1 Thursday, 22 January 2004
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.32 p.m.
6 JUDGE MARTIN-CANIVELL: Good afternoon, ladies and gentlemen.
7 May, please, the Registrar call the case.
8 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honour.
9 Case Number IT-95-11-PT, The Prosecutor versus Milan Martic.
10 JUDGE MARTIN-CANIVELL: Can we have the appearances, please.
11 MS. UERTZ-RETZLAFF: Good afternoon, Your Honour. For the
12 Prosecution, the trial attorney is Alex Whiting and Sabine Bauer. Case
13 manager Lakshmie Walpita. And my name is Hildegard Uertz-Retzlaff.
14 JUDGE MARTIN-CANIVELL: And for the Defence, please.
15 MR. MILOVANCEVIC: [Interpretation] Good afternoon, Your Honour.
16 My name is Predrag Milovancevic, attorney-at-law from Belgrade, on behalf
17 of Milan Martic. Sitting next to me is my friend and colleague, Vuk
18 Sekulic, a Defence assistant.
19 JUDGE MARTIN-CANIVELL: I haven't found the right place for the
20 English. Would you mind, the translator, to repeat what has been said by
21 the Defence, please, counsel.
22 THE REGISTRAR: Indeed, I receive French on all three channels,
23 4, 5, and 6.
24 JUDGE MARTIN-CANIVELL: Mr. Martic, please stand up a moment. Do
25 you understand whatever is said here and in all the proceedings in a
1 language you can well understand?
2 THE ACCUSED: [Interpretation] Yes, I do, Your Honour.
3 JUDGE MARTIN-CANIVELL: Okay. Please sit down.
4 Well, this is a new Status Conference at which I have been
5 informed before starting about how the situation of the case is going on.
6 There are some aspects I would like to touch on this occasion. First of
7 all, the pace of disclosure. Disclosure has been, I believe, in spite of
8 some difficulties, perhaps announced or said by the counsel for the
9 accused is going at a real good pace. And I hope that I may trust you
10 with this kind of pace to keep going on. In any case, I invite you to
11 try to keep the same level of comprehension between both parties so as to
12 achieve this aspect of the proceeding to be well doing in the future.
13 There is another aspect which is interesting and hasn't been
14 touched on until I believe very recently, which is the possibility of
15 agreement of facts, and I know that perhaps in the last days you have
16 been able to make some advances in these aspect of the proceedings. I
17 encourage you also to take care to go on on the same pace as you have
18 already started. I wonder if you would like -- one of the parties -- any
19 comments about those points I have talked about. If that is the case,
21 MS. UERTZ-RETZLAFF: Yes, Your Honour. In the 65 ter conference,
22 it was addressed whether what we have disclosed by now is indeed the Rule
23 66 (A) material that we have so far. And I double checked meanwhile with
24 my colleagues, and indeed as of today we have disclosed all Rule 66 (A)
25 material with the exception, of course, for those witnesses regarding
1 which the Trial Chamber had agreed to delay disclosure. And of course,
2 there's always the possibility of new witnesses being added to the list,
3 and of course we will then disclose immediately.
4 As of today, we also have disclosed the Rule 68 materials that we
5 have identified so far, of course, with the exception of a few documents
6 where there are still Rule 70 restrictions. But as soon as they are
7 lifted, they will be provided as well.
8 We have also inquired whether we have materials from the flip
9 side cases, that's in particular the Croatian perpetrators, whether such
10 materials have been disclosed, and we did indeed disclose 50 statements
11 related to these flip side cases. And actually, we also have disclosed
12 eight CDs related to the opposing forces, as we call it; that is the
13 Croatian forces, basically, and the Muslim forces as well. So these were
14 matter that were addressed and not clear during the 65 ter conference.
15 Meanwhile, I also inquired why we did not disclose the materials
16 earlier. Mr. Whiting announced an extensive disclosure on the Status
17 Conference in September last year, and he did so in good faith. What he
18 was not aware of and what we actually then found is that there were no
19 protective measures in place, and we requested this. The motion was
20 granted in December this year, and we have meanwhile then disclosed the
22 These protective measures related not only to the statements that
23 were now disclosed, but were also related to huge parts of the Rule 68
24 materials which were, for instance, documents related to sensitive
25 witnesses, documents for which Rule 70 restrictions were in place and
1 have been lifted meanwhile. So that I think we have now really fulfilled
2 our obligation. And if we were delayed, it was not in bad faith.
