1 Thursday, 23 February 2012
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.07 p.m.
6 JUDGE ORIE: Good afternoon to everyone.
7 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honour. This is case number
9 IT-09-92-PT, the Prosecutor versus Ratko Mladic.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 Again, good afternoon to everyone, Mr. Mladic, Defence counsel,
13 May I have the appearances, Prosecution first, please.
14 MR. GROOME: Good afternoon, Your Honour. For the Prosecution
15 this afternoon, I am Dermot Groome; I am accompanied by Peter McCloskey;
16 Roeland Bos; and Ms. Janet Stewart.
17 JUDGE ORIE: Thank you, Mr. Groome.
18 For the Defence.
19 MR. LUKIC: Good afternoon, Your Honour, Branko Lukic for the
20 Defence as the lead counsel.
21 JUDGE ORIE: Thank you.
22 And I see Mr. Mladic is present as well.
23 This is now the sixth Status Conference in this case, and as with
24 the previous Status Conferences any guidance and any decisions that will
25 be announced have been deliberated and adopted by the Chamber as a whole.
1 The purpose of this and other Status Conferences is to monitor
2 the progress made with regard to pre-trial work and preparation for
3 trial. As with earlier Status Conferences, this one has been preceded by
4 a Rule 65 ter meeting, which was held earlier this week on Monday, the
5 20th of February, 2012. We then discussed certain pre-trial matters in
6 more detail than this Status Conference allows.
7 I first address some matters in relation to pre-trial planning.
8 With its witness and exhibit lists filings, the Prosecution also filed a
9 notice of its Rule 65 ter (E) filings, containing a public summary of the
10 information contained in the witness and exhibit lists. The notice
11 states that the witness list comprises 410 witnesses, 386 of whom are
12 fact witnesses and 24 expert witnesses. Of the fact witnesses, 148 are
13 expected to be called to the Tribunal to testify. Seven are listed as
14 viva voce witnesses, meaning that their evidence will be led live in the
15 courtroom. 141 witnesses are expected to testify pursuant to
16 Rule 92 ter, meaning that they will be available for cross-examination by
17 the Defence. The Prosecution estimates that it will need 200 hours of
18 hearing time for all of its testifying witnesses.
19 At the 10th of November Status Conference, the Chamber issued
20 guidance for the parties, limiting the time for examination-in-chief of
21 Rule 92 ter witnesses to 30 minutes and stated that this time can be
22 increased, but only exceptionally and by the Chamber's leave with good
23 cause shown for each specific witness. As a general rule, there should
24 be no associated exhibits tendered with Rule 92 ter motions. The Chamber
25 reminds the parties, as stated in the guidance, that if they seek to
1 tender documents through a Rule 92 ter witness, this could constitute
2 good cause for exceeding the 30-minute time-limit and should be included
3 in the application.
4 Of the remaining fact witnesses, 18 are unavailable and the
5 Prosecution will seek to have their prior testimony or statements
6 admitted into evidence pursuant to Rule 92 quater. For the final 220
7 witnesses, the Prosecution will seek to have their evidence adduced
8 pursuant to Rule 92 bis, which allows for witness statements to be
9 entered into evidence without the witness appearing in court. Evidence
10 tendered through such witnesses may not go to proof of the acts or
11 conduct of the accused in this case.
12 At this Monday's Rule 65 ter meeting, certain numerical
13 inaccuracies and clarifications found within the witness list were
14 discussed and the Prosecution was instructed to file a corrigendum to its
15 witness list.
16 Mr. Groome, in relation to the form of your corrigendum, the
17 Prosecution does not need to re-file its witness list in its entirety.
18 Rather, the Prosecution's corrigendum should indicate the page,
19 paragraph, and line, if applicable, of the original witness list that is
20 being corrected with the corresponding corrected text or corrected
22 Second, at the Rule 65 ter meeting you requested that the
23 Prosecution be given until the dead-line for its pre-trial brief has
24 passed to file that corrigendum. The Prosecution's pre-trial brief is
25 due tomorrow, on the 24th of February; and therefore, the Chamber sets
1 the dead-line for the filing of the corrigendum to the witness list to
2 March the 2nd of 2012 at the latest.
3 Finally, also at the Rule 65 ter meeting, the Prosecution was
4 instructed to file an ex parte annex or a separate filing to its witness
5 list containing information related to those witnesses for whom
6 protective measures of delayed disclosure in relation to their expected
7 start of testimony has been ordered by another Trial Chamber. After some
8 discussion, I informed you that I would discuss the matter with my
9 colleagues and that you would be informed if the Chamber would still like
10 to receive this filing.
11 Mr. Groome, to clarify this matter, I remind you that in relation
12 to witnesses for whom delayed disclosure has been ordered by another
13 Chamber under Rules 69(c) and 75, this delayed disclosure does not apply
14 in terms of the Chamber receiving this information, but rather to the
15 witness's information being disclosed to the Defence and to the public.
16 The Chamber would like to receive this filing as an ex parte annex to the
17 corrigendum of the witness list, though the Prosecution is welcome of
18 course to file it earlier if possible.
19 Further, in relation to Rule 70 witnesses for whom you have not
20 yet received clearance from the provider, while a Rule 70 provider is
21 entitled to refrain from giving clearance to disclosure to the Defence or
22 the Chamber, the Chamber still needs to decide on the Prosecution's
23 witness list under Rule 73 bis (C) of the Rules. If there is no
24 clearance, at least to the Chamber, by the time of that decision, the
25 Chamber will not accept the inclusion of witnesses whose identities and
1 expected testimonies are entirely unclear.
