Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Tuesday, 14 September 2010

 2                           [Status Conference]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           --- Upon commencing at 2.20 p.m.

 6             JUDGE LIU:  Good afternoon, ladies and gentlemen.

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

 8             THE REGISTRAR:  Yes, Your Honour.

 9             Good afternoon, Your Honour.  Good afternoon, everyone in and

10     around the courtroom.

11             This is case number IT-05-87-A, the Prosecutor versus

12     Nikola Sainovic et al.

13             Thank you, Your Honour.

14             JUDGE LIU:  Thank you.

15             Now, may I please have the appearances of the parties.  The

16     Prosecution first.

17             MS. NABTI:  Najwa Nabti appearing with Barbara Goy, and our case

18     manager, Colin Nawrot, for the Prosecution.

19             JUDGE LIU:  Thank you.

20             And now the Defence counsel, please.

21             MR. FILA: [Interpretation] Your Honour, Toma Fila and

22     Mr. Vladimir Petrovic, Defence counsel for Nikola Sainovic.

23             JUDGE LIU:  Thank you.

24             MR. VISNJIC: [Interpretation] Good afternoon.  Tomislav Visnjic

25     and Peter Robinson for the Defence of General Ojdanic.

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 1             MR. ALEKSIC: [Interpretation] Good afternoon.

 2     Aleksandar Aleksic, Defence for Mr. Pavkovic.

 3             MR. CEPIC:  Good afternoon, Your Honour.  On behalf of

 4     General Lazarevic Defence team, myself, Djuro Cepic.

 5             JUDGE LIU:  Thank you.

 6             MR. IVETIC:  Good afternoon, Your Honour.  On behalf of the

 7     Sreten Lukic Defence team, I, myself, am Dan Ivetic, and lead counsel

 8     Branko Lukic are present.

 9             JUDGE LIU:  Thank you.

10             Before we start, can all the parties hear the proceedings in a

11     language that they understand?

12             Mr. Sainovic, can you follow the proceedings in a language that

13     you understand?

14             THE APPELLANT SAINOVIC: [Interpretation] Yes, Your Honour, I can.

15             JUDGE LIU:  Thank you very much.

16             Mr. Ojdanic?

17             THE APPELLANT OJDANIC: [Interpretation] Yes.

18             JUDGE LIU:  Thank you.

19             Mr. Pavkovic?

20             THE APPELLANT PAVKOVIC: [Interpretation] Yes, Your Honour.

21             JUDGE LIU:  Thank you.

22             Mr. Lazarevic?

23             THE APPELLANT LAZAREVIC: [Interpretation] Yes, I can follow.

24             JUDGE LIU:  Thank you.

25             Mr. Lukic?

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 1             THE APPELLANT LUKIC: [Interpretation] Yes, Your Honour.

 2             JUDGE LIU:  Thank you.

 3             This Status Conference is called in accordance with

 4     Rule 65 bis (B) of the Rules of Procedure and Evidence of the Tribunal,

 5     which requires a Status Conference to be convened every 120 days during

 6     the appeal proceedings to allow any person in custody, pending an appeal,

 7     the opportunity to raise issues in relation thereto, including the mental

 8     and physical condition of that person.

 9             In the present case, the last Status Conference was held on

10     18th May 2010.  Today's Status Conference was scheduled by an order

11     issued on the 23rd August 2010.

12             First, I would like to inquire into the status of the detention

13     conditions and the health situation of the appellants.  If you have any

14     concerns in relation to the detention condition or your state of health

15     that cannot be resolved through the standard procedures, I would like you

16     to raise them now.  If you wish, this discussion can take place in

17     private session.

18             I see none.  Yes.

19             Yes, Mr. Pavkovic.

20             THE APPELLANT PAVKOVIC: [Interpretation] Your Honour, in a couple

21     of sentences I wanted to inform you of the progress of dental treatment

22     which concerns me.

23             As you know, it was on the 1st of November, 2009, that dental

24     treatment started, and it ended on the 1st of June, 2010.  So it almost

25     took a year.  And counting from where the problems emerge, it's been two

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 1     years now.  So in two and a half years, we managed to treat two teeth,

 2     and we are at a stage now where implants need to be fitted.

 3             I would like to raise the following problem here:  The specialist

 4     implant surgeon suggested that two implants be made over the course of

 5     one year.  So six months for two implants to be fitted, then six months'

 6     break, and then again six months for the fixed dentures to be fitted.

