bis, expert reports. During the last Status Conference held on 29 November 2006, the "Strinovic exhumation reports" were an issue as they were still not translated. As Mr. Re was of the opinion there was no "priority" in translating them, he asked the Defence to communicate to him whether there was any need to translate these reports. Yesterday, we learned that the Stanisic Defence, indeed, has sent a letter to the Prosecution on 5th of March, 2007 requesting a translation of the exhumation report.
Will that happen?
MS. BREHMEIER-METZ: Of course, that will happen, Your Honour. As you pointed out quite rightly, we received the Defence request on 5th March. Until then, we had in agreement with the Defence not pursued this matter further. Unfortunately, the exhumation reports have so far been tendered in B/C/S in other courts in other trials only, so that the Prosecution will have to request new or basically initial translations. That, again, leaves us with a translation issue and I could repeat what I said before, but I don't think that is really necessary. We will, however, pursue the matter now.
JUDGE HOEPFEL: Thank you. And I also could repeat that I answered and -- yes. 622 And also please would you copy us in such cases when communicating intra-parties.
Is there any aspect of the expert reports other than what we discussed now, or do you want to comment on that, Mr. Knoops.
MR. KNOOPS: No, thank you, Your Honour. Only to refer again to the explanation yesterday by the Defence during the Rule 65 ter Conference the reason why we decided after all to request the Prosecution to have a translation in English available in view of the discussions on the adjudicated and agreed facts. That was the reason why we felt obliged to request after all this translation.
JUDGE HOEPFEL: Yes, that is understood. And Mr. Jovanovic, as to expert reports, do you have any issue?
MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. In connection with expert Strinovic and his report, the Defence explained its position yesterday based on what Mr. David Re said. In view of the fact that the report is in B/C/S, the Defence is able to work on it; but if the details of that report are to be subjected to discussion on agreed facts, then we will certainly need a version there English. And for this reason, I support the request made by the Defence of Mr. Stanisic.
JUDGE HOEPFEL: Thank you. Speaking of these expert reports, in general, I understand there was an issue, Mr. Jovanovic, concerning the reaction of the Defence to any expert reports, as you appear to have filed a general notice for cross-examination -- for cross-examining all experts, 623 and the question seems to have arisen how to deal with new reports. I understand you were informed yesterday, we'll have to react to any such new reports by a submission whether Defence accepts or rejects the report, accepts or rejects CV of the expert, and whether or not you want to cross-examine the expert.
Is there any issue open from yesterday, Mr. Jovanovic?
MR. JOVANOVIC: [Interpretation] No, thank you, Your Honour. Yesterday, at the 65 ter Conference, the Defence received clarification of this issue. It is true that in previous disclosure procedures there was successive disclosure of experts. We would first get a version in English and only then in B/C/S, and it was agreed that the Defence does not have to respond each and every time. But yesterday the suggestion was made,, and the Defence will file its submission presenting its position within the time-limit that has been set.
JUDGE HOEPFEL: Thank you. Speaking of time-limits, given the absence in the Work Plan of a deadline for 92 bis expert reports, the Prosecution requested whether the Pre-Trial Judge wishes to set a deadline. I, indeed, would propose such a deadline and would propose it to be the 15th of May, 2007, as a deadline for these 94 bis expert reports. This, as a modification of the Work Plan, will be done in a written order to that effect. You wish to comment on that issue?
MS. BREHMEIER-METZ: Very briefly, if I may, Your Honour. The 15th of May would cause some problems for the Prosecution. I understand that the Prosecution's in-house expert reports will need time 624 until 1st July to finish their reports, so the Prosecution would, of course, be happy if this deadline proposed by Your Honour just now might be set a little further down the line, so to say.
JUDGE HOEPFEL: Thank you. We will consider that. Any comments?
MR. KNOOPS: Your Honour, we leave it totally in the discretion of Your Honour's hand.
JUDGE HOEPFEL: Thank you. Mr. Jovanovic.
MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. No comment.
JUDGE HOEPFEL: Thank you.
MS. BREHMEIER-METZ: Your Honour, if I may, a further comment on that.
JUDGE HOEPFEL: Please.
MS. BREHMEIER-METZ: I'm sorry to be a by the troublesome. Looking at the Work Plan, the Prosecution has the obligation to file its motions relating to 92 bis, 92 ter, and quater until the 21st of May. Those motions may amount to some 80 witnesses, so if we also have a deadline 15th May for the expert reports that would cause considerable problems for the Prosecution.
