Tribunal Criminal Tribunal for the Former Yugoslavia

Page 269

1 Friday, 26 October 2007

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.15 p.m.

6 JUDGE MOLOTO: Good afternoon, everybody.

7 Mr. Registrar, would you please call the case.

8 THE REGISTRAR: Thank you, and good afternoon, Your Honour. This

9 is case number IT-06-90-PT, the Prosecutor versus Ante Gotovina et al.

10 JUDGE MOLOTO: Good afternoon, once again.

11 If we could please ask the parties to make their appearances

12 starting with the Prosecution.

13 MR. TIEGER: Good afternoon, Your Honour. Alan Tieger,

14 Laurel Baig and case manager Donna Henry Frijlink for the Prosecution.

15 JUDGE MOLOTO: Thank you very much, Mr. Tieger.

16 For Mr. Gotovina.

17 MR. KEHOE: Good afternoon, Your Honour. Greg Kehoe and

18 Luka Misetic on behalf of General Gotovina.

19 JUDGE MOLOTO: Thank you very much, Mr. Kehoe.

20 For Mr. Cermak?

21 MR. KAY: Steven Kay for Mr. Cermak.

22 JUDGE MOLOTO: Good afternoon, Mr. Kay. Thank you very much,

23 Mr. Kay.

24 And for Mr. Markac.

25 MR. MIKULICIC: [Interpretation] Good afternoon, Your Honour,

Page 270

1 Goran Mikulicic and Nikola Kuzmanovic appearing for Mr. Markac.

2 JUDGE MOLOTO: Did I hear you say --

3 MR. MIKULICIC: Sorry. Sorry, my mistake. It should be

4 Tomislav Kuzmanovic.

5 JUDGE MOLOTO: Thank you very much, Mr. Mikulicic.

6 JUDGE MOLOTO: Mr. Kay and Mr. Kuzmanovic, this is your first

7 appearance. May I take this opportunity to welcome you to this Court.

8 MR. KAY: Thank you very much, Your Honour.

9 MR. KUZMANOVIC: Thank you, Your Honour, I appreciate it.

10 JUDGE MOLOTO: Thank you.

11 Before we proceed, can we just deal with the situation of the

12 health of the accused and let me turn to the accused in this case and

13 verify this they can hear the proceedings in their own language. Starting

14 with you, Mr. Gotovina.

15 THE ACCUSED GOTOVINA: [Interpretation] Your Honour, thank you for

16 asking. I understand everything. Thank you very much.

17 JUDGE MOLOTO: Thank you very much.

18 Mr. Cermak.

19 THE ACCUSED CERMAK: [Interpretation] Your Honour, I understand.

20 Thank you.

21 JUDGE MOLOTO: Thank you very much, Mr. Cermak.

22 And Mr. Markac.

23 THE ACCUSED MARKAC: [Interpretation] Your Honour, everything is

24 just in order.

25 JUDGE MOLOTO: Let's now talk about your health situation,

Page 271

1 gentlemen, for a moment. Do you have any particular concerns which you

2 would like to raise, starting again with you, Mr. Gotovina?

3 THE ACCUSED GOTOVINA: [Interpretation] Your Honour, thank you for

4 asking. I don't have any health problems.

5 JUDGE MOLOTO: Thank you very much. I'm pleased to hear that,

6 Mr. Gotovina.

7 Mr. Cermak.

8 THE ACCUSED CERMAK: [Interpretation] Your Honour, my health

9 condition is in good order. Thank you very much.

10 JUDGE MOLOTO: Once again, I'm pleased to hear that.

11 Yes, Mr. Markac. There are some concerns about you?

12 THE ACCUSED MARKAC: [Interpretation] Your Honour, my health has

13 been drastically impaired in the last month, but since I have been given

14 new therapy I sincerely hope that it is going to improve.

15 JUDGE MOLOTO: The Chamber is very sorry to hear your health

16 condition has deteriorated over the last month but we also take solace in

17 the hope that you are under good hands and been taken good care of. Thank

18 you very much, Mr. Markac.

19 Let me now turn to the items on the agenda, the Status Conference

20 which we will -- will be roughly the same as those you discussed yesterday

21 in the Rule 65 ter meeting with the senior legal officer.

22 First of all, I'd like us to state that the last Status Conference

23 in this case was held on the 6th of July. On the 19th of September,

24 Mr. Cermak informed the Trial Chamber as well as the Office of Legal Aid

25 and Detention that he had selected new lead counsel, Mr. Steven Kay, and

Page 272

1 co-counsel Mr. Andrew Cayley. We have already welcomed Mr. Kay in court.

2 On the 27th, the Deputy Registrar revoked former counsel,

3 Mr. Prodanovic and Ms. Slokovic of their status as legal representatives

4 for Mr. Cermak, and instead admitted Mr. Steven Kay as lead counsel on

5 Mr. Cermak's behalf. As to Mr. Cayley, I understand from my staff that a

6 decision from the Deputy Registrar as counsel is still pending and may be

7 expected as early as maybe in a week or so from today.

8 Mr. Kay, before I ask you whether you feel that you have had an

9 adequate hand-over of the case from Mr. Prodanovic and Ms. Slokovic, let

10 me ask you one thing in regard to your representation in this case.

11 The Chamber notes that you, Mr. Kay, have now been appointed as

12 Defence counsel for the accused Mr. Ivan Cermak. Now, from the public

13 records -- or before I say that let me just say that we have a message

14 here coming from Judge Orie, which I would like to read as it stands. And

15 it goes as follows, he says: "From the public records one can easily

16 ascertain that you have in the past acted as co-counsel with the

17 then-Defence counsel Alphonse Orie in the trial of Dusko Tadic before this

18 very Tribunal."

19 Judge Orie is of the opinion and asked that I inform everyone

20 involved today that the cooperation and association which existed between

21 he and Mr. Kay as co-counsel at the time of the Tadic case is completely

22 unrelated to the present case and so remote in time as to cause him no

23 concern about his ability to perform his duties in a subjectively and

24 objectively impartial manner. If, however, any party to the present case

25 feels otherwise and wishes to act according to Rule 15, then that should

Page 273

1 be done without delay. And I expect to hear from you within about a week

2 or -- at the very least.

3 Yes, Mr. Kehoe.

4 MR. KEHOE: Judge, we can give you our position now. We don't see

5 any problem now. So that's the position of General Gotovina at this

6 moment.

7 JUDGE MOLOTO: Thank you very much, Mr. Kehoe.

8 Mr. Mikulicic?

9 MR. MIKULICIC: [Interpretation] Your Honour, as far as our Defence

10 team is concerned, we also don't have any problems having Mr. Kehoe [as

11 interpreted] in this case.

12 JUDGE MOLOTO: What is your own position, Mr. Kay?

13 MR. KAY: Thank you very much, Your Honour. I think the statement

14 by Judge Orie was entirely proper in the circumstances. It is in the

15 public domain that many years ago, I think it was 1996 that he and I were

16 co-counsel in the first case at this Tribunal. It is very common as we

17 know in many jurisdictions that members of the Bar go to the Bench, and I

18 have had the experience in my 30 years of practice of appearing in front

19 of many colleagues with whom I had been in cases, even shared rooms with

20 and premises over the years and appeared as counsel in front of them and

21 that has been an entirely proper matter and is not a cause of -- of public

22 concern. It is well-known that this happens, and each party has to do

23 their duty in the interests of justice and that is your function within

24 the criminal process, and I'm grateful for Judge Orie's statement as it is

25 a matter of public record and as well it be mentioned at the start of my

Page 274

1 engagement in this case.

2 JUDGE MOLOTO: Thank you very much, Mr. Kay, for that.

3 THE INTERPRETER: Microphone for the Honourable Judge, please.

4 JUDGE MOLOTO: I'm so sorry. The transcript reflects that

5 Mr. Mikulicic he has no problem with Mr. Kehoe appearing in this case.

6 You wanted to say Mr. Kay, Mr. Mikulicic?

7 MR. MIKULICIC: [Interpretation] Of course, Your Honour. I have

8 noticed the same mistake in the transcript. The name I mentioned was

9 Mr. Kay.

10 JUDGE MOLOTO: We just want to make sure that the record reflects

11 the correct position. That's all. Thank you very much.

12 If I may turn back to you, Mr. Kay.

13 MR. KAY: My question to you is whether you feel you have had an

14 adequate hand-over of the case and have you received the case materials

15 from Mr. Prodanovic and Ms. Slokovic so that you can represent the accused

16 Mr. General Cermak in this matter?

17 MR. KAY: Your Honour, I have had an adequate hand-over the

18 materials. There are some papers that are still outstanding. I have

19 raised that with previous counsel, and they have told me that they will

20 attend to this matter, and we have been able to conduct an audit of the

21 case papers relating to the Rule 65 ter witness statements. We're still

22 undertaking an audit of the Rule 65 ter exhibits, and we've been able to

23 satisfied ourselves that we have most of the materials and are in fact

24 liaising with the Prosecution in relation to any missing components that

25 there may be.

