Tribunal Criminal Tribunal for the Former Yugoslavia

Page 271

1 Friday, 4 January 2005

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.35 p.m.

6 JUDGE AGIUS: So good afternoon.

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

8 THE REGISTRAR: Good afternoon, Your Honour. Case Number

9 IT-95-13/1-PT, the Prosecutor versus Mile Mrksic, Veselin Sljivancanin,

10 Miroslav Radic.

11 JUDGE AGIUS: Thank you.

12 Mr. Mrksic, good afternoon to you.

13 THE ACCUSED MRKSIC: Good afternoon.

14 JUDGE AGIUS: I would like you to confirm if you are receiving

15 interpretation in your own language.

16 THE ACCUSED MRKSIC: [Interpretation] Yes, everything is fine,

17 thank you.

18 JUDGE AGIUS: I thank you. You may sit down.

19 Mr. Radic, the same question to you: Are you receiving

20 interpretation in your own language?

21 THE ACCUSED RADIC: [Interpretation] Good afternoon, Your Honour.

22 Yes, everything is in order, thank you.

23 JUDGE AGIUS: Thank you.

24 And, Mr. Sljivancanin, are you receiving interpretation in your

25 own language?

Page 272

1 THE ACCUSED SLJIVANCANIN: [Interpretation] Good afternoon. Yes, I

2 can hear you and I am receiving it, thank you.

3 JUDGE AGIUS: Thank you.

4 Appearances for the Prosecution.

5 MR. WUBBEN: Good afternoon, Your Honour, and good afternoon my

6 learned friend from the Defence teams. My name is Jan Wubben, lead

7 counsel for the Prosecution, together with co-counsel Ms. Patricia

8 Sellers, and new assigned to this case is co-counsel Marie Tuma, and also

9 newly assigned to this case today is our case manager, Ms. Lise-Lotte

10 Karlsson.

11 JUDGE AGIUS: Yes. Appearances for the Accused Mrksic.

12 MR. VASIC: [Interpretation] Good afternoon, Your Honour. Good

13 afternoon to my colleagues. The Defence of Mr. Mrksic will be represented

14 today by lawyer Miroslav Vasic. Thank you.

15 JUDGE AGIUS: I thank you and good afternoon to you.

16 Appearances for Accused Radic.

17 MR. BOROVIC: [Interpretation] Good afternoon, Your Honour. The

18 Defence of Mr. Miroslav Radic will be in the person of lawyer Borivoje

19 Borovic from Belgrade, and co-counsel and Mira Tapuskovic, also an

20 attorney from Belgrade. Thank you.

21 JUDGE AGIUS: I thank you. And good afternoon to you both.

22 Appearances for Veselin Sljivancanin.

23 MR. LUKIC: [Interpretation] Good afternoon, Your Honour. Good

24 afternoon one and all. Mr. Veselin Sljivancanin will be represented today

25 by lawyer Novak Lukic.

Page 273

1 JUDGE AGIUS: Thank you.

2 Just one question. Is Mr. Momcilo Bulatovic still on the Defence

3 team?

4 MR. LUKIC: [Interpretation] Yes, Your Honour. Mr. Bulatovic is

5 co-counsel.

6 JUDGE AGIUS: Thank you, and good afternoon to you, too.

7 So I'll go through the usual routine, the initial routine. The

8 reasons for the Status Conference. First of all, I would like to remind

9 everyone that the last Status Conference was held on the 7th of October of

10 last year and that pursuant to Rule 65 bis this -- the Trial Chamber is

11 required to hold a Status Conference within 120 days from the last -- from

12 the previous Status Conference. That basically means that we are within

13 the time limit of the 120 days, so this Status Conference is convened

14 regularly, in a regular manner.

15 The purpose of a Status Conference, as you know, is to organise

16 exchanges between the parties with a view to ensuring an expeditious

17 preparation for the trial. In addition, there's also the reason to review

18 the status of the accused's case and to allow the accused the opportunity

19 to raise issues in relation to such matters.

20 Finally, it also gives an opportunity for the accused -- to the

21 accused to meet face-to-face with the Pre-Trial Judge and be in a position

22 to raise issues in relation to the mental and physical health and

23 condition and of course matters relating to detention, should there be

24 any.