2 Do the parties have any questions or any comments in relation to
3 what I have just raised?
4 MR. GROOME: No, Your Honour.
5 JUDGE ORIE: Mr. Lukic, I see you have also no questions or
7 Then I will move on. Also on the 10th of February, the
8 Prosecution filed its notice of compliance with Rule 66(A)(ii). And in
9 that filing, the Prosecution stated its intention to re-certify its
10 compliance with respect to Rule 66(A)(ii) disclosure and to do that on
11 the 10th of March, 2012.
12 Mr. Groome, the Chamber doesn't want to force you to work on a
13 Saturday, the 10th of March is a Saturday. The filing is due on the 12th
14 of March, that is, the Monday to follow the 10th.
15 MR. GROOME: Thank you, Your Honour.
16 JUDGE ORIE: Since the 10th of February, discussions between the
17 parties have been ongoing to resolve certain concerns of the Defence.
18 This was discussed at the Rule 65 ter meeting and the parties met in the
19 hope of resolving these concerns earlier this week. At the Rule 65 ter
20 meeting, the Chamber instructed the Prosecution to include any resolution
21 of the concerns raised by the Defence in its 12th of March, 2012,
22 re-certification notice. That instruction is hereby put on the record.
23 On the 8th of February, 2012, the Prosecution filed an urgent
24 motion requesting an extension of time for the filing of its pre-trial
25 brief to the 24th of February, 2012. On the 9th of February, through an
1 informal communication, the Defence informed the Chamber that it had no
2 objections to the request for an extension of time, and therefore would
3 not file a response. On that same day in an informal communication, the
4 Chamber granted the request for an extension of time, and that decision
5 is hereby put on the record.
6 On the 15th of February, 2012, the Chamber issued a Scheduling
7 Order setting the dates for the start of trial and other matters. For
8 those in the gallery and those watching these proceedings, I will briefly
9 summarise the major points of the Scheduling Order.
10 After careful consideration, the Chamber ordered that the
11 Pre-Trial Conference in this case shall be held on the 17th of April,
12 2012. The trial shall commence on the 14th of May, 2012, for the opening
13 statement of the Prosecution and continue with the opening statement of
14 the Defence and the accused, if they so choose. The Chamber will then
15 start at -- on the 29th of May hearing the presentation of Prosecution
17 In considering the appropriate pace of proceedings during the
18 early stage of the trial, the Chamber determined that certain non-sitting
19 weeks should be included in the schedule to provide the parties with
20 additional preparation time. Therefore, the Chamber ordered that the
21 weeks of the 21st of May, the 13th of July, and the 13th of August would
22 be non-sitting weeks. In so ordering, the Chamber also took into
23 consideration that the Tribunal's summer recess is from the 23rd of July
24 until the 10th of August and that there will be no court proceedings
25 during the recess.
1 The Chamber informed the parties that it would be in a position
2 to re-assess the trial schedule, if necessary, with the parties' input
3 prior to the summer recess and make any further modifications to the
4 trial schedule at that time. The Chamber granted the Defence request for
5 morning court sessions, to the extent the Registry is able to accommodate
6 this request, and also urged the Registry to do its utmost to meet the
8 Additionally, in consideration of the two-week extension granted
9 to the Prosecution, the Chamber adjusted the dead-line for the filing of
10 the Defence pre-trial brief, which was previously set to the 2nd of
11 March, to the 16th of March, 2012.
12 Finally, at the 19th of January, 2012, Status Conference the
13 Chamber scheduled an additional Status Conference for the 7th of March.
14 In the Scheduling Order, this Status Conference was cancelled and the
15 Chamber scheduled a Rule 65 ter meeting for the 26th of March and a
16 Status Conference for the 29th of March, 2012. And this concludes the
17 Chamber's summary of the 15th of February Scheduling Order.
18 On the 17th of February, the Prosecution filed a submission in
19 relation to the proposed expert statement of Witness Teufika
20 Ibrahimefendic. This filing will be further discussed later in this
21 Status Conference. On that same day, the 17th of February, the
22 Prosecution filed its first Rule 92 bis and Rule 92 quater motions.
23 At the 10th of November, 2011, Status Conference, the Chamber
24 announced its guidance for the parties on Rule 92 bis motions. In that
25 guidance, the Chamber instructed the parties that any Rule 92 bis motion,
1 and I quote:
2 "... should take the normal form of an ICTY witness statement."
3 Further, the Chamber also instructed the parties that if they
4 seek to tender, under Rule 92 bis, the transcript of testimony in another
5 case, that they should present compelling reasons for the necessity of
6 receiving that evidence in the form of a 92 bis transcript.
7 Mr. Groome, the Rule 92 bis motion which was filed on the 17th of
8 February does not take the normal form of an ICTY witness statement. In
9 fact, it resembles very much a transcript of prior testimony with a
10 witness statement cover sheet attached.
11 Further, in that same guidance, the parties were instructed that
12 92 bis motions should not, as a general rule, encompass any associated
13 exhibits, but may do so exceptionally, provided that the witness in his
14 statement clearly addresses each document and discusses its content.
15 Additionally, even if an exception is made, the number of associated
16 exhibits for any Rule 92 bis witness should not exceed five documents.
17 And if a party wishes to exceptionally exceed this number, it should
18 include a justification for this in the Rule 92 bis motion.
