Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 Thursday, 7 September 2006

2 [Open session]

3 [Status Conference]

4 --- Upon commencing at 3.00 p.m.

5 [The accused Gotovina entered court]

6 JUDGE STOLE: May I ask the registrar to call the case, please.

7 THE INTERPRETER: Microphone for the President, please.

8 THE REGISTRAR: Your Honour, this is case number IT-06-90-PT, the

9 Prosecutor versus Ante Gotovina, Ivan Cermak and Mladen Markac.

10 JUDGE STOLE: Thank you. And I welcome --

11 THE INTERPRETER: Microphone for the President, please.

12 JUDGE STOLE: Thank you. Welcome all to this Status Conference.

13 The accused, the correct name for the accused would be Gotovina?

14 MR. KEHOE: That's correct, Your Honour.

15 JUDGE STOLE: Thank you. And I also would like to have General

16 Gotovina to confirm that he can follow the proceedings in a language that

17 he understands?

18 THE ACCUSED GOTOVINA: [Interpretation] Thank you, Your Honour.

19 Indeed I can.

20 JUDGE STOLE: Thank you.

21 Then for appearances. For the Prosecution?

22 MR. TIEGER: Good afternoon, Your Honour. Alan Tieger and Laurie

23 Sartorio, with our case manager, Donnica Henry-Frijlink for the

24 Prosecution.

25 JUDGE STOLE: Thank you.

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1 And for the Defence, Gotovina.

2 MR. KEHOE: Yes. Good afternoon, Your Honour, Gregory Kehoe. And

3 to my immediate right Luka Misetic, and my far right Payam Akhavn for

4 General Gotovina.

5 JUDGE STOLE: For Ivan Cermak. And again do I pronounce his name

6 correctly, Cermak?

7 MR. PRODANOVIC: [Interpretation] Indeed, Your Honour. Good

8 afternoon. I am attorney-at-law Cedo Prodanovic, joined here today by

9 attorney-at-law by Jadranka Slokovic representing Mr. Cermak.

10 JUDGE STOLE: Thank you. Welcome.

11 And then for Mladen Markac.

12 MR. SEPAROVIC: [Interpretation] Good afternoon. I'm

13 attorney-at-law Miroslav Separovic. I have with me today Mr. Goran

14 Mikulicic and our case manager Vladimir Radonic on behalf of General

15 Markac.

16 JUDGE STOLE: Thank you. Welcome.

17 Well, as you know, there has been -- this case has now been

18 assigned to a new pre-trial Chamber, a new Chamber, and you are well aware

19 of the composition of that Chamber. And I have been then assigned as

20 Pre-trial Judge in this case.

21 The accused Cermak and Markac are on provisional release and

22 therefore are not present here today.

23 As for the reasons for Status Conference, first that all parties

24 here are well aware of that, to organise exchanges between the parties, to

25 ensure an expeditious preparation for trial, and to allow the accused to

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1 raise issues in relation to his or her mental and physical condition.

2 In preparation of this Status Conference, a Rule 65 ter conference

3 took place yesterday, and I have been briefed about the discussions held

4 during that conference.

5 At the latest Status Conference, many of the issues raised were

6 waiting for a decision on joinder to be issued. And now, since 14 July

7 2006, the issue on joinder has been decided on by the Trial Chamber and

8 the cases were joined. This decision is now under appeal. What I propose

9 is that we go through some items that we have identified, together with

10 the assistance of counsel. And of course the parties will then have the

11 opportunity to raise any additional issues that may be relevant for

12 discussion.

13 As for outstanding motions, we have first Gotovina preliminary

14 motion to dismiss the proposed joinder indictment, pursuant to Rule 72,

15 filed on 28 April 2006. I just want to make a statement that the Trial

16 Chamber has received all consequent -- all subsequent filings of the

17 parties, and that a decision by the Trial Chamber will be taken once the

18 appeals Chamber has decided on the interlocutory appeal from the decision

19 of 14 July 2006.

