1 Friday, 17 June 2005

2 [Status Conference]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 5.00 p.m.

6 JUDGE SHAHABUDDEEN: Mr. Registrar, will you please call the

7 case.

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

9 IT-02-60-A, the Prosecutor versus Vidoje Blagojevic and Dragan Jokic.

10 JUDGE SHAHABUDDEEN: May we take the appearances.

11 First for Mr. Blagojevic.

12 MR. DOMAZET: [No interpretation]

13 [Trial Chamber and legal officer confer]

14 [Appeal Chamber and registrar confer]

15 JUDGE SHAHABUDDEEN: I am told that no one heard the

16 interpretation, so that I am not singular in that respect. Do -- do we

17 expect some technician to attend?

18 THE INTERPRETER: Yes, Your Honour, the interpretation will now

19 ensue.

20 [Appeal Chamber and registrar confer]

21 JUDGE SHAHABUDDEEN: I'm told that after that brief hiccup we may

22 proceed.

23 Mr. Domazet, would you kindly repeat your appearance for the

24 record.

25 MR. DOMAZET: [Interpretation] Yes, Your Honour. My name is

1 Vladimir Domazet, newly appointed counsel for the Defence of Mr.

2 Blagojevic since the 25th of February of this year.

3 JUDGE SHAHABUDDEEN: Yes. Thank you. Thank you, Mr. Domazet.

4 And for Mr. Jokic?

5 MS. SINATRA: Your Honour, I'm Cynthia Sinatra, and Christopher

6 Staker for Dragan Jokic. But I still have to complain. I have nothing

7 coming out of my headset for the moment, no interpretation.

8 JUDGE SHAHABUDDEEN: Oh, that's very serious, Ms. -- Ms. Sinatra.

9 I can't. We'll have that remedied in a while.

10 MS. SINATRA: Thank you very much.

11 JUDGE SHAHABUDDEEN: Are you comfortable now?

12 MS. SINATRA: Yes, Your Honour. I can hear. Thank you.

13 JUDGE SHAHABUDDEEN: Yes.

14 Then for the Prosecution?

15 MR. SHIN: Good afternoon, Your Honour. My name is Milbert Shin,

16 appearing for the Prosecution. And with me is with Mr. Norman Farrell,

17 senior appeals counsel.

18 JUDGE SHAHABUDDEEN: Yes. Well, then I should inquire if the

19 parties can hear me in a language they can understand. Yes? The

20 appellants? Mr. Blagojevic?

21 THE APPELLANT BLAGOJEVIC: [Interpretation] Yes, I have been able

22 to understand everything you've been saying, Your Honour.

23 JUDGE SHAHABUDDEEN: Are you able to hear, Mr. Jokic?

24 THE APPELLANT JOKIC: [Interpretation] Yes, Your Honour. I do

25 understand everything.

1 JUDGE SHAHABUDDEEN: I should say that Rule 65 bis, with which

2 you are all familiar, requires that Status Conferences be held for each

3 appellant in custody at intervals no greater than 120 days. This is the

4 first Status Conference to be held in these appeals. It is being held

5 within the 120-day period after the date each appellant has filed his

6 Notice of Appeal; that is to say, the 23rd of January, 2005 in the case

7 of Mr. Jokic and the 31st of May, 2005 in the case of Mr. Blagojevic.

8 It was decided pursuant to the pre-appeal Judges decision of 14

9 April 2005 to schedule a joint Status Conference for the two appellants

10 in order to facilitate the objective of synchronising and streamlining

11 the two appeals. The date was then fixed for 23rd of June this year, but

12 Ms. Sinatra, counsel for Mr. Jokic, had a difficulty in attending on that

13 date, and so by a scheduling order of 6th of June, 2005 that date was

14 then changed to today's date. I would thank counsel for Mr. Blagojevic

15 and for the Prosecution for accommodating the change.

16 Rule 65 bis, which has been referred to, is as follows. I would

17 read it, though it is familiar to the parties. It is as follows: "The

18 Appeals Chamber or an Appeals Chamber Judge shall convene a Status

19 Conference within 120 days of the filing of a Notice of Appeal and

20 thereafter one -- within 120 days after the last Status Conference to

21 allow any person in custody pending appeal the opportunity to raise

22 issues in relation thereto, including the mental and the physical

23 condition of that person."

24 Now, two purposes are to be served by a Status Conference: The

25 first one is to allow the appellants to express concerns relating to,

1 inter alia, the appeal and detention conditions; and the second one is

2 for the Judge to update the appellants with respect to the status of

3 their case.

4 Now, each appellant - I turn to them - is invited to address the

5 Chamber as to any particular concerns they have as to the detention

6 conditions under which they are held or as to the appeal generally.

7 Yes, Ms. Sinatra.

8 MS. SINATRA: [Microphone not activated]

9 THE INTERPRETER: Microphone for counsel, please.

10 MS. SINATRA: Mr. Jokic has expressed to me that he has no

11 complaints regarding his detention at the UN Detention Centre.

12 JUDGE SHAHABUDDEEN: Thank you.

13 What about Mr. Blagojevic?

14 MR. DOMAZET: [Interpretation] Your Honour, for the time being

15 there are no objections.

16 JUDGE SHAHABUDDEEN: Thank you very much, Mr. Domazet.

17 Well, now, it is my turn to update the parties with respect to

18 the status of the case. The judgement of the Trial Chamber in this case

19 was delivered orally on 17 January 2005. A written judgement was filed

20 on 24 January 2005.

21 The case involves appeals by all three parties; that is to say,

22 the two appellants there, plus the Prosecution. So there are really

23 three appeals.