 7     This is too long a period, since I've been plagued by toothache all this

 8     time.

 9             My Defence team has been working on a motion for my provisional

10     release in order for the treatment to be made in my home country.  Based

11     on the documentation we have at our disposal now, all the treatment,

12     that's to say the implants, can be fitted in the course of three weeks,

13     and then we would have a three months' break, following which three weeks

14     would be needed to complete the whole treatment.  In other words, the

15     dental treatment that could take place in my home country would last six

16     months in total.

17             That's all I have to say.  I have no other problems to raise.

18             JUDGE LIU:  I believe that you still asked for the provisional

19     release so that your dental problem could be treated in Serbia.

20             THE APPELLANT PAVKOVIC: [Interpretation] Yes.  The fitting of

21     implants and the entire procedure could be done in six months' time in my

22     country, whereas here it would take one year.  But we are still

23     collecting the requisite documentation in order to file our motion.

24             JUDGE LIU:  Thank you.  Thank you very much for your information,

25     and I believe that we'll consider your motion at a later stage.

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 1             Mr. Lazarevic?

 2             THE APPELLANT LAZAREVIC: [Interpretation] Mr. President, I would

 3     start by saying I am yet again addressing you, and thank you for giving

 4     me the floor to address you on the issue of my health again.

 5             In the previous three Status Conferences, I think I made

 6     submissions concerning my health condition that would amount to a novel,

 7     so what I would like to ask for now is five to six minutes to address you

 8     on the following issues.

 9             Let me first inform you that on the 5th of July of this year,

10     surgery was conducted of the thrombosis of my left leg, across its

11     length, and not as some of the medical findings state, that the surgery

12     only involved part of my leg up to the knee.  That's incorrect.

13             Number 2, yesterday, in the Royal Hospital of Bronovo, I have

14     been undergoing urinary tract tests.  It was a year ago that a diagnosis

15     was already made for this particular condition.  The UN Detention Unit

16     physician has ignored this particular condition until yesterday, when the

17     condition became quite critical.  I ended up in the hospital yesterday,

18     and the procedure has started.  We are yet to see what the outcome will

19     be.

20             Let me say that the physician even went as far as to inform you,

21     in writing, that some of the findings made by the GP were ignored because

22     they weren't thought to be worthy of consideration.  And let me say that

23     the GP did not take into consideration some of the specialist's findings.

24             I have this time drawn your attention to two of these problems

25     only in order to demonstrate to everyone in the courtroom that I do not

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 1     engage in simulating medical conditions.  I am not making them up, and

 2     nor are any of the specialists in Serbia.  Rather, these are medical

 3     conditions that have been shown to exist here in the Netherlands.

 4             Therefore, I want to highlight the truth and justice, and, on the

 5     other hand, I want to draw your attention to the fact that some of the

 6     medical staff of the Tribunal have not been fulfilling their duties, have

 7     been closing their eyes to the actual situation, and have not been fully

 8     informing you, the Appeals Chamber, and all the other interested parties.

 9     And let me not go into that issue again, because I've discussed that

10     issue on the previous conferences.

11             Mr. President, I would like to seize this opportunity to thank

12     you personally for your efforts in expediting the procedure leading to my

13     leg surgery.  It was a critical point in my medical condition, and absent

14     your support and the support of some other individuals of the Tribunal, I

15     would have found myself in a very difficult position, indeed.

16             Finally, Mr. President, I do continue to have medical problems,

17     and let me tell you, in all honesty, that the problems were not summed up

18     in that one-page document you received on the 13th of September from the

19     UNDU hospital.

20             I do not wish to engage in polemics here, and this is the reason

21     why:  The President of the Tribunal, Mr. Robinson, has shown personal

22     interest in assisting my medical condition and health, in keeping with

23     the Rules of the Tribunal.  I wish to put you on notice of this, and I

24     wish to thank him for it here.

25             I hope that I've not taken up too much of your time, and thank

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 1     you for your patience.

 2             JUDGE LIU:  Thank you very much.

 3             I'm very glad to know that the procedure has already started.  I

 4     believe that, you know, you also have to take care of yourself in the

 5     Detention Unit.

 6             As for your complaints, I certainly will convey them to the

 7     commanding officer of the UNDU as well as to the Registrar.