JUDGE HOEPFEL: Yes, I can see that and understand that. Let me now go to that issue anyway. As to further pre-trial preparation, first, the possible use of 92 bis or 92 ter evidence. Mr. Re, during the last two Status Conferences, indicated an intention as to preparing, he called it packages of such evidence under 89(F) or Rule 625 92 ter, quater in relation to every witness. And on 29th of November of last year, we heard that he was, I quote, "about one quarter of the way through."
What is requested in the Work Plan would be to file the statements and transcripts in hard copy or in electronic format and to file the 92 bis motion requesting admission of these documents, according to the deadline.
According to the present Work Plan, the Prosecution is required, as you mentioned, by 21st of May, 2007 to file recent -- a recent motion requesting admission of written testimony in accordance with Rules 92 bis, 92 ter, and 92 quater. I would like it point out that I'm considering the following: In light of recent jurisprudence, leaving these motions to be determined by the Trial Chamber, there is actually no need at this point for the Prosecution to file such a motion requesting admission of the proposed 92 bis witnesses.
So the question arises if they want to be relieved from that deadline only concerning the motion, it would still apply to the filing of the documents. So an order modifying or clarifying that Work Plan in this regard would be prepared along this approach.
Do you have a special view on that?
[Prosecution counsel confer]
JUDGE HOEPFEL: Ms. Brehmeier-Metz.
MS. BREHMEIER-METZ: Yes, Your Honour. Actually, we will, of course, continue to prepare these 92 bis, 92 ter and quater packages, using Mr. Re's expression. So the Prosecution 626 would actually prefer to try and comply with the Work Plan as set out for the moment; and if the Prosection for some reason may be unable to meet the deadline, the Prosecution would rather then apply for an extension of the deadline.
The Prosecution is -- or intends to make use of 92 bis and ter as much as possible, in order to speed the trial. The Prosecution also intends to make use of 92 quater for any witness that the Prosecution would have intended to call, however cannot do because the witness is dead. Particularly, the letter will have a certain impact on the trial, so the Prosecution would actually prefer to continue preparing all this, and once we have finished also file a motion for admission, being well aware of the situation that Your Honour has just indicated, that the current jurisprudence at the Tribunal tends to leave such a decision to the Trial Chamber rather than to the Pre-Trial Judge.
JUDGE HOEPFEL: Thank you. Do you have any comments?
MR. KNOOPS: Yes, Your Honour. Thank you. First of all, it was my understanding of yesterday's Rule 65 ter Conference that considering the importance in this case of admission on non-admission of statements under 92 bis, that that decision preferably from the prospective of the Defence would have to be rendered by the full Bench.
Now, in view of the fact that the Prosecution informed us today that it intends to seek leave to admit statements from 80 witnesses, it could also be quite impractical if the Bench would receive per witness a 627 package and would have to render on each occasion a decision on the admission or non-admission. In other words, it could be practical in this case, in view of the amount of witnesses the Prosecution intends to file under Rule 92 bis, in combination with the importance of some of the underlying statements, also considering the testimony of a -- or at least two deceased witnesses, potential witnesses, that from the Defence perspective, we would like to receive all those statements in one package and respond to it in one response motion because it also will relate to, of course, quite some legal arguments.
Now, if it's Your Honours' view that under the current jurisprudence the Trial Chamber at the trial will dispose of such requests, then it could be in this case quite impractical, in view of the amount of statements which are now announced to us today. However, we -- we still feel that considering again the importance of the matter, that preferably the full Bench would have to decide on the admission. So, in other words, the suggestion of the Prosecution to continue with the Work Plan, of course, not to say anything now about timetable, would also be -- would have the preference of the Defence. In other words, we would beforehand, before the trial starts, know exactly which statements from which witnesses will be admitted or not admitted under Rule 92 bis and the other rules mentioned in the Work Plan. I could imagine from the Defence perspective as well that considering the importance of the matter and the fact that it relates to 80 persons just announced by the Prosecution that the Chamber could reconsider the timetable as such, but the initial idea of filing a motion, 628 a Prosecution motion seeking leave to admit those statements way before the trial starts having the Defence filing a response, for us it would be quite practical also in terms of the trial preparations.
JUDGE HOEPFEL: Thank you very much. This is well understood, and it's actually interesting to learn now more about the amount concerned. Do you have anything to add, Mr. Jovanovic?
MR. JOVANOVIC: [Interpretation] No, thank you, Your Honour. The Defence of Franko Simatovic has an identical position to that put forward by my colleague. Thank you.