19 The Prosecution's Rule 92 bis motion lists 55 associated
20 exhibits, with an additional 17 which are struck through, but
21 nevertheless these 17 struck through for unknown reasons included in the
22 associated exhibit. The Chamber notes that the Prosecution has stated
23 that some of the 55 exhibits may not be necessary in light of the
24 Chamber's upcoming adjudicated facts decision.
25 Finally, the Chamber also notes that the conclusion, paragraph
1 38, of the Prosecution's Rule 92 bis motion requests, and again I quote:
2 "... that the prior testimony of the deceased and all of the
3 exhibits referenced therein be admitted into evidence pursuant to Rule 92
5 And I emphasize that this is in a Rule 92 bis motion.
6 Mr. Groome, the Chamber finds this motion to be incredibly
7 difficult to comprehend and, further, finds that it does not comport with
8 the Chamber's guidance on Rule 92 bis motions. Therefore, you are
9 instructed to re-file this Rule 92 bis motion by the 2nd of March. The
10 amended filing should contain a witness statement which takes the normal
11 form of an ICTY witness statement, should not contain portions of
12 transcripts copy and pasted into the statement, and should be limited to
13 five associated exhibits or include a justification as to why it is
14 necessary to exceptionally exceed this number and verify that the witness
15 addresses the content of each document in his statement that you still
16 seek to tender through him.
17 Regarding the Prosecution's Rule 92 quater motion, the
18 Prosecution has submitted the witness's prior testimony in its entirety
19 and annotated those portions upon which it will rely. The relied upon
20 portion is approximately 12 per cent of the entire testimony. Further,
21 in paragraph 26 of the motion, the Prosecution has proposed a procedure
22 for the tendering of transcripts of prior testimony in Rule 92 quater
23 motions. In this regard, the Chamber considers that the tendering party
24 should only tender for admission those excerpts of a transcript upon
25 which it is relying, including any portions necessary to contextualise or
1 clarify the relied upon excerpts.
2 Mr. Groome, for the Prosecution's first Rule 92 quater motion,
3 the Chamber will not require the Prosecution to re-file the motion.
4 However, the Chamber will only consider for admission the annotated parts
5 of the transcript. In this respect, the Chamber requests that you
6 carefully review the transcript to ensure that unannotated portions are
7 not also necessary for the Chamber's evaluation and understanding of the
8 annotated portions. Should the Prosecution determine that additional
9 portions do need to be included, it should file a supplement to the
10 original filing identifying those additional portions. And please do so
11 within seven days.
12 Of course, and I'm addressing you, Mr. Lukic, if the Defence in
13 response to a Rule 92 quater motion which is redacted, that is, would
14 feel that there is a need for other portions to be admitted as well,
15 although not selected by the Prosecution, of course you could indicate
16 this in a response, that you would like to have added other portions of
17 the Rule 92 quater transcript or statement.
18 MR. LUKIC: Thank you, Your Honour.
19 JUDGE ORIE: Now, for future motions, the Prosecution should not
20 tender entire transcripts of prior testimony, but only tender those
21 portions upon which it will rely.
22 Finally, at the 20th of February Rule 65 ter meeting, the
23 Prosecution proposed presenting its Rule 92 bis, 92 ter, and 92 quater
24 motions in the order of its case. Provided that the Prosecution adheres
25 to the Chamber's guidance on Rule 92 bis, Rule 92 ter, and Rule 92 quater
1 motions, the Chamber sees no problem with this and leaves the matter to
2 the Prosecution.
3 Are there any questions or comments in relation to what I just
5 MR. GROOME: Yes, Your Honour. From the Prosecution's point of
6 view, it is difficult to make a selection of the exhibits that we would
7 tender absent the adjudicated facts decision. Can I inquire as when we
8 might expect such a decision?
9 JUDGE ORIE: Somewhere in my script it reads that it is in the
10 near future, and that's not going to help you a lot, Mr. Groome, is it?
11 MR. GROOME: Well, it is somewhat helpful, Your Honour. It would
12 also be helpful if we knew if there's a particular portion. The Chamber
13 had said in the sent that it might separate its decision into separate
14 parts, and if we knew what particular part of the case the Chamber was
15 going to address first, we could focus on the witnesses related to that
16 part of the case.
17 JUDGE ORIE: Yes. Now I could give you the numbers, but I have
18 to first ...
19 [Trial Chamber and Legal Officer confer]
20 JUDGE ORIE: Mr. Groome, having consulted Chambers staff and
21 going back into my own memory, I think the first decision would cover the
22 proposed facts 1 up to 1269, and you asked for a -- the near future, what
23 that would be, whether that would go to July or not. It certainly does
24 not. I would be disappointed if that decision would not be out in the
25 next two weeks and I would be -- I would not be unhappy if it would be
1 out next week, and there are no guarantees given whatsoever because a
2 decision will finally be issued once all the Judges agree on all the
3 details of that decision.