25 I also wish to inform everyone present here, but particularly the

Page 274

1 public, that in preparation for this Status Conference, pursuant to Rule

2 65 ter (D), I authorised and ordered a meeting to be held yesterday

3 between the parties and the Senior Legal Officer, and our Senior Legal

4 Officer -- in fact the meeting was held yesterday in the afternoon.

5 Having said so, I will proceed with giving some basic information

6 relating to outstanding matters in particular, and then move on to discuss

7 matters relating to disclosures. There are a few outstanding motions,

8 some of which, or most of which are in a pretty advanced stage to be -- in

9 the process of being decided. I'll start with the first one. First one

10 relates to Defence -- to the Defence challenge to the form of the

11 indictment, particularly the objection that had -- was raised by Accused

12 Sljivancanin on the 14th of December last year. The background

13 information is as follows: On the 29th of October of last year my Trial

14 Chamber issued its decision on the form of second modified consolidated

15 amended indictment in which it allowed in part of the preliminary motion

16 of Accused Sljivancanin and directed the Prosecution to file an amended

17 indictment. Indeed, the Prosecution filed its third amended indictment,

18 consolidated amended indictment on November 16th, 2004. On the 14th

19 December, 2004, counsel for Accused Sljivancanin filed a preliminary

20 motion alleging defects in the form of the latest indictment, to which the

21 Prosecution responded on the 13th of January, 2005.

22 This matter received our utmost attention immediately. My staff

23 and myself in particular have been working on it. And as you were

24 informed yesterday during the 65 ter meeting, we should be in a position

25 to hand down the decision in a very, very short time, within a very short

Page 275

1 time.

2 There are then two similar and slightly related motions, one filed

3 on the 17th of December of last year and another one filed a few days ago.

4 I will just give some -- I will give some brief information.

5 On the 17th of December the Prosecution filed its confidential and

6 ex parte in part Prosecution motion for protective measures of sensitive

7 witness -- witnesses, in which it sought protective measures for three

8 particular sensitive witnesses and also included the late disclosure of

9 the accused, of the identity, until 30 days prior to the start of the

10 trial.

11 On the 31st of January of this year the Prosecution filed a

12 further confidential and ex parte in part Prosecution motion for order of

13 protective measures (outstanding motion) in which it seeks to -- it seeks

14 protective measures during pre-trial for two sensitive witnesses,

15 including the delayed disclosure of -- to the accused of their identity

16 until 30 days prior to the start of the trial and protective measures

17 during trial for 13 witnesses, seven of which have already been granted

18 protective measures in two other cases.

19 I am informed by my Senior Legal Officer that this was somewhat

20 dealt with during the 65 ter meeting yesterday. And I take it that unless

21 I see any particular request for it coming from one side or the other,

22 that I can just restrict myself to informing you that the decision is also

23 expected to be handed down very shortly. If you would like to raise

24 matters on this, we can of course discuss both -- not the subject matters

25 of course, but the matter that I am informing you.

Page 276

1 MR. WUBBEN: Your Honour.


3 MR. WUBBEN: If I may. We prepared a short oral submission in

4 addition to our motion, and I requested Ms. Patricia Sellers to take the

5 lead.

6 JUDGE AGIUS: Yes, please do.

7 Do you want to make the submission, since we're talking of

8 confidential and in part an ex parte motion, do you want to make the oral

9 submission in open session or in private session?

10 MS. SELLERS: Your Honour, I believe we can make it in open

11 session.

12 JUDGE AGIUS: All right. Go ahead.

13 MS. SELLERS: We won't be mentioning names.

14 JUDGE AGIUS: No, no.

15 MS. SELLERS: We would just like to state, in addition to the

16 measures we've requested explicitly in the motion, we implicitly are

17 asking that the Trial Chamber grant the Prosecution the right to file

18 redacted statements prior to that 30-day period, and of course that's the

19 mirror image of the unredacted statements after that time period. I

20 believe that in both motions we have mentioned more explicitly that we be

21 granted the ability to file the unredacted statements and the redacted

22 statements, but we just want to clarify that.

23 And then lastly, Your Honour, I would just like to mention that in

24 our last motion on the 31st, I think we mentioned more explicitly that

25 these protective measures of course apply to a pre-trial stage and we

Page 277

1 would ask that certain of those measures, such as pseudonym, apply to the

2 trial stage, and that would be the same as both he motion of December 17th

3 as well as the motion of the 31st of January. Thank you.

4 JUDGE AGIUS: Any particular remarks from the Defence bench?

5 Mr. Vasic?

6 MR. VASIC: [Interpretation] Your Honour, you have probably been

7 informed that yesterday during the 65 ter conference we decided that the

8 Defence state its positions by the 14th of February on these matters, so

9 we will do so with respect to what my colleague just said here today at

10 the Status Conference and the motions presented by the Prosecution as

11 well.

