Tribunal Criminal Tribunal for the Former Yugoslavia

Page 95

1 Thursday, 7 November 2002

2 [Status Conference]

3 [Open Session]

4 Upon commencing at 2.31 p.m.

5 [The accused entered court]

6 JUDGE AGIUS: Yes. Madam Registrar, could you call the case,

7 please.

8 THE REGISTRAR: Good afternoon, Your Honour, this is Case

9 Number IT-94-2-PT, the Prosecutor versus Dragan Nikolic.

10 JUDGE AGIUS: Yes. Mr. Nikolic, good afternoon to you. Are you

11 hearing in a language that you can understand?

12 THE INTERPRETER: Microphone, please, for the accused.

13 JUDGE AGIUS: Appearances for the Prosecution.

14 MR. YAPA: Good afternoon, Your Honour. Upawansa Yapa appearing

15 for the Prosecution with Ms. Patricia Sellers and Mr. David Hackney. Our

16 case manager is Ms. Diana Boles.

17 JUDGE AGIUS: Yes, good afternoon.

18 Appearances for Mr. Nikolic.

19 MR. MORRISON: Good afternoon, Your Honour. Howard Morrison, lead

20 counsel for Mr. Nikolic, together with Ms. Tanja Radosavljevic as

21 co-counsel.

22 JUDGE AGIUS: I thank you, and good afternoon to you, too.

23 So this Status Conference has been convened in accordance and as

24 required by the regulations, by the Rules of this Tribunal, which

25 precisely require that we hold a Status Conference every 120 days to take

Page 96

1 stock of the situation, and also to ensure the expeditious preparation and

2 adequate preparation for the trial. In addition, also it gives the

3 accused an opportunity to raise any issues that may be appropriate in

4 relation to his physical, mental condition.

5 The agenda of today's Status Conference is relatively a short one,

6 and I propose to start first with pending motions, first of which is a

7 motion filed by the Prosecution last month, in October. And it is

8 Prosecution's Motion for Protective Measures and for a Submission of

9 Corrigendum to Rule 65 ter (E) (i), (ii), and (iii). I think it's

10 appropriate that we take these in order. And I should like to deal first

11 with the motion for the protective measures.

12 There seems to me to be two categories of persons, witnesses, for

13 whom the Prosecution is seeking protective measures. One category

14 includes witnesses that the Prosecution has had an opportunity to talk to

15 already. And it seems that on the basis and more or less simply on the

16 basis of the request or desire to have, to benefit, from some kind of

17 protective measures, protective measures are being sought. And then there

18 is a second category of witnesses who, according to what emerges from the

19 motion itself, Prosecution has not had yet an opportunity to talk to. But

20 as I understand it, by way of a precaution, certain protective measures

21 are being sought.

22 I don't know, Mr. Morrison, if you have anything to say about this

23 before I proceed any further.

24 MR. MORRISON: Thank you, Your Honour. The Defence position is

25 really quite straightforward as far as this motion is concerned. We raise

Page 97

1 no objection to the matters requested by the OTP insofar as it relates to

2 these proceedings. What I would like to make plain is that we do not at

3 the moment concede the jurisprudence which is argued, neither do we deny

4 it. We take a neutral view on the basis that we may at some point in the

5 future, should there be another motion concerning other witnesses, want to

6 consider the position as far as those witnesses are concerned. Therefore,

7 we don't want to bind ourselves by making any jurisprudential or legal

8 concessions at this stage. But for the purposes of this motion and for

9 the purposes which it's required at this stage, we don't object nor do we

10 intend to file a motion unless ordered to do so, simply to save time.

11 JUDGE AGIUS: Yes, but still the approach that this Trial Chamber

12 has presided -- Pre-Trial Chamber has presided at the moment. The

13 approach it takes is that a simple filing of a motion for protective

14 measures, even if not opposed, does not necessarily entail an automatic

15 rubber stamping Yes by the Chamber, by the pre-trial Judge who, as I see

16 it, under the Rules has a duty to strike a balance between the interests

17 to protect victims and witnesses on one side, and also the rights of the

18 accused on the other.

19 Now, as it is, I am more concerned with the second category of

20 witnesses that the Prosecution is seeking protective measures for, namely,

21 witnesses that have not yet been contacted for one reason or another. And

22 I am not disputing or contesting or arguing about whatever reasons the

23 Prosecution might have had in not being able or not having contacted these

24 individuals.