 8             Yes, Mr. -- yes.

 9             MR. ALEKSIC: [Interpretation] Thank you, Your Honour.

10             I just wish to add something for the record to what my client

11     just said.  It has to do with yesterday's report of the physician from

12     the UNDU which was made according to your request.  I have to note that

13     it's contrary to the previous report to a large degree.  The previous

14     report was dated the 19th of July, and it is especially contrary to the

15     findings of Dr. Tan, who is a specialist of implantology and whose

16     reported is dated the 1st of July this year.  Yesterday's report mainly

17     states that my client's treatment could have been concluded if he had not

18     insisted on postponing it because he wishes to have it done in his

19     country.  However, Dr. Tan's report, dated the 1st of July, states what

20     General Pavkovic already said; namely, that the entire treatment could

21     last up to a year and a half.

22             This is what I wanted to notify you about, and we will submit the

23     request for provisional release in a short time.

24             JUDGE LIU:  Thank you.

25             Mr. Lukic.

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 1             THE APPELLANT LUKIC: [Interpretation] Your Honours, I just wish

 2     to use this opportunity and thank you for resolving positively two of my

 3     requests for provisional release, and the unfortunate circumstances were

 4     such that this happened over a short period of time.  Thank you for this,

 5     once again, and that will be all for me.

 6             JUDGE LIU:  Thank you very much.

 7             Well, as for the provisional release, I would like to inform the

 8     parties that in your submissions, you have to show that, you know, the

 9     certain treatment is not at all available in the Netherlands and to show

10     us what are the advantages to be treated in Serbia, so that to justify

11     your request for the provisional release, because this Bench has been

12     dealing with the requests for the provisional release for several times

13     already.  I do not want to see the repeated submissions.  Thank you.

14             Yes, yes, please.

15             MR. FILA: [Interpretation] Your Honour, we requested a

16     provisional release of Mr. Sainovic.  For certain reasons you denied

17     that, and there is nothing I have to add about this.

18             But another issue has arisen in the meantime, and I would ask you

19     to resolve it, if possible.

20             If -- you said if treatment in Holland is possible, we do not

21     need to send him to Serbia.  I agree with you.  However, there are two

22     possibilities.  One is to have his healthy teeth pulled out, and I don't

23     think that anyone in the world could request this of any man.  If he

24     doesn't want that and if they do not want to pay for treatment for him in

25     the Netherlands, I agree with you that he doesn't have to go to Serbia,

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 1     where this would be at no cost for this Court, but I cannot understand

 2     that someone wants to force him to have his teeth pulled out because

 3     that's cheaper.  And he has no money to pay this.  He has been here for

 4     eight years.

 5             So this is just one small remark in relation to your decision.

 6     Thank you.

 7             JUDGE LIU:  Thank you very much.

 8             But I believe that this is an administrative issue, rather than a

 9     judicial matter, especially concerning the costs of the treatment, and I

10     still hope that your client will consider the treatment plan offered by

11     the Dutch doctor in this respect.

12             MR. FILA: [Interpretation] Your Honour, maybe you didn't

13     understand me.

14             He wants to accept it.  This is how I understood that, that you

15     do not want to let him go to Serbia.  For me, it's a finished story.  But

16     the options that he's being presented with, we cannot force him to have

17     his healthy teeth pulled out because it's cheaper than having his teeth

18     fixed.  It's a humanitarian issue.  It has to do with the rights of man

19     as well, and that's the essence.  It is a judicial issue, because human

20     rights are a judicial issue.  I heard that maybe people have their teeth

21     pulled out in Guantanamo Bay, but not here.

22             Thank you.

23             JUDGE LIU:  Well, I believe that, you know, depending on the

24     exact amount that Mr. Sainovic may be required to pay, and he will have

25     the opportunity to seize the Registrar of the Tribunal or eventually the

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 1     President for the relevant request, explaining why he would not be able

 2     to bear the cost himself.

 3             I think this is all I have to say at this stage.

 4             MR. FILA: [Interpretation] Thank you.

 5             JUDGE LIU:  If there is nothing else, let's record the recent

 6     procedural history.

 7             Before we turn to any issues that the parties may wish to raise,

 8     there remain a few outstanding matters with respect to the briefs and

 9     other relevant filings that I would like to address.

10             First, as regards the public redacted version of the briefs, I

11     note that the public redacted version of Mr. Lukic's reply brief has yet

12     to be filed.  I would therefore encourage his counsel to do so as soon as

13     possible and to ensure that the paragraph numbers in the redacted version

14     of this filing are the same as in the confidential version of his reply

15     brief.