4 If this is of any help to you ...
5 MR. GROOME: It is, Your Honour. And if I could raise just a
6 concern, I think, that the Prosecution has with the restriction on the
7 number of exhibits. When we consider that in light of your other
8 guidance, that bar table motions should not be submitted until near the
9 end of the Prosecution case, we consider that we could face a situation
10 where we've made a choice or -- the mode of testimony for a witness, we
11 have this limitation of five exhibits, and then when we come near to the
12 end of the presentation of our case, there's a certain amount of
13 uncertainty about whether we have been able to tender all of the evidence
14 that we need to to establish or to meet our burden of proof. And perhaps
15 it would be better to put this in a written submission, but I do want to
16 call to the or raise with the Chamber or at least make the Chamber aware
17 that some of the interaction of some of the Chamber's guidance does give
18 the Prosecution concern. We are still trying to consider all of the
19 implications of it, but there are some reasons for concern on the
20 Prosecution's part.
21 JUDGE ORIE: You will understand that our guidance was not aiming
22 at curtailing the Prosecution in presenting evidence, but rather to
23 encourage the Prosecution to be as focused as possible in the
24 presentation of its evidence. First of all, of course I'll discuss the
25 issue with my colleagues, and part of that discussion would also be
1 whether we would invite you to make a submission, as you just indicated
2 you might want to make, and of course you do not need our consent to make
3 any submissions. But if we would consider on the basis of what you just
4 said that we would even actively seek such a submission, we'll let you
5 know. And otherwise, it's left in your hands whether or not to do so.
6 MR. GROOME: Thank you, Your Honour. And could I ask the Chamber
7 to consider one possible way of proceeding would be: It is the general
8 plan of the Prosecution to proceed with the presentation of its case in a
9 way that's not dissimilar from the organisation of the witness list, and
10 that is by particular small components of the indictment. And perhaps
11 one option that the Chamber might want to consider is that at the end or
12 at the conclusion of each individual component, that the Prosecution
13 would be entitled to submit a bar table motion. This way, we would have
14 some notice if there was a need to adjust the presentation of our case at
15 a time in the case which it's still possible.
16 JUDGE ORIE: We'll certainly discuss and consider the suggestion
17 you've just made.
18 Is there anything, Mr. Lukic, you would like to already say about
19 this concerns expressed by the Prosecution on the limits the Chamber has
20 put in its guidance on associated exhibits and the suggestion to perhaps
21 change the system and have bar table motions to be tendered in portions
22 after a certain stage of the presentation of the evidence?
23 MR. LUKIC: As we emphasized during the 65 ter meeting,
24 Your Honour, we are happy with the ruling the Chamber made regarding this
25 limited number of documents that are tendered through the witnesses, and
1 we don't have any intention to interfere with the Prosecutor's way of
2 presenting their own case. So do they --
3 JUDGE ORIE: Yes, but there was another suggestion, is perhaps to
4 keep everything overseeable, that the -- and that's not about the number
5 of the documents but about the bar table motions to be filed at the end
6 of the case presentation, whereas Mr. Groome - expressing some concerns
7 about that - suggests that we should consider the possibility of bar
8 table motions after a -- I would say a certain portion, certain subject
9 matter on which then evidence would have been presented by the
10 Prosecution, so to do that in portions rather than at the very end.
11 MR. LUKIC: I'm afraid, Your Honour, that then we'll have to wait
12 and see what's going on and what would happen.
13 JUDGE ORIE: Yes.
14 MR. LUKIC: Then we would be able to respond in a proper manner.
15 JUDGE ORIE: Yes. We'll further consider the matter. Your
16 suggestion is on the record, Mr. Groome; the comment by Mr. Lukic is as
18 I'll move on and now deal with some of the upcoming dead-lines.
19 Perhaps unnecessary, but the Chamber reminds the parties that at the 19th
20 of January Status Conference the Chamber set the dead-line for the
21 Prosecution to notify the Defence of the names of witnesses it intends to
22 call in rebuttal of the alibi defence to the 16th of March, 2012.
23 Further, related to the witness list filing, the Prosecution is
24 to submit its Rule 68(i) disclosure notification by the 12th of March,
25 2012. At the 20th of February Rule 65 ter meeting, the Prosecution
1 indicated that it anticipates filing a request for an extension of time
2 related to this dead-line. The Chamber reminds the Prosecution that
3 requests for extension of time are to be filed as far in advance as
4 possible and not at the last moment before the pending dead-line.
5 Finally, at the Rule 65 ter meeting the Prosecution gave the
6 Defence a letter containing potentially exculpatory materials found
7 within documents in its tracking unit files. For security concerns, the
8 Prosecution determined that the documents themselves could not be
10 Now, Mr. Lukic, at the Rule 65 ter meeting you were instructed to
11 inform the Chamber by the end of the week - and we are not there
12 yet - after reviewing the letter if you accepted this alternative method
13 of disclosure. Are you already in a position to present your views on
14 that matter?
15 MR. LUKIC: Your Honour, we sent the letter to the Prosecutor --
16 actually to the members of the Prosecutor's team, and we are waiting for
17 their response on that matter. And probably only after that we will be
18 able to inform the Chamber what we agreed or not agreed.
19 JUDGE ORIE: Yes, which means that the letter has triggered some
20 communication and the outcome of that communication would determine or at
21 least be relevant for the Defence to determine its position?
22 MR. LUKIC: Yes, Your Honour.
23 JUDGE ORIE: Thank you.
24 Any questions or comments in relation to this matter? Then we'll
25 move on. The next item on my agenda is disclosure.
1 On the 10th of February, 2012, the Chamber received the
2 Prosecution's fifth pre-trial report, which included an update on the
3 disclosure of materials to the Defence. Additionally, the parties had
4 already filed submissions related to the Prosecution's proposed EDS
5 method of disclosure. The Chamber received the Defence's submission on
6 the 17th of November, 2011, the Prosecution's response on the 2nd of
7 December, the Defence's reply on the 22nd of December, and the
8 Prosecution's further reply in its fourth pre-trial report of the 6th of
9 January, 2012. Since then, there have been two additional submissions,
10 with both parties formally filing their respective submissions on the 9th
11 and the 10th of February of this year. The Chamber informs the parties
12 that it considers that submissions on this matter are now closed and aims
13 to issue a decision on the requests for relief contained in these motions
14 within the next week.