25 You may sit down, Mr. Morrison.

Page 98

1 But I think that it is only fit and proper that before the -- we

2 proceed with a decision, we have more information, an update on the

3 situation, on the part of the Prosecution. In other words, we need to be

4 informed whether -- what attempts have been made so far to approach these

5 persons; secondly, what are the reasons -- whether they are asking for

6 protective measures secondly; and thirdly, what are the reasons on the

7 basis of which you are asking for protective measures. In other words,

8 what appears to be until now as a precautionary measure that you are

9 seeking, and I fully understand that you are doing this in a very

10 responsible way, at the same time, I'm telling you that it is not my

11 intention to proceed with granting any provisional protective measures

12 until I am satisfied that they ought to be in place. And for the time

13 being, however precautionary the approach you are taking may well be, I

14 would rather have more information before I proceed any further.

15 The second thing that I meant to tell you, but now more or less I

16 will modify my approach, considering that there is no opposition or no

17 contest on the part of the Defence, is with regard to the first category.

18 For the future, make it a point to provide more details as a ground for

19 your request for protective measures to be put in place. As I see it, I

20 am not completely satisfied that you have put down what I would consider

21 to be clear, sufficient reasons for putting into place these protective

22 measures. So I reserve the position of this Chamber on this matter,

23 taking into consideration, however, the non-opposition forthcoming from

24 the Defence.

25 Yes, Mr. Morrison.

Page 99

1 MR. MORRISON: Your Honour, to make the position absolutely plain,

2 of course, we may ourselves find ourselves in a position where we want to

3 seek protective measures for witnesses, which is the reason why we don't

4 object to the first category. The reason we don't object to the second

5 category is because at the moment we don't know what those witnesses say

6 or might say. It is only when we have some indication of what they might

7 say that we would come back to the Trial Chamber, which is why we reserve

8 the position in the way that we have done without taking, as it were, a

9 preemptive opposition without knowing what we are opposing.

10 JUDGE AGIUS: Yes. I thank you. The third thing I wanted to make

11 clear is that it seems to me that your motion also contemplates the

12 nondisclosure to the Defence of the names of some of these witnesses. If

13 that is the case, and I would invite you to go through your motion again,

14 to see if this is the case, if that is the case, the -- you will certainly

15 be required to provide more details. But as it is, it is not quite clear

16 to me whether you are also seeking this. According to my legal staff, it

17 seems that the possibility that you are seeking such a protective measure

18 is included. If it's not included, perhaps you could make a statement to

19 that effect here now.

20 MR. YAPA: I thank Your Honour. I take this opportunity to agree

21 with Your Honour's observations on the granting of protective measures,

22 the principles that apply. We fully understand. We made this

23 application, the motion, out of an abundance of caution in respect of

24 certain witnesses. May I say straight away in respect of the question

25 that Your Honour posed to me just now that we have, in respect of the

Page 100

1 witnesses, the names of witnesses, disclosed to the Defence all the names

2 of the witnesses. And we would not be seeking permission not to disclose.

3 Disclosure has been made. And in respect of certain portions of the

4 motion, the previous filings, we have indicated that we would be moving

5 for pseudonyms in respect of certain witnesses.

6 JUDGE AGIUS: All right. Thank you. And on the other hand, I

7 take it that if my reading of the documents that were filed during the 65

8 ter (E) meetings, I take it that all the names of the witnesses you intend

9 to produce until now have been disclosed to the Defence. Is that correct,

10 Mr. Morrison?

11 MR. MORRISON: Yes. Yes, I mean, unless there's something we

12 haven't been told, and I doubt that very much in this particular case. As

13 far as we know, all the witnesses' names have been disclosed. But that's

14 a matter which is of common knowledge.

15 JUDGE AGIUS: Okay. So I think we can move to the -- is there

16 anything else you would like to raise in regard to this pending motion?

17 Yes.

18 MR. YAPA: With Your Honour's permission, with respect, with

19 respect to the granting of the motion where we have asked for protective

20 measures, the position as I understand now is that they will be granted

21 only after we furnish further information. Is that the position?

22 JUDGE AGIUS: There are two categories, as I tried to explain. I

23 don't foresee or envisage any particular difficulties with regard to the

24 first category, especially having heard the submissions of both parties.