Page 275

1 JUDGE MOLOTO: And do I also have to understand that the hand-over

2 has been so comprehensive as to put you in a position to go forward with

3 the case in the shortest possible time? In other words, not only a

4 handing over of documents but a discussion between you and them of any

5 issues and sticklers that they may have been aware of in the case for you

6 to be in a position to prepare for them?

7 MR. KAY: Yes, Your Honour. I'm satisfied with my position.

8 JUDGE MOLOTO: Thank you very much. Then my next question is how

9 long do you anticipate it will take you to be prepared for trial? I have

10 indications of your answer yesterday, but I would like to hear you today.

11 MR. KAY: Yes, Your Honour. My answer is based on these factors:

12 Primarily the amount of exhibits that there are in this case. As I've

13 told the Court, I've just undertaken an audit of the materials. The

14 witness statements are some 160 or so forth Rule 65 ter list for trial.

15 The exhibits under the Rule 65 ter disclosure as exhibits intended to be

16 used for trial amount to 40 gigabytes. I don't know, Your Honour, yet in

17 terms of the Court and Your Honour's knowledge of computing, but I'm

18 told --

19 JUDGE MOLOTO: Completely illiterate.

20 MR. KAY: Your Honour, I'm told it's 40 of my old-style computers

21 that I was brought up on.

22 JUDGE MOLOTO: Even the old-style computers, I wasn't born yet.

23 MR. KAY: Your Honour has an advantage over me. But it is a

24 considerable amount. I can put it in this terms because this is in

25 lawyer's language: The exhibits I did in a previous case here, the case

Page 276

1 of Milosevic, the trial exhibits were about 20 gigabytes at the last time

2 I counted them, and that was probably before --

3 JUDGE MOLOTO: Which Milosevic?

4 MR. KAY: Slobodan Milosevic.

5 JUDGE MOLOTO: Slobodan. Okay.

6 MR. KAY: That was 20 gigabytes of trial exhibits probably before

7 I had the last download of his collection that was to be added to the

8 system. So that does fill me with dread, and I've had some experience of

9 trying to wade my way through this level of materials and it takes a

10 considerable amount of time. So I preface my answer to Your Honour with

11 that information, because it's my duty to be thoroughly prepared, and if

12 I'm not prepared and anyone visits this case later and it's said, well, it

13 was given to you at the time, it's of no satisfaction if I haven't had

14 sufficient time to find important material.

15 In my judgement, that would take one year's worth of preparation,

16 and I told the chief law officer that yesterday, that in my view by the

17 1st of October next year I would be ready for trial, as I say, based on

18 the amount of material that I've had to deal with at this stage and take

19 an audit of.

20 So Your Honour is going to be faced with this amount of material,

21 apparently, on the basis of the Rule 65 ter exhibit disclosure, and I

22 don't know how that -- the Court is going to be able to deal with that.

23 That may cause a functional problem in the trial process, but certainly in

24 terms of preparation, having to carve my way through that much material I

25 can see it will take a considerable amount of time.

Page 277

1 As a further factor that we haven't had disclosure of Prosecution

2 expert reports, who are significant witnesses in this case. I primarily

3 refer to two witnesses, one General Pringle, and the other is

4 Mr. Theunens, who is an in-house expert for the Prosecutor. We were told

5 yesterday that his report would be expected round about February of next

6 year.

7 Now, his report is highly significant, because on the basis of

8 what he says as an expert, and again I've had experience of him giving

9 evidence in the other trial of Slobodan Milosevic and know the amount of

10 materials that he is capable of producing, as well as the amount of

11 information that he is capable of producing. We have to send his

12 materials and conclusions to our own expert to get support and help in

13 relation to the opinion evidence that he's giving. That takes time.

14 Finding international experts is not easy. That is why the Prosecution

15 now have their own in-house expert in the form of Mr. Theunens. It was a

16 well-known fact that it was out of convenience and to make it easier for

17 them in the conduct of their case. But the obligation also falls upon us

18 to get a report on what he's telling the Court as a highly significant

19 witness in this case producing very important documents relating to

20 command, military structure, the kind of information that this Court will

21 be basing its judgement upon.

22 JUDGE MOLOTO: You understand, Mr. Kay, that if I may just limit

23 myself to the time you say you'll need to prepare, that you will have then

24 to appear before the Secretary-General, because this Tribunal will be no

25 more.

Page 278

1 MR. KAY: I was going to say it's always a pleasure to appear in

2 front of the Secretary-General, but I haven't had that pleasure yet, nor

3 the Security Council, but in relation to this, I understand the problem,

4 but we are working in the interests of justice, and I know Your Honour is

5 as well, and we have this burden and obligation, and those of us who have

6 to shoulder this responsibility have to ensure we perform our tasks

7 properly so that people look back at this case and say the job that was

8 done was done properly, and that is my prime concern since I am asked as

9 to my position.

10 JUDGE MOLOTO: I hear what you have told me.

11 MR. KAY: Yes.

12 JUDGE MOLOTO: Bearing in mind the comment I just made recently.

13 MR. KAY: Yes.

14 JUDGE MOLOTO: You do understand that you may therefore not

15 necessarily get the full year.

16 MR. KAY: Very well, Your Honour.

17 JUDGE MOLOTO: Thank you. I give no answer to the question as to

18 how long you will be given. It will all depend on how the case runs.

19 MR. KAY: I note Your Honour's comment.

20 JUDGE MOLOTO: Thank you.

21 Can we now, unless anyone has anything to say on what we have been

22 discussing with Mr. Kay, I'd like to move on to the next section. Any

23 comments Prosecution.

24 MR. TIEGER: It's somewhat in anticipation of some of the other

25 items that will be addressed, Your Honour. I can defer my comments for

Page 279

1 that time or respond directly to what Mr. Kay just said.

2 JUDGE MOLOTO: You don't want to countermand the suggestion that

3 the expert report will only be coming in February?

4 MR. TIEGER: I'll actually address both of the issues.

5 JUDGE MOLOTO: At the appropriate time.

6 MR. TIEGER: Yes.

7 JUDGE MOLOTO: Thank you very much.

8 Any comments from the Defence?

9 MR. KEHOE: No, Your Honour.

10 JUDGE MOLOTO: Nothing? Mr. Mikulicic?

11 MR. KUZMANOVIC: Your Honour, if I may, you're well aware I am new

12 to the case. I am similar preparation issues. I know we have a team in

13 place already and we're not similarly situated to Mr. Kay and his

14 situation. However, I -- I also need time to get into the case myself. I

15 have not looked at anything other than the publicly filed documents and

16 obviously the indictment, so for myself the time necessary I advised the

17 legal officer yesterday would be at least until mid-summer, July or August

18 of next year for myself just for my own benefit to get up to speed with

19 all the volume of material and documents. So I wanted to make the Court

20 aware of that. Obviously I am differently situated from Mr. Kay given

21 that he is starting entirely from scratch, but I wanted to let the Court

22 know.

23 JUDGE MOLOTO: Thank you very much, Mr. Kuzmanovic. I was going

24 to turn to you but thank you for taking the opportunity to get to the

25 point quicker. You did hear my comments to Mr. Kay. They are equally

Page 280

1 apposite to you.

2 Thank you. That disposes of the situation of Mr. Kuzmanovic.

3 Now, if we may now turn to the next point on the agenda which

4 relates to counsel for General Gotovina, or am I getting confused? Just a

5 second.

6 I'm sorry. If we can deal with the issues relating to counsel for

7 Mr. Markac. We have dealt with the fact that Mr. Kuzmanovic is also new.

8 I wanted to note with respect to you, Mr. Kuzmanovic, that I

9 understand that your appointment by the registrar is also still pending,

10 but that you were granted permission to attend today's Status Conference.

11 Now, your appointment, as I understand it, is just waiting for

12 your certificate of good standing from your state Supreme Court; is that

13 correct?

14 MR. KUZMANOVIC: Your Honour, that's correct.

15 JUDGE MOLOTO: It's a matter of formality.

16 MR. KUZMANOVIC: Correct. It's been ordered. It should be in by

17 the time I get back to the United States, and I will immediately transmit

18 it to the Registry.

19 JUDGE MOLOTO: Thank you very much.

20 MR. KUZMANOVIC: And thank you, Your Honour, for allowing my

21 appearance today.

22 JUDGE MOLOTO: You are most welcome. And you have also been on

23 this case previously as co-counsel.

24 MR. KUZMANOVIC: On this case I have not, Your Honour. I have

25 been in the Celebici case way back in 1998, and for a while I was in the

Page 281

1 Herceg-Bosna case for Mr. Stojic. That was about a year and a half ago.

2 I am on the list of approved counsel. I have just not been on this

3 particular case before, Your Honour.