JUDGE HOEPFEL: Thank you for all your contributions now to this issue, and I will consider that. I just wanted to add that, of course, it would not be the Pre-Trial Judge himself but always the full Bench to decide on these motions.
MR. KNOOPS: Not to say, Your Honour, that he we don't have trust your pre-trial work.
JUDGE HOEPFEL: No, but I consider myself not authorised to do that.
MR. KNOOPS: For the mental importance for the Defence of this decision for, and the impact on the trial, that is basically why we seek for a decision on of the full Bench on this issue. Thank you.
JUDGE HOEPFEL: Absolutely. You wanted to add something Ms. Brehmeier-Metz.
MS. BREHMEIER-METZ: I should just like to add the following. The number of 80 witnesses having been mentioned by Mr. Knoops several times, I would just like to clarify and stress that, of course, is it just an 629 estimate from the Prosecution. What remains to be said is that we intend to make use of these provisions as much as possible, because, again, we think that this will facilitate the trial in a great deal. And the other thing mentioned by Mr. Knoops, I understand that the Rules put a certain obligation on the Defence to come back to the Prosecution within 14 days once the Prosecution has filed such a motion. The Prosecution is happy with any delay, in that the Prosecution does not insist on the Defence to come back and react to any motion within 14 days, and I understand the Rules not as being a mandatory obligation for the Defence but, rather, a non-mandatory -- I'm sorry, I'm missing the words.
JUDGE HOEPFEL: No, that is clear. And please feel free to then also articulate your needs in terms of time to reply to these motions, once filed.
MR. KNOOPS: Thank you, Your Honour. I'm very much obliged to my learned colleagues from the Prosecution side. Indeed, I think it's reasonable to anticipate that an extensive request of the Prosecution under Rule 92 bis et al will, of course, result in a considerable work of the Defence, both legally and factually to adequately respond to this important request which may have an impact on the trial, as such.
Therefore, we would like to ask the Honourable Chamber to take into consideration to grant leave in this specific occasion for a time-limit to respond to it, longer than the 14 days. If I could speak freely now, I would say it's not unreasonable to ask the Defence to respond in four weeks, so the time-limit should perhaps be extended 630 instead of two weeks to four weeks.
I think this -- this may be manageable for my Defence team. I'm not speaking for my learned colleague Mr. Jovanovic. This is just a suggestion right now without having spoken, of course, with my co-counsel and the rest of my Defence team. But if the court could at least think about an option in this regard, we would be very grateful.
JUDGE HOEPFEL: Yes, thank you. We will certainly consider that. And do you agree, Mr. Jovanovic?
MR. JOVANOVIC: [Interpretation] Yes, thank you, Your Honour. First of all, I wish to thank the Prosecution for their very fair attitude. The Defence has intended to file a request for the extension of the time frame, and it's good to know the position of the Prosecution. The Defence for Franko Simatovic would like to reserve their right to seek extension of the deadline once we receive the decision and then we will look into it to see if the extension is indeed necessary. Thank you.
JUDGE HOEPFEL: Yes. Once you receive the motion, you mean, it is meant. Yes.
And I would just suggest that you file your request once such a motion is filed so the Bench can rule then on them. And this will also be preferable to receive a package than of statements which allows the Defence and the Bench to see the factual and legal issues in one picture. May I now change to the next issue. That would be adjudicated facts, agreed facts and stipulations on the indictment. According to the Work Plan, on 1st of May, 2007; one, the parties are required to file a joint submission on agreements on matters of law 631 and fact; and, two, the Prosecution should file a motion requesting either judicial notice of facts of common knowledge or the admission of adjudicated facts.
Now, experience shows there is a need for the parties to meet probably several times in order to discuss the issue of agreed and adjudicated facts. As discussed in yesterday's 65 ter Conference, the deadline of 1st of May, as set out in the Work Plan for their joint submission on agreed facts, may not be met.
Will the parties at least agree as to this challenge and will they file a notice with the Court if they believe this deadline will not be met, indicating what the efforts of the parties have been, and to come up with an alternative proposal?
MS. BREHMEIER-METZ: Indeed, Your Honour, yes. That has been the idea.
After yesterday's 65 ter Conference we have realised that both Defence counsel are prepared to start talks about agreed facts, about possible agreed facts and we do realise that leaving us with some six weeks before the 1st of May is a tight time schedule. However, we should certainly, first of all, that is, certainly the view of the Prosecution, start talking about, for example, which areas of the case might indeed be worth discussing and try and see where we get.