12 JUDGE AGIUS: Okay. Once you have mentioned this - I was coming

13 to it - would the deadline of the 14th February suit you, the three teams,

14 or would any one of you like -- prefer an extension? Okay. I take it

15 that there are no objections to that. So basically we remain where you

16 left yesterday at the 65 ter meeting. I am taking up the suggestion of my

17 Senior Legal Officer and therefore putting into place a deadline for the

18 response to the two motions to be the 14th of February, to the 14th of

19 February. And after that we should be in a position to hand down our

20 decision pretty soon on one of them, in particular -- but anyway, let me

21 not make any further comments. I mean, I've gone through the two motions

22 and one is a little bit easier than the other, according to me.

23 So we'll wait for your response and then we will act accordingly.

24 But do expect a decision pretty soon after your response, even though

25 these are very delicate matters. But more or less, we have now reached a

Page 278

1 stage where the jurisprudence of this Tribunal where balancing the

2 interests of the accused and their rights and the public interests is

3 pretty much established and we shouldn't encounter great difficulties in

4 deciding these two motions.

5 Next, this is a motion which I had hoped I would have had decided

6 before today or by today. The draft is ready, circulated to the other two

7 Judges, but I couldn't force either of them to come back with a -- their

8 opinion on the final draft because it is only a matter of a day or two ago

9 that I circulated the draft amongst them. So this is -- I'm talking of

10 the confidential and ex parte motion by the Accused Radic for review of

11 the Registry decision on remuneration of counsel. I am sure you will

12 receive the decision sometime in the course of next week.

13 There is another motion, and this relates to the Defence request

14 for review of Registry decision on level of the case. This is something

15 that we have dealt with in the past. It's not exactly the subject matter

16 that I think the Trial Chamber likes to deal much with, but it's there.

17 And of course it will be decided. I know that this was not discussed at

18 all during the 65 ter meeting. The stage to which we have arrived is that

19 we have tried to uncover as much -- or discover, rather, as much

20 information as we could on what led the Registrar to come to the

21 conclusion, to reach the conclusion, that you are contesting. And we're

22 putting all the pieces together, and I think that I can safely say that

23 we'll hand down the decision shortly.

24 However, I'm making it clear: I think that almost all the other

25 motions that I have mentioned until now I consider to be more important

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Page 280

1 than this one, and I think we will concentrate on those to get those out

2 of our load before this one, even though I know that the previous motion,

3 that is Radic's, anyway could be related to it.

4 I'm closing the discussion on pending or outstanding motions here

5 unless I see that there are comments that you would like to make. I see

6 none.

7 So I move to the next item on the agenda, and that is disclosures.

8 My Senior Legal Officer has informed me that as far as Rule 66(A)(i)

9 material is concerned, this is complete and we need not discuss it. If

10 you don't agree with this - I'm referring to the Defence bench - please do

11 tell me. I'm not referring to 66(A)(ii) but only to 66(A)(i) disclosures.

12 All right. Okay.

13 And I move to Rule 66(A)(ii), statements, disclosure of statements

14 under that Rule. You will recall that soon after the last Status

15 Conference, barely a week after and precisely on the 15th of October of

16 last year, pursuant to an oral decision or order I had made during the

17 Status Conference of the 7th October -- rather, let me rephrase it.

18 During that Status Conference I had ordered the Prosecution to provide

19 you, the Defence, with a list of all the statements that had been

20 disclosed to the Defence, indicating which of those should, at least

21 provisionally, be regarded as witnesses that will appear at trial and

22 which as merely Rule 68 material.

23 As you know, a week later, a week and a day later, the Prosecution

24 did indeed file confidentially its Prosecution notice of filing its

25 provisional witness list. The Prosecution indicated that its final

Page 281

1 witness list will round about 53 witnesses. It became apparent from this

2 filing that there were approximately 23 witnesses that the Prosecution

3 intended to call at trial which it was not informing the Defence of, or at

4 least not under the heading of Rule 65(A)(ii).

5 Subsequently a few weeks later, on the 24th of November, I as

6 Pre-Trial Judge directed the Prosecution that subject to any application

7 to the Trial Chamber pursuant to Rule 69 for non-disclosure of the

8 identity of specific witnesses, to supplement its provisional witness list

9 with the remaining witnesses it intended to call to testify at trial. And

10 in addition, to disclose to the Defence copies of the statements of all

11 witnesses whom the Prosecution intended to call to testify at trial and

12 copies also of all written statements taken in accordance or pursuant to

13 Rule 92 bis, and this was to be done by not later than the 31st of this --

14 of last month, January 2005.