4 JUDGE MOLOTO: Okay. While we are on counsel for Mr. Markac, I

5 guess an additional item was covered yesterday, that of former counsel

6 Mr. Separovic as investigator. My understanding from the 65 ter

7 Conference is that he is not to be employed as an investigator on

8 General Markac's team. Is that correct or are you able to comment on that

9 Mr. Mikulicic?

10 MR. MIKULICIC: [Interpretation] Yes, Your Honour. After the

11 outcome of events concerning Mr. Separovic, the Defence team for

12 Mr. Markac addressed the Registry to allow Mr. Separovic to participate on

13 our team as an investigator. The Defence team for Mr. Markac hasn't been

14 given a negative answer, and with that we believe that the matter has been

15 dealt with.

16 We informed everybody about that at yesterday's 65 ter Conference,

17 and we would like to drop this issue from now on.

18 JUDGE MOLOTO: Just before we drop it, I would like to get

19 absolute clarity what you mean by the Defence team for Mr. Markac

20 addressed the Registry to allow Mr. Separovic to participate on our team

21 as an investigator. The Defence team for Mr. Markac hasn't been given a

22 negative answer and with that we believe the matter has been dealt with.

23 What is the resolution of the matter, sir? Is he or is he not

24 going to be part of your team whether in the background or not?

25 MR. MIKULICIC: [Interpretation] Mr. Separovic will not have a

Page 282

1 formal role on the Defence team for General Markac. We will honour the

2 decision of the Registry, which has established that there is a conflict

3 of interest. We have been given a negative answer, and we will act

4 accordingly.

5 JUDGE MOLOTO: Thank you very much, Mr. Mikulicic, but for the

6 sake of absolute abundance, he will have an informal role?

7 MR. MIKULICIC: [Interpretation] Mr. Separovic will not have an

8 informal role on the Defence team for Mr. Markac. However, there will be

9 some time required to hand over the material that he collected in the

10 course of his preparation for the case while he was still on the team, but

11 that will be all.

12 JUDGE MOLOTO: Do I understand you to be saying, sir, that he has

13 not handed over the material up to now? For starters, you were co-counsel

14 with him, so whatever material he has you are supposed to have, but even

15 if he has some material that you didn't have, I cannot believe that he has

16 still not handed it over at this stage.

17 MR. MIKULICIC: [Interpretation] Your Honour, I may have misspoken.

18 Mr. Separovic did hand over the material, but -- I may have misspoken. It

19 is not about Mr. Separovic not having handed over the material from the

20 early days of his preparation for this case, and I'm talking about a

21 period going back to four years ago. He made some notes of his own, and

22 he has promised us that he will go through his notes and that he would

23 inform the Defence team whether his notes might indicate something that

24 needs to be investigated. Otherwise, anything that the Defence team has

25 collected through investigation on the ground is in the possession of the

Page 283

1 Defence team for General Markac. Nothing has been retained by anybody

2 else. So in that respect there are no problems.

3 JUDGE MOLOTO: Thank you very much. And the Chamber can accept

4 that but for whatever outstanding notes that he may have that he's still

5 going through, Mr. Prodanovic [sic] will have nothing whatsoever to do

6 with the Defence of Mr. Markac henceforth.

7 MR. MIKULICIC: [Interpretation] That's correct, Your Honour.

8 JUDGE MOLOTO: Thank you so much. Any -- any comments by anybody

9 on this item before we move on to the next item? Mr. Kay.

10 MR. KAY: We've just seen on the transcript here my case manager

11 Mr. Mak that it's written down "Prodanovic" and it should be "Separovic".

12 JUDGE MOLOTO: My apologies. I think I misspoke this time. My

13 apologies.

14 Okay. Anybody else? Prosecution?

15 MR. TIEGER: No, Your Honour. Thank you.

16 JUDGE MOLOTO: Mr. Kehoe?

17 MR. KEHOE: No, Your Honour, thank you.

18 JUDGE MOLOTO: Thank you. Can we now turn to counsel for

19 General Gotovina.

20 Now, with respect to the Defence for Mr. Gotovina is the status of

21 the alleged conflict of interest of Mr. Kehoe.

22 Let me start off by saying that on the 3rd of October, the

23 Prosecution complied with this Chamber's order to submit to it information

24 on materials in relation to Mr. Kehoe's prior participation, if any, in

25 relation to this case within the OTP. The information and materials were

Page 284

1 submitted and entitled ex parte and confidential to the Trial Chamber

2 only. I'm saying entitled ex parte advisedly, because I will be asking

3 from Mr. Tieger when I finish here which party has been given the papers.

4 We have been reviewing submission and feel the need at this point

5 to address a few matters with you -- with the parties, and the first point

6 that we'd like to address is which is the party -- the only party that was

7 given the copy of the documents?

8 MR. TIEGER: The Chamber, Your Honour, and if it misleadingly

9 indicated -- of course it did in formal terms, I think that was a way of

10 indicating that the documents would be -- would not be going to all the

11 parties, in this case any of the parties, but we're not aware of any

12 particular characterisation that would indicate it was going only to the

13 Court, but I understand how that was confusing and apologise for that.

14 JUDGE MOLOTO: Not a problem at all, as long as we understand all

15 of us that the Chamber is not a party.

16 MR. TIEGER: Of course.

17 JUDGE MOLOTO: Indeed. May I say if any of the parties, before we

18 carry on with this discussion, feels the need to go into private session,

19 please do say so. I'm not quite sure you may be the one more informed

20 about what may needs to go into private session or not. The Court isn't

21 going to voluntarily go into private session. If any one of you feels

22 like go into private session, please do so.

23 MR. KEHOE: Judge, my only comment is that the difficulty I don't

24 really know what we're talking about.

25 JUDGE MOLOTO: We're talking about you.

Page 285

1 MR. KEHOE: I'm well aware of that, Judge. I'm just talking about

2 the particular documentation.

3 JUDGE MOLOTO: We'll get to that. I'm just saying if you want to

4 talk about those things -- yes, Mr. Misetic.

5 MR. MISETIC: Your Honour, I just want to make a comment --

6 THE INTERPRETER: Microphone for the counsel, please.

7 MR. MISETIC: I said perhaps it would be wise to go into private

8 session first and then you can tell us what it is that we're going to be

9 speaking about and then we can determine whether it will be wise to go

10 into private session on it or not.

11 JUDGE MOLOTO: I can tell you now in public session what it is

12 we -- what we're going to be speaking about. We're going to be speaking

13 not the contents of what I'm going to say, but we're going to say about

14 the documents that has been submitted to the Chamber by the Prosecution

15 that documents the extent, if any, to which Mr. Kehoe has been involved in

16 the investigation of this case while he was working for the OTP.

17 That's -- that's the essence of the motion, isn't it?

18 MR. MISETIC: It is the essence of the motion, Your Honour, but I

19 would point out that I believe at the end of September and again yesterday

20 at the 65 ter Conference we pointed out that it's a little bit awkward for

21 us to be called into a Status Conference to address issues that have been

22 submitted ex parte and to comment on matters that we have not had a chance

23 to even review in preparation so --

24 JUDGE MOLOTO: You are not going to be asked to comment on those

25 matters, Mr. Misetic. You're running just a little ahead of us.

Page 286

1 MR. MISETIC: That's why I suggested maybe private session to be

2 told first --

3 THE INTERPRETER: Would the parties please slow down. Thank you.

4 JUDGE MOLOTO: We apologise, madam interpreter.

5 There's a request that the Chamber moves into private session.

6 May the Chamber please move into private session.

7 [Private session]

8 (redacted)

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11 Pages 287-304 redacted. Private session.















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3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 [Open session]

8 THE REGISTRAR: We're now in open session, Your Honour.

9 JUDGE MOLOTO: Thank you very much.

10 Yes, Mr. Tieger.

11 May I just say in public session now we're now dealing with the

12 question of the status of the contempt investigation. Thank you.

13 Mr. Tieger.

14 MR. TIEGER: Your Honour, I'm never quite clear on how much

15 information the Court wants us to repeat from the 65 ter conference but

16 perhaps the Court wanted an update on the projected completion date.

17 JUDGE MOLOTO: I did hear, Mr. Tieger. Let me just say, and

18 correct me if I'm misquoting what they told me, the report I get is that

19 you stated that you are not personally involved in the investigation, that

20 you are pushing the team to come up to speed with results. I would like

21 to have indications how soon can we hear, and -- because we want to get

22 that issue off the table as quickly as possible. To say we are pushing

23 the team to come up with results is one thing, but to give time lines is

24 quite another, and I would like to hold you to those time lines.

25 MR. TIEGER: Of course, Your Honour. And in the interests of

Page 306

1 accuracy, I don't think I can say I was pushing the team. I'm outside

2 that -- no, but I did alert them to the Court's concerns and I did speak

3 with the attorney today as I indicated I would, and my understanding is

4 that the projected completion date is the end of November. So

5 approximately one month.