25 With regard to the second category, I would like to know first and

Page 101

1 foremost whether since the filing of the motion you have succeeded in

2 approaching these witnesses. That's number one.

3 Secondly, whether they seek protective measures, because obviously

4 if they do not seek protective measures, there is no point in maintaining

5 your position and asking for precautionary protective measures. If they

6 seek protective measures, and you know that because you have had a meeting

7 or a contact with these witnesses, then obviously you are asking for

8 protective measures, they will not be any longer precautionary protective

9 measures, but they will be full protective measures for all intents and

10 purposes of law. And therefore, the reasons that you brought forward

11 until now are, for all intents and purposes, worthless, because I would

12 require a specific ad hoc reasons justifying your claim for protective

13 measures to be put in place. I think -- have I made myself clear?

14 MR. YAPA: Yes.

15 JUDGE AGIUS: As far as the first category now, I don't think

16 there should be any problems at all. All right?

17 MR. YAPA: Yes. It is quite clear to us. In respect of the

18 second category, we are in the process of contacting them. As Your Honour

19 was pleased to say, some of them may not require, but we are not in a

20 position to say so now. But if that is the case, we would not be moving

21 for protective measures in respect of those witnesses. But if the others,

22 there are only very few do ask for, we will give the information to the

23 Court, to satisfy Your Honour that the protective measures are indeed

24 needed.


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Page 103

1 There's a final point that I would like to make actually now that

2 you are not making it yourselves. Attached to your motion, Mr. Yapa, you

3 also submitted a draft decision in which, inter alia, you are asking that

4 the Nikolic Defence shall not disclose to the media any confidential or

5 non-public materials provided by the Prosecutor.

6 MR. YAPA: In the draft order that we have --

7 JUDGE AGIUS: Yes, this is in the draft order that you prepared.

8 MR. YAPA: We prepared the draft order in line with the previous

9 orders that were made by the Chamber. There were two orders that were

10 made. It was in accordance with those orders that these draft orders were

11 prepared, Your Honour.

12 JUDGE AGIUS: Yes, Mr. Morrison. Does that strike you as normal

13 and acceptable to you?

14 MR. MORRISON: Make it plain that the --

15 JUDGE AGIUS: Because you have been given all the names already of

16 the witnesses to start with.

17 MR. MORRISON: Yes. The names that we haven't got from the

18 context of the statements, those are people that - I can say it without

19 fear of embarrassment - we could readily guess who they were simply from

20 the context and the place and the times of the statements. So it's no

21 mystery to the Defence.

22 As far as the nondisclosure is concerned, it would not be our

23 intention in any event to disclose to the public any of the material

24 that's set out in the draft motion. So we don't take any issue with it.

25 JUDGE AGIUS: There is a draft order 9, save where is directly and

Page 104

1 specifically necessary for the preparation, presentation of this case, the

2 Nikolic Defence shall not disclose to the public the names, identifying

3 information, or whereabouts of any witness or potential witness identified

4 to them by the Prosecutor.

5 MR. MORRISON: To do otherwise could amount to a contempt of Court

6 whether there was an order or not, and we would be very wary of committing

7 such an act.

8 JUDGE AGIUS: Anyway, I'll go through this and if it's the case of

9 coming back to you, Mr. Yapa, to be more precise as to what precautionary

10 measures you are seeking, we will do that. All right?

11 MR. YAPA: Yes.

12 JUDGE AGIUS: Thank you.

13 There is -- then there was - this shouldn't be a problem -

14 submission for a corrigendum to Rule 65 ter (E). I don't think there is

15 anything that needs to be said about this.

16 MR. YAPA: Nothing further to be added.

17 JUDGE AGIUS: Yes, exactly. Is there anything that you would like

18 to state, Mr. Morrison, with regard to the submission of the prosecution

19 for a corrigendum to Rule 65 ter (E)? I don't think it's the case of

20 anything that needs to be said, but anyway.

21 Shall we proceed to the next point? Issues relating to

22 disclosure. This is very important, as you certainly know. And I propose

23 to take the matter up from where we left it, the last Status Conference

24 that we had, which was in turn a follow-up on the 65 ter meeting of July

25 of this year. I will try and represent to you the five points that -- or

Page 105

1 four points that were made then. All I'm interested in is to be -- to

2 have a confirmation from you as to what the current situation is.

