1 Tuesday, 3 April 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.00 a.m.
5 JUDGE MOLOTO: Good morning, everybody. [French on English
7 Is French now on the fourth channel?
8 MR. TIEGER: I also received a French translation on channel
9 number 4, Your Honour.
10 JUDGE MOLOTO: Okay. Anyway, let's start all over again.
11 Hopefully English will come back.
12 Good morning once again, and welcome to everybody. May we please
13 have the appearances.
14 Mr. Tieger.
15 MR. TIEGER: Good morning, Your Honour. Alan Tieger, Laurie
16 Sartorio, and case manager, Donnica Henry Frijlink for the OTP.
17 JUDGE MOLOTO: Thank you very much.
18 Microphone, Mr. Kehoe.
19 MR. KEHOE: Sorry, Judge. Good morning, Your Honour. Gregory
20 Kehoe and Luka Misetic for General Gotovina.
21 JUDGE MOLOTO: Thank you very much.
22 MR. PRODANOVIC: [Interpretation] Good morning, Your Honour. Cedo
23 Prodanovic, Jadranka Slokovic, and Tihomir Mak, our case manager.
24 JUDGE MOLOTO: Thank you very much.
25 MR. SEPAROVIC: [Interpretation] Good morning, Your Honour.
1 Miroslav Separovic representing for Mr. Markac.
2 JUDGE MOLOTO: Thank you, Mr. Separovic. You are alone today.
3 The last Status Conference was held on the 9th of February, 2007.
4 Pursuant to Rule 65 bis of the Rules of Procedure and Evidence, a Status
5 Conference shall be convened within 120 days of the last in order to
6 organise exchanges between the parties to ensure the expeditious
7 preparation for trial and to allow the accused to raise issues in relation
8 to the case. On the 2nd of April a 65 ter Conference was held in
9 preparation for the present conference.
10 Before we carry on, may I just find out, I notice that we've got
11 only General Gotovina in the courtroom. I gather the other accused are
12 excused. There is no videolink.
13 MR. TIEGER: That's correct, Your Honour.
14 JUDGE MOLOTO: Thank you very much.
15 General Gotovina, do you have any -- can you hear me, first of
16 all, and understand me in a language you understand?
17 THE ACCUSED GOTOVINA: [Interpretation] Thank you, Your Honour, I
18 can hear you.
19 JUDGE MOLOTO: Thank you very much. And how are you? How is your
20 health, General Gotovina?
21 THE ACCUSED GOTOVINA: [Interpretation] Your Honour, thank you for
22 asking. I'm fine.
23 JUDGE MOLOTO: Any issue you would like to raise in relation to
24 the Detention Unit?
25 THE ACCUSED GOTOVINA: [Interpretation] No, thank you, Your Honour.
1 JUDGE MOLOTO: Thank you very much.
2 THE ACCUSED GOTOVINA: [Interpretation] My Defence will represent
4 JUDGE MOLOTO: Thank you very much. You may be seated.
5 The next issue that I would like us to deal with is -- relates to
6 conflict of interest and trial scheduling. A decision of the conflict of
7 interest, if not already issued by the time of this Status Conference will
8 be rendered shortly. That is relating to Mr. Prodanovic and Ms. Slokovic.
9 And of course resulting from that decision and the decision on the
10 position of Mr. Separovic, scheduling would have to be addressed in due
12 I guess it is -- must be clear this time to everybody that it is
13 almost impossible to start by the 7th of May. That being so, however, we
14 should not think that the scheduling should be -- will be pushed back for
15 far too long. I think we need to go over the problems of representation
16 and the questions of appeal. I know that an appeal has been lodged by the
17 by -- Mr. Markac's counsel. And make sure that all those things are done
18 as soon as possible so that we can reschedule the case.
19 Are there any comments that any of counsel would like to make on
20 this issue?
21 MR. TIEGER: Your Honour, I'm sure there will be more substantive
22 and detailed comments in due course as we grapple with this issue. On
23 behalf of the Prosecution we appreciate the fact that the Court has raised
24 it so forthrightly. We think it does need to be addressed substantively
25 so we can make appropriate arrangements and as we begin to discuss that we
1 will be happy to contribute accordingly, but in the abstract I have no
2 further comments.
3 JUDGE MOLOTO: Thank you very much. Indeed it is still in the
4 abstract at this stage that I don't expect much comment, but just in case
5 anybody has got anything to say.
6 Mr. Misetic, Mr. Kehoe.
7 MR. KEHOE: Thank you, Your Honour. Not at this time.
8 JUDGE MOLOTO: Thank you very much.
9 MR. PRODANOVIC: [Interpretation] The same, Your Honour.
10 MR. SEPAROVIC: [Interpretation] No comment, Your Honour.
11 JUDGE MOLOTO: Thank you very much.
12 That being the case, maybe we can then pass on to the next point.
13 Agreed facts. At the last conference the parties stated that while they
14 had met to discuss agreed facts little progress had been made due to their
15 perception that the schedule was accelerated. And in the Prosecution's
16 submission pursuant to Rule 65 ter it stated at paragraph 6, "Given the
17 scheduled start of trial in early May, 2007, the Prosecution notes that no
18 admission has yet been made by the Defence nor any agreement been reached
19 with respect to non-contested facts or law. As a result, the Prosecution
20 assumes for now that all issues of fact and law are contested at this
21 time. This being said, the Prosecution will continue to attempt to reach
22 agreement with the various Defence teams with respect to agreed facts or
23 law to the extent possible, and notes that efforts to reach agreement on
24 issues such as exhumations and prosecutions of crimes are underway."