15 On the 20th of January the Prosecution filed its Prosecution

16 response to Trial Chamber's order setting a time limit for disclosure

17 pursuant to Rule 66(A)(ii) in which the Prosecution submitted an updated

18 list of 53 witnesses it intends to call during the trial. And the

19 Prosecution also submitted that it has already disclosed the witness

20 statements for the remaining 48 witnesses and will continue to

21 expeditiously disclose any remaining statements in accordance with Rule

22 66(A)(ii) at the Trial Chamber's order.

23 I take it that this matter of disclosure under Rule 66(A)(ii) was

24 discussed at quite some length during yesterday's 65 ter meeting. If I am

25 not correctly informed, please let me know. And during yesterday's

Page 282

1 meeting, indeed the Prosecution did confirm to my Senior Legal Officer

2 that 48 witness statements - that means five less than the 53 witnesses

3 intends to call at trial, those five for whom an exemption has been asked

4 by the way of delay of disclosure -- well, the Prosecution confirmed that

5 the other 48 witness statements had been disclosed. I am informed, and

6 this is unfortunate -- it almost caused me an indigestion -- that out of

7 the 48 witness statements, the B/C/S version of 11 statements was not

8 disclosed.

9 Now, we all know, and I don't need to stress the point, that

10 disclosure under this subrule needs to be done in a language that the

11 accused is familiar with and understands. In addition, the Defence

12 submitted they have not been informed which statements the Prosecution

13 intends to tender as Rule 92 bis statements. And the Senior Legal Officer

14 further informed me that the Prosecution, according to the Prosecution, at

15 least as the situation -- the position was at the 65 ter meeting

16 yesterday, that you were not in a position at that stage to establish who

17 will be Rule 92 bis witnesses. And I can assure you that this is

18 something that I can live with, I can understand. However, I still feel

19 very uncomfortable about the 11 statements that have not been disclosed

20 because obviously they have not yet been -- that have not been disclosed

21 because -- apparently the B/C/S version of which has not been disclosed,

22 which causes me to wonder because if we're talking about witness

23 statements, I fail to understand unless there is some blatant explanation

24 that I am missing, I fail to see how the B/C/S version is not available

25 and could not be disclosed.

Page 283

1 However, before I give you the floor, Mr. Wubben, or whoever will

2 be addressing this matter, by order of the 24th of November of last year,

3 you will recall, as I have already stated, that I set a deadline for the

4 list of witnesses and disclosure of all witness statements by the end of

5 January.

6 Before I can decide on a deadline for the disclosure of the 11

7 statements that I have mentioned, do you have anything to say?

8 MR. WUBBEN: Your Honour, we have no argumentation in that respect

9 other than that we have serious limiting resources when it comes to quick

10 translations into B/C/S, but that's no excuse. I first have to start to

11 apologise for that. We should be more proactive in that way and to update

12 the Trial Chamber and he Defence counsels in advance of not making a B/C/S

13 request.

14 JUDGE AGIUS: On the other hand, this is not a big case. I mean,

15 53 witnesses is a very average kind of trial that -- we're talking --

16 average-sized trial that we're talking of. How come there are 11 witness

17 statements that happen to be in English, or I don't know which other

18 language, but not in B/C/S? Because if these are witnesses that have been

19 interviewed - and I would imagine they are indigenous locals - I mean, how

20 is it that there is no B/C/S version of their statements?

21 MR. WUBBEN: Well, Your Honour, I can't clarify it further. And

22 if you allow me, I'm of course in the position to notify and confirm you

23 in that respect. It has to do with -- and again, that is no argumentation

24 or excuse, it is further clarification. It has to do with the change --

25 the various changes that are made in the past of the case managers.

Page 284

1 Again, that means that whenever we have to get back to the history of

2 something and whenever a log confirms or do not confirms something, then

3 we have to go back to the history. And when there is a failure in that

4 respect or a lack that is overseen, then it is hard to clarify that.

5 Please allow me then to write in that respect a letter to the Defence with

6 a copy to the Senior Legal Officer to further clarify that and also to

7 give an estimation in time whenever these are available.

8 JUDGE AGIUS: Are there any comments from the Defence teams? Yes.

9 MS. TAPUSKOVIC: [Interpretation] Thank you, Your Honour. At the

10 65 ter meeting I expounded the situation and spoke about the translations

11 per Rule 66(A)(ii). As you can see, of the 53 witnesses who are on the

12 confidential list, the Prosecution list, 48 of them are witnesses whose

13 names we do have. And of those 48, 11 witnesses do not have a B/C/S

14 version, which means a quarter of the witnesses whose identity we are

15 aware of. You noted rightly, Your Honour, that in the course of

16 yesterday's meeting we went into this question in detail, we discussed the

17 issue, so I don't think we need go into detail again here today.