6 JUDGE MOLOTO: Completion of what? Of the investigation?

7 MR. TIEGER: Yes, that's my understanding.

8 JUDGE MOLOTO: Can't it be made quicker than that, sir?

9 MR. TIEGER: I -- that I don't know, and I don't have the details

10 of the investigation, but I think it's fair to say I expressed, during the

11 course of my conversation, the same interest the Court has just expressed,

12 and of course I'll be more than happy to express the Court's concern in

13 the speediest possible resolution.

14 JUDGE MOLOTO: Indeed, sir.

15 MR. TIEGER: When the hearing is over.

16 JUDGE MOLOTO: The court would appreciate that very much. The

17 matter has been hanging and for some time now, and I didn't think there

18 would be a lot of people to go and talk to about this matter or to get to

19 the source of the problem, but please do express the concern of the Court

20 on the question of urgency.

21 MR. TIEGER: Absolutely, Your Honour.

22 JUDGE MOLOTO: Thank you so much. I'm not sure whether anybody

23 would like to make any contributions on this. I see Mr. Kehoe is shaking

24 his head. Mr. Kay, you're not even looking my way. And Mr. Mikulicic,

25 you're not making any contribution. Thank you very much.

Page 307

1 I do think maybe, Mr. Tieger, what would you give as a reasonable

2 time line, you yourself, given the fact that you were going to talk to

3 them? I will not use the word "push," but I would have loved you to push

4 them. I'm trying to push you.

5 MR. TIEGER: And -- there's a law of physics that applies to that.

6 It just keeps moving forward, and I think it will apply in this case.


8 MR. TIEGER: I don't know, Your Honour. I -- if I knew the

9 details of the investigation, that is whether or not it was always --

10 always should have been very short but it got off to a slow start, or

11 whether or not they uncovered some issues that need to be -- that were

12 unanticipated and need to be more fully fleshed, I simply don't know.


14 MR. TIEGER: But.


16 MR. TIEGER: You've made your position quite clear. And I will

17 certainly convey that in no uncertain terms.

18 JUDGE MOLOTO: Okay, I'm going to put this time line. I'm going

19 to ask you to come back to court in writing, no later than the 31st of

20 October with a definitive answer from those who are doing the

21 investigation giving you specific time lines and giving you a progress

22 report. That progress report, if you could please file it by the 31st of

23 December [sic] from them.

24 MR. TIEGER: Yes, Your Honour.

25 JUDGE MOLOTO: That okay?

Page 308

1 MR. TIEGER: Yes.

2 JUDGE MOLOTO: Thank you very much.

3 MR. TIEGER: I note that the - the transcript says the 31st of

4 December and the Court said October, of course.

5 JUDGE MOLOTO: I did say October and if it says December, it

6 probably means December 2006. Okay.

7 The tapes have run out. Apparently we need to take a break. Can

8 we take a break until -- until 4.00 and come back at 4.00?

9 Court adjourned.

10 --- Recess taken at 3.38 p.m.

11 --- On resuming at 4.01 p.m.

12 JUDGE MOLOTO: Sorry about that little delay.

13 And I'm sorry, these are the setbacks of efficiency. My glasses

14 are not here.

15 I guess the next item we were going to look at is the

16 Prosecution's motions under 92 bis, ter, quater, and for protective

17 measures.

18 The Chamber is aware that the Prosecution filed a motion this week

19 seeking that admission of statements of nine witnesses under Rule 92 bis

20 and nine witnesses under Rule 92 quater. And I understand that there may

21 be more such motions in the future.

22 Mr. Tieger, are you able to update us a little bit on that?

23 MR. TIEGER: The Court's account of the status is quite correct.

24 I presume in asking for the update -- well, I mean the Court has

25 accurately recited the status and the update since the last Status

Page 309

1 Conference. I also indicated at the 65 ter Conference that I hoped that

2 there would be further identification of witnesses whose testimony is

3 amenable to presentation via 92 bis or certainly 92 ter and I will be

4 alert to those possibilities as we proceed. I don't want to weave in

5 agreed facts throughout the course of that but I think it does play a role

6 in the identification of which witnesses may be appropriate. I will be

7 telling the Court when we address that issue that this has become an

8 increasingly pro-active and aggressive process yielding information that

9 is of considerable benefit in making those assessments. I believe the

10 Court would appreciate it if the parties used the provisions of 92 --

11 Rule 92 to the greatest extent possibly and we're trying to do that.

12 JUDGE MOLOTO: Thank you. Thank you, Mr. Tieger. And what

13 progress, if any, is being made in terms of submitting motions related to

14 protective measures?

15 MR. TIEGER: Your Honour, with respect to the -- the pre-trial

16 protective measures, we've largely resolved all those issues. There are

17 only two additional witnesses remaining subject to pre-trial protective

18 measures protection. We lifted the protections for Witnesses P13 and P15

19 yesterday. At least we advised the Senior Legal Officer that we would be

20 doing so with the Court's permission based on the fact that we were now in

21 a position -- that the conditions which had pertained earlier and upon

22 which the Court granted the protective measures no longer applied and we

23 were in a position to disclose the information to the Defence.

24 JUDGE MOLOTO: Thank you very much for that, Mr. Tieger.

25 Now, the one or two that might still be outstanding, do you have

Page 310

1 any idea how soon that could be for protective measures? I'm sorry, I --

2 I might have misheard. I thought you said that there were maybe one or

3 two -- thank you so much.

4 I thought you said there may be one or two outstanding for

5 protective measures.

6 MR. TIEGER: Your Honour, we have focused on those two witnesses.

7 I believe we will be able to resolve that one way or another in reasonably

8 short order. It's certainly our intention to do that. So we don't --

9 don't want that issue to linger any longer than necessary, but because of

10 the circumstances applying to those witnesses it's -- it involves a

11 somewhat continued effort and process but we'll attend directly to that

12 question in -- virtually immediately.

13 JUDGE MOLOTO: You know the Chamber sort of likes time lines. Are

14 you able to give?

15 MR. TIEGER: Well, I can certainly -- may I do the same thing the

16 Court suggested within a similar problem earlier, and that is at least

17 commit to reporting to the Court within two weeks? I don't know that it

18 will be resolved by then, but at least we can keep the Court updated.

19 JUDGE MOLOTO: You want two weeks for this one?

20 MR. TIEGER: I think -- I'm sorry, Your Honour?

21 JUDGE MOLOTO: You want two weeks for this particular issue?

22 MR. TIEGER: To let the Court know what the status is and -- yes,

23 thank you. If that's appropriate.

24 JUDGE MOLOTO: So be it. Then 14 days from today if you could

25 file a report, Mr. Tieger.

Page 311

1 Any other comments.

2 MR. KEHOE: Yes, we obviously just received this while we were in

3 transit here. We've taken a quick glance at it and obviously we're going

4 to have comment on some of these motions but we haven't had a chance to

5 fully discuss them, not only between ourselves and the team, but also with

6 other counsel.

7 JUDGE MOLOTO: Thank you very much, Mr. Kehoe.

8 Mr. Kay.

9 MR. KAY: We've just received the motion and we're working on it.

10 JUDGE MOLOTO: Yes, I guess you will be saying the same thing,

11 Mr. Mikulicic?

12 MR. MIKULICIC: [Interpretation] Yes, Your Honour.

13 JUDGE MOLOTO: Thank you very much.

14 Can we then move on to the next item, progress on agreed facts.

15 In view of the fact that each accused now has counsel, the efforts

16 on agreed facts should be stepped up significantly. I understand that new

17 counsel being appointed has slowed the progress to some degree and you are

18 now exchanging information, but still I'd like to hear any more

19 information, if there is any, on progress in this regard.

20 Yes, Mr. Kehoe.

21 MR. KEHOE: Yes, Your Honour. I will tell you that pursuant to

22 Your Honour's instructions and/or orders, we have continued to discuss

23 these matters with the Office of the Prosecutor both on the phone and in

24 personal meetings. Since the last discussion, even prior to that time,

25 there have been letters going back and forth pursuant to Your Honour's

Page 312

1 instructions. You told us the view on some of the crime based issues and

2 victims, et cetera. We have done that. There are letters going back and

3 forth. I know it's not going to make it to the transcript per se, but I'm

4 handing up -- just a dossier of letters that have gone back and forth

5 between the Gotovina Defence team and the Prosecution on potential

6 stipulated facts. And I will say that the sessions themselves are

7 instructive in many different ways, and one of the most importantly is

8 hashing out what is important to the respective parties.