24 The Prosecution filed its Notice of Appeal on 23 February 2005,

25 and the Prosecution then followed that by filing its brief on appeal on

1 9th of May, 2005. Both Mr. Blagojevic and Mr. Jokic must therefore file

2 their briefs in response to the Prosecution's appeal by 20 June; that is

3 to say, by this coming Monday.

4 Now, Mr. Jokic filed his Notice of Appeal on 23 February 2005 and

5 his revised Notice of Appeal two days later, on 25 February 2005.

6 Mr. Blagojevic filed his Notice of Appeal on 31 May 2005.

7 Now, Mr. Jokic, having filed his Notice of Appeal on 23 February

8 was later permitted by the Tribunal to file his appeal brief by 14th

9 August 2005. Mr. Blagojevic, having filed his Notice of Appeal on 31

10 May, has until 14th August 2005 to file his appeal brief.

11 The appeals of Mr. Jokic and Mr. Blagojevic are thus now on a

12 synchronised schedule. They both have to file their appeal briefs by

13 14th of August, 2005.

14 Further, in its response to the appellants' motions for extension

15 of time, the Prosecution stated its intention to file a single brief

16 responding to both appellants' briefs.

17 Now, there are certain pending motions. On 6th June 2005, the

18 Prosecution moved to amend its Notice of Appeal in certain respects that

19 affect Mr. Blagojevic's case. No response has yet been filed.

20 On 31 May 2005, Mr. Blagojevic filed a Rule 115 motion to present

21 additional evidence. The Prosecutor filed a response to this motion on

22 10 June 2005. The reply is due today, 17 June 2005.

23 The pleading process is thus still in progress, and it is

24 accordingly too early to venture a prediction as to the further course of

25 events.

1 Are there any other matters which the parties would like to

2 raise?

3 MR. SHIN: Your Honour, nothing from the Prosecution at this

4 moment.

5 MS. SINATRA: Yes, Your Honour. Mr. Jokic has a few issues to

6 raise with the Court today. If the Court will entertain our discussing a

7 few administrative problems that we're dealing with, I'll address those.

8 And then if you will allow Mr. Staker to address the Rule 68 discovery

9 issues and disclosure issues that we must deal with immediately in order

10 to follow some sort of deadline that the Court has set.

11 JUDGE SHAHABUDDEEN: Yes.

12 MS. SINATRA: First of all, I would like to let the Court know

13 that our brief, our response to the Prosecution's appeal brief, will be

14 filed Monday, as -- as stated, and we have no problems with filing that.

15 We also, as far as disclosure issues, we have -- I just cleared

16 up with Mr. Farrell. We had a discussion just immediately prior to the

17 Status Conference to clear up some disclosure issues that I was unsure

18 of, but Mr. Farrell and I are working closely together at the moment so

19 that no further motions regarding the May 2nd disclosure or any problems

20 with the EDS, which we are just now acquiring by our team -- we should be

21 able to communicate and search items with the EDS in the near future, but

22 we have not been able to do so prior to this moment. Mr. Farrell has

23 kindly offered us a hard copy of some of the documents that we require at

24 this moment.

25 We have a problem, though, in that most of the disclosure by the

1 Prosecution, as far as documents go, are placed in our box, which is out

2 in the security station here at the Tribunal. This is an appellant stage

3 of the trial, and I'm not present in the Tribunal all of the time. Mr.

4 Staker lives in London, and it was -- would be inefficient, I believe,

5 for the Registry to pay for our coming back to retrieve documents. So we

6 ask that the hard copies of documents, any statements, any originals that

7 the Prosecution intends to disclose to us please be sent to me either in

8 Texas -- I think that's the only solution, because otherwise -- this last

9 time I didn't get the disclosure for two weeks because I've not been

10 present in The Hague. So we -- they have given us some disclosure, but

11 we just received a lot of it yesterday because we didn't have access to

12 the box from our remote positions.

13 I also would like to -- and, Your Honour, I know that if Mr.

14 Farrell would like to respond to this and give us some suggestions on how

15 to handle --

16 JUDGE SHAHABUDDEEN: Yes. Let's hear from Mr. Farrell. I gather

17 that there's no question of willingness to make disclosure. The question

18 is one of accessibility.

19 MS. SINATRA: Yes, Your Honour. That's correct.

20 JUDGE SHAHABUDDEEN: Yes. Mr. Farrell.

21 MR. FARRELL: If I may, Your Honour. Just to clarify and, with

22 respect, correct the present impression you may have. We have done only

23 one disclosure in the box to Ms. Sinatra, and that was not two weeks ago.

24 That was June 15th. And that was because we checked and found out that

25 she was attending this Status Conference and thought it would be more

1 efficient to give it to her when she arrived than to send it all the way

2 to Texas. All other disclosures have been done through other means and

3 we only did it because we knew she would be attending. I don't think

4 there'll be any problem in the future. Thank you.

5 JUDGE SHAHABUDDEEN: Okay, Ms. Sinatra?

6 MS. SINATRA: Yes, Your Honour. I am quite satisfied and I have

7 no complaints and Mr. Farrell has been quite accommodating. Thank you.

8 I also wish to inform Your Honour that we do wish to file an

9 intended Notice of Appeal. I know the Rule says "with good cause," but

10 this week, the day before yesterday, we just received a collection called

11 the Drina Corps collection, which is maybe 600 pages to 1.000 pages of

12 documents and CDs that we -- DVDs, which we have not had an opportunity

13 to review. So I ask that Your Honour give us the discretion, once we've

14 reviewed all of the new evidence, which we will be receiving all the way

15 through September and probably -- probably past that date, that we have a

16 right to file an amended Notice of Appeal as evidence is presented to us.