15 The Chamber reiterates that to the extent possible the parties
16 are encouraged to try to resolve these issues and come to an agreement.
17 At the 8th of December, 2011, Status Conference, the Prosecution was
18 ordered to file a Rule 68(i) disclosure notification 30 days after the
19 filing of the Defence pre-trial brief. And as the Scheduling Order
20 adjusted the Defence pre-trial brief dead-line, the Prosecution's
21 disclosure notification dead-line in relation to this filing is also
22 adjusted to the 16th of April, 2012.
23 MR. GROOME: Your Honour, if I might return to the last issue.
24 The Chamber has just announced that it intends to issue a decision with
25 respect to disclosure in the coming week. Some of the issues raised in
1 the motion by the Defence are issues that I believe many have been
2 resolved, some have not. The Chamber's instructed us to file a report on
3 that after the date it intends to issue a decision. So I wonder whether
4 it would be prudent or helpful to the Chamber to inquire of Mr. Lukic at
5 this stage - I know there was some productive meetings this week - at
6 what stage he sees as the problems that have been solved and what
7 problems he sees as still pending.
8 JUDGE ORIE: Of course the Chamber would seriously consider to
9 postpone the dead-line if the parties - and I'm now addressing you as
10 well, Mr. Lukic - if the parties would feel that the progress made and
11 the outstanding matters still to be resolved are such in numbers that it
12 would be more efficient to grant you a little bit more time before
13 issuing a decision.
14 MR. LUKIC: Yes, Your Honour. I think that the Defence is
15 working hard together with the Prosecutor's office to solve the problems.
16 And at least we need meeting which is scheduled for tomorrow afternoon to
17 see, actually, which point we reached by this moment. So probably
18 tomorrow afternoon we will be able to inform you further on this matter.
19 MR. GROOME: There are some problems that are -- technical
20 problems that are still being worked on, but if I could ask Mr. Lukic to
21 address -- I believe some technical problems have been solved over the
22 course of this week. And if he's in a position to do so now, I think it
23 might be helpful for the Chamber to hear his point of view with respect
24 to what has been solved. My staff inform me that it has been quite
25 significant progress.
1 MR. LUKIC: I have to talk from the top of my head because I
2 had -- because I don't have my notes on these issues, but yes, we did
3 receive a lot of documents. And yes, there are some metadata included
4 into the EDS system. We informed the Prosecutor's office today about the
5 percentage of missing metadata we found by now. But I think that
6 Ms. Stewart promised that everything should be cured in the near future,
7 but that's why we need tomorrow afternoon's meeting to understand the
8 point where we are at this moment.
9 JUDGE ORIE: If I understand the parties well, they are so
10 confident that the progress made until now is of such significance that
11 you would not urge us to immediately come with this decision next week
12 and that you would rather report to the Chamber somewhere in the course
13 of next week whether you still need a decision to resolve the matter; and
14 if so, on what outstanding issues. Is that a kind of an understanding
15 which you could agree with?
16 MR. LUKIC: Yes, Your Honour. And we will definitely inform
17 Your Honours about the progress that we made at the beginning of the next
18 week. Thank you.
19 MR. GROOME: Your Honour, if I can provide one more piece of
20 information. One of the big issues that was raised was Mr. Mladic's
21 access himself to the material. I asked one of my staff to make an
22 inquiry with the Detention Unit, and it appears that there is no obstacle
23 to him having full access to the EDS from the Detention Unit. It's
24 simply a matter of it being requested by Mr. Lukic, so I think that is
25 one of the large issues that is easily solved at this stage.
1 MR. LUKIC: Actually, we have already asked for that kind of
2 access that Mr. Mladic could have, and I don't think that we received a
3 response so --
4 JUDGE ORIE: But --
5 MR. LUKIC: -- I don't know. I was not informed about the OTP
6 informing on the same matter by now.
7 JUDGE ORIE: Well, perhaps you sit together with a cup of tea
8 after this Status Conference and find out together whether the fact that
9 you have not received a response in any way indicates that there's any
10 doubt as to the accuracy of the information Mr. Groome has.
11 MR. LUKIC: We don't have any doubts, of course, but we were just
12 not only informed about it.
13 JUDGE ORIE: Not about Mr. Groome but perhaps about ...
14 Could you include this information and perhaps in the information
15 you'll provide to the Chamber early next week anyhow?
16 MR. LUKIC: Definitely, Your Honour.
17 JUDGE ORIE: Yes. Thank you very much for that, Mr. Lukic.
18 No further questions or comments on this matter?
19 MR. GROOME: No, Your Honour.
20 JUDGE ORIE: Then I move on to the adjudicated facts.
21 On the 9th of December, 2011, the Prosecution filed its
22 adjudicated facts motion containing approximately 2.900 proposed facts
23 for which it seeks judicial notice. On the 1st of February, 2012, the
24 Defence filed its response. Prior to the response being filed, the
25 Prosecution requested leave to reply to the then-upcoming response. On
1 the 7th of February, the request for leave to reply was denied. At the
2 last Status Conference, the Chamber informed the parties that it would
3 issue three decisions. The Chamber clarifies that it will issue four
4 decisions, three addressing the three annexes to the motion, one
5 addressing the rebuttal evidence procedure contained in the Prosecution's
7 The Chamber informs the parties that it aims to have the first
8 decision issued, as I said before, in the near future, but you have
9 already a bit more information about possible disappointment in terms of
10 time, with the remaining decisions to follow shortly thereafter.
