Tribunal Criminal Tribunal for the Former Yugoslavia

Page 90

1 Wednesday, 1 June 2005

2 [Status Conference]

3 [Open session]

4 [Accused not present]

5 --- Upon commencing at 10.30 a.m.

6 JUDGE PARKER: Good morning. We convene this morning for a Status

7 Conference in the matter of the Prosecutor against Ivan Cermak and Mladen

8 Markac.

9 Mr. Scott?

10 MR. SCOTT: Good morning, Ken Scott representing the Prosecution

11 this morning.

12 JUDGE PARKER: Thank you.

13 Mr. Prodanovic.

14 THE INTERPRETER: Microphone, please.

15 MR. PRODANOVIC: [Interpretation] Good morning, Your Honour, on

16 behalf of the accused Ivan Cermak, Cedo Prodanovic, and Ms. Jadranka

17 Slokovic.

18 JUDGE PARKER: Good morning.

19 Mr. Separovic.

20 MR. SEPAROVIC: [Interpretation] Good morning, Your Honour. On

21 behalf of the accused Mladen Markac, my colleague Mr. Mikulicic, and

22 myself, Miroslav Separovic.

23 JUDGE PARKER: Thank you very much. As the parties are aware the

24 two accused are on release pending trial and for that reason are not

25 present.

Page 91

1 Now, the reason, of course, for the Status Conference is that

2 there must be one every 120 days, and that ensures that we continue to

3 organise exchanges between the parties and the preparation for trial. The

4 last one occurred early in February, so by virtue of time, it is necessary

5 to hold this further conference at this stage.

6 I notice that there are two pending motions. The first is an

7 application by Ivan Cermak to amend the conditions of release, and there

8 is a motion by the Prosecution to amend the indictment. I can tell you

9 that each of those decisions are to be filed very shortly.

10 Disclosure under Rule 66(A)(i) was completed last October. I

11 assume it remains completed, and we must now check progress in respect of

12 Rule 66(A)(ii) disclosure. I think it was mentioned when we were together

13 in February by Mr. Scott that the Prosecution had disclosed 13 witness

14 statements, but they were disclosed in English and the position about

15 translations was not then resolved. The question arises whether those 13

16 statements have now been received by the Defence in B/C/S. Are you able

17 to assist me there, Mr. Prodanovic and Mr. Separovic?

18 MR. SEPAROVIC: [Interpretation] Your Honour, we have received

19 this, but these have not been translated into Croatian.

20 JUDGE PARKER: That's the position also with you, is it,

21 Mr. Prodanovic?

22 MR. PRODANOVIC: [Interpretation] Precisely the same position.

23 JUDGE PARKER: Thank you.

24 Mr. Scott?

25 MR. SCOTT: Good morning, Your Honour. May it please the Court,

Page 92

1 my understanding is that to respond to Your Honour generally as to the 68

2 disclosure, you're absolutely right, there has been very substantial Rule

3 68 disclosure in the past and as the Chamber knows, as Your Honour knows,

4 that is a matter of ongoing disclosure as material is identified.

5 As to the 66(A)(ii) material, I have to say that I'm not

6 specifically in a position to either confirm or deny what the Defence has

7 represented on these 13 items. I find that to be a bit surprising if

8 that's the case but I'm not saying they are not right. I have to say,

9 Your Honour, in terms of the material that I have in front of me this

10 morning, in terms of some summary information that's been prepared for me,

11 I don't think I have an answer to that specific question and our -- with

12 my -- with my regret the regular case manager assigned to the case is

13 not -- is not with us, is on leave at the moment, so I have a set of

14 statistics here in front of me, Your Honour, but I don't see off-hand that

15 it addresses -- that I can tell it addresses those specific 13 items. I

16 can tell the Chamber that there has been substantial ongoing efforts to

17 deal with translations and I think translations are being provided kind of

18 on an as we go or rolling basis; by that, as they come in, they are

19 disclosed. But I'm afraid at the moment, Your Honour, that's the best

20 information I can give to you.

21 JUDGE PARKER: That's about where we were on the 4th of February,

22 Mr. Scott.

23 MR. SCOTT: I understand Your Honour, and I regret that. All I

24 can do is make further inquiries when I return to my office.

25 JUDGE PARKER: I think an injection of some action as well might

Page 93

1 be useful as well as inquiries.