17 JUDGE SHAHABUDDEEN: Well, let's hear from Mr. Farrell what his

18 views are.

19 MR. FARRELL: Just to -- just to clarify. It may not have been

20 made clear to Ms. Sinatra, and we haven't spoken about this, so maybe I

21 can just clarify for -- for the Court's sake and for -- for the sake of

22 the Defence.

23 The -- this week we wrote a letter to the Defence to inform them

24 that the Prosecution was in the possession of a large collection. Ms.

25 Sinatra is correct. It's a large collection. I think it's actually in

1 the range of 300.000 pages.

2 JUDGE SHAHABUDDEEN: 300.000, did you say?

3 MR. FARRELL: Yes, Your Honour. And it is called the Drina Corps

4 collection because it comes from the Drina Corps of the Army of the

5 Republika Srpska. That collection, as we noted in our status report, is

6 not available at the moment. It's presently being scanned in. I can

7 explain the process, if you wish. But in any event, the period of time

8 it will take, as it indicates in our status report, will be until the end

9 of September till it's completely put on the Electronic Disclosure Suite

10 and therefore made accessible so that all searches can be made for the --

11 by the Defence through the whole collection. And it's going to be all --

12 completely made accessible to the Defence.

13 So in that respect the Defence may have -- have cause to review

14 that collection in its entirety at the time it's fully made available.

15 We're attempting to make it available sooner, and I'll of course inform

16 the Defence of that and if the Court so requires, I can certainly notify

17 Court.

18 What Ms. Sinatra was referring to, in terms of the CDs that she

19 received, is not the Drina Corps collection. She was informed of the

20 pending disclosure of the Drina Corps collection. What she received in

21 CDs was a disclosure of material related to evidence which came out of

22 the Milosevic case which relates to events in Srebrenica. So as a result

23 of the fact that there was evidence in another case related to events in

24 Srebrenica, we thought it was obviously appropriate to ensure that the

25 Defence in this case, as the events related to Srebrenica, were fully

1 informed of that evidence and received copies of it. So I think that is

2 the material that was recently received by the Defence. And the Drina

3 Corps is a separate matter.

4 But just to clarify, the material that Ms. Sinatra is speaking

5 about is recent material out of the Milosevic case. That's the material

6 that she's indicated they would like to review in time to determine

7 whether or not they seek to amend their notice.

8 Thank you.

9 JUDGE SHAHABUDDEEN: Ms. Sinatra has announced her intention to

10 amend her Notice of Appeal. Would you like to speak to that point?

11 MR. FARRELL: Well, if I may reserve the -- the ability to

12 comment on that until we determine what the scope of it is. If it

13 relates to material that's just arisen, then we'll have to assess that at

14 the time.

15 JUDGE SHAHABUDDEEN: Well, thank you very much.

16 MR. FARRELL: Thank you.

17 JUDGE SHAHABUDDEEN: I understand, Mr. Farrell. I hope you do

18 also, Ms. Sinatra.

19 MS. SINATRA: Yes, I do, Your Honour. I do understand Mr.

20 Farrell. I appreciate his ability to at least investigate and look at

21 matters. And like I said, we have been working together well.

22 I would like now -- Mr. Staker, as I had explained, is going to

23 address some of the disclosure issues. If the Court will allow, I'll

24 pass the -- the microphone to Mr. Staker.

25 JUDGE SHAHABUDDEEN: Okay. Mr. Staker, you have been all over

1 the place, have you?

2 MR. STAKER: I think that might be slightly overstating the case,

3 Your Honour, but I have since moved on from The Hague. Indeed, my final

4 appearance as a Prosecution counsel was, in fact, before you, Your

5 Honour. It's an honour that my first appearance on the other side of the

6 courtroom is also before you.

7 Your Honour, before addressing the issue of disclosure, perhaps

8 might I add an additional word relating to the proposed amendment to the

9 Notice of Appeal. I would recall that towards the beginning of these

10 proceedings the Defence for Dragan Jokic made a request that the Notice

11 of Appeal deadline be extended until the judgement had become available

12 in B/C/S. And Your Honour issued a decision on that on the 15th of

13 February in which it was stated that that extension would not be granted

14 but noted that after the judgement became available in B/C/S the Defence

15 would be entitled to seek pursuant to Rule 108 to vary or specify in

16 greater detail the grounds of appeal.

17 Now, the translation, I believe, has only very recently become

18 available, so with reference to that earlier decision, what I would

19 propose as a matter of convenience would be simply that Your Honour give

20 an oral order now that the Defence be simply entitled to amend -- to file

21 an amended Notice of Appeal and that if the Prosecution has any objection

22 to what is filed, the Prosecution can then file a motion at that stage to

23 which the Defence would respond and a ruling would be given.

24 The advantage of that procedure is that if the Prosecution has no

25 objection, it will save the need for a formal written motion and a formal

1 response and a formal written ruling of the Chamber.

2 I leave it to the Prosecution to respond to that suggestion, but

3 I think that would be of convenience to all parties, as well as to the

4 Bench.

5 JUDGE SHAHABUDDEEN: Mr. Staker, I need the benefit of your

6 opinion on a little question. If there is to be an amendment of the

7 Notice of Appeal, I -- I imagine that the decision has to be made by the

8 Appeals Chamber acting in its full form or through the -- the Pre-appeal

9 judge. Would you say that the Status Conference Judge has that

10 competence?

11 MR. STAKER: Well, I would hope not to have to take that question

12 under advisement, Your Honour. My -- my view would be that there is no

13 distinction in the capacity of a pre-appeal judge as a pre-appeal judge

14 and a judge signature as a Status Conference Judge. I understand that

15 it's one and the same capacity.