20 Secondly, a motion for extension of time and for clarification of

21 order and decision on non-disclosure of the supporting material, dated 14

22 July 2006, filed on 31 August 2006.

23 As I understand it, counsel for Gotovina indicated to the

24 Prosecution and confirmed yesterday at the 65 ter meeting or conference

25 that he does not object to the Prosecution's motion. Is that correct?

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1 MR. KEHOE: That is correct, Your Honour.

2 JUDGE STOLE: And the decision will be issued shortly. This is of

3 course before -- a motion before the Chamber as such and not for me to

4 decide as the Pre-trial Judge. Judge Kwon is abroad this week, and he

5 will be back in The Hague Monday, and we will deal with this as soon as

6 the Chamber is -- the full Chamber.

7 I also noted that from the motion by the Prosecution that the need

8 for time, the extent of time required, occurred defer, would defer,

9 dependent on what result this clarification will give, but I think we can

10 leave that safely with the Chamber and by -- the discretion of the

11 Chamber, once the results of this clarification is clear, to evaluate

12 whether this extension 18 September would be sufficient or not.

13 I don't know if you have any comments on that, on the Prosecution

14 side?

15 MR. TIEGER: Your Honour, I agree with the Court. It's probably

16 not necessary to supplement the motion orally at this time. If the need

17 for clarification arises, we're always prepared to do so, but I share the

18 Court's view, that at this point we can move forward as it is.

19 JUDGE STOLE: And Defence teams?

20 MR. KEHOE: On behalf of General Gotovina, we agree.

21 JUDGE STOLE: Defence team for -- sorry, Defence team for Cermak.

22 MR. PRODANOVIC: [Interpretation] Your Honour, we agree, too.

23 JUDGE STOLE: And Markac?

24 MR. SEPAROVIC: [Interpretation] Likewise, Your Honour.

25 JUDGE STOLE: Thank you.

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1 The next thing on my agenda here is disclosure. I understand from

2 the briefing I got from the 65 ter conference, generally speaking, that

3 the disclosure has reached the same stage practically in relation to the

4 three accused, but we will go through these different disclosures together

5 now. And Rule 66(A)(i) is complete, but subject to the action to be taken

6 by the Prosecution under this, the decision of non-disclosure of 14 July

7 2006 in relation to the accused Gotovina. The Chamber understands that

8 the supporting materials have been disclosed to all accused, and

9 Rule 66(A)(i) or, when, is therefore complete, subject to the thing I

10 mentioned, and a decision will, as I said, be issued shortly on the motion

11 of 31 August.

12 Do the parties have anything more to add on this item.

13 Prosecution?

14 MR. TIEGER: No, Your Honour. Nothing to add.

15 JUDGE STOLE: Defence teams?

16 MR. KEHOE: Nothing on behalf of General Gotovina.

17 MR. PRODANOVIC: [Interpretation] Nothing on behalf of General

18 Cermak either, Your Honour.

19 MR. SEPAROVIC: [Interpretation] The same applies to General

20 Markac.

21 JUDGE STOLE: Then it is Rule 62(A)(ii). And I have been informed

22 that most of the disclosure under this Rule has been made by Prosecution

23 in relation to the three accused. A large number of documents,

24 approximately 4.000, was produced by the first ISU searches, and that was

25 done by using the names of the three accused, as I understand it. The

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1 selection of these documents has already been disclosed to the Defence

2 pursuant to Rules 66 and 68. And term searches are continuing and so

3 disclosure of documents that will be produced by those searches.

4 I also have been informed that at the last Status Conference in

5 the Gotovina case, OTP said that after 18 April 2006 they would have put a

6 large amount of material in the EDS system.

7 I wonder if the Prosecution could be asked to report on the

8 approximate number of statements now disclosed, the number of statements

9 now translated, and the number of statements further envisaged.

10 MR. TIEGER: Yes, Your Honour. As discussed at the 65 ter

11 yesterday, Prosecution has disclosed to date approximately 520 statements.