11 In relation to the Prosecution's witness list, a number of
12 proposed witnesses will be affected by the Chamber's adjudicated facts
13 decisions in terms of the written evidence that the Prosecution adduces
14 through them. For certain witnesses, should the Chamber take judicial
15 notice of the relevant proposed facts, it's likely that the Prosecution
16 will refrain completely from adducing any evidence from them. For
17 others, it's likely that there will be a significant reduction in the
18 witness's evidence presented at trial. A significant percentage of these
19 affected witnesses are currently listed as Rule 92 bis witnesses, meaning
20 that they would not testify before the Tribunal, but would have their
21 written statement admitted as evidence in lieu of testifying.
22 In relation to this, at the Rule 65 ter meeting, the parties
23 discussed how, in practical terms, this reduction might be accomplished
24 in terms of written evidence. It was during that discussion that you,
25 Mr. Groome, suggested that it would not be appropriate for the
1 Prosecution to redact those portions of a witness's statement that were
2 covered by an adjudicated fact of which the Chamber had taken judicial
3 notice and which were no longer to be relied on by the Prosecution. You
4 suggested that, instead, the Prosecution could point to those portions of
5 the statement that it was relying on or, alternatively, might not tender
6 the statement but simply call the witness to testify viva voce in
7 relation to those specific issues that the Prosecution finds necessary to
8 meet its burden of proof and are not covered by an adjudicated fact of
9 which the Chamber has taken judicial notice.
10 The Chamber considers that the inclusion of evidence in a witness
11 statement, even if it relates to an adjudicated fact of which the Chamber
12 has taken judicial notice, cannot simply be ignored by the Chamber.
13 Further, there is a certain illogic to tendering and admitting evidence
14 that is expressly identified to the admitting authority, that is, the
15 Chamber, as not to be relied on by the tendering party, here the
16 Prosecution. Therefore, the Chamber would prefer that these witnesses
17 either be called to testify viva voce or that the Prosecution complete a
18 new Rule 92 bis or ter witness statement containing only that evidence
19 that the Prosecution wishes to adduce from the witness without
20 duplicating evidence of which the Chamber -- duplicating evidence on
21 facts on which the Chamber has already taken judicial notice of. And the
22 Chamber hereby instructs the Prosecution accordingly.
23 MR. GROOME: Your Honour, if I can just raise our concern. As I
24 began to raise during the meeting, very often the evidence on that
25 particular point is inextricable. So the example I had put forward at
1 the meeting was many of the facts, let's say from the Brdjanin decision,
2 may determine that the perpetrators were a group called Serb forces,
3 which included police, paramilitaries, and military. And that we may
4 need to be more specific in this case in some instances. It is hard to
5 imagine, being somewhat familiar with these statements, is how we
6 extricate just simply the part that talks about the identity of the
7 perpetrator without -- and leaving behind or redacting where the witness
8 describes what that perpetrator did. It seems difficult to imagine how
9 we would be able to do that. Of course we're -- we will undertake to
10 give full consideration to the guidance that's just been given, but I
11 must say the initial -- the Prosecution's initial reaction, it may not be
12 a possible task.
13 JUDGE ORIE: Thank you for this comment. I'm used to translate
14 words as this may be an impossible task that - impossible is a negative
15 expression - to understand this as that it needs infantility to perform
16 the task, not to say that that always gives a solution. We'll carefully
17 consider your submission. At the same time, we also urge you to try to
18 find a practical solution for what is considered by the Chamber as a
19 problem as well, that is, to receive cumulative and repetitive evidence
20 on matters, especially facts we have already taken judicial notice of.
21 MR. GROOME: We will do that, Your Honour.
22 JUDGE ORIE: Thank you, Mr. Groome.
23 Mr. Lukic, no comments or questions in relation to this?
24 MR. LUKIC: No, Your Honour.
25 JUDGE ORIE: I move on to the agreed facts. On the 10th of
1 February, 2012, the parties have jointly submitted their fourth progress
2 report on their agreed facts negotiations. The parties informed the
3 Chamber that no agreement had been reached since the filing of their last
4 report, but that negotiations had been ongoing with regard to specific
5 areas where the parties could possibly find agreement.
6 At the 19th of January, 2012, Status Conference, the Chamber set
7 the dead-line for the parties' joint filing of all those facts upon which
8 the parties had agreed to date to the 2nd of March, 2012. The Scheduling
9 Order adjusted this dead-line to the 16th of March, 2012, and it further
10 instructed the parties to include this filing as an annex to the regular
11 progress report on the parties' negotiations of agreed facts, which is
12 also due to the 16th of March, 2012, ten days before the 26th of March,
13 2012, Rule 65 ter meeting.
14 The Chamber would like to remind the parties that it expects them
15 to limit their presentation of evidence to those matters truly in
16 dispute. In relation to this, at the 19th of January, 2012,
17 Status Conference, the Chamber informed the parties that it expects them
18 to continue their discussions beyond the pre-trial stage to identify and
19 agree on matters for which there is no real dispute and stated that it
20 would set dead-lines for further progress reports in due course.