16             Yes.

17             MR. IVETIC:  Your Honour, I can report that that has been

18     submitted for filing this morning, so it should already be in the system,

19     working its way through the Registry distribution system.

20             JUDGE LIU:  Thank you very much, indeed.

21             Secondly, on the 7th September 2010, the Appeals Chamber granted

22     Professor David Scheffer's application for filing an amicus curiae brief

23     in relation to the mens rea requirement of aiding and abetting, as

24     established by customary international Law.  The Prosecution and

25     Mr. Ojdanic were order to file their submissions in response, if any, by

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 1     27 September 2010.

 2             The Appeals Chamber will consider the parties' submission in

 3     those briefs, when addressing their relevant arguments on the merits of

 4     the appeal, in the appeal judgement.

 5             Third, I have been informed that the translation of the

 6     trial judgement into B/C/S is complete and has been filed today.  In this

 7     context, I recall that the Defence have the opportunity to request the

 8     variation of their grounds of appeal, after having read the B/C/S

 9     translation of the trial judgement, provided that they show good cause

10     under Rule 108 of the Rules.  In this regard, I would strongly encourage

11     parties seeking such variation to do so as soon as possible so that their

12     motions may be decided upon and the supplemental briefing completed,

13     where applicable, before the end of this year.

14             Finally, there is at present one outstanding Prosecution motion

15     filed yesterday.  The Prosecution requests that the Appeals Chamber lift

16     the confidentiality of Exhibits 4DA1 through 4DA24.  These exhibits were

17     admitted by the Appeals Chamber, pursuant to Rule 115 of the Rules, in

18     its confidential decision of the 12th of February, 2010, which granted,

19     in part, Mr. Pavkovic's motion to admit additional evidence.

20             The Prosecution submits that Mr. Pavkovic's counsel, who

21     originally requested that these exhibits be treated confidentially, has

22     subsequently indicated that those exhibits may be part of the public

23     record.  The Prosecution argues that Mr. Pavkovic repeatedly referred to

24     those contents of the Exhibits 4DA1 through 4DA24 in its supplemental

25     brief filed publicly on the 8th March 2010.  It further contends that it

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 1     was informed by counsel for Mr. Pavkovic that it was now acceptable to

 2     discuss those exhibits in public.  Consequently, the Prosecution submits

 3     that those exhibits should be classified as public, since there appears

 4     to be no exceptional reason for keeping them confidential.

 5             I invite counsel for Mr. Pavkovic, if he is in the position to do

 6     so right now, to respond to the Prosecution's motion to which the

 7     Prosecution made a reply.

 8             Before you start, I just want to know whether you need the

 9     private session for further discussions.

10             Yes, you may proceed.

11             MR. ALEKSIC: [Interpretation] It is not necessary.  Thank you,

12     Your Honour.

13             As my colleague Mr. Ackerman said in the correspondence with our

14     colleagues from the OTP, we have nothing against this, and we agree that

15     these documents may be of a public character.  There is no need for them

16     to be kept confidential anymore.

17             Thank you.

18             JUDGE LIU:  Thank you.

19             Any reply from the Prosecution?

20             MS. NABTI:  No reply.  Thank you, Your Honour.

21             JUDGE LIU:  Thank you very much.

22             I shall now determine this matter in my capacity of the

23     Pre-Appeal Judge.

24             I note that there is no objection to the Prosecution's motion to

25     lift the confidentiality of the Exhibits 4DA1 through 4DA24.  I also

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 1     observe that the contents of those exhibits were disclosed in

 2     Mr. Pavkovic's supplemental brief which was filed publicly on

 3     8th March 2010.

 4             Finally, I recall that all proceedings before the Appeals Chamber

 5     shall be public unless there are exceptional reasons for keeping them

 6     confidential.

 7             In the present instance, I found that no exceptional reason

 8     exists to justify the confidential stature of the Exhibits 4DA1 through

 9     4DA24 of the confidential Prosecution's motion to lift the

10     confidentiality of exhibits.

11             For the foregoing reason, I grant the Prosecution's motion and

12     direct that the Registry of the Tribunal to classify as public exhibits

13     4DA1 through 4DA24 and the confidential Prosecution's motion to lift

14     confidentiality of exhibits.

15             Well, I believe that there are presently no other pending motions

16     before the Appeals Chamber in this case.