12 Those are -- those do not reflect 520 witnesses, because some witnesses

13 provided more than one statement. There is approximately 415 witnesses.

14 The statements, to the best of my knowledge, are translated.

15 There are a number of documents, it's always hazardous to use a

16 characterisation like "handful," but there are approximately 100

17 documents, I believe, that remain to be translated out of the

18 approximately 2700 documents that were provided in connection with those

19 witness statements. So I believe that the translation circumstances are

20 effectively under control, and we obviously hope to be able to provide

21 completed translations for those remaining documents at the earliest

22 opportunity.

23 JUDGE STOLE: And perhaps you could also comment on whether the

24 disclosure of material in the Gotovina case has reached the same level as

25 the disclosure in the Cermak and Markac case. Or if you want to add

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1 anything to the status of disclosure in relation to the accused Gotovina.

2 MR. TIEGER: Of course, Your Honour. Again, the comments I make

3 are subject to comments yesterday. So if I inadvertently omit some aspect

4 of the disclosure situation that was clarified yesterday, it's not an

5 effort to override that information yesterday.

6 For the most part, the -- there's general parity in the disclosure

7 situation. One of the distinctions that we noted yesterday was the fact

8 that with respect to certain Rule 70 items, a specific request had to be

9 initiated for the accused Gotovina, since the request for disclosure under

10 Rule 70 must be specific to the individual. And so that is a relatively

11 formalistic and perfunctory matter. We believe, and those will be -- I'm

12 sure those authorisations will be forthcoming shortly.

13 There are additional Rule 70 requests outstanding, again, as was

14 discussed yesterday, but those apply to all three parties, and again those

15 requests have been outstanding for some period of time. We will do our

16 best to expedite those to the extent we're able to influence the

17 governmental bureaucracies in the appropriate places and have those

18 authorisations provided and the information disclosed as soon as possible.

19 JUDGE STOLE: Thank you.

20 Does the Defence team for Gotovina have anything to add, any

21 specific comments?

22 MR. MISETIC: Good afternoon, Your Honour. Luka Misetic on behalf

23 of General Gotovina.

24 JUDGE STOLE: Good afternoon.

25 MR. MISETIC: We agree with what the Prosecutor has said. We

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1 would add to points for the record, just to clarify.

2 With respect to the search terms --

3 THE INTERPRETER: Microphone for the counsel, please.

4 MR. MISETIC: -- the Prosecution is using in order to find

5 documents the parties reached agreement yesterday whereby the Prosecution

6 is going to provide all Defences with a copy of the search terms so the

7 parties can, together, work to expedite the discovery and disclosure

8 process.

9 With respect to the issue of certain video and audio materials

10 that have been disclosed to us, certain of those video and audio materials

11 have not been transcribed and it was indicated to us by the Prosecution

12 yesterday that those video and audio materials that are not provided in a

13 transcribed form to us are an indication that the Prosecution does not

14 intend to use those as part of its case.

15 So with those two clarifications, I would say that the Prosecution

16 has, indeed, accurately reflected what our agreement is from yesterday.

17 Thank you, Your Honour.

18 JUDGE STOLE: Thank you. And the Defence teams for Cermak?

19 MR. PRODANOVIC: [Interpretation] Your Honour, we have nothing to

20 add to what Mr. Misetic has just said.

21 JUDGE STOLE: Thank you.

22 MR. PRODANOVIC: [Interpretation] No further remarks, thank you.

23 JUDGE STOLE: Thank you.

24 And Markac.

25 MR. SEPAROVIC: [Interpretation] Likewise, Your Honour.

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1 JUDGE STOLE: Thank you.

2 Yes. As to the Rule 68, at the last Status Conference and during

3 also yesterday's Rule 65 ter conference, the Prosecution stated that there

4 has been disclosure of exculpatory material together with materials under

5 Rule 66(A), that further searches are underway, and the Prosecution is

6 aware that disclosure under Rule 68 is an ongoing obligation.