9 I have taken the liberty after consulting with my co-counsel,

10 Mr. Tieger, to --

11 JUDGE MOLOTO: I didn't know Mr. Tieger is your co-counsel.

12 MR. KEHOE: In the generic sense. As members of the Bar.

13 I took the -- after talking to Mr. Tieger, I forwarded a letter to

14 Mr. Kay as new counsel saying that if -- number one, that Your Honour has

15 instructed us to participate continuously in these agreed facts sessions

16 and, number two, if you want the benefit of our letters back and forth

17 with the Office of the Prosecutor as well as the Office of the

18 Prosecutor's responses, we will gladly do so. Mr. Kay and I haven't seen

19 each other. We had the opportunity to see each other yesterday. He got

20 the letter, and he of course accepted that invitation and as soon as I go

21 back to my office I will forward that correspondence to -- to Mr. Kay, and

22 of course Mr. Kuzmanovic on behalf of Mr. Markac as well.

23 JUDGE MOLOTO: Thank you very much. Thank you very much,

24 Mr. Kehoe. Excuse me. Certainly the Court doesn't want to see

25 correspondence between the parties, but -- if that is what you said, I'm

Page 313

1 not quite sure that's what you said, that you could give them. What the

2 Court would like to see maybe is a -- a joint report on progress. I know

3 you have just given an oral report now, but you know --

4 MR. KEHOE: We can do that, Judge. I know Your Honour doesn't

5 want to receive the correspondence. I showed that to you just to

6 demonstrate that we have not respectively been sitting on our hands once

7 we got Your Honour's instruction that notwithstanding counsel problems we

8 were to continue to meet on the agreed facts and we'll gladly give you an

9 assessment as to where that is. In all fairness to other counsel, there

10 are issues that impact General Gotovina that don't impact the other

11 accused, and likewise there are other issues that impact the other accused

12 that don't impact General Gotovina, and I'll say that my submissions and

13 my questions to the Office of the Prosecutor, of course, were directed

14 with the defence of General Gotovina in mind. Notwithstanding that, I do

15 believe that the issues that we lay out in the letter will be instructive

16 to fellow counsel.

17 JUDGE MOLOTO: Now that you're on your feet are you in a position

18 to give a time line? Sorry, time line is the buzzword.

19 MR. KEHOE: Am I in a position to give a time line? No,

20 Your Honour, I'm not, and I say that because I think at this juncture the

21 time line -- and as we move forward, while I can give counsel the benefit

22 of some of the things we've done, in order for us to progress meaningfully

23 into the future other counsel will have to participate as well, because it

24 may simply be that I will agree to a fact that counsel for another accused

25 will not and vice versa. So it's difficult for me to say.

Page 314

1 I have a better suggestion, Judge, on time line. You give that

2 question to Mr. Tieger.

3 JUDGE MOLOTO: I would like to give it to you, Mr. Kehoe, on

4 behalf of everybody else to say -- a report on progress thus far.

5 MR. KEHOE: I can give you that, Judge, in writing. We can give

6 you a report.

7 JUDGE MOLOTO: That's right. Do you think that can -- how soon

8 with that be?

9 MR. KEHOE: Two weeks? I can give you something in writing by,

10 you know, in a two-week period of time, or -- does that suffice?

11 JUDGE MOLOTO: The question of time line would be applicable to

12 everybody? Is Mr. Kehoe speaking on behalf of everybody?

13 MR. KEHOE: I have not consulted with my co-counsel on this score

14 so I don't really want to speak for their benefit, Judge. I'm just

15 speaking on behalf of General Gotovina.

16 JUDGE MOLOTO: Okay. Thank you very much.

17 Would that time line be okay with you, Mr. Kay? I'm not

18 suggesting that you give a report on the -- all the agreed facts, but I'm

19 saying just to give a report on what has been done thus far.

20 MR. KAY: Dealing with the 92 bis first of all, which is an

21 in-road, so to speak, and a way of dealing with evidence in a shorter form

22 is our first priority to deal with that Prosecution motion.

23 In relation to agreed facts, the -- on the Defence side we all

24 serve three separate interests, and it's very difficult for us to drive

25 such an issue, whereas if the Prosecution was to draft a schedule from

Page 315

1 which we then started work upon, we could see what it was in relation to

2 their case they were seeking agreement upon and what could be accommodated

3 and not.

4 JUDGE MOLOTO: My assumption was that that kind of schedule would

5 have long been drawn.

6 MR. KAY: Yeah.

7 JUDGE MOLOTO: That's the first step in trying to reach agreement

8 on agreed facts.

9 MR. KAY: I -- as the Court knows, I'm just into it. I certainly

10 haven't come across a document yet, and I've done a -- or had done an

11 audit of what we got, and I haven't seen such a document with the

12 provisions or at least headings of provisions.

13 For our own part we're working upon something that occurred to me

14 of interest for -- for our case, and I was preparing a documentary file in

15 relation to that. But for the whole scope of facts in relation to the

16 context of the case, I haven't seen a schedule yet drawn up that directs

17 my attention in any particular directions.

18 JUDGE MOLOTO: Thank you very much.

19 Any contribution? I don't know if Mr. Mikulicic or Mr. Tieger has

20 anything to say.

21 Yes, Mr. Mikulicic.

22 MR. MIKULICIC: [Interpretation] Thank you, Your Honour. I can

23 only repeat Mr. Kay's words. Mr. Markac's Defence is open for all

24 contacts with the Prosecutor with regard to agreed facts. However, the

25 burden of proof is on the Prosecution, and in this case the Prosecution

Page 316

1 has to file a submission that would include those facts. We have already

2 started the process, and we are well into that process from the time when

3 before the joinder and indictment. After the joinder indictment, we have

4 not had much progress in arriving at agreed facts.

5 I repeat, we are open for this kind of operation and for contacts

6 in that respect, but the ball is in the Prosecutor's court, and we're

7 awaiting for their proposal for the agreed facts that we might agree with.

8 JUDGE MOLOTO: Mr. Tieger, do you have anything to say on what has

9 been said?

10 MR. TIEGER: Yes, Your Honour. I suspect that the Court's concern

11 is in part that all the parties are expressing goodwill toward reaching

12 agreed facts but that little concrete progress is being made, so let me

13 relate a discussion that all of us had the other day concerning one aspect

14 of the agreed facts process that I believe will yield significant results

15 in terms of expediting the trial process, and that concerned the

16 preparation of -- and I should also say I think this links up closely with

17 the concerns Mr. Kay expressed about immersing himself in the case,

18 becoming familiar with the materials, identifying those materials that are

19 of most significance and so on.

20 So what was discussed was -- and -- was the categorisation of the

21 documentation in the case by their relevant categories. And without going

22 into details, the documents fall into particular categories produced by

23 particular groups that will clearly be the subject of focus in the case

24 and that will be tendered or in the course of the case. We'll be putting

25 those together, looking at them in individual categories. The Prosecution

Page 317

1 will be identifying for the benefit of the Defence those areas of the

2 documents they're most interested in. The Defence will be identifying any

3 documents that they think for some reason are so unreliable that they

4 shouldn't be admitted into evidence or documents that they think have

5 greater or lesser weight and we'll move on to the next category.

6 In that manner, the parties will do a number of things. First of

7 all, we will have those -- much of the evidence issues out of the way

8 before we begin. Secondly, we'll be identifying the most significant

9 documents and most significant issues in the case, and all parties will be

10 focusing on what the case is really about and what's really in dispute

11 during the course of that process.

12 We also agreed to regular meetings, hopefully in person, but at

13 least by phone in connection with that process. Now, that was preceded

14 by, as Mr. Kehoe indicated, fairly detailed and concrete and specific

15 discussion about crime base related events. Now, I think those are often

16 difficult to resolve in their entirety, although not impossible, but

17 they're certainly possible to narrow and that has been happening. And

18 even when there's not a complete consensus, and there's -- the likelihood

19 of that happening obviously varies, about any particular event, at a

20 minimum, and it's a significant minimum, the parties know what the issues

21 in contention are and therefore know how to lead their evidence much more

22 efficiently.

23 So in fairness, I don't want to be in the position of being the

24 sort of vocal proponent for agreed facts -- for the agreed facts process.

25 I think it's a difficult process. I don't -- I can't cite an example in

Page 318

1 the past where it's been remarkably effective to the trial process, but I

2 can say I found this one to be considerably different, and the

3 participation of the Defence in this process fulsome and active, and I

4 think this differs from those that have occurred in the past. But again,

5 I just want to underscore that there is -- there has been an agreement on

6 a specific proposal and -- some specific proposals and regular meetings at

7 which those issues would be addressed, and the experience thus far has

8 been that the meetings, even when they don't result in consensus

9 surrounding all of the events in -- of concern, nevertheless narrow the

10 issues and indicate to the parties what the case is really about.