2 MR. SCOTT: Thank you, Your Honour.

3 JUDGE PARKER: Beyond that you've moved and started to cover my

4 next inquiry. That is whether there should be further statements beyond

5 the 13 because whether we were last together it was indicated that you

6 were continuing to approach other witnesses or potential witnesses.

7 MR. SCOTT: That's correct, Your Honour. There have been a small

8 number. I think those documents -- again, those transcripts are in the

9 process of being prepared. I think all of those or the vast majority of

10 those have been recorded interviews. Just so the Court is not misled I

11 think we are talking about a relatively small number. We are talking

12 probably something in the vicinity of ten people or less. I don't want

13 the Chamber to have the impression that we are talking about hundreds of

14 additional statements. It's a small number.

15 Again, Your Honour, there is a substantial -- unfortunately a

16 substantial backlog of transcriptions in the OTP not only in this case but

17 unfortunately in a number of cases and I cannot -- I cannot tell exactly

18 which ones have been done at this particular moment. If the Defence has

19 not received -- they are telling us they have not received any since the

20 February Status Conference, I can certainly make further inquiries, again,

21 and take some additional action when returning to my office.

22 JUDGE PARKER: I think, Mr. Scott, it should be indicated that

23 when we next meet, just short of another 120 days, I hope to hear from you

24 not only the 13 but all witness statements have been provided, not only in

25 English but also in the language of the accused.

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Page 95

1 MR. SCOTT: I understand that, Your Honour. As I say the

2 resources are being committed. Unfortunately it's not a problem unique to

3 this case but I do expect very, very substantial progress will be made in

4 the near future.

5 JUDGE PARKER: It affects the whole preparation for trial, of

6 course.

7 MR. SCOTT: Of course.

8 JUDGE PARKER: And there is a tendency in this case for it just to

9 drift along.

10 MR. SCOTT: Understood, Your Honour.

11 JUDGE PARKER: Defence counsel will have heard that in the view of

12 the Chamber, it will be necessary for the Prosecution to provide you with

13 all Rule 66(A)(ii) statements by the time of the next Status Conference,

14 and to do so in both relevant languages.

15 As Mr. Scott has indicated, the Prosecution are well aware that

16 the Rule 68 disclosure obligation is ongoing. When we were last together

17 Defence were having a technical problem with the electronic disclosure

18 system. Has that now been overcome?

19 MR. SEPAROVIC: [Interpretation] Your Honour, I think we can put it

20 that way. The problem has been overcome. We obtained some additional

21 equipment and we now have access to all these documents. However, I do

22 have to mention one thing. It's not really a major problem but I have to

23 share this with my colleague, Mr. Scott. There are certain documents that

24 keep reappearing in several different places in the files. There are

25 documents that have not been located within the file and there is a

Page 96

1 special letter that we've written for the Prosecution in regard to this.

2 There are some documents that get interrupted as we are using them. I

3 can't say this presents a particular hindrance to the work of the Defence

4 team but these are at any rate technical issues that we shall be

5 clarifying with the Prosecution.

6 JUDGE PARKER: Thank you, Mr. Separovic.

7 Is there anything that you need to add to that, Mr. Prodanovic?

8 MR. PRODANOVIC: [Interpretation] No, Your Honour. We are facing

9 the same sort of problem and we are dealing with them together. We also

10 hope that we shall be able to resolve the matter in cooperation with the

11 OTP. As my colleague Mr. Separovic said this is not a serious problem for

12 the Defence at this stage and we hope to successfully resolve this matter

13 over the following days.

14 JUDGE PARKER: Thank you very much. Yes.

15 Rule 70 disclosure, Mr. Scott? This was to be completed in March,

16 by the decision -- sorry, the 28th of March, wasn't it?

17 MR. SCOTT: That's correct, Your Honour. It has been --

18 everything that we received consent has been disclosed. There are some

19 items where we are still in correspondence with the provider, and we

20 simply cannot provide, we simply cannot disclose material under Rule 70

21 absent the provider's consent so there are some providers who have been a

22 bit slow in responding to our communications but I can -- as to those

23 matters which we have received consent on, as to all those matters, the

24 disclosure has been -- has been made. But there are some communications

25 still pending.

Page 97

1 JUDGE PARKER: Have you received consent from the Government of

2 Croatia?

3 MR. SCOTT: I am not aware that that's even been an issue,

4 Your Honour.

5 JUDGE PARKER: The 31 documents.

6 MR. SCOTT: Your Honour, I'm informed that those have been

7 disclosed, that that has been resolved.