18 Early this morning I had a meeting with my learned colleague from

19 the Prosecution team in order to try and compare the documents, tally

20 them, see what we have, what the Defence teams have, and the disclosure

21 list pursuant to Rule 66 and 66 -- 68 as well. Unfortunately, the Defence

22 can say that the number has not decreased. We still are lacking certain

23 statements. And for two witnesses, we don't have either the English

24 version or the B/C/S version. For two witnesses.

25 And in addition to that, I didn't want to interrupt you while you

Page 285

1 were speaking about the requests that have not been resolved yet of the

2 parties. As for protective measures where protective measures have been

3 asked for for 13 witnesses - and once again we do know their identity - of

4 those 13 witnesses, for five witnesses we're still lacking the B/C/S

5 version because they are the same individuals that we discussed at the 65

6 ter meeting. However, outside the Status Conference I have been assured,

7 firmly assured, by the Prosecution team that they will try and do so in

8 the shortest possible time to resolve this problem. Because we believe

9 that the translations exist, the statements exist, we can see this on the

10 basis of the English versions given in 1995 and 1997. So I do hope that

11 the problem will be solved in a short time and the Trial Chamber will be

12 informed about this, kept abreast, whether we have indeed received the 11

13 statements in translation that we are lacking and also that they supply us

14 with the statements of the two witnesses that we don't even have in the

15 English version, and the Prosecution is aware of the witnesses I'm

16 referring to. Thank you, Your Honour.

17 JUDGE AGIUS: I thank you.

18 Any further comments? I see none.

19 Still this is -- because if we're talking of locals, then

20 basically the interviews would have been held in Serbo-Croat and B/C/S.

21 MR. WUBBEN: Your Honour, the English -- the interview will be --

22 JUDGE AGIUS: In English?

23 MR. WUBBEN: -- in English on the transcript. So there is a

24 report signed in English and there is an interpreter who used to translate

25 backwards and forwards.

Page 286

1 JUDGE AGIUS: Isn't that recorded?

2 MR. WUBBEN: That's not recorded when it is a -- not a suspect.

3 JUDGE AGIUS: Anyway, we're talking of 11 witness statements. I'm

4 setting a deadline -- I'm setting a deadline as being the 15th March,

5 which I think is more than reasonable. You've got more than a month

6 within which to fulfil your obligations under Rule 66(A)(ii) in relation

7 to these witness statements that are still missing, all witness statements

8 since I am now told that there is also two which are missing also in the

9 English language, then I'm not even going to make a distinction between

10 B/C/S and English. All missing witness statements, of course excepting

11 those which in -- pursuant to previous decisions or future decisions need

12 not to be disclosed are to be disclosed by the 15th of March. All right.

13 MR. WUBBEN: Yes, Your Honour. Whenever we receive new

14 statements, there will be again a disclosure as our own obligation should

15 be in line with it.

16 JUDGE AGIUS: Yeah, but I'm interested for the time being in

17 having all these witness statements disclosed within that deadline that I

18 have set.

19 I now move to Rule 68 disclosure material, disclosure. And I will

20 recall that the Prosecution filed its latest partially confidential

21 Prosecution fourth report concerning disclosure on the 9th of August of

22 last year. And there you can -- or I'm sure you remember there were all

23 the details relating to Rule 68 disclosure.

24 Going back to June of last year when we held a Status Conference

25 as well, I recall that the Prosecution on that occasion, precisely on the

Page 287

1 9th of June Status Conference, had stated that 75 documents and 14

2 statements from witnesses from the Ovcara trial currently taking place in

3 Serbia had been disclosed to the Defence pursuant to Rule 68.

4 I take it that the Ovcara trial is still ongoing?

5 MR. WUBBEN: Yes, Your Honour. And even from various opinions

6 it's ongoing until the spring. Might be earlier, might be some later.

7 JUDGE AGIUS: And I also take it that you are still in the process

8 of receiving information -- documentation from that trial?

9 MR. WUBBEN: Yes, yesterday --

10 JUDGE AGIUS: That's an ongoing process, in other words?

11 MR. WUBBEN: -- 65 ter conference I informed them more or less

12 that we received but not on a regular base, we received a batch. It's all

13 B/C/S. We can't indicate what's in it, so we project another batch in

14 that regard.