11 JUDGE MOLOTO: Yes, Mr. Misetic.

12 MR. MISETIC: Sorry, Your Honour.

13 JUDGE MOLOTO: No, not at all.

14 MR. MISETIC: I agree with Mr. Tieger's assessment of some of the

15 things that we've been doing to try to streamline this process. To make

16 Your Honour feel better because I think I know where you're going --

17 JUDGE MOLOTO: I'm pleased you know.

18 MR. MISETIC: Yes, the Gotovina Defence yesterday, as we indicated

19 yesterday at the 65 ter and told the Prosecution, we have prepared a

20 roster of agreed facts for background facts for things like structure,

21 UN-protected areas which I'm sure Your Honour is familiar with. There

22 will be several hundred of those we will circulate to all the parties

23 within the next seven days but give me a little bit of wiggle room to say

24 within the next 14 days that will be circulated and it'll just be fact,

25 agreed, not agreed and we can move forward and from that perhaps narrow

Page 319

1 down much of this trial in terms of what we agree on in terms of

2 background. So in addition to everything that Mr. Kehoe has stated,

3 Mr. Tieger had stated regarding what we're doing to narrow the scope of

4 this case, there will also be something on paper circulated where

5 Your Honour at some point in time if you wanted to take a look, you'd be

6 able to take a look at what we've agreed to so far.

7 JUDGE MOLOTO: Mr. Misetic, I must say you have done a tremendous

8 job to relieve me. I was almost collapsing. But I think I still,

9 notwithstanding what you've said which I really welcome, I'd like to

10 express a concern from the Bench.

11 But for what you told me, everything I've heard on this point has

12 really not been concrete. I hear we're making arrangements for that,

13 we're meeting, we're writing letters, we're doing what, and I want to say

14 that this point has been raised I can't remember how many Status

15 Conference this is, but from the very first one this point was raised, and

16 the answer has always been we're working at it. Now, if I summarise what

17 I've heard this whole afternoon is still we're working at it, but I'm not

18 quite getting anything concrete from the parties. I'm mindful of you

19 standing, Mr. Tieger, but let me just finish.

20 You know, I say this if you hear -- if you rather what Mr. Kay and

21 Mr. Mikulicic said, we're waiting for an approach from the Prosecution.

22 We can't drive this because we've got different interests and I, at some

23 stage, I interjected when somebody was speaking that a schedule of agreed

24 facts would be the starting point, proposed agreed facts which would be

25 sent to the other parties to say we think we can agree on this. What do

Page 320

1 you think? And do you have any more to add? I get a sense that we are

2 not at that stage just yet, and I asked myself what is it have we been --

3 that we have been working at for the whole of this year?

4 MR. KEHOE: I can say that what we have been doing is following

5 what Your Honour said with regard to the victim and the crime base aspects

6 of this had case, addressing ourselves to the multiple homicides both that

7 have been charged and that are part of the appendix, and boring down into

8 those homicides, so we're not in here trying every aspect of multiple

9 homicide counts. And that is a time intensive process and when we go

10 through those and we have the exchange of letters and then we meet with

11 the Office of the Prosecutor and come to understand what they find

12 significant in this particular homicide count or what we think is lacking

13 in this particular homicide count such as whether or not General Gotovina

14 knew about it, those are very, very instructive issues on several scores.

15 Number one, a broad agreement on exactly what transpired. Number

16 two, highlighting what the areas of difference are, and number three

17 hopefully coming to a point on some of these issues, saying this witness,

18 if called to testify, would say A; this witness, if called to testify

19 would say B. You know, is this a homicide, is this a murder and give that

20 issue to the Trial Chamber. And if it is a murder, is it something that

21 there is vicarious liability under 7(1) and 7(3) if the accused

22 General Gotovina didn't know anything about it. Excuse me.

23 So what we have done is very instructive things, put down agreed

24 facts. We've put forth, concretely, the things we can agree to. The

25 Office of the Prosecutor has responded back as to what they can agree to

Page 321

1 concretely. So there have been concrete results but I think, Judge, one

2 of the beneficial aspects to these discussions is a fleshing out, if you

3 will, of exactly what the contention is on each individual murder count,

4 which of course, we take very seriously, murder counts in any indictment

5 are very, very serious charges. So we're trying to bore down them, get

6 those facts out and find out, fundamentally, if a murder has taken place

7 whether or not my client General Gotovina knew about it.

8 So I -- I hasten to add that there are concrete issues that are

9 being discussed and agreed on. Now there will be points of departure, but

10 once we highlight those points of departure I do believe it will expedite

11 matters on each individual homicide count.

12 JUDGE MOLOTO: That's an improvement on what you told me earlier.

13 MR. KEHOE: I'm working on it, Judge. I'm working on it, just

14 developing. But it has the added benefit of being the truth, and I know

15 Your Honour doesn't want to necessarily look at the correspondence --.

16 JUDGE MOLOTO: I recognise you Mr. Kuzmanovic. I'll call you just

17 now.

18 MR. KEHOE: I recognise Your Honour doesn't look at the

19 correspondence but I think that my colleague Mr. Tieger will bear out the

20 fact that we have been going back with very concrete facts.

21 JUDGE MOLOTO: I don't think it is very proper for any

22 communication between the parties that was not originally copied to the

23 Chamber.

24 MR. KEHOE: I understand, Judge, I understand. I'm just

25 describing broadly what these letter entail. They entail a discussion of

Page 322

1 what evidence the Defence has looked at - in this case, the Gotovina,

2 Defence - what statements and what evidence, what medical examiner's

3 reports we've looked at. Is this the exhaustive list? Is there something

4 else out there? Are we missing something? Why? Because we don't want to

5 be in a situation where there is some witness statement that, because of

6 the 40 gigabytes of information, we happen to miss. So I'm trying to be

7 as fulsome as possible.

8 And frankly, Judge, and I've asked a series of questions in these

9 letters and frankly, I've done something in this that I normally wouldn't

10 do - and I'm sure Mr. Kay wouldn't do - in a common law environment which

11 is basically line out a series of questions which would be my

12 cross-examination in a general courtroom setting. So those questions are

13 answered and we attempt to get those questions as opposed to taking that

14 kind of time from the Court.

15 JUDGE MOLOTO: I obviously have a completely different concept of

16 having to go about that kind of process but thank you very much.

17 Mr. Kuzmanovic.

18 MR. KUZMANOVIC: Thank you, Your Honour after the 65 ter yesterday

19 I had a chance to talk at some length with Mr. Tieger about this whole

20 process and getting together and meeting and I'm obviously new to the case

21 and I'm certainly not going to cast any aspersions on anyone, but I know

22 from my experience in the Herceg-Bosna case that, you know, we had six

23 accused in that case, and quite frankly, what I was expecting was a list

24 of proposed agreed facts that I had received from the Prosecutor like I

25 did in that case where all the defendants could get together and sit down

Page 323

1 and talk about, Gee, this is fact that I can agree to, this is a fact I

2 don't agree to, and then we get together with the Prosecutor and do the

3 same thing.

4 And when I was searching through the materials I didn't see that

5 or find that. And to me, it was a little troubling because I think while

6 what Mr. Kehoe and Mr. Misetic are talking about is productive and

7 valuable, I think it takes a heck of a lot more time and had there been a

8 list of proposed facts, obviously we could have talked about that and

9 discussed that much more easily, even by phone, than it is getting

10 together every couple of weeks and talking for several hours about what

11 facts we can or can't agree to. So you know every case has a different

12 methodology and I understand that but what I was expecting was a list of

13 facts that we could all sit down and talk about.

14 JUDGE MOLOTO: Mr. Kuzmanovic, you obviously practised in the same

15 division as I; that's what I was expecting. But we hear that. Okay.

16 Thank you so much. Yes, Mr. Tieger.

17 MR. TIEGER: Your Honour, I have heard what the court has said in

18 his general expectations of how an agreed facts process can proceed. That

19 is the way the agreed facts process has been attempted in the past in

20 other cases and in this case, when agreed facts were submitted by the

21 Prosecution in 2005 and 2006 with roughly the same results that I think

22 have been achieved in other cases, which are minimal.

23 Now, I'm not disparaging that process completely because we're

24 still attempting do that, but because of that experience we are trying, in

25 addition, to broaden the process in the manner I described which I think

Page 324

1 will yield very significant results, particularly in this context where

2 there are new counsel in the case and can benefit from this focusing --

3 from this focusing on the documentation at -- and narrowing of the issues

4 in dispute in that way.

5 There are a number of ways of expediting the trial. I think in

6 the past trying to get to an agreement on facts has been problematic for a

7 variety of reasons, but identifying the issues that are really in dispute

8 has considerable benefit and is much less contentious and much less

9 difficult to do, and -- and has an enormous benefit in -- in terms of

10 time. So we're trying it from both ends when given the experience that

11 the conventional approach and understandable approach I think has rarely

12 been successful in the past and I don't think has the cost benefit that I

13 believe we're going to achieve from the broadening -- broadened aspects of

14 this process that we're implementing now.

15 JUDGE MOLOTO: Okay. Thank you, Mr. Tieger. Let's not go much

16 further in that. You gave -- Mr. Kehoe asked for a time line of two weeks

17 on this point to give something. Do you still stand by that? Yes,

18 Mr. Misetic.

19 MR. MISETIC: Sorry, I believe I was the one who said that within

20 two weeks I would circulate the proposed agreed facts on background

21 information.