3 In July, I was informed that the Prosecution had nearly completed

4 its obligation under Rule 66. This was more or less confirmed in the

5 Status Conference of July 2002. My question to the Prosecution is whether

6 now, a few months later, the obligations assumed under Rule 66 have been

7 completed.

8 MR. YAPA: The position is as it was disclosed earlier at the

9 status conference: We have made all the disclosures that are necessary in

10 terms of 66. There is one more statement where we have to provide the

11 translation. That will be done in the course of maybe the coming two or

12 three days. So far as Rule 66 is concerned, I could inform Your Honour

13 that the disclosure is -- barring that disclosure that has to be made, is

14 complete.

15 JUDGE AGIUS: Thank you. Would you agree to that, Mr. Morrison?


17 JUDGE AGIUS: At the time also, the Prosecution had informed the

18 Trial Chamber that two more statements -- it may not be easy for you to

19 remember now, but two more statements under Rule 66(ii) would soon be

20 disclosed to the Defence. I would imagine that if I use the word "soon,"

21 that has been done by now.

22 MR. YAPA: Yes.

23 JUDGE AGIUS: Am I correct in assuming that?

24 MR. YAPA: It has been done.

25 One other matter, if I may refer to, Your Honour: In the course

Page 106

1 of contacting some of the witnesses, we came into possession, not that

2 many but certain supplementary information, so we are under a duty to

3 disclose those to the Defence. That we will be doing, again, in the next

4 two or three days' time.

5 JUDGE AGIUS: Thank you. I saw you nodding, Mr. Morrison. So...

6 MR. MORRISON: This all proceeds upon the basis of having, as it

7 were, confidence in one's opponents, which I have.

8 JUDGE AGIUS: I appreciate that, thank you.

9 And then the Chamber had been informed by the Prosecution at the

10 time, that's in July, that five statements then were still in the process

11 of translation, and once that's ready, it would be made available to the

12 Defence. My question to you is whether the translation has been

13 concluded, and following that, whether these five documents were indeed

14 disclosed to the Defence.

15 MR. YAPA: Yes, Your Honour. These relate more to Rule 68, if I

16 may...

17 JUDGE AGIUS: Rule 68 came after. These were -- I take it that

18 these were more in the line of Rule 66. In other words, they couldn't be

19 disclosed until that time because they had not yet been translated. These

20 were five documents. I do not have the details of these five documents,

21 obviously, but I just wanted to know whether they have been disclosed,

22 whether they have been translated and disclosed. If Mr. Morrison's memory

23 is of any help in this regard?

24 MR. MORRISON: We've had both Rule 66 and Rule 68 material

25 disclosed to us. The last Rule 68 disclosure that I recall was weeks ago.

Page 107

1 If there has been anything since then, or if there was intended to be any

2 further materials in the intervening period of about two months, then I

3 certainly haven't seen it. So if it's pending or if it's thought that it

4 has been disclosed, that's a matter which ought to be cleared up.

5 JUDGE AGIUS: All right. So we can actually deal now straight

6 away, because we have touched on the subject of the application of Rule

7 68. I take it that more or less the two parties are in agreement that

8 this -- the obligation of the Prosecution under this Rule is being adhered

9 to, and that there may be some further need for future disclosure, which I

10 have reason to believe that the Prosecution will take care of.

11 MR. YAPA: Yes, Your Honour. We have been -- the Prosecution on

12 our part studiously taking steps to disclose and we are disclosing. In

13 fact, today also we have certain documents, not that many, but we will be

14 handing them over to the Defence today. But we will continue to keep to

15 the obligation under Rule 68. So there may be certain other documents

16 that we have to disclose.

17 JUDGE AGIUS: Thank you. Is there anything that either of you

18 would like to raise with regard to the matter of disclosure?