15 JUDGE AGIUS: All right. In fact, that confirms what I have been

16 told by my Senior Legal Officer, and he has reported to me that there are

17 some difficulties which you are facing in obtaining material pertaining to

18 this Ovcara trial, most of which is beyond your control. In other words,

19 you depend on others. And of course I appreciate that and I agree with

20 the suggestion that was made by the Senior Legal Officer during

21 yesterday's 65 ter meeting to both of you, to both sides, to cooperate as

22 much as possible, because I think this will be in the interest of

23 everybody. It's in the interest of justice primarily, and therefore in

24 the interest of every one of you. Still, I need of course to remind the

25 Prosecution that you have obligations arising not only under Rule 68 but

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Page 289

1 also under Rule 66(A)(ii) which you need to fulfil.

2 What concerns me a little bit is - and I will be again returning

3 to you, Mr. Wubben, on this - is that I am informed that when you were

4 discussing yesterday during the 65 ter meeting, the question of Rule 68

5 material disclosure -- or rather, let me address the question to you: Are

6 there any further remarks that you would like to raise with regard to Rule

7 68 disclosure before I proceed any further?

8 MS. TAPUSKOVIC: [Interpretation] Your Honour, with your

9 permission, I shall be very brief. Thank you for your continued support

10 of the obligation to disclose under Rule 68, and all I can say is that the

11 Defence needs to present its views that the Prosecution's obligation to

12 disclose on a constant basis under Rule 68 cannot be limited to one source

13 of information only in this case or in any other. At yesterday's 65 ter

14 conference when discussing 68 -- Rule 68 disclosure, we noticed that

15 mention was made only of the Ovcara trial in Belgrade. The Defence does

16 not believe that that is the only source of information that will be

17 covered by this Rule. And there is a high probability that over all the

18 past years there must be more documents from various sources which would

19 need to be disclosed to the Defence under Rule 68.

20 JUDGE AGIUS: This is precisely where I was getting to, because

21 what worries me somewhat, and I'm speaking more out of experience than

22 anything else, experience in this Tribunal, is that the Defence seem to be

23 right in contending that no Rule 68 material has been disclosed since last

24 June. And my hunch is that we seem to have restricted ourselves to the

25 Ovcara trial with the risk of not really arching out to see whether there

Page 290

1 is other Rule 68 material elsewhere at a time when the archives of this

2 Tribunal and the information that is arriving continues to grow and grow

3 and grow and grow, but also at a time when electronically it's easier to

4 search for this material.

5 So I am not going to comment much further because, things being

6 what they are at the present moment, I think it's wiser to stop here.

7 However, before I close on this subject matter I do wish to point out that

8 the obligation of disclosure of Rule 68 material is there hanging on your

9 head, Mr. Wubben, like the sword of Damocles. Don't let it fall on your

10 head because it will not be a pleasant experience in the least. I take

11 this Rule 68 material disclosure very seriously, and I hate to come to a

12 stage later on when I suddenly discover that this or that material was not

13 disclosed when it should have been disclosed, even if it is all innocently

14 done. It causes a lot of unnecessary prejudice to the Defence, and I

15 won't allow it.

16 There isn't much more left for me to deal with. I'm supposed,

17 more or less, to give you an indication of when this trial will start. I

18 am hopeful that this trial could start in the course of this year here,

19 and I will do everything within my limited powers to ensure that this is

20 so; in other words, that we do not move to another year. I don't like the

21 idea of having pre-trial detention prolonged unduly and I don't like the

22 pre-trial stage to take too long. I come from a jurisdiction where they

23 would take this extremely, extremely serious, and I intend to put my foot

24 in and intervene to make sure that this trial starts the earliest

25 possible.

Page 291

1 If you have any comments in regard, I am prepared to hear them.

2 If there is none, I will proceed.

3 Yes, Mr. Wubben.

4 MR. WUBBEN: Yes, in regard as to any projected start of trial is

5 of course also important to link that with the 11 bis issue. But, Your

6 Honour, I don't know if you would raise it by your own. If not, then I

7 will do so by now. At the 65 ter conference there had been an issue

8 discussed in so far that I confirmed to the Senior Legal Officer and

9 Defence counsel that on short term a decision will be made and -- between

10 the 65 ter conference and the Status Conference there has been a new

11 development in so far that I already updated the Defence counsel prior to

12 the Status Conference, that we intend to file next week.

13 JUDGE AGIUS: All right. When that filing takes place, of course,

14 it will be dealt with by the trial -- appropriate Trial Chamber, and this

15 Trial Chamber would restrict itself to what by Statute and by the Rules it

16 still has to deal with. But of course I cannot mention anything about any

17 11 bis procedures because there are none so far, and I checked before

18 coming here for the Status Conference, and there are none and therefore, I

19 prefer not to deal with that matter.