3 What we also would like to say is we have also made arrangements
4 for access of the Defence counsels to the newly established electronic
5 disclosure suite, and we will talk with the Defence about this right
6 after this Status Conference. Everything is actually in place so that
7 they can access the databases directly.
8 Agreement of facts. You have see from the 65 ter conference that
9 we have provided a new document which includes the exchanges that the
10 Defence and the Prosecution had so far. We actually have also agreed in
11 a meeting after the 65 ter conference that the Prosecution and the
12 Defence will meet now more frequently than in the past so that I think we
13 will move along and can hopefully achieve more agreed facts in the near
15 JUDGE MARTIN-CANIVELL: Thank you. I am very glad that you had
16 told me that you had made advancements later after the 65 ter meeting. I
17 wonder if the counsel for the Defence has anything to add to what has
18 been said by the representative of the Office of the Prosecutor.
19 MR. MILOVANCEVIC: [Interpretation] As for the position of the
20 Defence team, in order to understand the position of the Defence at this
21 moment, Your Honour, in connection with disclosure pursuant to Rule 68 I
22 would focus on that issue for the time being.
23 It is important to keep in mind a fact which has already been
24 presented at the previous Status Conference pursuant to Rule 65 ter. The
25 fact I'm talking about is that the Office of the Prosecutor has already
1 disclosed a lot of Rule 68 material to the Defence team. However, this
2 material had not been sifted. Those were hundreds of thousands of pages
3 of documents, literally, and my colleagues from the OTP claimed that they
4 did not have enough time or means at their disposal to go through all the
5 documents and they said this would perhaps take up to two or three years.
6 Why am I bringing this up now? Not because this fact is not as
7 such well known to the Honourable Chamber, but rather to explain the
8 modus operandi of the Defence team at this moment as well as the problems
9 we are encountering in our work. This unselected material, unselected
10 documents that have been forwarded or disclosed to us following a brief
11 overview of the contents, or at least what we have on CDs, forced us to
12 open each CD individually and check the documents page by page. As I
13 said during our last Status Conference, Your Honour is well familiar with
14 the scope of material that we are facing.
15 It should be possible to go through all this material, all these
16 documents if we use a search programme, a PC search programme. I assume
17 my colleagues from the Office of the Prosecutor would have done this.
18 However, in view of the amount of time at our disposal, it is simply not
19 possible. This is an indictment containing the charge of joint criminal
20 enterprise, including a large number of individuals and organisations
21 that were part of the so-called joint criminal enterprise in which
22 Mr. Martic allegedly took part. We're talking about a time period
23 covering five years. If you use any of the available search programmes,
24 it is not possible to insert a sufficient number of criteria that would
25 provide the Defence team with an adequate answer.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 As to whether we have any exculpatory material in our possession
2 or not, the only way to have this answer is by analysing the documents
3 individually, going through them page by page, and then conducting
4 further search of this entire material. The Defence, thereby displaying
5 its goodwill, has been going through these documents page by page over
6 the last five or six months, and we have been trying to ascertain what
7 exactly they contain. This is an ongoing process. Disclosure pursuant
8 to Rule 68 can never quite be completed. You can go through a certain
9 amount of the material, but then something new is likely to crop up that
10 is bound to be disclosed as new documents, new material. The Defence
11 team is well aware of this fact. However, it may be necessary to point
12 out at this point in time that in relation to our last Status Conference
13 there has been a delay of perhaps three and a half months in terms of
14 disclosure, three and a half months in relation to what the Office of the
15 Prosecutor had promised. At our 65 ter meeting, we were given some of
16 the documents, so the process is ongoing, which is fine. It is now up to
17 the Defence team to go through these documents and see if any of the
18 documents can be useful for Mr. Martic's Defence.
19 At our 65 ter meeting, the Defence team pointed out that there
20 was a potential problem; namely, that there are other indictments against
21 specifically Croatian generals where the factual allegations are quite
22 contrary to the factual allegations that Mr. Martic is being charged
23 with. Unlike this unselected material, these documents that have been
24 forwarded to us, about 400 pages of them altogether -- in the other
25 indictments I'm talking about, the factual allegations are quite contrary
1 to the allegation allegations that are being made against Mr. Martic.