I think there might be a chance that we would be able to reach agreement. If not agreement then certainly a decision that we could inform the Court about, so that at the moment, I think we should leave the Work Plan as it stands. 632 The Prosecution certainly intends to comply with its duty under the Work Plan to file a motion on adjudicated facts and facts of common knowledge. We do, however, see that separate from the question of agreed facts, and as for agreed facts, we think it might be worth while to start discussions with Defence first and see where we get before we decide on whether or not to ask for any extension of that particular deadline.
JUDGE HOEPFEL: Yes, thank you. Indeed these are separate issues. And as to the potential agreed facts, it will be absolutely necessary to meet.
The Defence, please, would you like to comment on that?
MR. KNOOPS: Your Honour, I can confirm that the Defence of Mr. Stanisic is it prepared as it always has been to engage in any discussions or further discussions on adjudicated and agreed facts. As Your Honour may know from the past, there were efforts to reach agreement. There were draft submissions filed by both parties, so we will continue with those discussions, although I have personally my doubts whether the Work Plan setting forth the date of the 1st of May where we are supposed to inform the Chamber of where agreement has been reached of matters of law and fact, whether that can and will realistically be done on all the matters of law and fact.
But we could, of course, continue with the joint effort and inform the Court before the 1st of May on which issues we have reached agreement and on which issues we still have to speak further with the parties.
JUDGE HOEPFEL: Very well, thank you. You want to add anything? 633
MR. JOVANOVIC: [Interpretation] Yes, thank you, Your Honour. At the yesterday's meeting the Defence put forth a suggestion to the learned friends from the Prosecution to present their positions both with regard to adjudicated and agreed facts. It was agreed that we should meet at the end of April on that matter, and try to work on these facts. We also decided that we should, at the end this process, inform the Court of our progress, and then possibly ask for the ask for the extension of the deadline.
Now, the position of the Defence is that the Prosecution proposal will embrace a great deal of matters from the crime base. Since the crime base in case is extensive, the Defence will need more time to go through all these events and then put forth their position.
The adjudicated facts that would be proposed by the Prosecution will not take that much time. Of course, the Defence reserves their right to present their views with regard to adjudicated facts. I believe that quite soon we can expect the handing down of judgements that might be relevant to this case, like, for instance, the Martic judgement. In this context we might consider admitting or accepting some of the facts adjudicated in that case in this case as well.
JUDGE HOEPFEL: Yes, I think have heard of this case. Thank you, and maybe it would be advisable to meet not only at the end of April but to have first meeting already earlier and to then have second meeting and then and give an intermediate report at least by the 1st of May.
MS. BREHMEIER-METZ: Certainly, Your Honour. 634 I remember from yesterday's conference that 15th of April was mentioned an a possible meeting deadline, so we'll keep that.
JUDGE HOEPFEL: Thank you, yes. That sounds reasonable. And this issue will, of course, also influence the anticipated length of trial and the trial date, and, therefore, I will make this now the next issue.
Ever since 21st of July, 2003, the Prosecution estimate has been that its case will take four to six months; but at the last Status Conference, it appeared not to be clear if said figure to relate to the Prosecution case or to the whole trial. Due to the arrival of the new Prosecution team, I will not touch on this issue now, but yet my prior concern is to make the case trial-ready.
Basis for the proceedings, at this time, I would like to remind of that, is as the operative indictment, the second amended indictment of 20 December 2005. Is this correct?
MS. BREHMEIER-METZ: I am reminded, Your Honour, that it is the revised second amended indictment of May 2006.
JUDGE HOEPFEL: The revised second amended indictment, sorry, May 2006.
MS. BREHMEIER-METZ: It's the 15th of May, Your Honour.
JUDGE HOEPFEL: Yes. Thank you. So that was an oversee. We will also take care to change that on the home page of the Tribunal. Now, do you want to comment on that? No.
As to other matters -- as to any other special matters, during the 65 ter Conference held yesterday, Mr. Knoops indicated this -- that his 635 team of experts would like to have access to the Prosecution's electronic disclosure system.
The Prosecution has asked the Defence to come up with a list of such experts that would require access, and that they would review which experts could access. Is this being worked out?
MS. BREHMEIER-METZ: First of all, Your Honour, that is indeed the Prosecution's position. We have not received a list of names yet; but as soon as we will receive it, we will continue.