20 Is there any other matter that you would like to raise? I will

21 start with the Prosecutor first.

22 MR. WUBBEN: No, Your Honour. Only in addition and to confirm

23 that we appreciated the cooperation with Defence counsels and their teams

24 highly.

25 JUDGE AGIUS: Okay. I thank you, Mr. Wubben. I'm sure that is

Page 292

1 appreciated by the three Defence teams, and I share the feeling because I

2 get the impression again of very significant cooperation, which I

3 appreciate, too.

4 Are there any other matters that you would like to raise? Yes,

5 Mr. Lukic.

6 MR. LUKIC: [Interpretation] I should like to address a topic that

7 we mentioned at previous Status Conferences and that we didn't mention at

8 yesterday's meeting. But I should like to inform the Trial Chamber about

9 the procedure regarding the stipulations on -- of facts. And the

10 Prosecution has submitted a motion to us in December about undisputed

11 facts. And during January we had a direct contact with our friends from

12 the Prosecution where we presented our views regarding that proposal. The

13 Prosecution, when filing this proposal on undisputed facts, actually

14 quoted the indictment and divided up the indictment into 80-odd points.

15 And then they proposed that on the basis of those facts taken from the

16 indictment we take our positions.

17 My legal understanding on stipulations is based on quite different

18 principles, relying on the Rules of Procedure, because such a proposal on

19 the part of the Prosecution requires that we admit to facts from the

20 indictment, and our clients have said that they challenge all the charges

21 from the indictment. And we have already communicated with the

22 Prosecution and to the best of my understanding an agreement on undisputed

23 facts is designed to allow the Trial Chamber to complete the proceedings

24 as quickly and efficiently as possible and because witnesses would not

25 have to be called for those points. That is why the Defence will submit

Page 293

1 their proposal for undisputed facts, and we wish to inform the Trial

2 Chamber that this process is ongoing.

3 MR. BOROVIC: [Interpretation] Your Honour, with your permission I

4 should just like to mention two small points for the benefit of the

5 Chamber. The first point we briefed you about was when certain

6 submissions were handed to our clients through the Registry, all the three

7 accused in the Detention Unit. You felt at the time that this Trial

8 Chamber should protect the interests of the accused and acted in the way I

9 think was appropriate. Then again, reporters from Belgrade wanted to

10 interview our clients and a third instance linked to the Registry was

11 that, through videolink, Judges from Belgrade tried to interview our

12 clients as witnesses. These are persons who haven't been interviewed by

13 the Prosecution nor have presented their Defence, and quite rightly

14 refused to testify, because if the rights of the accused are -- is a prime

15 principle, it should apply to other courts as well. We just wish to

16 inform you about this to be notified about it.

17 Before you receive a submission from the Prosecution connected to

18 11 bis, I also wish to inform Your Honours that all the Defence teams

19 several months ago filed a request to the Croatian embassy to allow us to

20 go on-site in Vukovar so that investigating teams might collect facts and

21 information which would be of interest for a trial in any court. To this

22 day, we have not received any response. This may indicate that

23 cooperation between the Defence and Croatia is not as it should be, and we

24 feel that the Chamber should be informed about this as well.

25 JUDGE AGIUS: Mr. Vasic.

Page 294

1 MR. VASIC: [Interpretation] Thank you, Your Honour. I wish to

2 thank my learned friend, the Prosecutor, for the assessment he gave of our

3 cooperation. And we agree with him; we feel it has been good. My learned

4 friend Mr. Borovic raised an issue that all the Defence teams wish to

5 address, and that is the situation in which our clients found themselves

6 when attempts were made through the Registrar to hand them some letters

7 from the State of Croatia. The Registry did not inform prior to that any

8 of the Defence teams; we were not aware of this nor were our clients

9 informed prior to this. And when attempt was made to deliver this

10 correspondence, they refused to accept it.

11 When we learnt about this from our clients, the Defence teams

12 filed a written request to the Registrar on the 4th of November, 2004, in

13 which we requested that the Registrar inform us in writing for the reasons

14 of such an action and the Rule on the basis of which an attempt was made

15 to make such a delivery to our clients. And since we did not receive any

16 response in writing, our colleague Mira Tapuskovic on the 11th of November

17 telephoned the Registry asking for a written response, and we haven't

18 received such a response to this day.

19 In January, the Special Court for War Crimes in Belgrade requested

20 from the Registry that a videolink be established when the accused would

21 be asked to testify as witnesses in the case before the Belgrade court.