16 JUDGE SHAHABUDDEEN: Would you feel that the safe course would

17 you for you to file a motion in the normal way?

18 MR. STAKER: Of course, if -- if that is the ruling, we'd only be

19 too pleased to take that advice.

20 JUDGE SHAHABUDDEEN: Let's hear -- maybe Mr. Farrell will agree

21 with you.

22 MR. STAKER: I was about to propose, Your Honour, if there's no

23 objection from the Prosecution, perhaps it would be not unsafe to proceed

24 according to that proposal.

25 JUDGE SHAHABUDDEEN: Mr. Farrell.

1 MR. FARRELL: Without seeing the content of the notice, I don't

2 think it would be wise for the Prosecution to concede. Obviously the

3 applicant will have to demonstrate that the grounds proposed were ones

4 that only could arise upon a reading of the B/C/S version. And since

5 both my learned colleagues speak English, I would presume that it would

6 have to be something arising from the appellant himself. So other than

7 that, I'm sorry, at this stage we can't consent.

8 JUDGE SHAHABUDDEEN: I perfectly understand.

9 Then, Mr. Staker, is it agreed that you would consider moving in

10 the normal way?

11 MR. STAKER: We would be pleased to do so, Your Honour.

12 JUDGE SHAHABUDDEEN: Yes.

13 MR. STAKER: Having dealt with that point, I would then proceed

14 to raise certain issues that the Defence has in relation to the proposed

15 time frame for disclosure, which has been set out in the Prosecution's

16 status report on disclosure.

17 The particular concern relates to observations made in the status

18 report relating to the Drina Corps collection. According to paragraph 6

19 of this status report, the material --

20 JUDGE SHAHABUDDEEN: Have I -- have I got this status report?

21 MR. STAKER: I understand it was filed, Your Honour. It has a

22 cover sheet indicating a distribution.

23 JUDGE SHAHABUDDEEN: Oh, I have it now.

24 What paragraph are you referring to?

25 MR. STAKER: Paragraph 6, Your Honour.

1 JUDGE SHAHABUDDEEN: Yes.

2 MR. STAKER: It states that: The Drina Corps collection was

3 provided to the Tribunal in mid-December 2004. It seems it then took a

4 month to be delivered to The Hague and arrived in -- in mid-January 2005.

5 And it is then stated further in the paragraph that at the moment it's

6 anticipated that the bulk of the collection will be made available

7 through the EDS by the end of September -- September 2005.

8 Now, there are three particular concerns that arise from that

9 last statement. The first concern is that it says that the anticipated

10 time frame for disclosure is the time frame "at the moment," is the words

11 used. And it appears that there's therefore no commitment by the Office

12 of the Prosecutor to meet the proposed deadline by the end of September.

13 And it would seem or perhaps the Prosecution can clarify that, but it

14 would seem they --

15 JUDGE SHAHABUDDEEN: How do you work it out again?

16 MR. STAKER: Paragraph 6, the second last sentence.

17 JUDGE SHAHABUDDEEN: Mm-hm.

18 MR. STAKER: Says: "At the moment it's anticipated that the bulk

19 of the collection will be available through the EDS by the end of

20 September 2005."

21 JUDGE SHAHABUDDEEN: Yes.

22 MR. STAKER: The words "at the moment" suggest that's the

23 anticipated time frame at the moment but that it could change.

24 JUDGE SHAHABUDDEEN: Oh, well, let's -- let's hear from Mr.

25 Farrell.

1 Do you have any thoughts on this point?

2 MR. SHIN: Your Honour, if -- if I could just respond briefly.

3 The -- the time frame of the end of September, as we note in our status

4 report, is at this moment the best information we have about when the EDS

5 will -- will contain the Drina Corps collection.

6 As we note also in our status report, we are seeking ways of

7 having that -- having some portion of that collection available on the

8 EDS sooner. This is something that's actively under consideration and we

9 have exchanged some communication even today with the people who may be

10 able to determine that. But at this point, our understanding is that the

11 material will be completed being scanned in September and then will be

12 available on the EDS by the end of September. But -- sorry.

13 JUDGE SHAHABUDDEEN: Well, is it -- if I understand you aright,

14 these words "at the moment" do not signify any particular contingency on

15 your side. You will have the material available by the end of September?

16 MR. SHIN: Your Honour, that is my understanding of what the OTP

17 is trying its best to do. I can't speak to unforeseen circumstances or

18 difficulties relating to either resources or logistics that may arise.

19 What I can say is that we will inform the parties and the Court of any

20 variation or any problems that may arise in trying to meet that deadline

21 so that all parties are informed of the progress.

22 JUDGE SHAHABUDDEEN: Mr. Staker, is -- is that acceptable to you?

23 MR. STAKER: Well, Your Honour, this -- this was the first of

24 several points I was going to make.

25 JUDGE SHAHABUDDEEN: Oh.

1 MR. STAKER: To lead on to another conclusion. Yes. But I think

2 what Mr. Shin has done is confirm what my understanding was; namely, that

3 the Prosecution is not giving any commitment to meet any particular

4 deadline. And that is, of course, the first concern.

5 The second concern, arising out of the same paragraph, indeed the

6 same sentence, is that it says that it's anticipated the bulk of the

7 collection will be disclosed.

8 JUDGE SHAHABUDDEEN: Anticipated, that was?

9 MR. STAKER: That the bulk --

10 JUDGE SHAHABUDDEEN: The bulk.

11 MR. STAKER: -- of the collection will be available by that

12 anticipated date. So in addition to there being no commitment to meeting

13 the end of September deadline, there's no commitment to, in fact,

14 completing disclosure even by that date. It will be the bulk, but

15 there's no suggestion as to any time frame for the disclosure of the

16 remainder.