2 This fact in itself potentially can be exculpatory, and thus essential
3 for Mr. Martic's defence. That's why we believe it is very important
4 that the OTP consider this problem in all its seriousness, the problem
5 that we have just brought up.
6 At any rate, the Defence team has done everything within its
7 power, a great effort to review all these documents in the best interest
8 of its own case; namely, of defending Mr. Martic before this Tribunal.
9 That's all I have to say for the time being, Your Honour.
10 JUDGE MARTIN-CANIVELL: Thank you, Mr. Milovancevic. I realise
11 that you have done a huge amount of work to catch up with the time
12 limitations you had encountered when you took over in this case, but I
13 hope that you are keeping to behaving in the same way and that you will
14 be able to complete this kind of work about -- in all of these cases you
15 are referring about, the Croatian members of the army, that seems to be
16 very concerning for you. So I have to say that very much, but I don't
17 think that could make any difficulty with the rhythm already taken by the
18 disclosure process, the mutual-disclosure process. So I realise what
19 you're saying, but I am still confident that you will keep going in the
20 same way that you have behaved so far and that you would be able to cope
21 with the time limitation we all of us are facing.
22 There's another point that I would like also to recall. It's
23 about the moment -- and this related even with aspects that have been
24 dealt with by the counsel for the Defence -- the time schedule for the
25 decision of this case. I have heard that you may try, most likely will
1 be able to, to be sent the Prosecutor brief by the end of April. That
2 could allow the Defence presenting its brief around a month later. I
3 encourage you to try to do the most to keep this planned schedule because
4 it would be acceptable not to lose much time in this case as in all the
5 other cases before this Tribunal.
6 I know that you have a special problem about the issue by the
7 Croatian government of some documents, important amount of documents,
8 that you had asked from them on various occasions. I know that you had
9 made repeated demands for the handing out to you these documents. I
10 suppose that the best course that we can take from now on is just to wait
11 for a while about the results of your petitions. Probably it would be
12 helpful if you can point out to the Croatian authorities with an
13 indication of the number of documents you are looking to get, and also to
14 indicate where all the possible locations of these points.
15 I don't know if you agree with these suggestions and it would be
16 helpful for you what I am saying. Presuming all the -- what I had
17 already been saying about this case, it does state that in a time of
18 around one month or so you haven't got any answer, any positive solution
19 of your petition to the Croatian authorities, it would be the case
20 perhaps for you to introduce a motion in this Chamber asking for a formal
21 petition from our side to the Croatian authorities. I am dealing with
22 those two aspects of the case, and I don't know if you would like, the
23 Prosecution, to add something else about those two matters. Chiefly
24 about the first one, the time schedule.
25 MS. UERTZ-RETZLAFF: The time schedule can be met by the
1 Prosecution. We intend to file in the last week of April.
2 JUDGE MARTIN-CANIVELL: I'm very happy to hear you say that. And
3 I hope that the counsel for the Defence -- yes, please, speak up,
4 Mr. Milovancevic.
5 THE INTERPRETER: Microphone, please.
6 MR. MILOVANCEVIC: [Interpretation] Your Honour, the Defence has
7 fully understood the suggestion you gave us concerning obtaining the
8 documents that we had requested from the Croatian government. It is easy
9 to understand. The first problem, however, is that in view of its
10 position within this process, the Defence has no possibility to ascertain
11 the whereabouts of these documents. These are military documents on the
12 one hand, documents pertaining to the civilian authorities on the other.
13 These are documents pertaining to a period of time 12 or 13 years ago.
14 The oldest document relates to 1990 and 1991, and the most recent
15 document 1995. On the other hand, in three of its motions or requests
16 that were submitted to the Croatian government in the second half of
17 August -- more specifically on the 20th of August last year, on the 6th
18 of October. That's when the next request was submitted. On the 25th of
19 December last year, was when the third request came in. The Defence
20 tried to select documents requested as well as their contents as
21 specifically as possible.