25 Is that still the position?
1 MR. TIEGER: That's correct, Your Honour. Probably important to
2 note that that recitation of the state of affairs was not intended in any
3 way, and I hope was not interpreted as any kind of finger pointing at my
4 learned friends, simply that -- and a summary of what the parties agreed
5 was the -- the situation at the time.
6 JUDGE MOLOTO: Okay. Anyway, decisions have now been issued on
7 the question of jurisdiction, form of indictment, and under Rule 73 bis
8 (D), and the outer limits of the case ought to be clear at least, and the
9 parties ought to be able to discuss agreed facts in a more conclusive
10 manner, I would imagine.
11 MR. TIEGER: Your Honour, this matter was discussed to some extent
12 at the 65 ter Conference yesterday. We certainly agree with the Court
13 that the evolving circumstances surrounding some aspects of the indictment
14 have produced a situation which renders the possibility of identifying the
15 areas of potential agreement more likely. That -- now, setting aside, for
16 the moment, the -- the question of the outstanding interlocutory appeal on
17 jurisdiction, which is another matter, the problem raised by the parties
18 was not so much the uncertainties surrounding the issues that might be
19 discussed, but simply the opportunity to do so. And I think that was a
20 matter raised before the Bench on earlier occasions. It was reiterated
21 yesterday. The focus was on the logistics of the process, which do
22 require a dedicated period of time to reach fruition.
23 I think all the parties attempted yesterday to explain in somewhat
24 greater detail the stages involved in that process and therefore the
25 requirements of time. That has been the issue. As the Court just noted
1 we may face a situation now or may find ourselves in a situation now that
2 is more propitious for dedicating certain periods of time for this
3 specific purpose. And if so, the parties have indicated their willingness
4 to engage in the process and we will certainly do so.
5 JUDGE MOLOTO: Thank you, Mr. Tieger.
6 Any view on that point in.
7 MR. KEHOE: Yes, Your Honour. I have to echo some of the
8 responses that -- comments that Mr. Tieger made with regard to time. Now
9 that we do have some period of time, we will of course dedicate our
10 efforts to coming to some agreed facts or a large portion of those facts,
11 I do believe. Keeping in mind, Judge, that by Thursday, I do believe it's
12 Thursday we are scheduled to file our pre-trial brief as well, so we will
13 have the pre-trial brief of the Prosecution and, of course, the Defence
14 will have theirs.
15 And I think that we will be able to use both of those documents as
16 a starting point for many of these agreed facts moving, of course, from
17 the larger facts to the smaller. But I do believe that with this period
18 of time we can dedicate ourselves to that.
19 I do once again want to footnote what Mr. Tieger noted with regard
20 to the indictment itself, there has been an appeal filed on the Rule 72
21 decisions on jurisdiction that the Trial Chamber has made, just so
22 Your Honour knows that has, in fact, been filed yesterday.
23 JUDGE MOLOTO: I haven't seen that.
24 MR. KEHOE: No, no, I understand Judge, but I was just talking
25 about from the standpoint Your Honour said there have been decisions on
1 that, that is outstanding. But that is not going to prevent discussions
2 on agreed facts. There are a significant number of agreed facts that we
3 can come to a concrete resolution on with a period of time. And I think
4 counsel will all agree would that.
5 JUDGE MOLOTO: Thank you.
6 Mr. Prodanovic.
7 MR. PRODANOVIC: [Interpretation] Prodanovic. I don't want to
8 repeat what has already been said. I simply want to say that when the
9 trial was scheduled for the 7th of May, it was not possible to expect that
10 we would have any time to talk about the agreed facts.
11 Now that the trial has been delayed for a certain period of time,
12 I think we will be able to start this process and we are eager to part in
13 it. Of course we expect initiative on the part of the Prosecution.
14 JUDGE MOLOTO: Thank you very much, Mr. Prodanovic.
15 Any comments, Mr. Separovic?
16 MR. SEPAROVIC: [Interpretation] No, Your Honour. I agree fully
17 with my colleague, Mr. Prodanovic.
18 JUDGE MOLOTO: Thank you very much.
19 May I make a proposal perhaps, also that there are efforts on
20 reaching agreement on facts, should try to also cover, amongst others,
21 facts and crime-base evidence, including evidence on the accuseds' various
22 positions, victims, lists, and identity of victims and the exhumation
23 evidence, as indeed you are already trying to do and also the applicable
25 If there isn't anything else, I would like us to then deal with
1 the next item on the agenda, which is the comprehensive motions under
2 Rules 92 bis, 92 ter, and for protective measures. At the last 65 ter
3 Conference and Status Conference, the Prosecution was asked when it would
4 be in a position to submit comprehensive motions under these rules. The
5 Prosecution replied that it would submit such motions between the
6 submission of its 65 ter submission and the 65 ter submission of the
7 Defence. If this has not been done before this Status Conference, in
8 light of the dead-line of the 5th of April for the 65 ter Defence
9 submission, the Prosecution is being reminded to submit such motions.
10 MR. TIEGER: Your Honour, the Prosecution did submit a motion on
11 March 27th, as requested, or ordered. I understand from the legal officer
12 that the Court was interested -- let me step back for a moment. And that
13 motion outlined a number of protective measures of -- a broader form of
14 protective measures was requested with respect to 92 bis and 92 quater and
15 92 ter, it outlined some of the steps that the Prosecution anticipated
16 taking with respect to certain witnesses. I understand from the senior
17 legal officer that the Bench would like formal motions upon which the
18 Court would rule as soon as possible. And we discussed that at the
19 conference yesterday.