17 JUDGE SHAHABUDDEEN: Yes.

18 MR. STAKER: That is our second concern.

19 The third concern is, of course, that the disclosure will be

20 occurring - if the end of September deadline is met, which we understand

21 now is not being committed to - some nine and a half months after the

22 material came into the possession of the Prosecution.

23 Now, we've been told the collection consists of some 300.000

24 pages. We appreciate that's a very large number of pages. But

25 nonetheless a time frame of nine and a half months from receipt of the

1 material raises very real concerns for two particular reasons:

2 The first reason specific to this particular case is that the

3 time frame that's been suggested, in our submission, must be expected to

4 lead to delays in the scheduling of this appeal if the disclosure results

5 in Rule 115 motions being filed. I do note that the final paragraph of

6 the status report suggests that this time frame will not cause any such

7 delay, but on our calculations it's difficult to see how that could be

8 the case.

9 JUDGE SHAHABUDDEEN: Mr. Staker, if it becomes necessary for you

10 to apply for an extension, wouldn't that be the proper course?

11 MR. STAKER: Well, that would be -- that would be one solution,

12 Your Honour. But the difficulty is that the -- the accused has a right

13 to a speedy trial, which applies also to a speedy appeal. In our

14 submission, the disclosure rules can't be construed on the basis that the

15 Prosecution completes disclosure when it's convenient to the Prosecution

16 and that the accused must simply wait until then for matters to proceed.

17 JUDGE SHAHABUDDEEN: Oh, I think the Prosecution would agree with

18 you on that, as I do. But is there any basis for saying or suggesting

19 that the Prosecution would -- would allow this to stand over on its

20 convenience?

21 MR. STAKER: I'm not suggesting, Your Honour, that the

22 Prosecution is deliberately delaying disclosure or dragging its feet.

23 But I think in any national system, situations can certainly arise where

24 the Prosecution believes that it's acting according to the best of its

25 abilities but nonetheless there are legitimate reasons for the Defence to

1 question whether the amount of time that things are taking is really

2 appropriate or acceptable.

3 JUDGE SHAHABUDDEEN: Well --

4 MR. STAKER: And I would simply propose that the stated time

5 frame is something that I think legitimately can be discussed.

6 JUDGE SHAHABUDDEEN: All right.

7 MR. STAKER: Particularly in light of the three concerns I've

8 raised. One -- one, the fact that there is no commitment to a specific

9 date; secondly, that there's no indication that it will be more than the

10 bulk of the material, with no indication of what will happen thereafter;

11 and thirdly, the fact that the anticipated delay is some nine and a half

12 months after the material has been received and that it will lead to

13 delays, foreseeably, in the scheduling of this appeal.

14 JUDGE SHAHABUDDEEN: Well, Mr. Farrell, are you in the position

15 to state a time frame or to - or Mr. Shin - or to state -- or to state

16 when you will have the entirety of the collection available?

17 MR. SHIN: Your Honour, if -- if I could reiterate what I had

18 explained earlier, that the information we have from the people who are

19 dealing with the Drina Corps collection is that there is a firm intention

20 to have it on the EDS by the end of September. But again, for the

21 reasons I had alluded to earlier, it would be unwise or even reckless for

22 me to undertake that this particular team on this particular appeal would

23 have the ability to control the resources which are essentially at the

24 hands of the entire OTP, including all the logistical problems that they

25 face regarding documents from different sources, including translations.

1 Now, if I could clarify a couple of points that Mr. Staker has

2 raised, first, with regard to reference to the bulk of the collection.

3 My understanding - and I'll give a very specific clarification of that -

4 my understanding is the reason that it may be the bulk and it may be the

5 entirety, but it may be the bulk because there are some 270 maps plus

6 some hundreds of photographs. And those will be given a lower priority.

7 And that is my understanding. They will be given a lower priority in the

8 processing of these documents, including the stamping of the ERN number

9 and the scanning of the document itself. And that's what we are

10 referring to when we state "the bulk of the documents." The --

11 JUDGE SHAHABUDDEEN: Do you --

12 MR. SHIN: Yes, Your Honour.

13 JUDGE SHAHABUDDEEN: You will make haste, of course?

14 MR. SHIN: We will undertake all efforts to -- to beg the people

15 who are in charge of this process to make haste. This is a matter of

16 priority for the -- for OTP resources. Certainly not only for -- because

17 of this appeal but because of other trials that are pending in relation

18 to Srebrenica and also other trials that involve Srebrenica.

19 JUDGE SHAHABUDDEEN: There will be no -- no question of the

20 Prosecution allowing this matter to drag on because of its convenience.

21 MR. SHIN: Absolutely not, Your Honour. Absolutely not.

22 One additional point I would add is that, as we note in our

23 status report, we are making disclosures from this collection as material

24 comes into our actual knowledge that -- that fall within our disclosure

25 obligation under the Rules, and in fact that is how we have first

1 informed the -- the Defence in this case of the Drina Corps collection

2 because of a document that came out of that.

3 JUDGE SHAHABUDDEEN: Thank you, Mr. Shin.

4 Mr. Staker, the Prosecution has given their assurances that it

5 is -- that it can conveniently give to you. There's no question of the

6 Prosecution allowing the matter to be dictated by its convenience. If

7 you find it necessary to apply for any appropriate extensions of time,

8 well, then isn't -- isn't that a matter that you may consider in due

9 course?