8 JUDGE PARKER: Thank you. And the United Nations?

9 MR. SCOTT: Excuse me, Your Honour.

10 [Prosecution counsel confer]

11 MR. SCOTT: Your Honour, I believe that it has, but again I'm not

12 able to completely confirm that based on the information I have in front

13 of me this morning. Unfortunately it appears that there are some

14 deficiencies in the way some of the material has been described. It's

15 very generic and just says "Rule 70 material." I cannot give a further

16 break down of which categories it includes.

17 JUDGE PARKER: It would not be proper much me to inquire about any

18 specific international organisations but that's the remaining group. But

19 it seemed to me there could be no excuse for Croatia or the United Nations

20 not having attended to the matter.

21 MR. SCOTT: I don't know if I can express an opinion, Your Honour,

22 about excuse. The bottom line for the OTP is that we either have the

23 providers' consent or not. If it's withheld, it's withheld, and under

24 Rule 70 we simply do not have any ability to --

25 JUDGE PARKER: Holding is one thing. Just failing to deal with it

Page 98

1 is another.

2 MR. SCOTT: I agree.

3 JUDGE PARKER: You can take action in respect of a failure to deal

4 with it.

5 MR. SCOTT: Absolutely, Your Honour, and that's the point. Going

6 back to what I said a few moments ago, I know there's ongoing

7 communications and follow-up with some of the providers saying "this is

8 overdue," "please respond," "please let us hear from you."

9 JUDGE PARKER: Well, that clearly requires future attention.

10 MR. SCOTT: Absolutely.

11 JUDGE PARKER: Other wise has Rule 07 disclosure been completed,

12 Mr. Scott?

13 MR. SCOTT: Yes, Your Honour, as I indicated as to those material

14 where the provider has been consented, then that material has been

15 provided.

16 JUDGE PARKER: Thank you. Don't sit too quickly, Mr. Scott.

17 Agreed facts?

18 MR. SCOTT: Your Honour, there has not been progress on that

19 point. The work on the amended indictment consumed more of our time than

20 we had frankly expected that it would and that has consumed the majority

21 of our time the last -- last six weeks that we were working on that prior

22 to its filing.

23 JUDGE PARKER: Well, as you realise, it was going to be attended

24 to, following the last conference, within two months.

25 MR. SCOTT: That's correct, Your Honour.

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Page 100

1 JUDGE PARKER: I made an observation earlier about the case

2 drifting. I will underline it.

3 MR. SCOTT: I appreciate the Chamber's concern, and your concern,

4 Your Honour. Having said that, frankly, it's my understanding that all

5 sides have not had any lack of things to do, I have not received any

6 complaints from the Defence. I think everyone has been moving forward.

7 Yes, there are still much to do before this case can be fully ready for

8 trial.

9 JUDGE PARKER: Very well. You will need, before our next

10 conference, to have shared a proposed set of agreed facts with the

11 Defence, hopefully in time for them to sensibly consider it --

12 MR. SCOTT: Very well, Your Honour.

13 JUDGE PARKER: -- and respond so that we know where we are. In

14 other words, not the night before the next conference.

15 MR. SCOTT: Yes, understood.

16 JUDGE PARKER: Are there any other matters, Mr. Scott, that you

17 would wish to raise?

18 MR. SCOTT: No, Your Honour, except I think perhaps I'd at least

19 take the opportunity in the matters the Chamber's -- that you've raised,

20 is that if we are able to move forward on such things as agreed facts it

21 may at some point based on our experience and other cases may in fact

22 require the Chamber or the Senior Legal Officer perhaps to play an active

23 role. Quite honestly, I'm not casting any stones toward the other side of

24 the courtroom, please make that clear.

25 JUDGE PARKER: You're in a rather -- glass house at the moment.

Page 101

1 MR. SCOTT: I know that, Your Honour that's the reason I'm

2 approaching it delicately but nonetheless sincerely that, given the

3 Chamber's concerns, it doesn't do us very -- do us any good, frankly, for

4 the Prosecution to submit proposed agreed facts that then don't go

5 anywhere. And in most of our cases, in most of the OTP cases in the last

6 several years, that's basically what's happened. They are sent out, there

7 is no effective response, and simply, frankly, at the end of the day we've

8 wasted, spent a great deal of time preparing documents that never go

9 anywhere. I take the responsibility quite transparently for the fact that

10 we need to take the next step. I simply take the opportunity to bring to

11 the Chamber's attention that for that step to bear fruit, it may very well

12 require further judicial involvement in the future based on the track

13 record of our office that these things simply don't go anywhere. And I

14 just take the opportunity to point that out to the Chamber. Thank you.