20 My suggestions would be, and noting that the March 27th motion
21 indicated that the Prosecution anticipating filing approximately 14
22 motions under 92 bis and/or 92 quater, that we identify a date now by
23 which I'll propose a date, the Prosecution would submit at least a certain
24 number of motions for the court to rule on. Specifically with respect to
25 these measures, I think the legal officer referred to them as bundled
1 submissions and I understood that to mean the concrete motions upon which
2 the Court could rule, upon which my learned colleagues could respond.
3 Now, part of the reason that those weren't submitted is that for
4 the reasons described in the motion the Prosecution needed additional time
5 to actually directly contact witnesses, and that's -- we're in the process
6 of doing that. But I would say irrespective of the -- of whether or not
7 that process has been completed, we would suggest filing these -- or at
8 least a number of these concrete motions for 92 bis or 92 quater but I
9 think, if I understood the senior legal officer correctly and if I gauge
10 the Court's intention to move the process forward, at least incrementally
11 insofar as possible, that that would be the step the Court would be
12 looking for, and we can do that with respect to the particular witnesses,
13 particular testimonies, that have been identified even in light of the
14 particular logistical difficulties.
15 So we can file X number of motions by the week of April 16th, and
16 indicate to the Court at the same time whether we anticipate additional
17 motions to follow.
18 Now, with respect to 92 bis, that will involve liaising with the
19 Registry because additional missions will be necessary, both in Serbia and
20 in Croatia, to obtain the statements via the Registry upon which certain
21 of motions will be based. But to the extent possible, we can get other
22 motions that have been brought to a stage where they can be submitted to
23 the Court, before the Court, during that week.
24 JUDGE MOLOTO: Are you able to guesstimate what percentage of the
25 14 motions that are anticipated X amount will be? The majority of them or
1 just a few?
2 MR. TIEGER: Well, I would say -- and I misspoke slightly, I think
3 there are about 20 motions anticipated under Rule 92 bis and Rule 92
4 quater and I think we could have more than half submitted by that date.
5 JUDGE MOLOTO: By the 16th.
6 MR. TIEGER: Yeah.
7 JUDGE MOLOTO: Okay. I don't think any of the counsel would like
8 to comment on that.
9 MR. KEHOE: No, Your Honour, just to the extent that, and this did
10 come up yesterday at the 65 ter Conference, and to the extent that some of
11 these witnesses who have given statements have said they would like some
12 protective measures. I just would inform the Court we will resist some of
13 those and we will respond. Some of them we will not, of course, but there
14 will be some discussion, but we're also waiting to see what the list is of
15 who these witnesses are. If it is any indication of some of the more
16 professional witnesses who have asked for protective measures, we would of
17 course resist that, but we will wait until the appropriate time to
19 JUDGE MOLOTO: Indeed, Mr. Kehoe, we agree. We understand that it
20 is in the interests of the proper administration of justice for trials to
21 be in public, and to that extent we understand that you always have that
22 right to resist. Okay. Thank you very much.
23 Mr. Prodanovic, do you have anything to add to that?
24 MR. PRODANOVIC: [Interpretation] If this is the appropriate moment
25 to touch upon the way that the witnesses are going to be examined as part
1 of the protective measures, then I would have something to say. I am
2 working according to yesterday's agenda, for yesterday's conference, and
3 it's on it.
4 JUDGE MOLOTO: Let's hear what you have to say on the point then,
5 Mr. Prodanovic.
6 MR. PRODANOVIC: [Interpretation] The request of the Prosecution to
7 limit the disclosure of the identity of three witnesses to the Defence, I
8 have to say the following: As far as Witness P-15 is concerned, we have
9 completely contrary position. We think that there are no factors that
10 could allow the withdrawal of the -- his identity to the Defence. P-16,
11 not P-15.
12 It's a witness to the events, member of Croatian army. And if we
13 are to cross-examine him and his credibility, we absolutely have to know
14 his identity. You have to bear in mind that there are no extraordinary
15 circumstances which would normally warrant the procedure in which the
16 Defence would not be allowed to know his identity.
17 I would like to reference you to the Tadic decision in this
18 relation, and the extraordinary situation which would be required here
19 does not exist anymore in Republic of Croatia. And since the situation
20 has been changed for better, I also have to say that it's precisely the
21 reason why Ademi and Norac case has been referred to Croatia. I don't
22 think that it is possible to just generally talk about danger for this
23 witness, and especially not the situation in which this danger would be
24 produced simply by Defence knowing his identity.
25 Therefore we are certainly going to submit a separate motion and
1 are going to resist this request and require his identity to be divulged
2 to us.
3 JUDGE MOLOTO: Thank you. It is always your right to do so. I'm
4 not quite sure whether you are really on the Prosecution witness list or
5 are you still on the 92 bis and 92 ter things. Or am I behind?
6 MR. PRODANOVIC: [Interpretation] Maybe the problem is that we
7 don't have an agenda for today, so I'm referring to yesterday's agenda.
8 Agenda for 65 ter Conference. There we also spoke about the Prosecution
9 witnesses and their list, and some of them were supposed to have their
10 identities protected.
11 JUDGE MOLOTO: May I just then apologise for the fact that you
12 don't have an agenda. I thought you do.
13 MR. PRODANOVIC: [Interpretation] Your Honour, if I may be then
14 slightly ahead of the agenda, then maybe we should simply leave it for the
15 next point.