22 We hope that the raising of this issue at this Status Conference
23 will contribute to a more active response from the addressed party. This
24 is precisely the reason we're doing this at the moment. We wish to
25 notify the Chamber of the problems encountered by the Defence in its
1 work. This objectively hinders the work of the Defence because the
2 documents we are talking about are very important. Thank you very much,
3 Your Honour.
4 JUDGE MARTIN-CANIVELL: Thank you, Mr. Milovancevic. I
5 understand what you mean. But it would be interesting to keep asking
6 just now before we take over another way of action. Probably -- as you
7 may know, the government in Croatia has changed very recently because of
8 the last election that's been held there. And probably it would be
9 useful to point as much as possible and with the most precision you can
10 achieve which documents are and where they are. If you have some
11 knowledge about that, where it can be found, because it seems that
12 whenever there is a change of government, they always have to try to find
13 things that have been left by the previous government. So I insist on
14 this point because I believe it would be useful. Besides, I leave to you
15 whatever other means could be of real effect on the resolution, the
16 positive resolution of your petitions.
17 Well, I don't think there is any other question that you may have
18 brought about. Unless you have them, then please speak up. If that's
19 the case, you can bring to the attention of this Chamber another aspect
20 that could be related with the fair and expeditious disposition of the
21 case. Please, the Prosecutor, you don't have any other point to... ?
22 MS. UERTZ-RETZLAFF: Yes, Your Honour, actually it was something
23 that was raised by the legal officer in the 65 ter conference because he
24 asked us about the number of witnesses that we would like to call. And
25 actually Ms. Bauer was kind enough to prepare this material. And
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 therefore, I think I don't want to just skip it now that we can be more
3 We have on our provisional witness list 59 witnesses altogether.
4 However, regarding eight of these witness, we are not really -- we have
5 not yet made a decision to call them or not because it's -- it may not be
6 necessary if we come to more agreements with the Defence, and some of
7 them may even not be available.
8 51 witnesses, therefore, we have envisioned. 30 of them would be
9 viva voce witnesses, and 21 would be 92 bis witnesses. I can, if you
10 like, specify even more, but I don't know if you want more details.
11 JUDGE MARTIN-CANIVELL: Not at this moment, I don't think it's of
12 any particular usefulness. Thank you very much. I understand that you
13 really had mentioned before around 60 witnesses, which seems to be
14 interesting to know so as to plan the schedule of the hearing themselves.
15 Thank you very much for that. I wondered if the counsel for the Defence
16 has any comment or suggestion to do before we end this part of the
17 meeting, of the Status Conference.
18 MR. MILOVANCEVIC: [Interpretation] Your Honour, by your leave,
19 the Defence would like to raise another issue in connection with the
20 status of the Defence and pertains to the equality of the parties. I
21 would like to draw the Chamber's attention to a problem that the Defence
22 team is facing.
23 The question is about the way the Registry's treating the
24 position of the Defence in connection with Mr. Martic. At our last
25 65 ter conference, we were informed, I assume on behalf of the Chamber,
1 Mr. Harhoff, that this case is being treated as a high-priority case.
2 Regardless of this fact, the facts contained in Mr. Martic's indictment
3 cover a period of five years, and the indictment pertains to his position
4 as the president of the Republic of Krajina, the territory of which
5 extended over two different States. This is intertwined with a number of
6 other cases where the charges of joint criminal enterprise are also being
7 made, and a large number of different organisations allegedly taking part
8 in this so-called joint criminal enterprise are being accused of having
9 committed crimes. Why are we raising these issues? I hope these issues
10 are self-evident, but the Defence believes that we are facing a great
11 deal of understanding from the OTP, and all we want is an equal
12 opportunity to do our job, a situation of equality between the parties.
13 Our minimum requirements would be to have the same rights as our
14 learned friends and colleagues from the Office of the Prosecutor and for
15 our case to receive equal treatment in relation to all the other cases
16 being tried before this Tribunal. As a Defence team, Your Honour, we
17 started out with a deficit of about 800 hours in relation to the main
18 defendant and in relation to the OTP, its investigators and its entire
19 team. The previous Defence team had simply squandered those hours, but
20 this Defence team was in no position to make up for that. We have
21 explained this in a well-argumented way to this Trial Chamber. There is
22 a document which shows that we, as the new Defence team, have obtained no
23 other documents apart from the most necessary ones.