10 MR. STAKER: Well, as I indicated earlier, Your Honour, of

11 course. Extensions of time is one way of addressing the problem. But it

12 will, of course, always remain a matter of concern to the appellant that

13 the process is taking longer --

14 JUDGE SHAHABUDDEEN: A matter of concern to the Court as well.

15 MR. STAKER: Yes. No, I appreciate what the Prosecution has

16 said.

17 I don't know if Your Honour might be minded to think that if a --

18 if a date were -- were fixed for completion of disclosure subject to --

19 subject to that being changed on good cause, that that might -- that

20 might assist in focussing minds rather than leaving it on the basis that

21 it be done as soon as practicably possible.

22 JUDGE SHAHABUDDEEN: We have heard the Prosecution on this point.

23 They wouldn't consider it wise to tie themselves down to a precisely

24 stated time frame, and that, I think, counsel would understand, so that

25 the remedy remains this: That if you judge it to be necessary, you will

1 apply for any appropriate extensions of time.

2 MR. STAKER: I'm obliged, Your Honour.

3 There were two additional small matters that I wanted to mention

4 in relation to disclosure.

5 JUDGE SHAHABUDDEEN: Are you coming to an end any time soon?

6 MR. STAKER: I do apologise if I am taking an undue amount of

7 time for what is meant to be a brief Status Conference. I will try and

8 make these two points briefly.

9 The one matter rises in connection with paragraph 3 of the status

10 report on disclosure.

11 JUDGE SHAHABUDDEEN: Paragraph -- wait a minute. Let me get

12 that. Paragraph 3.

13 MR. STAKER: It -- it states that: "The Prosecution is able to

14 identify at this stage two categories of materials requiring review for

15 disclosure purposes."

16 JUDGE SHAHABUDDEEN: Yes.

17 MR. STAKER: I simply wanted to clarify that the understanding

18 remains that the Rule 68 disclosure obligations apply to the entirety of

19 material in the possession of the Office of the Prosecutor and not just

20 to specific collections. And --

21 JUDGE SHAHABUDDEEN: I would imagine that's normal, but let's

22 hear from Mr. -- Mr. Shin or Mr. Farrell.

23 MR. FARRELL: Sorry that we're changing on you. It's completely

24 normal. Thank you.

25 JUDGE SHAHABUDDEEN: It's very normal.

1 MR. STAKER: No, I appreciate the Prosecution's clarification of

2 that.

3 And finally --

4 JUDGE SHAHABUDDEEN: No, no, no, no, Mr. Staker. You were once

5 prosecuting counsel. The Prosecution isn't stating, as it were, a new

6 position. It's affirming consistency with its standing obligations.

7 MR. STAKER: Yes, Your Honour, I wasn't seeking to suggest the

8 contrary by any means. No, no, no, I understand that is certainly a

9 restatement of what has always been the position. The clarification

10 that I was seeking was that paragraph 3 of the status report doesn't

11 indicate any change in that position.

12 JUDGE SHAHABUDDEEN: Oh, I see.

13 MR. STAKER: Thank you.

14 The final matter is that references are made to disclosure being

15 made by documents being made available on the Electronic Disclosure

16 Suite. I must admit the Rules appear to have -- the wording of Rule 68

17 has undergone some changes over time. My understanding is that the fact

18 that documents are being made available on the Electronic Disclosure

19 Suite does not detract from the provision of Rule 68(i), which requires

20 the Prosecution to disclose material to the Defence which it knows to be

21 exculpatory. I take that as meaning that paper hard copies will continue

22 to be made available of the specific material which is considered by the

23 Prosecution to be exculpatory under Rule 68.

24 JUDGE SHAHABUDDEEN: Well, we'll hear Mr. Farrell on that.

25 MR. FARRELL: I -- once again, the Prosecution's obligation to

1 disclose Rule 68 material remains unchanged.

2 In relation -- if Mr. Staker is making a request to the Court

3 that we disclose it in hard copy, then we'll see whether we can do that

4 as a courtesy. But the Prosecution practice has been for a number of

5 months that disclosure is placed on the Electronic Disclosure Suite in a

6 case-specific file that is accessible to the Defence and they can access

7 it then.

8 Ms. Sinatra has brought to my attention a few difficulties, so of

9 course we've tried to accommodate those requests. But the Prosecution's

10 position is disclosure is being made through the EDS through

11 case-specific files at the moment. If there's any problem with that, we

12 can discuss it at a later date with Defence counsel.

13 Thank you.

14 JUDGE SHAHABUDDEEN: Have you finished, Mr. Staker?

15 MR. STAKER: Yeah, I'm sorry, Your Honour. I take it the Defence

16 is -- is quite satisfied with that response. Sorry. I just wanted to

17 confer with counsel.

18 JUDGE SHAHABUDDEEN: Yes, of course.

19 [Defence counsel confer]

20 MR. STAKER: No. Unless Your Honour has anything further that I

21 can assist with on those matters, I would lined to hand back to Ms.

22 Sinatra.

23 JUDGE SHAHABUDDEEN: Very good of you, Mr. Staker. But I really

24 don't have any other matter to mention at this time.

25 Yes, Ms. Sinatra.

1 MS. SINATRA: Yes, Your Honour. I have a couple of more matters

2 to bring to the Court's attention, if you will indulge me for one moment.

3 JUDGE SHAHABUDDEEN: Yeah, of course.

4 MS. SINATRA: Thank you. We are also talking about a Rule 115

5 motion. I understand that Mr. Blagojevic has filed a motion requesting a

6 hearing and the ability to present additional evidence. I would like the

7 Court's indulgence on this matter because we have at the moment just

8 returned from Bosnia and we do have material that fits -- we believe fits

9 the criterion of Rule 115. It's being translated.