16 JUDGE MOLOTO: Let's do that. Maybe we can deal with it under
17 that heading.
18 Mr. Separovic, any comments on the point at issue?
19 MR. SEPAROVIC: [Interpretation] No, Your Honour. I also wanted to
20 say something about protective measures, but nothing for the moment.
21 JUDGE MOLOTO: Okay. Thank you very much, Mr. Separovic.
22 That then disposes of that item on comprehensive motions under
23 Rules 92 bis and 92 ter.
24 And the next item now then becomes the Prosecution's witness list,
25 and I think this is where Mr. Prodanovic was trying to lead us, but before
1 we ask him to talk again, anything from the Prosecution? I notice that
2 the -- yes, in -- the Prosecution noted in its motion of the 27th of March
3 that witnesses number 64 and 158 through to 162 should be removed from the
4 Prosecution witness list for the reasons stated in the motion for
5 temporary protective measures. Am I correct in that?
6 MR. TIEGER: I don't have the numbers in front of me, but I
7 believe that's right, Your Honour.
8 JUDGE MOLOTO: That's right. And that number 64 has decided not
9 to testify as a result of threats. The other five are the same as
10 Witnesses P-1 to P-5 and are inadvertently mentioned twice in the list as
11 numbers 158 to 162.
12 MR. TIEGER: I'm not aware that there's any confusion among the
13 parties with respect to those submissions and the witnesses who are now --
14 who remain on the witness list. If -- if the Court or my learned friends
15 have any questions, we will be, of course, happy to clarify. But as far
16 as I'm aware, the submissions were clear enough to them, and I think
17 the -- my recollection is that the adjustments were fairly
19 JUDGE MOLOTO: Can you confirm that, Mr. Kehoe?
20 MR. KEHOE: Yes, I believe so, Judge. And to the extent there has
21 been really any confusion on this, I think we have been working together
22 to try and resolve it.
23 JUDGE MOLOTO: Thank you very much.
24 Now, Mr. Prodanovic could also confirm it.
25 MR. PRODANOVIC: [Interpretation] That's correct, Your Honour.
1 JUDGE MOLOTO: Thank you, Mr. Prodanovic.
2 Can we then deal with disclosure between the parties. At the last
3 Status Conference the Prosecution stated that it would inform the SLO
4 on -- by which date it would be able to conclude disclosure. As far as I
5 know, no such information has been given or received from the Prosecution,
6 and are there any outstanding issues that need to be dealt with under
8 MR. TIEGER: Your Honour, let me indicate to the Court part of the
9 discussion that took place at the 65 ter yesterday, and part of the
10 follow-up that resulted. With under disclosure?
11 MR. TIEGER: Your Honour, let me indicate to the Court part of the
12 discussion that took place at the 65 ter yesterday, and part of the
13 follow-up that resulted.
14 First of all by way of back-drop, it may be helpful because I may
15 be alluding to some of these factors in the course of explaining to the
16 Bench where we now stand. Some of the measures that were taken by the
17 Prosecution during the course of disclosure of the 65 ter materials. In
18 discussions with the Defence, it would helpful for them to disclose in a
19 fairly unusual way, but one that was deemed quite helpful by the parties.
20 That included providing the disclosures on a hard drive to -- three
21 separate hard drives to each Defence teams and also creating a
22 hyper-linked exhibit list which would facilitate the process of
23 identifying the particular exhibits. And the hard drives were provided,
24 the hyper-linked exhibit list is being completed.
25 I should also mention that throughout the course of this process,
1 and something that Mr. Kehoe alluded to a few moments ago, the exchange of
2 information and level of cooperation between the Prosecution and the
3 Defence, I think, has been extremely high and extremely gratifying to all
5 Yesterday we received, just before the 65 ter Conference, a list
6 from Mr. Misetic from Mr. Gotovina's Defence, and then at the 65 ter
7 Conference a list from Mr. Separovic on behalf of General Markac of
8 documents and or/statements that they had been unable to locate and needed
9 some help in finding.
10 If I remember correctly, Mr. Separovic indicated that he was
11 missing some 40 statements or so and approximately 150 documents.
12 Mr. Misetic's list, I think, encompassed about 150 documents or so. The
13 particular numbers aren't so important in light of what I'm going to say,
14 but that's the general situation that prevailed yesterday.
15 Thanks to some extraordinary efforts by Ms. Henry-Frijlink between
16 the course of yesterday and late last night, we went over those materials.
17 What I can tell the Court is the following: First of all with respect to
18 the statements that Mr. Separovic alluded to, we determined that those had
19 been previously sent to him in March via e-mail. And I'll provide him
20 with the exact times of those e-mails and so that he can readily identify
22 In addition, and perhaps more importantly, we went over
23 systematically, or I should say Ms. Henry Frijlink link went over
24 systematically, the list. And we are providing to the Defence today,
25 virtually every document contained on the list. For the most part those
1 were, it turned out to be, in fact, documents that we are confident had
2 been disclosed and were contained on the hard drive, but for matters of
3 convenience we decided it was easier simply to reburn them on a CD and
4 provide them to the Defence today and that's what we intend to do. That
5 CD has been burned and we can provide it after the Status Conference.
6 In addition, there were a small fraction of documents that we
7 believe were not on the hard drive because they were inadvertently omitted
8 from the exhibit list, although referenced in the pre-trial brief. And we
9 provide those today by way of supplementing the exhibit list. They will
10 also be contained on the CD.