7 From yesterday's discussion, it seems also that Defence of Markac

8 will provide the Prosecution with suggestions of terms to be used in these

9 searches. This is probably what we already have covered, is it? Yes.

10 And Rule 70, this is also, I think, been commented on by the

11 Prosecution side, and there was nothing further on this disclosure from

12 the Defence side, Defence teams.

13 As to agreed facts, I have been informed and I have full

14 information on the submissions made by the parties. I have written -- I

15 have read the different papers on this, and I understand, from the

16 briefing that I have from yesterday's conference that Prosecution and

17 Defence counsel for all three accused agree that it is preferable, it is

18 better to wait for the final version of the indictment and, therefore, for

19 the final resolution of the joinder issue by the Appeals Chamber.

20 Is that correct?

21 MR. TIEGER: Yes, Your Honour, that was -- that accurately

22 reflects yesterday's discussion.

23 JUDGE STOLE: Thank you.

24 MR. KEHOE: Yes, we agree with the Prosecution in that regard,

25 Your Honour, on behalf of General Gotovina.

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1 JUDGE STOLE: Thank you.

2 MR. PRODANOVIC: [Interpretation] Likewise, Your Honour. It's

3 part of our agreement.

4 JUDGE STOLE: Thank you.

5 MR. SEPAROVIC: [Interpretation] Also, Your Honour.

6 JUDGE STOLE: Thank you.

7 At the last Status Conference it was mentioned that one should

8 really work -- make a work-plan, establish a work-plan for the further

9 pre-trial preparations in this case. And it is my understanding from also

10 yesterday's conference that this will take place and that at the next 65

11 ter conference the -- when we'll discuss with the parties and try

12 definitely to elaborate a work-plan to secure that the trial can be

13 starting as soon as possible, and this will be discussed then with the

14 parties at this conference.

15 Of course, this has also been affected, this intention to present

16 a work-plan on this Status Conference has also been affected by the appeal

17 on the joinder, and we really are waiting also on this point for -- as I

18 understand it, for the decision by the Appeals Chamber.

19 That's the correct understanding?

20 MR. TIEGER: Yes, Your Honour, on both counts, I think. Both in

21 terms of the impact of the pending issue but also in terms of the parties'

22 commitment to work toward the establishment of a work-plan so that --

23 well, for the purposes the Court indicated.

24 So it's correct that it had an immediate impact in terms of

25 today's proceeding, but we will try to -- we will stay in contact both

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1 with the Senior Legal Officer and with the parties, with the development

2 of a work-plan in mind.

3 JUDGE STOLE: Thank you.

4 Any comments on this?

5 MR. KEHOE: Just so the Court knows, I think it's something that

6 has been discussed but it just makes it very difficult when, without some

7 settlement of the final indictment, to make final decisions with regard to

8 facts and work-plan, et cetera. So that that's the consensus of everybody

9 yesterday with the court officers that that would be the way to go. And I

10 don't think it is going to be a protracted period of time, Judge, until we

11 get a final indictment to work from, so I guess all the parties just ask

12 the Court to bear with us and get that final document settled, so then we

13 can come up with a final work-plan and we come up with something that

14 we're going to work with going forward.

15 JUDGE STOLE: Thank you. Thank you.

16 Anything to add to this?

17 MR. PRODANOVIC: [Interpretation] No, nothing, Your Honour.

18 Mr. Cermak's Defence shares this position and believes this to be the most

19 realistic approach to the problem at hand.

20 JUDGE STOLE: Thank you.

21 MR. SEPAROVIC: [Interpretation] Likewise, Your Honour.

22 JUDGE STOLE: I suppose that there has always -- that there has

23 already been exchange of views on this subject of agreed facts, and

24 hopefully this decision by the Appeals Chamber is not far away. I hope it

25 will be here in the near future. And then the parties will then undertake

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1 an obligation to speed up this process on agreed facts, as I understand

2 it. And that's to the Chamber's and to my satisfaction, that it is okay.