19 MR. MORRISON: No. I appreciate the question of disclosure is a

20 continuing obligation on the part of the Prosecution, and plainly all I

21 would ask is that material is disclosed as soon as possible. I appreciate

22 that there is an inevitable delay in material coming to the hands of the

23 Prosecution, it being analysed, and if necessary, interpreted, but to

24 date, I am satisfied that material has reached us in a timely fashion and

25 I have no reason to believe it won't in the future.

Page 108

1 JUDGE AGIUS: Thank you.

2 Next point on the agenda that I intend to touch upon is agreed

3 facts. Now, I have gone through, before coming for this Status

4 Conference, I've gone through the document which the Prosecution filed on

5 the 3rd of October - quite detailed, I must say - namely, its pre-trial

6 brief containing the facts admitted, undisputed, and contested, between

7 the parties. But on the 23rd of July of this year, following the

8 agreement that you had reached amongst yourself during the 65 ter meeting,

9 you promised that you would provide this Chamber with a number of agreed

10 facts which would, of course, not include the core issues which would be

11 -- which would need to be proved in this trial. Do I take it that the

12 document that you filed on the 3rd of October crystallises the position,

13 or is it just your version of what is being agreed and contested?

14 MR. YAPA: Yes. May I, Your Honour, explain as to the process

15 that we undertook. We stipulated to -- we agreed -- the Prosecution

16 decided on certain stipulated facts, and then we presented them to my

17 learned friend. And he responded. We had a meeting, and he responded.

18 And those responses were included in the document that we filed with the

19 pre-trial brief. So in that document, particular document, we have the

20 agreed facts, the disputed facts are in a numerical form indicated.

21 JUDGE AGIUS: So Mr. Morrison, in other words, I take it you are

22 familiar with this document.

23 MR. MORRISON: Very, yes.

24 JUDGE AGIUS: Would you agree to everything that is stated here as

25 being either contested or agreed to by yourself?

Page 109

1 MR. MORRISON: That's correct. The matters which are contested

2 are plainly set out and it's no surprise that what is in fact contested is

3 the core of the indictment. There are peripheral matters which are not

4 contested, and some rather less than peripheral matters which are not

5 contested. There are also some matters which are agreed but in a rather

6 different format than the way they were first put to us by the

7 Prosecution. I think we've reached the position where we have now agreed

8 all that we can without, as it were, prejudicing those issues which must

9 be contested.

10 JUDGE AGIUS: Are there any other facts that you would be agreeing

11 to, apart from what has been -- because this may not be exhaustive.

12 MR. MORRISON: It may not be. And the way that I've worked so far

13 is to wait until we are approached by the Prosecution to see -- I do not

14 know and cannot guess all of the material facts they wish to rely upon at

15 trial save and except, of course, those which are evident from the

16 pre-trial brief. We are open and remain open to the possibility of

17 agreeing facts, if they can be agreed without prejudice to my client's

18 interest.

19 JUDGE AGIUS: And can you undertake to do this before the trial

20 starts?

21 MR. MORRISON: I can only respond to those matters which are put

22 to us by the OTP. I will undertake that if matters are put to us by the

23 OTP, to respond to them as soon as practicable, as soon as possible.

24 JUDGE AGIUS: Are there any other facts that you would like to put

25 to the Defence by way of possible agreed facts, or do you think that you

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Page 111

1 can stay with what you have here and leave it at that?

2 MR. YAPA: I am very thankful to my learned friend for the

3 observation that he made that, as far as possible on the suggestions that

4 we made, he looked into them and then he made his observations. And we

5 recorded his observations verbatim on the document that we filed. But

6 since he is prepared to consider further on the basis of any suggestions

7 that we make, we will look into further and make any suggestions to him to

8 see whether we can come to agreement on any other facts.

9 JUDGE AGIUS: All right. So we can leave it at that. And you'll

10 do that if you come to that conclusion.

11 I don't think there's any point in asking you whether you have

12 anything further to say on this point because you've obviously said what

13 you had to say.

14 Which brings me to perhaps the most important part of this Status

15 Conference agenda of today: Trial date and timetable. You will recall

16 that when you met at the 65 ter meeting way back in July, and when we met

17 the day after, the Status Conference, the idea was hopefully then that the

18 trial would start on the 18th of November. It's obvious to everybody now

19 that it will not be possible for the trial to start on the 18th of

20 November also because there is no Trial Chamber that is available that

21 could start this trial, certainly not until at least one of the ongoing

22 trials comes to an end.

23 I had a long meeting before this Status Conference to see what the

24 possibilities are, and what I can say is that this case is pretty high up

25 in the list of -- order of priorities that the Tribunal has in place for

Page 112

1 hearing and determination. In other words, it will be, if not the first,

2 certainly amongst the first trials to start as soon as practicable, and as

3 soon as practicable means as soon as there is a Trial Chamber that can

4 take over and start the trial. I do not envisage this to take a long

5 time, and I'm doing my best to ensure that it doesn't take a long time

6 considering, in particular, the length of the detention of the accused so

7 far, which I do not have an intention of prolonging unduly.