11 Finally, we noted that a certain number, and again a relatively
12 small number of statements were still pending translation. I
13 double-checked on that. I am advised that the translation authorities
14 believe that can be completed by the end of this week, and I reconfirmed
15 that this morning. So even if there's some slippage in that projected
16 dead-line, those statements will be available, translations of those
17 statements will be available in very short order.
18 So that essentially is the state of play at the moment. And it
19 was, of course, helpful that we were all face to face and were provided
20 with specific references that we could double-check and respond to in this
22 JUDGE MOLOTO: While you are on your feet, before you sit down,
23 can you address the Rule 70 disclosures?
24 MR. TIEGER: Yes, Your Honour. Thank you. I've neglected to
25 mention that and I'm glad you've raised that. The -- we are running
1 through that once more, particularly in light of the fact that one of the
2 principal providers on Friday cleared a significant number of documents.
3 So we want to run through the entire Rule 70 pending matters to ensure
4 insofar as possible, that first of all, all of those that have been
5 cleared are now made available to the Defence to determine which have not
6 been cleared and recontact the providers forthwith to urge them to
7 accelerate the process of responding to our request for clearances. But
8 my current understanding is that in the wake of the recent clearance the
9 -- the bulk of those pending Rule 70 matters will have been cleared.
10 JUDGE MOLOTO: Let me understand you quite clearly. When you say
11 they have been cleared and the bulk of those pending matters will have
12 been cleared, are you able to give us a time-line by which a disclosure
13 might take place?
14 MR. TIEGER: Of the documents that are cleared? Within one week.
15 JUDGE MOLOTO: Thank you.
16 Any comments from -- yes, Mr. Misetic.
17 MR. MISETIC: Thank you, Your Honour. I would just like to
18 confirm what Mr. Tieger had said; however, I wanted to point out for the
19 Trial Chamber the circumstances from the view of the Defence in light of
20 the fact that a pre-trial brief is due Thursday. At the time of the
21 filing of the Prosecution's pre-trial brief, there were anywhere between
22 35 and 50 witness statements cited in the brief that we did not have
23 possession of. We have been working with the Prosecution to resolve that
24 issue. There was an e-mail sent shortly thereafter, I think maybe the
25 Monday after the brief was filed Friday, where we did receive those
2 With respect to the documents cited in the pre-trial brief, there
3 were around 150 documents cited in the brief; it's probably half of them.
4 The documents are the B/C/S and English translations of the same document,
5 so we're talking roughly the neighbourhood of 50 to 75 documents cited in
6 the brief that we did not have access to until either last week when I
7 received a copy of the hard drive or today when we received a copy of the
8 CD. In light of the fact our pre-trial brief is due Thursday and we're
9 still receiving material from the Prosecution in terms of documents that
10 are actually cited in their brief, I wanted to alert the Court that we are
11 working feverishly to meet the Court's dead-line of filing the pre-trial
12 brief; however, I wanted to advise you that to the extent there are any
13 issues that we need to address that are cited in documents that we are now
14 receiving from the Prosecution, it may be that we'll have to alert the
15 Court to a problem and ask for a short extension, but that is not our plan
16 right now, and we intend to file the brief on time on Thursday, but I
17 wanted to inform the Court of our situation right now. Thank you, Your
19 JUDGE MOLOTO: Thank you very much, Mr. Misetic. If that
20 eventuality does arise, is it not possible to file your brief to the
21 extent that you have information and reserve the right to supplement it
23 MR. MISETIC: Certainly, Your Honour; if that is the Court's
24 preferred manner of proceeding, that's fine. I do want to indicate that
25 it is our intention, even though we're here in The Hague right now, to
1 meet the dead-line on Thursday, and if for some reason, we feel that there
2 is an issue raised in one of the documents we have just received, with the
3 Court's indulgence we may just file the brief with a note that says we
4 would like to address the issue at a later date or invite the Court to
5 invite us to file a written submission on that issue, should the Court
6 want us to address it.
7 JUDGE MOLOTO: If you did ask for a postponement, how long -- if
8 you wanted to file a --
9 MR. MISETIC: Over the weekend so we could file it on Monday or
11 JUDGE MOLOTO: In that event, then, yeah. Thank you.
12 Mr. Prodanovic. Mr. Prodanovic.
13 MR. PRODANOVIC: [Interpretation] We basically join the proposal
14 put forward by the Defence of General Gotovina. We would also like to see
15 these additional witness statements that have not been disclosed to us
16 until now.
17 JUDGE MOLOTO: That's understandable, Mr. Prodanovic. Thank you
18 very much.
19 Mr. Separovic.
20 MR. SEPAROVIC: [Interpretation] Your Honour, I also agree. I gave
21 a list to my learned friends from the Prosecution yesterday with the
22 documents that are missing. I was glad to hear that Mr. Tieger was able
23 to find some of them, but I have to tell you that there are 45 witness
24 statements, interviews, that are missing. I am not saying that we did not
25 receive summaries. We received the summaries. But we cannot find 45
1 witness statements. They are still outstanding. We are unable to access
2 documents. We simply do not have them. I hope that this problem has been
3 resolved and if it is case, I am very grateful to Mr. Tieger and we will
4 not be raising these issues in the future if this has been resolved.
5 Thank you.
6 JUDGE MOLOTO: Thank you, Mr. Separovic. Mr. Tieger's very eager
7 to answer to that. He stands up while you are still talking.