22 JUDGE MOLOTO: Thank you, Mr. Misetic. Can we leave it at that.

23 The next item then concerns disclosure of expert reports by the

24 Prosecution. This item was requested by the Gotovina Defence.

25 Mr. Tieger, at the last Status Conference you told the Chamber

Page 325

1 about your difficulty in obtaining information from archived sources, and

2 you even appeared to suggest that the Chamber impose a deadline on you.

3 The Chamber is prepared to do that, especially when I have learned that

4 you don't expect to have disclosure of some reports until December or even

5 February.

6 MR. TIEGER: Well, Your Honour, with respect to the comments

7 earlier by Mr. Kay, he focused I think appropriately on the report of

8 Mr. Theunens, based on his experience as being one that would involve the

9 largest amount of documentation. For that reason, I indicated to the

10 senior legal officer at the 65 ter Conference that, notwithstanding our

11 ongoing efforts to obtain documents and notwithstanding the fact that some

12 documents are still being processed, that is, they have and been sent and

13 received, they're being translated and we're in the process of analysing

14 them, that we would submit the -- Mr. Theunens' report by the -- by

15 mid-December, by December 14th. I thought that one needed priority

16 irrespective of any continuing efforts to obtain documentation. I also

17 alluded to two other reports, the report of General Pringle is not going

18 to be as voluminous, is going to address issues that he has addressed

19 previously and that are largely contained in previous testimony and

20 previous statements which have been provided to the Defence and do not

21 involve anywhere near the same issues.

22 The report that I believe that raise the most -- or that garnered

23 the most attention at the 65 ter Conference was the report related to

24 artillery. I related to my learned colleagues and to the senior legal

25 officer the efforts to obtain that documentation. That was actually to

Page 326

1 some extent the subject of our -- the previous discussions in court, but I

2 accept that notwithstanding those efforts and the desire to have as much

3 of the documentation for the benefit of that report, that there's a

4 balance between trying to achieve, both for our benefit and the benefit of

5 all parties and the benefit of the Court, a report that's informed by the

6 greatest possible information, a need to get the information or the report

7 to the parties in sufficient time for their -- for them to prepare. And I

8 have attempted to balance that accordingly.

9 I submit that we were not in jeopardy and still are not of

10 prejudicing the Defence's rights in connection with the time to prepare,

11 if necessary, the expert's report, again, which will not be of great

12 volume, nothing compared to Mr. Theunens' report, but the expert's

13 testimony can be deferred to the latter part of the presentation of the

14 Prosecution's case providing, by any reasonable estimate, quite a number

15 of months for the Defence to prepare.

16 So when I indicated a February deadline for the latter two

17 reports, it was in light of a number of factors. I think the very

18 reasonable and understandable desire by the Prosecution to have as much of

19 the military documentation available to it balanced against the time

20 necessary for the Defence to prepare and in consideration of the

21 relatively lengths of those reports which do not compare to the volume of

22 material that is expected from Mr. Theunens' report.

23 JUDGE MOLOTO: Mr. Tieger, I would like to remind you of what

24 Mr. Kay said a little earlier about getting those experts reports, looking

25 for their own experts, giving those reports to the experts for them to

Page 327

1 help them go through the material and advise them on how to go with the

2 case, so given that background, I would like to say that notwithstanding

3 your undertaking to lead this evidence a little later in the trial, the

4 sooner they get the documentation the better, and I -- I am a little

5 worried because when you began to address this point, you talked of the

6 Theunens report coming in December. Now latterly you say February,

7 indeed, even yesterday, from the report I get, December and February were

8 mentioned, but you also said that the Pringle report is not a voluminous

9 report and in fact it's a report from -- it's something that he has done

10 before. Is there any reason we can't put an earlier time line for that?

11 And perhaps even the artillery report.

12 MR. TIEGER: Two matters, Your Honour. First of all, I wasn't

13 slipping from December to February.

14 JUDGE MOLOTO: I'm not suggesting you were.

15 MR. TIEGER: With Mr. Theunens' report. I was moving from his

16 report, for which I gave the December deadline, to the other two reports.

17 JUDGE MOLOTO: Okay. I'm sorry about that.

18 MR. TIEGER: And insofar as the other two reports are concerned

19 with General Pringle's report it is dependent upon his schedule.

20 That's -- and I will do my -- I certainly will do my best to see if that

21 can't be expedited. I -- no one would be happier than me at this point to

22 see that happen. And with Colonel Konings's report, I think I have to

23 abandon my hope and expectation -- I'm sorry?

24 JUDGE MOLOTO: About what report? Colonel?

25 MR. TIEGER: Konings. The artillery report you were talking

Page 328

1 about, Your Honour. I'm sorry I didn't identify that more clearly. I

2 agree it's time to abandon the hope or expectation that the documentation

3 I was seeking will be available for his report and move forward to have a

4 report prepared as quickly as possible so we can get it to the Defence.

5 So I'm not linking that any longer to the obtaining of the documents. I

6 think it was completely understandable and appropriate up to a point, but

7 it's -- now we're coming sufficiently close to that I -- that we have to

8 move forward even irrespective of that.

9 JUDGE MOLOTO: What would the time line be if you de-link it

10 from --

11 MR. TIEGER: That was the February date I gave Your Honour.

12 JUDGE MOLOTO: February is the delinked time line.

13 MR. TIEGER: I will do my best to see if it can't be done earlier.

14 I want to do that. And should the length of the report or complexity of

15 the report cause problems for the Defence, as I say, we're -- we'll be

16 obliged, I think, to move his testimony to the latter part of the case.

17 In addition, this will not be a circumstance where the Defence is

18 operating in a vacuum. As I mentioned, and I think I indicated that some

19 of these issues were linked to the agreed facts process, we're talking

20 about a process in which there is a very fulsome exchange, in which the

21 parties are talking about what's at issue, what the case is about, what

22 the controversy is or isn't.

23 And so issues -- many of the issues and certainly not all that are

24 relevant to that preparation will be addressed during that process and

25 will augment the preparation of the case for all parties.

Page 329

1 JUDGE MOLOTO: Thank you. I suppose enough said on the topic

2 unless anybody has any -- yes, Mr. Misetic.

3 MR. MISETIC: Your Honour, just to point out the importance of the

4 artillery report from our perspective and the de-linkage of that report

5 from outstanding issues with the Croatian government. I will state again

6 and summarise what I said yesterday, but I think it's important to say it

7 in open court as well.

8 Might -- one of the big charges allegedly against my client is the

9 shelling of Knin. We have pending motions which I'm sure we'll get to on

10 the agenda items below regarding that charge and whether or not it exists

11 in the indictment in the first place. The artillery report, of course, is

12 contingent upon a finding by the Trial Chamber that in fact it exists in

13 the indictment. Our position, as you know, is that it is not currently

14 charged in the indictment and therefore there would be no need for an

15 expert artillery report to support a charge that is not in the

16 indictment. Nevertheless we have to prepare for trial as if the charge is

17 in the indictment.

18 What our concern was yesterday remains our concern today and I

19 appreciate Mr. Tieger decoupling the issue of outstanding document

20 requests to the Croatian government but nevertheless whatever the evidence

21 is that supports the position that they have charged it should be

22 sufficient evidence to have Mr. Konings as early as next week receive that

23 information and begin to prepare his report. As it stands now on the

24 current schedule, even up to the next Status Conference, we still won't

25 have an expert report because the time line is now into February.

Page 330

1 It may be, and we can work around making arrangements for calling

2 that witness to testify at the end of the Prosecution case et cetera,

3 however, it is an important point, given the pending motions that are

4 outstanding, given the fact that these allegations, I should say, have

5 been made in the press and repeatedly that General Gotovina excessively

6 shelled Knin and we're hearing today that an expert report can't be

7 prepared two and a half years into his incarceration, or two plus years

8 into his incarceration.

9 It is a concern for us and we -- it is our position that General

10 Gotovina is sitting in a detention unit on one of these types of

11 allegations and there should be no reason on the basis of the material

12 that is currently in evidence, if it is, in fact, charged to have the

13 expert report prepared. Given the importance of that allegation to

14 General Gotovina and his Defence, it's not something that we want at the

15 end of the discovery phase or on the eve of trial to have to scramble to

16 address. And so to the extent that the Court can assist us in getting

17 this evidence as quickly as possible so we know what the case is to be

18 responded to, the more efficiently we can prepare for trial, and obviously

19 to the extent it's relevant to the pending motions, it also would be

20 useful to have such a report. Thank you, Your Honour.

21 JUDGE MOLOTO: Thank you, Mr. Misetic.

22 Mr. Tieger, I hope you heard what Mr. Misetic said. You want to

23 rise.

24 MR. TIEGER: I did hear what Mr. Misetic said and that's largely

25 what I said. Move forward as quickly as possible, we're prepared to

Page 331

1 decouple that issue and move forward on the report.