21 The Chamber now instructs the parties as follows. The parties
22 are to submit an agreed facts progress report on the 27th of April of
23 this year and from that date onwards on the last working day of every
24 other month. So after the 27th of April, 2012, filing, the next progress
25 report would be due on the 29th of June, and so on, continuing until the
1 Chamber instructs otherwise.
2 Any questions or comments in relation to agreed facts?
3 MR. GROOME: No, Your Honour.
4 JUDGE ORIE: Mr. --
5 MR. LUKIC: No, Your Honour, we don't have anything to add.
6 JUDGE ORIE: Thank you, Mr. Lukic, Mr. Groome.
7 I move to the expert reports. At the 19th of January, 2012,
8 Status Conference, the Prosecution was instructed to file its expert
9 reports as they became finalised. At that same Status Conference, the
10 Prosecution informed the Chamber and the Defence that the Butler expert
11 report was already in its finalised form and had previously been
12 disclosed to the Defence. Rule 94 bis (B) requires that within 30 days
13 of disclosure of the expert report, the Defence is to file a notice
14 indicating whether it accepts the expert report, wishes to cross-examine
15 the expert witness, or challenges either the expert's qualifications or
16 the relevance of all or parts of the expert report.
17 Therefore, the Chamber announced that the Defence 30-day
18 dead-line began running as of the 19th of January, 2012. The Butler
19 report was formally filed on the 25th of January, and the Defence filed
20 its Rule 94 bis (B) notice in relation to proposed expert witness Butler
21 and his proposed expert report on the 20th of February. At that same
22 Status Conference the Prosecution indicated that the Philipps report was
23 also ready in its finalised form and had previously been disclosed to the
24 Defence. The Prosecution was instructed to formally file the report and
25 the Defence 30-day dead-line was to begin running from the 19th of
1 January as well. However, due to an oversight, the Prosecution did not
2 file the Philipps expert report. And at the 20th of February Rule 65 ter
3 meeting, the Prosecution undertook to file the report within the next few
4 days. On that same 20th of February, the Defence filed its
5 Rule 94 bis (B) notice in relation to this proposed expert witness and
6 his proposed expert report. I'm referring to the expert witness Philipps
7 and his report.
8 Mr. Groome, to clarify, the obligation to file this expert report
9 is not alleviated because of the Defence notice filing. Indeed, the
10 Chamber cannot evaluate the Defence's position until it is able to review
11 the proposed expert report and the qualifications of the expert.
12 MR. GROOME: Your Honour, that filing has been prepared and it
13 will be filed tomorrow morning.
14 JUDGE ORIE: Thank you for that information.
15 Finally, also at the 19th of January Status Conference, the
16 Prosecution requested that it be allowed to make written submissions
17 related to one proposed expert witness, Dr. Ibrahimefendic, after its
18 Rule 65 ter (E) filing dead-lines had passed. On the 24th of January,
19 through an informal communication, the Chamber set the dead-line for such
20 a filing to the 17th of February. That instruction is hereby put on the
21 record and on the 17th of February, the Prosecution did file its motion.
22 The Defence has until the 2nd of March to file its response.
23 I have dealt with all the matters which were on my agenda, and I
24 would like to invite the parties and the accused - you, Mr. Mladic - to
25 address the Chamber on any additional matter you may wish to raise.
1 Mr. Groome, any further matter?
2 MR. GROOME: No, Your Honour. Thank you.
3 JUDGE ORIE: Mr. Lukic.
4 MR. LUKIC: We have nothing, Your Honour, but Mr. Mladic might
5 have something for you.
6 JUDGE ORIE: Yes, I will invite him.
7 MR. LUKIC: Thank you.
8 JUDGE ORIE: Mr. Mladic, is there any matter - after the long
9 technical matters we have discussed - which you would like to raise? If
10 so, you have an opportunity to do that now. If you would prefer to
11 remain seated, there's no problem with me, Mr. Mladic. You may proceed
12 if you switch on your microphone.
13 THE ACCUSED: [Interpretation] Thank you, gentlemen. I want to
14 remain seated. I focus better that way. You are swearing that you will
15 try me in a fair and honest way, as you have tried others, but I doubt
16 that for the following reasons. I have asked the Registry to enable my
17 wife to bring me my military equipment, my hat, my military shirt,
18 trousers, and the rest. You see, I'm wearing the clothes that I wore
19 during the war, after the war, and in exile. I brought here the hat in
20 which these traitors caught me, but I don't hold it against them. For
21 health reasons, I need my hat and because I am what I am I kindly ask you
22 to enable me to display before the camera several photographs if the
23 camera could focus and zoom in on this.
24 This is a photo of my late daughter when she was little when I
25 was teaching her to ski at Popova Sapka in the former SFRY, and that's
1 Macedonia just above Tetovo. This is a photo of my son at that time,
2 around 1978, and I was teaching him to ski too. This is a photograph of
3 my wife and my sister-in-law who died and her son, who unfortunately is
4 no more. This is a family photo of my brother and his family.
5 Unfortunately, he's dead too and I have never visited his grave, and
6 that's the mother who gave birth to me. I haven't been at her grave
7 either, although the A4 and NATO examined her even dead in her own home.
8 That is her home, the house that belongs to her, and my brother, not me.
9 For certain reasons, I was unable to attend her funeral.
10 Here is yours sincerely in the uniform of the Army of
11 Republika Srpska, and I'm proud of that army and that uniform. I'm sorry
12 if I was shouting a bit.