8 MR. TIEGER: I apologise for that.
9 JUDGE MOLOTO: No problem.
10 MR. TIEGER: First of all, I don't want to make a problem where
11 one doesn't exist. I think it is largely resolved. However, it is
12 important not to confuse two things. Number one, documents that were
13 disclosed but that the Defence was unable to locate for whatever reason,
14 that -- those do represent the bulk of the documents we're talking about.
15 And secondly, not to confuse pending translations of statements that were
16 disclosed for the absence of any disclosure of statements. But with that
17 clarification, I think we now find ourselves in a situation where everyone
18 can proceed apace.
19 JUDGE MOLOTO: Mr. Tieger, if I might just ask a question. Is the
20 Prosecution in a position to produce proof to the Defence, whenever they
21 are queried, of delivery of certain documents?
22 MR. TIEGER: Well, in the -- we have generally engaged in the
23 practice of responding to their notification of difficulties, and as I
24 say, it has been helpful in particular that they have noted certain
25 documents. We do so by specifically noting when those documents were
1 disclosed and where they can be found. Having said that, it's struck us
2 as much more expeditious to simply provide those documents again, so that
3 we don't have to engage in the entire process.
4 JUDGE MOLOTO: I understand that.
5 MR. TIEGER: But we have attempted to do that at each juncture.
6 JUDGE MOLOTO: I understand the question of difficulties. But
7 then side by side that question, there is also the question of
8 obligations. You are obliged to give certain disclosures, at times
9 certain disclosures are supposed to be made within a certain time line,
10 and, yes, you may have given them, they may have misplaced then, and they
11 may then run into the difficulty they are not able to be access them, and
12 they come back to you, and fine, I will give you another set.
13 However, I want to know, for purposes of the Chamber, whether you
14 are able to give proof when you have delivered because I would not want
15 the time of the Court to be squandered because I have lost my papers and
16 for three months I have not done anything, and in three months' time
17 Mr. Tieger, out of the goodness of his heart gives me second copies, but
18 he really is not obliged and I'm the one who is supposed to be on terms
19 because I've lost my papers.
20 MR. TIEGER: Two things, Your Honour. Number one, yes, we not
21 only can demonstrate that those documents have been disclosed, but we
22 attempt to do so when advised of the problem and have attempted to do so
23 in various spread sheets.
24 Number two, in fairness to my learned friends, I don't think --
25 I'm not sure it's a matter of misplacing the papers or the documents.
1 There are -- there are access difficulties with some of the -- I'm advised
2 by them, with some of the disclosure - what shall I call them? - machinery
3 that they've brought our attention to. That's one of the reasons we
4 provided the hard drive and the hyper-linked exhibit list, to try to
5 obviate any such problems. But at the same time, I don't want it
6 misunderstood that the Prosecution hasn't attempted each time it has
7 redisclosed, to also indicate when and how the previous disclosure was
9 So there is no -- certainly no finger pointing on anyone's part,
10 but I don't want the Court to understand that we --
11 JUDGE MOLOTO: No, I understand -- I understand that there's there
12 no finger-pointing. However, when I came on this case from the 5th of
13 December last year, particularly on this question of disclosure, there has
14 not been any modicum of agreement, there has always been -- no, no, the
15 Prosecution claims very few documents are outstanding. The Defence claims
16 lots and lots of documents are outstanding. And we've got to come to a
17 time when we should be able to say: Prosecution, show that you have
18 disclosed you have that you had to disclose. Defence, do you have that,
19 and if you don't have it, you can't blame the Prosecution. You can ask
20 the Prosecution to redisclose because -- for whatever reason you are not
21 accessing your information. But you can't blame them. You can ask for
22 indulgence. We've got to get to a time when we are able to put the blame
23 where it belongs. At this -- for now, we have not done so. And I'm not
24 intending to do so in the very near future, but there is going to come a
25 time when the buck must stop.
1 MR. TIEGER: I think everyone understands that, Your Honour, and I
2 appreciate the Court's comments. I believe that's what the parties have
3 been attempting to do and especially in the face of the size of a case
4 like this, so we make disclosures of a large volume of material. The
5 Defence has gone through those disclosures. I think Mr. Misetic in
6 particular has attempted to go through them for the most part as
7 comprehensively as he could. He has then identified for us problems that
8 exist. In fairness to both sides, I think, the percentage of problems,
9 given the volume of material are relatively small and relatively
10 predictable. Our response to the identification of any problems has been
11 as proactive, and I think constructive as possible, that is to address
12 them directly.
13 So I think the parties have been attempting to proceed in
14 precisely the spirit encouraged by the Court so that as quickly as
15 possible everyone can be satisfied that that, what was intended to be
16 disclosed, was received and is available, and to any extent it is not, it
17 is immediately addressed so that we can narrow any gaps that exist. Today
18 should be one example. The Defence specifically identified a number of
19 documents that they could not locate from the recent 65 ter disclosures.
20 We believe we've now responded comprehensively, I should say, except for
21 as I understand it two documents which we we're still exporting from the
22 system, but that it will be provided. Again, if there is any problem in
23 that, I'm confident that we will be advised, but clearly the problems
24 within that much narrower range of identified documents will be even
25 smaller and we can quickly move to resolves that as well.