2 JUDGE MOLOTO: Thank you very much, Mr. Tieger.

3 The next item is disclosure to Mr. Kay or to the Cermak Defence.

4 The Cermak Defence requested that the agenda include the following

5 three issues: Disclosure by the Prosecution of outstanding 65 ter witness

6 statements in B/C/S and English; two, disclosure by the Prosecution of all

7 Rule 65 ter exhibits to be used for trial in B/C/S and English; and three,

8 identification by the Prosecution from the Rule 65 ter exhibit list of the

9 exhibits actually intended for use in trial.

10 Is that a correct summary of the items --

11 MR. KAY: Yes, Your Honour.

12 JUDGE MOLOTO: -- from the Cermak Defence?

13 MR. KAY: Exactly right.

14 JUDGE MOLOTO: Would you like to say anything, Mr. Kay, about that

15 before we ask Mr. Tieger to respond?

16 MR. KAY: Firstly, if I take the Rule 65 witness statements,

17 discussion took place yesterday after the Rule 65 ter Conference.

18 Prosecutor's office were able to look at our document that we supplied

19 them with. There are matters that we did not have which are being

20 attended to. There have been changing ERN numbers. That's a mystery to

21 me as well, Your Honour, as I saw Your Honour look up quizzically. And

22 that has caused a problem in the system. I think our audit has been

23 useful because it's been able to see what gaps there are.

24 For the moment, I'm happy that this is being attended to. My

25 concern within that list is of course the expert witnesses, and we've

Page 332

1 dealt with that already. I just wanted to add to that that this is also

2 important for cross-examination of other witnesses. The issues that the

3 expert is dealing with is not solely confined to the expert. Often their

4 conclusions are based upon matters that can be clarified in evidence that

5 can affect their eventual testimony. So I do flag this up as being

6 relevant to witness testimony generally, because the expert is basing his

7 opinion on evidence, but he may have been given evidence that existed at a

8 particular state and moment that alters during trial.

9 In relation to the exhibits, we do have a massive problem because

10 there is 40 gigabytes, an enormous amount of material, and it has to be

11 accepted by the Prosecution that not everything is in B/C/S or English,

12 and this when we do not know what exhibits we're going to be dealing with

13 in trial as a -- as a prime form of evidence, if I can put it that way, I

14 can't believe all 40 gigabytes are going to be used in evidence, but the

15 prime evidence, if we're not sure what that is then we have a problem if

16 we've got documents missing in either language.

17 I -- I am working with a Croatian team, Croatian speaking. I'm

18 the international figure on the team, and it's of particular importance

19 that those working with me are able to see documents in their own

20 language. So it -- some cases you can address purely in one field if your

21 team is in one particular language, but if you've got a multinational team

22 it is different. But this is a concern in terms of overall case

23 preparation relevant to the start date of the trial, I would say,

24 Your Honour.

25 JUDGE MOLOTO: Thank you, Mr. Kay.

Page 333

1 Yes, Mr. Tieger.

2 MR. TIEGER: Well, Your Honour, I can only take that as a ringing

3 endorsement of the broadening of the agreed facts process that I mentioned

4 which will -- which is expected to, intended to, and aimed at achieving

5 just what Mr. Kay mentioned, identifying precisely that. Beyond that, I

6 would simply say that when Mr. Kay says he can't believe that all 40

7 gigabytes will be introduced into court, that's in part because there's

8 never been a case in the history of the Tribunal in which the entire 65

9 ter list has been introduced into evidence in court. He knows that's not

10 how it operates.

11 And finally, while I appreciate and we're responding to the

12 concern about the volume of material, 40 gigabytes can be a little bit

13 misleading because that -- the gigabytes depend on how the material is

14 stored, whether there are photographs, whether some of the -- whether some

15 of the documentation is a large single item for which only one portion is

16 necessary, which will be identified during the agreed facts process, and

17 so on.

18 JUDGE MOLOTO: Thank you, sir. But I do think the nub of the --

19 of the message from Mr. Kay is the sooner they get the disclosure, the

20 sooner they'll be ready for trial.

21 MR. TIEGER: They have the disclosure, Your Honour, and many of

22 the problems that Mr. Kay brought to our attention are problems with his

23 record-keeping and not -- no fault of his, of course, and not in -- as

24 matter of disclosure.

25 Secondly, in terms of the sooner the better, Mr. Kay sent me an

Page 334

1 e-mail concerning this problem that I received at about 11.00 the night

2 before the UN holiday, and I responded to him - the holiday on Wednesday -

3 and responded to him within 24 hours and were --

4 JUDGE MOLOTO: I thought you said the day before I went on

5 holiday.

6 MR. TIEGER: No, I'm sorry. No wonder you were surprised.

7 Anyway, the point is we are attempting to respond to his concerns as

8 quickly as possible, and we're -- and we've been doing that essentially

9 from the moment he entered the case.

10 JUDGE MOLOTO: Thank you, Mr. Tieger. In one sentence are you

11 able to give yourself a time line?

12 MR. TIEGER: For identifying whether Mr. Kay is in possession of

13 all the disclosure materials?

14 JUDGE MOLOTO: Well, yes. Your closing sentence was, and we have

15 been doing -- no, I'm sorry. Wait a minute. Where are you now? The

16 point is we are attempting to respond to his concerns as quickly as

17 possible. Are you able to give a time line for that response to his

18 concerns?

19 MR. TIEGER: Well, as I say, Your Honour, I responded initially

20 within 24 hours. Today our case managers were in consultation. My

21 understanding is that that was a productive meeting. I don't have the

22 benefit of the results from that discussion, but no one is letting this

23 issue sit.

24 JUDGE MOLOTO: Okay. Thank you very much. Can we -- can we go

25 over to the next item if nobody has anything else to contribute on this

Page 335

1 item. The application of 126 bis.

2 You can expect that the Rule will be more strictly enforced in the

3 future with respect to filings. In other words, any replies to responses

4 must be accompanied by a request for leave to reply. And the same thing

5 goes for replies to replies. Likewise, other-named filings such as

6 notices or supplemental submissions must be accompanied by a request for

7 leave to file.

8 There has been what I think is an overuse of replying to replies

9 or filing supplemental submissions, you know, just to get further argument

10 onto the issues, and this delays even the resolution of the issue that may

11 be in the motion.

12 Having said that, does anyone need to say anything on the point?

13 Yes, Mr. Tieger.

14 MR. TIEGER: Everyone takes the point, Your Honour, that's why no

15 one's saying anything. They don't want to reply when not necessary.

16 JUDGE MOLOTO: You're speaking on their behalf. Thank you so

17 much. I want to believe that. Then we can quickly pass that item and

18 finally get to pending motions.

19 I think you may have been informed yesterday by the senior legal

20 officer that the Chamber expects to issue two decisions in the near

21 future. One decision will be a combined decision which addresses both the

22 26 March Gotovina Defence motion pursuant to Rule 73 requesting Pre-Trial

23 Chamber to strike parts of Prosecution's pre-trial briefing, constituting

24 effective amendment of the joinder indictment. That's a very long

25 heading. And the 17th May Prosecution motion to amend the indictment.

Page 336

1 Those will be dealt with in one decision fairly soon.

2 The other discussion will concern the 7 August Gotovina Defence

3 motion requesting provisional release for Mr. Gotovina.

4 And lest I forget, let me just mention this before we talk about

5 what I've just talked about, the order reinstating provisional release for

6 Messrs. Cermak and Markac has been filed. So after this Status

7 Conference, just for you to take note that that has been filed.

8 Is there any comment on the other issues? Yes, Mr. --

9 MR. KEHOE: Just, Judge with regard to the provisional release

10 motion we have pending, we also have had a motion pending for an

11 evidentiary hearing on that score.

12 JUDGE MOLOTO: Yes. That will be dealt with.

13 MR. KEHOE: Yes.

14 JUDGE MOLOTO: You will hear about that, sir.

15 Okay. Anything else? Yes, Mr. Tieger?

16 MR. TIEGER: No, Your Honour. Nothing from the Prosecution.

17 JUDGE MOLOTO: Mr. Kay? Mr. Mikulicic?

18 MR. KAY: No, Your Honour.

19 JUDGE MOLOTO: Thank you very much. Any other thing that any of

20 the parties would like to raise at this Status Conference which maybe was

21 not on the agenda? Starting with you, Mr. Tieger.

22 MR. TIEGER: No, Your Honour. Thank you.

23 JUDGE MOLOTO: Mr. Kehoe.

24 MR. KEHOE: No, Your Honour, thank you.


Page 337

1 MR. KAY: No, Your Honour, thank you.

2 JUDGE MOLOTO: Mr. Mikulicic?

3 MR. MIKULICIC: No, Your Honour.

4 JUDGE MOLOTO: Thank you very much. May I say thank you very much

5 to all of you. That brings us to conclusion of the Status Conference.

6 The court stand adjourned.

7 --- Whereupon the Status Conference adjourned

8 at 5.00 p.m.