10 But also, instead of filing a series of Rule 115 motions, if the

11 Court would allow us the time to complete this review of this Drina Corps

12 collection and then file one Rule 115 motion after this has been

13 completed. I think it would be a more efficient use of the Court's time

14 also and our resources.

15 JUDGE SHAHABUDDEEN: Ms. Sinatra, wouldn't these elements be fit

16 for incorporation in a motion by you?

17 MS. SINATRA: Yes, Your Honour. I was just bringing to the

18 Court's attention that we can file a series of motions or we can wait

19 until we've had complete disclosure by the Prosecution and file one

20 motion at the end of the disclosure process.

21 JUDGE SHAHABUDDEEN: Let's see if Mr. Farrell is in a position to

22 help on that.

23 MR. FARRELL: The Prosecution has no objection, of course, to the

24 Defence taking the amount of time they need to put the material together.

25 The only thing I would note is that we're assuming that the Drina Corps

1 will bring about Rule 115 evidence, and maybe the better course of action

2 is every certain period of time an assessment will have to be made by the

3 Defence if they wish to file Rule 115 material. But generally, if the

4 material is there and it doesn't affect the scheduling, then there isn't

5 -- we don't have a general objection, no.

6 JUDGE SHAHABUDDEEN: Well, there's no general objection by Mr.

7 Farrell for that course.

8 MS. SINATRA: Well, thank you, Your Honour. Then I assume that

9 we have the permission of the Court to file one motion at the end of the

10 disclosure.

11 JUDGE SHAHABUDDEEN: Yes, file one motion.

12 MS. SINATRA: And one more problem: We were talking about the

13 EDS system. As I informed the Court, we have never had access to the EDS

14 until hopefully in the next few days, but another problem with the EDS

15 system is that it has incorporated Zylab and I think parts of the --

16 JUDGE SHAHABUDDEEN: Say that again?

17 MS. SINATRA: Zylab, which was a search engine that the

18 Prosecutor had prior to this point and the Defence did not have. And

19 also it should incorporate, I believe, the judicial database eventually.

20 What's the problem with the EDS system for us - although we have not been

21 educated on it quite get - is there is no indexing, there's no numbering,

22 there's no way to -- to do a search that's efficient and effective at

23 this time. That's why we still, even though the Prosecution has been

24 informed that they should disclose materials to us in the EDS system in a

25 file-specific compartment, we would prefer to have things disclosed to us

1 at this moment on hard copy because of the search problems.

2 Another problem with this is the judicial database is available

3 to the Prosecution. The Defence has one computer terminal in the Defence

4 room, and it's the only way we can search the judicial database is to be

5 present here in The Hague. By August, supposedly, or September we would

6 have remote access to the judicial database. So we're having disclosure

7 problems and problems with access to tools and being able to utilise the

8 tools provided by the Tribunal in the Defence counsel unit at this point.

9 JUDGE SHAHABUDDEEN: Well, Ms. Sinatra, I must confess to you that

10 I am all agog before the technicalities involved in your presentation.

11 Maybe -- maybe the Prosecution can assist on this.

12 MR. FARRELL: My technical skills are limited, Your Honour, but

13 first of all we are required under Rule(ii) to disclose and make

14 available in electronic form, so we are first of all complying with the

15 Rule.

16 Secondly, the fact that there's no index, no numbering, we get

17 the collections and scan them in electronically into a large database and

18 we have to do our own searches on them. So I don't know if I can be of

19 much assistance, as we don't have any advantages of much difference.

20 And as I understand that Ms. Sinatra is -- as of now Ms. Sinatra

21 and Mr. Staker have now or will be receiving their password now. There

22 is training available and there is actually a Defence working group on

23 the issue of the EDS, so maybe the best course would for -- be for them

24 to attempt to utilise it first and then we'll try to see if we can deal

25 with some of the problems afterwards.

1 Thank you.

2 JUDGE SHAHABUDDEEN: Mr. Farrell has gone as far as he could go

3 to meet you. There's no question about his willingness to comply with

4 his disclosure obligations. And he's prepared to -- to meet you as far

5 as the convenience to which you referred goes. But if you have any

6 further difficulties, can you incorporate them in an appropriate motion

7 to the Court?

8 MS. SINATRA: Yes, Your Honour. I just wanted to ask if the OTP

9 might be willing to share their indexes with us, since they're scanning

10 everything in and numbering it and indexing it in their own case.

11 Perhaps we would be allowed to have the index that they're working from.

12 JUDGE SHAHABUDDEEN: Well, it's not a matter to which the Court

13 can make any ruling. But we can inquire from Mr. Farrell for you. Yes.

14 MR. FARRELL: I am unclear of what indexes Ms. Sinatra is

15 speaking of, so at this point -- I really apologise. If she'd like to

16 raise it with me directly, I can certainly work on it. But I have no

17 idea which index she's referring to.

18 Thank you.

19 JUDGE SHAHABUDDEEN: Don't you have -- I'm encouraged by the

20 thought that you have been having conversations with Mr. Farrell. Why

21 don't you pursue this in the course of conversations with him.

22 MS. SINATRA: Yes, Your Honour. My only concern was that Rule

23 68, when it refers to electronic form - I don't have my glasses on - I

24 think it's (ii). It was written before we had this EDS system and I

25 think that the writers of this procedure envisioned CDs or floppy disk or

1 something like that. This is just a massive understanding to find

2 something, on the beach, a small pebble in the sand.

3 JUDGE SHAHABUDDEEN: But you accept that the Prosecution is in

4 compliance with the provision as it is

5 Presently worded.

6 MS. SINATRA: Your Honour, I believe that the Prosecution has

7 every intent to comply as we move along. Thank you.