1 JUDGE MOLOTO: Your kindness is appreciated.
2 Yes, Mr. Misetic.
3 MR. MISETIC: Your Honour, I just wanted to follow up on what
4 Mr. Tieger said and I want it to be clear from the Defence side as well.
5 First, there is not an issue here where -- of good faith. I think all the
6 parties are proceeding in good faith. The issue for us, and the reason I
7 brought it up, was simply: All we care about is getting the documents,
8 obviously. Either there has been a problem in terms of your review of the
9 last four months since you've been in this case. I think the problem has
10 been twofold. It's either been a situation where there are some documents
11 that haven't been disclosed or, from our end, we've been having trouble
12 finding documents that have been disclosed in light of the means of
13 disclosure. In other words, there is an EDS system and other means of
14 disclosure, that there have been problems in the electronic phase of
15 trying to gain access to them. I think both sides are working in a spirit
16 of, first, cooperation, and second, trying to move as expeditiously as
17 possible to resolve those issues. So this is not for the purpose of
18 laying blame, from their side and us or vice versa, but to keep the Court
19 fully informed. The reason I bring it to your attention to was,
20 regardless of those types of issues of why we don't have the documents.
21 When the pre-trial brief was filed we didn't have them and in light of
22 that, I wanted to keep you informed of what we didn't have, the scope of
23 those the documents that we didn't have, as well as the fact that we are
24 moving diligently to get our brief filed on Thursday. And in light of 50
25 witness statements and 150 or so documents, we're moving as fast as
1 possible to get it filed but there may be a need for extension of a few
3 I appreciate the Court's concern that there be a date where we can
4 say all disclosure has been made. I think we are moving towards that
5 date, and as long as we keep moving that way and they respond diligently
6 to my requests, which I can tell the Court that they do, I think that date
7 will probably arrive very shortly. Thank you, Your Honour.
8 JUDGE MOLOTO: Thank you, Mr. Misetic.
9 Do you have any contribution, Mr. Prodanovic? Do you have
10 anything to say?
11 MR. PRODANOVIC: [Interpretation] No, thank you.
12 JUDGE MOLOTO: Thank you very much.
13 Mr. Separovic.
14 MR. SEPAROVIC: [Interpretation] No, thank you.
15 JUDGE MOLOTO: Thank you very much, Mr. Separovic.
16 Now, I think then we can close that point on that note, and move
17 on to the next item, which is the pending motions and other pending
18 matters. Now, on the 26th of March, 2007, the Gotovina Defence filed a
19 motion pursuant to Rule 73, requesting Pre-Trial Chamber to strike parts
20 of the Prosecution's pre-trial brief, constituting affective amendment of
21 the joinder indictment.
22 On the 27th of March, 2007, the Prosecution filed the
23 Prosecution's submission regarding manner of testimony for Prosecution
24 witnesses, and on the same date the Prosecution filed a Prosecution motion
25 for temporary protective measures.
1 Now, with respect to the 27th March motions, Mr. Tieger, what the
2 Chamber would like to confirm with you is whether those motions cover the
3 Prosecution's request for an order of non-disclosure which was included in
4 paragraph 13 of the Rule 65 ter submission of the 16th of March.
5 MR. TIEGER: The effective answer is yes, Your Honour, in the
6 sense that we're not seeking specific relief by way of paragraph 13, which
7 was more of a admonitory note out of an abundance of caution, but the 27th
8 March motion is the operative document.
9 JUDGE MOLOTO: Is the operative document. Thank you very much.
10 Then on the 28th of March the Prosecution submitted its
11 clarifications of the indictment following the decision on the form of the
12 indictment. And following the authorisation by the Trial Chamber, the
13 Prosecution will submit the clarification concerning the pleading of JCE
14 by the 5th of April. Is that correct?
15 MR. TIEGER: Yes, Your Honour, it is.
16 JUDGE MOLOTO: Okay. On the 30th of March the Markac Defence made
17 a submission pursuant to the Trial Chamber's 6th March decision on finding
18 of misconduct of Mr. Separovic, which had ordered the Defence immediately
19 to engage new counsel, and that new counsel was to inform the Trial
20 Chamber by 30th of March of how much time would be needed to fully take
21 over the case.
22 Now, the Markac Defence submits that more time is needed to find
23 replacement counsel and therefore requests an extension of time. The
24 Defence also requests that trial start be delayed until the autumn of
25 2007, and I think we've touched on that at the beginning of this Status
1 Conference this morning. And lastly -- and lastly, let me just mention
2 that the parties -- or rather the 6th of March decision had requested the
3 parties to inform the Court on how they thought the matter could be taken
5 Dealing with the Markac submission, let me just indicate once
6 again, Mr. Separovic, that given the fact that your Defence team has noted
7 an appeal, the appeal is pending, the fact that a decision in the
8 Prodanovic, Slokovic matter is still outstanding, there is this
9 uncertainty about the start time, so that there is an effective extra time
10 that the Separovic defence is getting as a result of these developments.
11 The Bench is unable to say at this stage by how long this effective
12 postponement will be. It depends on how soon we get to resolve
13 difficulties that we are facing. But I would therefore encourage you, and
14 your client, to please move as expeditiously as you possibly can to
15 resolve the problems from your side so that as and when the rest of the
16 issues are resolved we are able to start the trial, or very near starting
17 the trial.
18 This may not necessarily be a reasoned-out answer to the issues
19 you raise in your motions, but for the time being this is just a thinking
20 that I am -- is going on in my mind and which I thought I should share
21 with the parties, pending a comprehensive response to all these motions.
23 Is there anybody who would like to say anything on these issues
24 that I have just raised? Mr. Tieger.
25 MR. TIEGER: Simply to note, Your Honour, that of course the
1 concern from the Prosecution side, at least in part, is the scheduling of
2 witnesses, many of whom we've now been in touch with. The -- and I
3 appreciate the situation the Court finds itself in now, but at some point
4 we'll -- we'll benefit from a date certain, or at least some indication
5 that we can give our witnesses by way of planning, many of whom are
6 located overseas, many of whom have busy schedules and need to adjust
7 those schedules in order to make an appearance here. So that's a --
8 clearly a concern on our part.