24 We thank you for your attention, Your Honour, and the reason we
25 are addressing you is that there is no way for us to obtain the right
1 kind of understanding from the OTP and to explain the fact that this is,
2 indeed, a high-priority case.
3 We wish to obtain the sufficient number of hours to make our work
4 possible, a sufficient number of hours to be placed at our disposal. We
5 have today been handed a decision by the Registry in which we are granted
6 another 400 hours for the main defendant and 500 hours for the work of
7 our investigators. We are not unhappy about the number of hours as such.
8 The fact is that the Defence never requested an additional amount of
9 hours. Mr. Martic is entitled to a fair trial, and it is essential that
10 his Defence team be given adequate conditions to prepare his Defence. In
11 view of the kind of difficulty that we're facing, at the moment this is
12 simply not possible. The Defence believes that this course of action
13 taken by the OTP is putting us in a very uncomfortable position.
14 I will take the liberty to remind Your Honour that the Defence
15 team is at the moment composed of five members. In less than two months,
16 we will have used up these additional hours. Without going into the
17 mathematics of the situation right now, this gives us the approximate
18 deadline as to our pre-trial brief. The Defence keeps running out of
19 time and keeps encountering problems that make its work very difficult.
20 It is put into a situation where it is given no choice between what to do
21 next and what to do later, thereby prejudicing its equal position in this
22 trial. We do not wish to take up any more of your time right now,
23 Your Honour. But we hope that you have understood the essence of the
24 problem we're facing.
25 Just let me add another sentence, Your Honour. The Defence has
1 assumed a duty on behalf of the OTP, something the OTP should have done.
2 We are sifting through these documents that have been given to us, and we
3 have been doing this, Your Honour. This case deserves a greater number
4 of available hours. This is not, however, what we are requesting. What
5 we are requesting is a minimum of equality, of equal conditions which we
6 believe would only be fair and should be granted to this Defence so that
7 it could successfully and thoroughly prepare its case. Thank you very
9 JUDGE MARTIN-CANIVELL: Thank you, Mr. Milovancevic. Be sure
10 that we are very conscious about the problems that you confront for this
11 aspect. But even being paramount for this Tribunal, the fullness of the
12 hearings and of the adjudication of the case, for the time being, that's
13 a matter rather of administrative character, it's not for us in the first
14 instance to decide about that. That's not the competence of this Court
15 to decide of the level of the case in relation to the expenses that have
16 to be paid for.
17 So be sure that we are conscious as I have already told before,
18 but I suggest to you to try to compose with the Registry and find a
19 solution to this. In case you won't be able to find something that is
20 fitting your whims in this case, it will be perhaps the case to take a
21 decision later on. But I have been told that even recently you haven't
22 even -- without changing the level of the case for the expenses, you had
23 got some extra help recently which I confided would be good enough at
24 least to help you to get along for the time being. So please be sure
25 that, this matter as well as the other matter that has been dealt with in
1 this Status Conference, are very, very to the consciousness of the
2 Chamber through myself, and the Chamber whenever it is necessary.
3 So coming now to the situation of the accused. Mr. Martic,
4 please, could you tell me what is your situation, your health, mental and
5 physical. Do you have any problem related with your health?
6 THE ACCUSED: [Interpretation] Thank God I'm healthy, and I'm
7 psychologically stable. But as a person who considers himself to be
8 innocent, and that is how I feel, I have spent 21 months in detention.
9 I hope I may be allowed to make a one-minute long comment and a question
10 related to the length of detention.
11 JUDGE MARTIN-CANIVELL: Yes. That was another point I was going
12 to ask you about. What are the conditions of your detention? You can
13 accept them? Do you find anything that wouldn't be according to what you
14 think should be the case for the treatment you receive at the Detention
15 Unit? Please speak up about that.
16 THE ACCUSED: [Interpretation] I was going to say something
17 relating to the proceedings, if I could be given a minute and a half or
19 JUDGE MARTIN-CANIVELL: Well, I would say that all the technical
20 aspects of the case could be left to your counsel, unless you don't have
21 any reason to lack trust in your counsel, which I don't think is the
22 case. That's the other point besides I would like to ask you, which is
23 do you have any kind of possibilities you would require to meet with your
24 counsel, to speak freely with him, and to prepare adequately your case
25 before this Tribunal?