8 JUDGE SHAHABUDDEEN: Well, then we -- we have all listened to Ms.

9 Sinatra on those points. And I ask the Prosecution to take them in good

10 faith and to advance the preparation of the case on both sides, on all

11 sides, within a view -- with a view to an early hearing.

12 Is there any other matter?

13 MS. SINATRA: Your Honour, I have to state it's been a great

14 pleasure to appear before you for the first time, and I look forward to

15 working in this case with you, and thank you for your indulgence with our

16 issues.

17 JUDGE SHAHABUDDEEN: Thank you very much. Thank you, Ms.

18 Sinatra.

19 All right. Then we'll take the -- is there anything more? Then

20 we'll take the adjournment at this point.

21 Thank you very much.

22 Mr. Domazet?

23 MR. DOMAZET: [No interpretation]

24 JUDGE SHAHABUDDEEN: There's no interpretation.

25 MR. DOMAZET: [Interpretation] I shall try to be as brief as

1 possible. I have not been able to take the floor so far. Perhaps French

2 is a problem. If the interpreters prefer, I can also speak B/C/S.

3 THE INTERPRETER: No, no, it's fine in French.

4 JUDGE SHAHABUDDEEN: No, the interpretation is coming through

5 now.

6 MR. DOMAZET: [Interpretation] Your Honour, I support everything

7 that has been said by Mr. Jokic's Defence counsel, but the Defence

8 counsel of Mr. Blagojevic has encountered different problems. I would

9 like to be as brief as possible.

10 First of all, Mr. Blagojevic has been entitled to appoint a new

11 counsel after the ruling rendered on the 17th of January, and I have

12 noticed that since April 2003 he has not been in contact with his

13 official lawyers.

14 As I was a newly appointed Defence counsel, he did not want me to

15 contact his former attorneys. The issue raised by Mr. Blagojevic's

16 appeal is that I have been appointed on the 25th of February. On 23rd of

17 March, 2005 I received from Mr. Karnavas something like 200 binders

18 containing various evidence material. And thanks to your ruling, I was

19 entitled to notify my -- Notice of Appeal before the 31st of May. But

20 the difficulty this raises is the following:

21 Since the 31st of May, you have granted those 75 days pursuant to

22 the Rules of Procedure and Evidence, I have till the 14th of August to

23 prepare my appeal brief. But in the meantime, I have also received the

24 Prosecution's brief, and the deadline runs at the same time. I have 40

25 days in which to respond.

1 My working language, as the Registry acknowledges, is French. I

2 have never received the judgement in French, like Mr. Blagojevic, who

3 received it on the 7th or 8th of June in 2005 in his language. There was

4 no judgement available in French, and my knowledge of the English

5 language probably suffices to read the judgement overall, but is probably

6 not adequate to prepare myself for an appeal hearing. This is why I

7 asked for an extension of time. These 40 days are 40 days which I need

8 to respond to the appeals -- to the Prosecution's appeals brief or to

9 prepare it afterwards, but unfortunately at this point in time in those

10 75 days, which expire on the 14th of August, I shall be working on my

11 response to the Prosecution's appeals brief. I will have to file this

12 this Monday, on the 20th.

13 I honestly believe that as I am a newly appointed counsel in this

14 case, where the transcripts amount to some 12.000 pages, if I were to do

15 my job properly, which is what Mr. Blagojevic has asked me to do -- if I

16 were to do my job and I'd like to do my job properly, I'd like to have

17 more time. I would need more time to prepare my brief, which I need to

18 file by the 14th or the 15th of August of this year.

19 You also mentioned the fact that today is the date when the

20 motion pursuant to Article 115 expires. This deadline expires on the

21 10th of June. I received this memo by fax, which was the day before I

22 left home to be here in The Hague for this Status Conference. I left on

23 the 14th, and I came to The Hague by car in order to carry some of these

24 binders and evidence material which I have been given to work at home

25 because I cannot review these 200 documents in the space of these few

1 days that I'm spending in The Hague now.

2 So I honestly could not file my response to the Prosecution's

3 appeal brief, particularly as I had to file my response to the appeals

4 brief of the Prosecution. As did Mrs. Sinatra, I received all the

5 material today. That is another issue. All this material needs to be

6 reviewed. But the most important issue, as far as Mr. Blagojevic is

7 concerned, is that I have to prepare this brief by the 14th of August.

8 This will not be possible. I would ask leave to extend this and extend

9 it by 40 days so that I would have those 75 days. I would not include

10 those 40 days which I needed to respond to the Prosecution.

11 Another issue which was out of my control: I asked to have a

12 legal assistant, Mrs. Lobagic [phoen], who is experienced in this

13 Tribunal so that she could give me a helping hand. She was appointed and

14 then was no longer appointed. I therefore had to look for another legal

15 assistant, who was appointed towards the end of the month of May. So

16 with all these difficulty I've had to come up against, I would like an

17 extension of time in order to prepare my brief appropriately.

18 JUDGE SHAHABUDDEEN: Mr. Domazet, I listen to you with great

19 care, but it does appear to me that the -- the two appeals on your side

20 were placed on a synchronised basis and that basis would have to be

21 carefully reviewed so as to get into a coherent pattern all the

22 components of the litigation in question.

23 What I would suggest to you is that if you feel that you need

24 further time, could you please apply in the normal way so that the

25 Appeals Chamber could consider the case on -- on the merits.

1 If there are no other points, we will now take the adjournment.

2 Thank you very much.

3 --- Whereupon the Status Conference adjourned

4 at 6.06 p.m.

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