13 JUDGE ORIE: Mr. Mladic, I fully understand the feelings you have
14 related to family members you have lost. I would even understand that
15 without photographs being shown to me. You now showed further
16 photographs including, and you're doing this at this moment, your
17 appearance in this court. I would invite you to tell me what --
18 Mr. Mladic, there is no reason to show the photograph to the public
19 gallery, so would you please move on and tell me what relief you are
20 seeking, what you would like us to do, without further showing
21 photographs. Mr. Mladic, now you put them on the table and the security
22 assist you in doing that.
23 Mr. Mladic, if you continue to -- that's -- okay. We leave it to
24 that. Mr. Mladic, could you please tell us -- again, I accept -- the
25 photographs will be given back to you in a second. Could you please tell
1 me what you would like me and my colleagues to do at this moment to bring
2 the matter to the attention of the Registry or whatever. Could you
3 please tell us.
4 And again you said earlier that you would prefer to remain
5 seated. There is no problem if you would wish to remain seated.
6 THE ACCUSED: [Interpretation] Thank you for that kindness. For
7 my health and concentration, I prefer to stand now to show respect to you
8 and all those present. You are a NATO court and you are trying me on
9 behalf of NATO. You are trying me and my people. You have no right to
10 that because the NATO struck against my people as they're striking
11 against poor people in Africa and Asia. You are a biassed NATO court.
12 This is no place for me and my fellow fighters. This is a place for
13 those who destroyed Yugoslavia, who destroyed the Republic of Serbian
14 Krajina, who devastated so much across the Republika Srpska and Serbia --
15 JUDGE ORIE: Mr. Mladic, to the extent what you bring to my
16 attention is relevant for a challenge to the fairness of trial or the
17 jurisdiction of this Court, Mr. Lukic will know how to present that. But
18 it is not at this moment and on this occasion the time to deliver
19 speeches which are predominantly of a political nature.
20 Is there anything else you would like to address?
21 THE ACCUSED: [Interpretation] Yes, I do, Mr. Orie. Don't think
22 that I'm trying to put on a circus here. I'm an old man. I am nearing
23 my end as far as I can see in terms of my health. It doesn't matter how
24 long I will last. What matters is what traces I will leave among my
25 people, among my generation. I'm not defending Ratko Mladic. You can do
1 to me whatever you like. Just leave my people alone. Let them live and
2 work to the extent of their abilities, not under a NATO umbrella.
3 I'd like to move to the following issue, the forming of my team.
4 I still want and demand Mr. Mezyaev. You don't want to approve him
5 because he's Russian. That's what I think. I'm asking for
6 Mrs. Jelena Guskova who is a historian, the author of some books that I
7 like. You won't allow her here because she's Russian. You don't want to
8 let me wear my Russian cap. It's here. You won't let me put it on my
10 Just let me finish this. I want to protest, Mr. Orie, for the
11 wars to stop throughout the world because NATO has reared its head, and
12 when they strike Iran it will be the end. Seven countries in Asia have
13 nuclear weapons. All the conferences in the world won't help us
14 anymore --
15 JUDGE ORIE: Mr. Mladic, I've switched off your microphone. Let
16 me be clear on one thing. The composition of your team and a refusal of
17 persons to be admitted on your team are decisions taken by the Registry
18 and Mr. Lukic knows exactly what legal remedies there are to protest
19 against that. I can't change it at this moment, apart from whether I
20 would do it, but it's just not within our competence at this very moment.
21 I leave the other comments aside.
22 Your hat -- you explained to us last time that you needed to have
23 your hat on for medical reasons. If such medical reasons do exist,
24 Mr. Lukic will know how to bring them to our attention. Since you were
25 complaining last time about the cold flow of air on your head, it may be
1 of some consolation to you that the air-conditioning and the flow of air
2 got specific attention at the request of the Chamber. I leave it to
4 Anything else, Mr. Mladic? If not -- but I should wait perhaps
5 until the translation is finished.
6 THE ACCUSED: [Interpretation] Yes, I do. Yes, I do.
7 JUDGE ORIE: Then please briefly and to the point.
8 THE ACCUSED: [Interpretation] Mr. Orie, I'm in no hurry. I'm an
9 old man and I can't do anything so quickly. I'm not so fit as you are.
10 You are on your own ground, you are fit, you have knowledge of
11 international law, you are trying me and my people instead of those who
12 devastated and keep devastating other countries. I need my hat. I have
13 an Adidas hat here, the blue one, the off-white, and the Russian one. I
14 have to raise my hand in a glove like that American rocket in 1972 at the
15 Olympic games when they won and they raised their gloved hand, their
16 right hand in --
17 JUDGE ORIE: Mr. Mladic, I have dealt with the hat. You're now
18 re-visiting a matter where I said speeches predominantly of a political
19 nature, that's not the time or the place to deliver them.
20 Finally, just to make one short observation, it is not me who is
21 trying you; it is the Chamber who is trying you and the Chamber is not
22 trying your people.
23 I move on. The next 65 ter meeting will be held on the 26th of
24 March, 2012, and the next Status Conference is scheduled for the 29th of
25 March. And I further remind the parties that the next progress report on
1 agreed facts is due on the 16th of March, as is the Prosecution's next
2 pre-trial report.
3 We therefore adjourn until the 29th of March, courtroom and exact
4 time to be communicated by the Registry at a later stage.
5 Mr. Mladic, next time if you seek again to communicate with the
6 public gallery, measures might be taken.
7 We stand adjourned.
8 --- Whereupon the Status Conference
9 adjourned at 4.27 p.m.