17             At this point, I would like to ask the parties whether they have

18     any other issues that they would like to raise at this time.

19             Is there any issues that the Prosecution would like to raise?

20             MS. NABTI:  There are no issues pending with the Prosecution.

21     Thank you.

22             JUDGE LIU:  Thank you very much.

23             Now I turn to counsel for Mr. Sainovic.  Do you have any other

24     issues you would like to raise, Mr. Fila?

25             MR. FILA: [Interpretation] Your Honour, the only issue that I

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 1     would like to raise, and on which I consulted with the other Defence

 2     counsel, is the issue of the time-limit within which we will be required

 3     to read the trial judgement in order to act in accordance with Rule 108.

 4     You rendered a decision on the 29th of June, 2009, stating as much.

 5             Upon consultation with the accused and others, we believe that

 6     the shortest time-limit that we need is three months.  It may seem long,

 7     but we have to read through every page of the judgement and we have to

 8     see the positions vis-a-vis the other accused.  Then we have to check the

 9     translation against the original, and we do, indeed, need the time to

10     deal with this.

11             Thank you.

12             JUDGE LIU:  Well, I found that there is no time-limit on this

13     matter in our Rules.  But, however, I hope that you could do it as soon

14     as possible, especially within three months.  I hope if you have any

15     supplemental briefings which you would like to submit, you'd better do it

16     within that period of time; at least within this year.

17             Is that clear, Mr. Fila?  Thank you.

18             And the counsel for Mr. Ojdanic, do you have any other issues to

19     raise?

20             MR. VISNJIC: [Interpretation] No, thank you, Your Honour.  We

21     join the submission put forward by Mr. Fila.

22             JUDGE LIU:  Thank you very much.

23             Counsel for Mr. Pavkovic?

24             MR. ALEKSIC: [Interpretation] We don't have any other submissions

25     than the one put forth by Mr. Fila.

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 1             JUDGE LIU:  Thank you.

 2             Counsel for Mr. Lazarevic?

 3             MR. CEPIC:  Thank you, Your Honour.

 4             At this moment, nothing to raise, just to add that we also join

 5     to the proposal of Mr. Fila.

 6             JUDGE LIU:  Thank you.

 7             And the counsel for Mr. Lukic?

 8             MR. IVETIC:  Your Honour, we also acknowledge that Mr. Fila's

 9     accurately stated our position jointly on the matter he presented, and we

10     have nothing further to add at this time.

11             JUDGE LIU:  Thank you very much.

12             I believe that this -- yes, yes.

13             MS. NABTI:  Pardon me, Your Honour.

14             JUDGE LIU:  Yes.

15             MS. NABTI:  If I could just respond to the proposal of the

16     Defence regarding having an additional three months to respond.

17             At present, the Prosecution would agree that 30 days is

18     reasonable to review the judgement in B/C/S with their clients, given the

19     time they've already had to meet with their clients and discuss this

20     matter in preparing their notices of appeal as well as their full

21     briefing.  However, if additional time is needed, the Prosecution would

22     request that that be made in writing so that it can respond to the

23     arguments supporting good cause established under the Rules.

24             JUDGE LIU:  Well, thank you very much for your submission.  And I

25     believe that, you know, we have an extraordinary case, and the

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 1     translation of the whole judgement took about 14 months already, and it

 2     took me quite a long time to read the whole judgement, trial judgement.

 3     And I believe that the Defence counsel will do a lot of checking work in

 4     this aspect, so I believe that a longer time is worthy for them to do so.

 5     If you insist, you may raise your objections and for the Appeals Chamber

 6     to consider.  But, however, I think three months' time for any

 7     submissions may be reasonable, what I have said.  That is, you know, any

 8     supplemental briefing should be submitted within this period of time.

 9             MS. NABTI:  Thank you, Your Honour.

10             There is nothing further I have to add at this time.

11             JUDGE LIU:  Yes.

12             By this stage, I have to remind the Prosecution that you have

13     10 days to respond after the Defence file their submissions for the

14     variation of their briefs, according to the Rules.  Is that clear?

15             MS. NABTI:  Yes.  Thank you, Your Honour.

16             JUDGE LIU:  Thank you.

17             Well, I believe that's all.  This concludes today's

18     Status Conference.

19             I thank the parties for their attendance, and the hearing is

20     adjourned.

21                           --- Whereupon the Status Conference adjourned

22                           at 2.56 p.m.