15 JUDGE PARKER: Chamber has no observation at this point. It would

16 be quite premature.

17 Now, Mr. Prodanovic, is there any matter that you would wish to

18 raise?

19 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour. We have

20 nothing particular to raise at this point in time except in relation to

21 what you just asked the OTP about. We are still waiting for a proposal

22 from the OTP related to the agreed facts. As far as the Ademi case is

23 concerned, we have very good cooperation at the pre-trial stage with the

24 OTP and we were assisted in this by the senior legal assistant. We've

25 managed to clarify a great deal of moot facts but that was after the

Page 102

1 indictment was confirmed. At this point in time we are facing a different

2 situation. We are facing an amended and expanded indictment. So what the

3 Defence is doing now, we are waiting for the final version and then we

4 shall declare our position on it.

5 JUDGE PARKER: Well, as I've indicated, you should have that

6 shortly. Thank you very much.

7 MR. PRODANOVIC: [Interpretation] Thank you.

8 JUDGE PARKER: Mr. Separovic?

9 MR. SEPAROVIC: [Interpretation] Thank you. We agree on this.

10 It's only once we've received the final version of the indictment that we

11 can continue and work on the agreed facts. That's one thing. But I do

12 agree with my learned friend and colleague, Mr. Scott, that first we have

13 to deal with the objection to the indictment and only then can we go on

14 and deal with the agreed facts. I think there is no reason for us not to

15 continue to have a very satisfactory level of cooperation with the OTP on

16 this matter. Thank you.

17 And there is another thing that I'd like to raise, Your Honour.

18 My colleague Mr. Mikulicic would like to say something about the change in

19 the conditions of detention or rather the change in the decision on

20 provisional release.


22 MR. MIKULICIC: [Interpretation] Your Honour, if I may, I would

23 like to briefly use this opportunity and bring to your attention the poor

24 health of our client, Mr. Markac. Ever since his provisional release he

25 has continued to receive treatment. He has spent the last 90 days in

Page 103

1 hospital and the situation he's facing now is he has a recommendation from

2 his doctor to spend the summer months somewhere on the sea coast. He

3 happens to own a flat on the Croatian coast which is about 150 kilometres

4 from Zagreb, the capital. It is because of this that the Defence will

5 address the Chamber with a motion for redefining the terms of the

6 provisional release of our client. I'm just using this opportunity to

7 announce our intention and also, if I can please receive any instructions

8 from the Chamber in case there should be any problems regarding this

9 motion.

10 JUDGE PARKER: Well, thank you for mentioning the matter. There

11 is no motion yet so I am not in a position to know whether there will be

12 any problems. So I don't know that I can assist you in any way at the

13 present time. But if there is to be a motion based upon medical grounds,

14 it will be dealt with on its merits when it arrives.

15 In the meantime, I think I might ask for the name of his doctor.

16 I think summer by the sea would be of great interest to me as well.

17 Very well. May I thank you all for your attendance and

18 assistance. Clearly, there has not been a satisfactory progression of

19 this matter since the last Status Conference, and it will be necessary for

20 there to be a significant change before we next assemble. By then, we

21 should have the final indictment and matters can proceed in a more

22 satisfactory way.

23 Mr. Scott?

24 MR. SCOTT: With Your Honour's indulgence, lest there be some

25 impression left of some inactivity on the Prosecution's part, which I

Page 104

1 think is -- would not be, with all respect, entirely fair although

2 admittedly there are some things that need to be addressed. Since the

3 last time that we met the Prosecution has provided approximately 479

4 additional documents to the Defence. I think eight video cassettes of

5 items, and at least three transcripts, transcribed witness statements or

6 testimony. We've also engaged in a great deal of effort with the Rule 70

7 providers. So, Your Honour, if the Court -- if you'll allow me, yes, we

8 need -- there is more that needs to be done but there has been in fact

9 considerable activity by the Prosecution since the last Status Conference,

10 and indeed a lot of effort went into the amended indictment which

11 hopefully will move the case forward as the Chamber rules in the near

12 future. Thank you.

13 JUDGE PARKER: Very well. We will adjourn now and I look forward

14 to seeing you all in about another 120 days.

15 --- Whereupon the Status Conference adjourned

16 at 10.55 a.m.