1 THE ACCUSED: [Interpretation] I have absolute trust in my
2 counsel, though there are some problems because the first -- except for
3 the lead counsel, Mr. Milovancevic, the others are not allowed to come
4 and see me. So if I may not comment on this, may I just ask, is it
5 possible, is there any other place in the globe in which detention is
6 unlimited? You don't find such cases even in Asia or Africa. And since
7 the indictment against me was issued nine years ago, how come that the
8 Prosecution is still not ready to stand behind that indictment?
9 JUDGE MARTIN-CANIVELL: Slow down if you can because I realise
10 that the translator is having some problems with that. You say you're
11 having some problems with the relationship with your counsel. Please
12 tell me what are those problems so as to see if that it is in the power
13 of this Chamber to amend whatever deficiency or whatever problem could be
14 preoccupying you about. Please speak up. What are the problems you
15 would like to be settled now?
16 THE ACCUSED: [Interpretation] Apparently, you haven't quite
17 understood what I'm saying. I have absolute trust in my attorneys.
18 There's no problem in that regard. But the problem I do have is that I'm
19 not allowed to be visited by the legal assistant, for instance, or the
20 co-counsel. I haven't even seen him yet. But I do trust my Defence
22 My question was addressed to the Prosecution. How come that it
23 is still not ready for the case when the indictment was issued nine years
24 ago? True enough, that indictment was expanded to include all kinds of
25 things. Let me paraphrase. I'm to blame for the Croats, that the rain
1 didn't come on time, so they suffered a drought.
2 JUDGE MARTIN-CANIVELL: I see the problem that could be more
3 important than what you are saying is your relationship with the
4 co-counsel, that you haven't yet met. You may sit down, please. You may
5 sit down, Mr. Martic.
6 THE ACCUSED: [Interpretation] I would like to hear your response,
7 Your Honour. I didn't get an answer to my question. How much longer
8 should I wait? How many more months or years for the trial to begin?
9 I'm not afraid of the trial. I would like to see it started as soon as
10 possible. So I would like to know how many months or years or maybe
11 centuries I will be kept waiting before the trial begins.
12 JUDGE MARTIN-CANIVELL: Yes, you may sit down, please.
13 THE ACCUSED: [Interpretation] Thank you.
14 JUDGE MARTIN-CANIVELL: -- natural for you to know how long you
15 have to wait for a decision to be taken. As you may have heard before,
16 we had been speaking about the moment that the case could be -- began to
17 be taken up by the Tribunal, to be heard by the Tribunal. You have heard
18 that it could be perhaps being presented the brief for the Prosecution at
19 the end of April, and you have heard perhaps that the representative of
20 the Prosecution has assured this Tribunal that they can keep the dates
21 they had offered. So that's one point.
22 And that your counsel has also said that he may be ready one
23 month later to present the brief, that is, had the document, that has to
24 be presented before just the hearings begin. It will depend, of course,
25 on how much time is required for the hearing of the 51 witnesses that
1 perhaps we have heard that in case the eight other witnesses could decide
2 themselves to come here and testify, perhaps will extend a little the
3 time dedicated to the hearing of the case.
4 You know, our concerns chiefly are two: We want you to have a
5 fair hearing, a fair case. We are going to try to hear your case with
6 all the justice possible for any Tribunal. So that's one thing.
7 Before this -- included in this fairness, you have to realise
8 that it's also prevention of any unusual and unnecessary, unrequired
9 delay is included. So we are trying to have for you a fair and
10 expeditious case. That, unfortunately, will take some time. But we are
11 not stopping in any way to try to give you this kind of hearing, so be
12 sure about that.
13 I am glad you had said that you are trusting absolutely your
14 counsel, which is very important. It's a very important point. That
15 assures to you the possibility of defence according to the requirements
16 and the Rules. So that's very important and we take good notice of that.
17 So unless you have any other thing you would like to bring about, I would
18 say we have come to the end of this Status Conference. And I thank you,
19 the parties, for your attention and your presence, and also the Registry
20 and of course also to the translators.
21 The meeting is adjourned.
22 --- Whereupon the Status Conference
23 adjourned at 3.17 p.m.