8 So my words to you in this regard is that this is being taken care

9 of, and hopefully this trial will commence as soon as there is a Trial

10 Chamber that can be seized of it. Are there any comments or matters that

11 you would like to raise on this matter? Mr. Morrison.

12 MR. MORRISON: I think what I'm about to say is eminently

13 predictable. Is there any indication when that might be in terms of

14 calendar date?

15 JUDGE AGIUS: Well, as there are two cases or three cases pretty

16 much cooked already, or nearing completion, we are not exactly quite sure

17 which one of two of them in particular will come to an end. But we're

18 probably talking of the first two or three months of 2003.

19 MR. MORRISON: So if we were to prepare ourselves for a trial

20 starting in, say, March of 2003.

21 JUDGE AGIUS: I don't envisage it's going to take -- I don't

22 envisage it's going to be after spring. I don't envisage. I would say

23 just before spring or early spring. That's what the --

24 MR. MORRISON: My problem, with great respect, I'm not sure when

25 spring starts in Malta.

Page 113

1 JUDGE AGIUS: Spring in Malta is roughly ten months a year.

2 MR. MORRISON: That's what rather worried me, I have to say.

3 JUDGE AGIUS: But we did have floods yesterday. So the idea is --

4 I have been given an indication that we're probably talking around about

5 March.

6 MR. MORRISON: I'm much obliged.

7 JUDGE AGIUS: And I have also shown my concern that if it's beyond

8 then, that month, I will start to become seriously concerned about keeping

9 your client any further in detention.

10 MR. MORRISON: Also obliged for that indication, thank you.

11 JUDGE AGIUS: Mr. Yapa.

12 MR. YAPA: Your Honour, it is just one of the submissions that I

13 have to make: Because the November 18th trial date, the Prosecution took

14 steps to get ready for trial, and then we were more or less ready for

15 trial by that time. Our one concern is to keep the witnesses informed

16 because there are witnesses not in the area where the incidents took place

17 now, they are distributed all over, so there is a duty on us to keep the

18 witnesses informed as to when it is likely for the trial to commence and

19 keep them ready for the trial. That's one observation that I have to

20 make.

21 JUDGE AGIUS: Yes. What I -- the message I wanted to convey is

22 that there are two cases in particular, and this is one of them, that are

23 receiving the utmost attention by the Tribunal - not just by me but by the

24 Tribunal - and they have been placed really high up in the order of

25 priorities. This is one of them.

Page 114

1 Incidentally, may I remind the -- Mr. Morrison of the decision of

2 this Chamber following your motion for -- motion to vary time limits

3 pursuant to Rule 127. You recall that we had extended the time limit for

4 the filing of your pre-trial brief until the 29th of November. Do I take

5 it that we can reasonably expect the pre-trial brief to be filed by that

6 date?

7 MR. MORRISON: The pre-trial brief will be filed by the 29th of

8 November. The only caveat I would have is if there's going to be further

9 material disclosed beyond that, plainly it may be necessary to add an

10 addendum to the pre-trial brief as and when any further material becomes

11 pertinent. But the pre-trial brief as an original document will be filed

12 on or before the 29th of November.

13 Whilst I'm on my feet, the "male captus" motion where the

14 judgement was received on the 9th of October, I have today filed a notice

15 of appeal under Rule 108 dealing with that, the appellate position as far

16 as that motion is concerned. Looking at the time scale, there is a

17 theoretical 90 days in which to file the brief from now. My intention is

18 to file any appellate brief well before that 90-day period expires so that

19 we can reasonably predict and expect that any response from the

20 Prosecution can be received and the matter can go to the Appeals Chamber

21 before spring, which, in England, by and large starts on the 1st of June

22 and ends on about the 5th.

23 JUDGE AGIUS: I'll certainly not question your decision to file

24 the appeal under Rule 108 because more or less that is your decision, not

25 mine. And I do not intend to question it or discuss it. But may I ask

Page 115

1 you if you have looked at... Yes. Have you looked at Rule 72, which

2 deals with preliminary motions, including motions challenging

3 jurisdictions and the right of appeal granted --


5 JUDGE AGIUS: -- by one of the subrules, one of the paragraphs of

6 that rule in cases of motions challenging jurisdiction? You have.