JUDGE HOEPFEL: Sure. Is that well understood this way.
MR. KNOOPS: Thank you, Your Honour. I'm much obliged to my learned friend from the Prosecution. We will in due course provide the Prosecution with the name at least one expert who has already been approved by the registry and maybe other names, but we will follow this up as soon as possible, and we could be very grateful if the Prosecution could consider access to that expert who has been already approved by the Registry.
JUDGE HOEPFEL: Yes, please. So you will communicate this in a clear form to Prosecution.
Mr. Jovanovic do you have --
MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. I would only like to clarify that this is the expert who was appointed based on the joint request of the two Defences for Mr. Stanisic and Simatovic. This is an expert who will provide expertise on behalf of both Defence 636 teams, and that is where the Defence for Mr. Simatovic is also very much interested in obtaining access to the EDS for this witness.
JUDGE HOEPFEL: Yes, thank you for your comment. I had anticipated that.
During yesterday's conference, Prosecution also indicated that it plans to re-disclose in connection with publishing its 65 ter list. However, they will indicate in a separate column which evidence has been previously disclosed where possible to reduce the amount of time that the Defence must take to review these re-disclosed materials. Is this correct?
MS. BREHMEIER-METZ: That is correct, in general, Your Honour. It may not -- well, first of all, we do indeed intend to re-disclose all material in connection with our 65 ter exhibit list, simply to be on the safe side. We understand it is a request to indicate whether material has been disclosed before, so we will follow that.
We may, however, not do it in a way as indicated by Your Honour, meaning adding a column to the 65 ter list. We consider other ways. However, there will be a way both manageable for the Prosecution as well as for the Defence to indicate which exhibits have been disclosed before.
JUDGE HOEPFEL: Thank you very much. That indeed will help. On the other hand, I'm asking myself why, then, a re-disclosure will be necessary, but it may serve the Defence in this way in any case.
MR. KNOOPS: Thank you, Your Honour. It could for the sake of completeness be a good idea such re-disclosure, but indeed we would like to stress that during the last 637 couple of months the Defence has strenuously worked on getting all the exhibits in our on system and case mapping system; and if we would receive a re-disclose without such an indication, it would face the Defence with a huge burden to recheck everything again. And in view of the fact that Your Honour is aware, the Defence such as the Prosecution is working without a little or no resources.
We would very much appreciate, although we acknowledge it will take an additional effort from the Prosecution side, but we would very much appreciate if such a column or any other form of indication what has been disclosed in terms of exhibits previously. That would greatly help the Defence in rechecking its documents.
JUDGE HOEPFEL: Yes, of course. This would otherwise lead to a very unnecessary exercise for the Defence, I guess.
Any comments from your side, Mr. Jovanovic?
MR. JOVANOVIC: [Interpretation] No, thank you, Your Honour. I also feel that this would be very useful if we were to be told what material had been disclosed and when.
JUDGE HOEPFEL: Thank you. If this is now set, I would like to come to the last detail, which came up yesterday during the 65 ter Conference.
Ms. Brehmeier-Metz, you inquired how you should interpret, as state in the Work Plan, that you should "indicate with respect to each witness any material which will be tendered through the witness," in relation to the 65 ter witness list. 638 I would like to comment on that by saying that the Prosecution should indicate on its exhibit list through which witness they intend to tender the document, if you can live with this clarification.
MS. BREHMEIER-METZ: Thank you very much, Your Honour. That indeed clarifies the matter and the Prosecution is grateful. Thank you.
JUDGE HOEPFEL: You're welcome. As this concerns only the Prosecution, I guess there's no comment necessary from your side. But let me start with your side, what other issues would you like to discuss?
MR. KNOOPS: Your Honour, at this moment, we as Defence for Mr. Stanisic have no other matters to raise with Your Honours. Thank you.
JUDGE HOEPFEL: Thank you. And Mr. Jovanovic.
MR. JOVANOVIC: [Interpretation] Your Honour, likewise, we have no further issues to raise at this point in time. Thank you.
JUDGE HOEPFEL: Thank also you. And it seems we are at the end of our conference.
As for a date for the next meeting, at least today it is to be said according to the Work Plan this would be the last Status Conference that will be held before the Pre-Trial Conference. Of course, this will be up to the real development.
Thank you all, including the team, including court reporter. Sometimes we spoke a little fast - and sometimes unclear - and including the interpreters. 639 Wish you a good day. The Court is adjourned.
--- Whereupon the Status Conference adjourned at 11.45 a.m.