3 Yes. And finally I would like to raise an issue that concerns all

4 cases and that has to do with the translation. It is important, as I

5 understand it, that the CLSS should be able to continue to provide

6 translation in a timely fashion and meet the translation needs of all

7 parties equitably. The policy of CLSS is to translate only documents

8 which are submitted as evidence in Court. However, one of the main

9 problems is that parties tend to submit translation requests of documents

10 labelled as intended to be tendered as evidence, which they eventually do

11 not tender. And I've been informed that on 24 August 2006 the bureau

12 endorses various recommendations with special regard to the trials of

13 multi-accused cases.

14 And I just want to, in light of that, in view of that, remind the

15 parties and the counsels the importance for the parties to limit their

16 translation requests to those documents they will ultimately tender into

17 evidence, prioritise translation requests, and make relevant information

18 available to CLSS and ODM on a confidential basis.

19 This is on the understanding of the parties. There is nothing

20 controversial in this? No. Thank you.

21 Then, as always on the Status Conferences, there is a question of,

22 in this case, Gotovina, if there is any issues he wishes to raise as to

23 his state of health or his conditions of detention.

24 MR. KEHOE: Nothing with regard to his state of health. With

25 regard to his conditions of detention, we have nothing to raise at this

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1 time. We do leave that as an open issue, Your Honour, to be addressed in

2 the near future but not at this time.

3 JUDGE STOLE: Thank you. I will make a note on that. And as for

4 the accused Cermak and Markac, not present here today, do the Defence

5 counsel have anything in particular they want to raise?

6 MR. PRODANOVIC: [Interpretation] General Cermak seems to be

7 experiencing some chronic problems with his spine and high blood pressure.

8 It's all under control and being monitored by doctors. There are no major

9 problems for the time being or for the future, in terms of being able to

10 follow the trial, Your Honour.

11 JUDGE STOLE: Thank you.

12 And for Markac.

13 MR. SEPAROVIC: [Interpretation] General Markac is also

14 experiencing some chronic problems. He received medical treatment while

15 in detention. He is continuing this treatment and his health is now

16 stable, with small fluctuations. He is under intensive care by a team of

17 doctors, though.

18 JUDGE STOLE: Thank you very much.

19 Yes, if there is no other issues that the parties want to raise,

20 this Status Conference is over.

21 For the Prosecution side? Nothing?

22 MR. TIEGER: Your Honour, I just -- I agree with the Court that

23 the policy of the CLSS is that not a particularly controversial one and a

24 very understandable one in light of their resource limitations. It is not

25 entirely clear to me how that might play out for either party. In other

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1 words, whether documents submitted in good faith will be rejected without

2 some particular kind of assurance.

3 And furthermore what happens to documents that need to be -- the

4 nature of which is such that they need to be translated before any

5 realistic assessment can be made about whether or not they are to be

6 admitted in court. It's something I raised yesterday. It seems to me

7 that it's unlikely to result in pragmatic problems, but I just raise it

8 now so that, to alert the Court that if it does, for either the

9 Prosecution or for any of the Defence, then we may be coming back and

10 bringing it to the Court's attention and trying to suggest some measures

11 that will allow us to move forward expeditiously, notwithstanding the

12 resource limitations of CLSS.

13 That's all I wanted to add.

14 JUDGE STOLE: Thank you.

15 Do the Defence teams have anything further, in light of this?

16 MR. KEHOE: We understand what the problem is with CLSS. It's

17 been a problem since day one in the Tribunal. We understand we're going

18 to do the best we possibly can. Certainly we don't want to have anybody

19 to do any work unnecessarily, that's for sure.

20 JUDGE STOLE: You're in agreement?

21 MR. PRODANOVIC: [Interpretation] Nothing to add. Nothing to add,

22 Your Honour. Thank you.

23 JUDGE STOLE: Thank you.

24 Okay. Then the Court now is adjourned, and I thank you for -- the

25 accused Gotovina and the parties and the counsels for appearances here

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1 today.

2 Thank you.

3 --- Whereupon the Status Conference adjourned at

4 3.35 p.m.