7 MR. MORRISON: This was a matter that was raised a long time ago

8 before His Honour Judge Hunt. And it was certainly indicated that this

9 was a matter of such fundamental importance that while there was no

10 judicial determination, that the strong indication was that this was a

11 matter which ought to be subject to appellate consideration if either

12 party wished it to be. That was the indication given at that stage. I

13 haven't got the transcript in front of me.

14 JUDGE AGIUS: Anyway, I will not deal with this matter any further

15 because of obvious reasons. But I just wanted to bring to your attention

16 Rule 72 just in case you had not gone into it.

17 MR. MORRISON: It's a matter which I've given consideration.

18 JUDGE AGIUS: Yes. And the decision to base your appeal on Rule

19 108 was a considered option.

20 MR. MORRISON: Only because of the indications which had been

21 given before, it was.

22 JUDGE AGIUS: All right. Because it may well be there will be no

23 appeal.


25 JUDGE AGIUS: If Rule 72 applies, that implies a time limit of 15

Page 116

1 days, plus the seven days for certification, and if that is the rule that

2 was applicable, then obviously there would be legal consequences.

3 MR. MORRISON: I'm obliged for Your Honour's indication.


5 So with this caveat, in case there is an appeal, and of course

6 pending the outcome of such an appeal, if and when, the point to be made

7 is that this trial will start at the first opportunity.

8 Having said this, we try and bring this status conference to an

9 end. Are there any matters of a procedural nature that you would like to

10 raise, Prosecution or Defence?

11 Mr. Yapa.

12 MR. YAPA: I do not think we have -- I'm sorry. I don't think we

13 have any other matter.

14 JUDGE AGIUS: I thank you. Mr. Morrison, nothing? Okay. Thank

15 you.

16 Which brings me to the last part of the agenda, the last item on

17 the agenda. I'm required by the rules to inquire on the state of health,

18 physical and mental condition of the accused, as well as his conditions of

19 detention. I will put the question directly.

20 Does Mr. Nikolic have any reason -- or any reason to complain or

21 any submissions to make with regard to any of these issues, that is, his

22 state of health and the conditions of his detention?

23 The microphone, please. Of course, neither of them works.

24 THE ACCUSED: [Interpretation] Your Honour, as I said on the last

25 occasion, the conditions are good. I can say that I feel relatively good,

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1 both psychologically and physically. I do have some minor problems, but

2 they are problems which, of course, would not be of interest for the Trial

3 Chamber. Mr. Morrison helped me deal with my problems. I can say that I

4 feel fairly well for the time being. And as you yourself mentioned, Your

5 Honour noticed, I have been here for quite some time. But anyway, thank

6 you.

7 JUDGE AGIUS: Thank you. You wouldn't like to add anything in

8 this regard, Mr. Morrison, in addition to your client's statement?

9 MR. MORRISON: Your Honour, No. Plainly an extended period in

10 custody is going to be difficult for anyone to deal with. And it is not a

11 matter of breaching confidence because Mr. Nikolic has just said it

12 himself. He has undergone some problems, and we are hopeful that by

13 talking them through and by seeing the progress which the case is making,

14 he's overcoming them himself without any necessity for any third-party

15 intervention.

16 JUDGE AGIUS: Okay. I thank you.

17 So coming to a conclusion, I do not envisage any further

18 significant developments except for establishing the date when this trial

19 will commence. And I anticipate that we should be in a much better

20 position to identify such a date, either by the end of this year or very

21 early next year. And therefore, it will -- it is my intention, if this

22 should be the case, to convene towards the end of January a Pre-Trial

23 Conference. By that time, we would have had the pre-trial brief from

24 Mr. Morrison, more or less the disclosure procedure under 66 and 68 would

25 have been "concluded" - in inverted commas because this is always an

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1 ongoing process - and I think that we will need a Pre-Trial Conference

2 round about that time. So be prepared for it. You will be advised of the

3 date in good time. But do anticipate a Pre-Trial Conference towards the

4 end of January.

5 Anything else you would like to raise or mention? So I think we

6 can call it a day. I thank you. And since I won't be seeing any of you

7 before January, I wish you best for the coming festive season. Thank

8 you.

9 --- Whereupon the Status Conference

10 adjourned at 3.25 p.m.