9 For the time being, obviously, we'll have them stand down. But as
10 soon as the -- well, two things are clear. As soon as we can -- the
11 sooner we can get some kind of date certain, understanding the
12 uncertainties of the moment, the better. And in addition, we'll need
13 sufficient lead time, and that generally involves six to eight weeks at a
14 minimum to be able to go through the logistical process of going through
15 VWS and so on, to schedule witnesses appropriately.
16 In the meantime, we'll alert them to the uncertainties, try to
17 project as accurately as we can, but that clearly involves difficulties
18 for everyone. And those are among the factors we have to take into
20 JUDGE MOLOTO: Certainly. Let me just say this to all the
21 parties, that certainly the Court will try, to its best, to accommodate
22 the parties and give them sufficient lead time when once everything is
23 certain. The only problem is that as of now everything -- nothing is
24 certain. I don't know when the appeal is going to be heard and when the
25 judgement will be handed down. A decision is still outstanding in the
1 Prodanovic matter. I don't know how long it will take -- I don't know
2 what the decision of the Appeals Chamber is going to be, I don't know what
3 the Prodanovic team is going to do with the decision that is going to come
4 down and what effect it's going to have.
5 But let me just say that that decision will be handed down fairly
6 soon. So nothing can be planned, even from the side of the Bench, in
7 terms of thinking of dates and time lines, because we just don't know from
8 what date do we start, when we start talking of time lines. But when all
9 that information has been ascertained, the Chamber will take into account
10 the logistical problems that all the parties are faced with. Okay?
11 Having said that, is there any further comment?
12 MR. KEHOE: Nothing from General Gotovina, Your Honour.
13 JUDGE MOLOTO: Thank you very much.
14 Mr. Prodanovic.
15 MR. PRODANOVIC: [Interpretation] Nothing, Your Honours.
16 JUDGE MOLOTO: Thank you.
17 MR. SEPAROVIC: [Interpretation] Just a few words, Your Honour.
18 Regardless of the outcome of the appeal that I have instituted, in view of
19 your request we are very actively seeking new counsel. We provided
20 evidence to the effect that we haven't been able to engage one until now,
21 but that doesn't mean that we will cease our efforts in that regard.
22 Regardless of the outcome of the appeal, the decision as it stands now is
23 not good for General Markac. It's not good for me either, but it's not my
24 interests that we are concerned with right now.
25 All I can tell you is that we are working on the problem. I will
1 continue doing my best to contribute to the resolution of this problem.
2 Thank you.
3 JUDGE MOLOTO: Thank you very much for those words, Mr. Separovic.
4 And that's also the motive of the Bench in sharing what I shared with you
5 a few minutes ago about -- when I dealt with the motions filed for the
6 Markac Chamber -- the Markac Defence team. I note that one of the things
7 that you asked for was an extension of time. As I said to you, you have
8 an effective extension of time; how long it will be, I really don't know.
9 That I said because I realised that you are finding difficulty in finding
10 replacement counsel in the region, and I just wanted to give you the
11 comfort that there is some more time for you to carry on doing that,
12 because it is also in the interests of the Chamber that you get this
13 counsel as soon as possible so that, depending on the outcome of the
14 appeal, that counsel should be -- should find sufficient time to update
15 themselves on the trial. So, yes, we share the same concerns. Thank you
16 very much.
17 That brings me to the end of agenda, as I had it. Are there any
18 issues that any of the parties would like to raise that are -- probably
19 were not an the agenda.
20 Let's start with you, Mr. Tieger.
21 MR. TIEGER: No particular issue, Your Honour. I just wonder if
22 the Court was going to specifically vacate the pre-trial date and the
23 trial date, and then maybe have a Status Conference for sometime, an
24 appropriate time thereafter.
25 JUDGE MOLOTO: Maybe you could guide us on that one. I haven't
1 had experience of that. When you want me to vacate, do I do that by
2 order? Or can I do it right here?
3 MR. TIEGER: I think the Court can do it -- Mr. Kehoe seems to
4 have a --
5 MR. KEHOE: I think you can do anything you want, Judge. That's
6 one of the beauties of wearing a red robe, Judge. I think you can just do
7 it orally, Judge, and that would be fine. I don't think there's any need
8 for anything other than an oral statement by the Court.
9 JUDGE MOLOTO: Well, the scheduling order is then so vacated
10 without any date certain.
11 Was that all you wanted to raise, Mr. Tieger?
12 MR. TIEGER: That's all I had, Your Honour.
13 JUDGE MOLOTO: Thank you very much.
14 Mr. Misetic, Mr. Kehoe, anything from the Gotovina team?
15 MR. KEHOE: Not at this time, Your Honour, from General Gotovina.
16 JUDGE MOLOTO: Thank you.
17 Mr. Prodanovic?
18 MR. PRODANOVIC: [Interpretation] Nothing to add, Your Honour.
19 JUDGE MOLOTO: Thank you very much.
20 Mr. Separovic?
21 MR. SEPAROVIC: [Interpretation] Neither do we, Your Honour.
22 JUDGE MOLOTO: Thank you very much. Then, there being no further
23 business to do, that brings us to the end of the Status Conference, and
24 the court stands adjourned.
25 --- Whereupon the Status Conference
1 adjourned at 10.04 a.m.