22 According to information we received subsequently from the Trial Chamber

23 in Belgrade, that videolink was to be organised on the 25th of January,

24 but it was subsequently cancelled because of certain problems with the

25 premises. To this day we were not informed by the Registrar that such a

Page 295

1 request was made by the court in Belgrade and that they were given

2 permission to do this and that our clients were to have been brought to a

3 room for the videolink where they would have been questioned as witnesses

4 by the court in Belgrade.

5 It is the contention of the Defence that this is a violation of

6 the basic rights of the accused, as prescribed in the Rules of Procedure

7 of this Tribunal, and that is why we felt it necessary to inform the Trial

8 Chamber about this, because such acts cause fears and uncertainty in our

9 clients when they're asked to commit themselves without any prior

10 consultation with their lawyers.

11 Within the framework of this issue, I should also like to refer to

12 something that you have already mentioned, and that is the motion to

13 revise the decision on the category of the case, and only in two

14 sentences. I should like to inform you that we received the Registrar's

15 decision on the 11th of January, as you probably know, though the request

16 for categorising the case was filed in October. I should like to also

17 inform you that as early as November last year we learned that the

18 response would be negative and that a decision would be rendered in a day

19 or two. Unfortunately, the decision was rendered two months later. I

20 therefore quite agree with what you said, that the outstanding submissions

21 are more important than this one, but I would appeal to you that when this

22 request for a review of the level of the case is not resolved for more

23 than two months, I would appeal to you that you render your decisions as

24 soon as possible because the Defence is still uncertain as to the decision

25 rendered by the Trial Chamber on the 30th of March, 2004, in which it

Page 296

1 informed the parties that in an informal talk of the lawyers with the

2 Registry of the 2nd of October, 2003, it was informed that the Mrksic case

3 was ranked as in the second group of cases in terms of complexity.

4 It was later established that the Registrar's decision rejected

5 this request, so the Defence was still uncertain as to whether the Trial

6 Chamber had been misled. And this was later -- this misunderstanding was

7 passed down to the Defence team.

8 I should like to take advantage of this opportunity to thank you

9 for the position you took with respect to the length of detention. I must

10 say this as my client has been in detention for almost three years and

11 we're extremely keen to see the trial started in the course of this year.

12 He surrendered voluntarily and he has been patiently waiting for three

13 years for the International Tribunal to begin his trial. What I heard

14 today at the Status Conference provokes fears that should there be any

15 other requests or motions under 11 bis, that this could unjustifiably

16 delay the beginning of this trial for much more than a few months.

17 Thank you very much for listening me out.

18 JUDGE AGIUS: Thank you, Mr. Lukic, Mr. Borovic, and Mr. Vasic. I

19 take it there are -- there's no need for you to respond to any of the

20 points?

21 MR. WUBBEN: No, Your Honour.

22 JUDGE AGIUS: Okay. I'll start with what was raised by Mr. Lukic,

23 namely in relation to agreed facts. I purposely omitted to deal with the

24 matter for a very simple reason, that although I did not myself raise the

25 11 bis issue, in my heart of hearts I know that it's almost futile at the

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Page 298

1 present moment to go into the matter of agreed facts when there is a

2 probability of an 11 bis motion. However, again whilst this matter has

3 been raised and once it seems that you are not on the same wavelength on

4 this matter, as has been the case in many other cases, I think you ought

5 to proceed with what you said.

6 The matters raised by Mr. Borovic, which are also raised by

7 Mr. Vasic. The attempts by -- from Belgrade -- I would imagine it's the

8 Belgrade court or the Prosecution, Office of the Prosecution, I don't

9 know, to obtain a statement from or testimony from the three -- I take it

10 the three accused? The three of them? So -- and the suggestion that is

11 being made that this is in violation of their rights as protected -- their

12 procedural rights and due process rights as protected by the Statute and

13 also the Rules of this Tribunal. Now we will understand that if there is

14 a violation happening, and I say "if," I'm not saying there is, or if the

15 attempt by the Belgrade court or Prosecutor or whatever constitutes a

16 violation, and I'm not saying that it does, you will understand

17 immediately that the violation is not being committed by the Trial Chamber

18 or by any officer of this Trial Chamber, which changes a little bit the

19 picture. It's good that the Trial Chamber is put on notice and is alerted

20 to the fact, knowing that the judicial branch of this Tribunal operates

21 within parameters that are completely separate from those of the Registrar

22 under whom, under whom, the Detention Unit falls.

23 Now, obviously I don't know, and I don't think I ought to find

24 out, what exactly happened. What I think should happen - and I'm making

25 this very clear - is that I should repeat that at no time should the

Page 299

1 accused be forced to release any testimony or statement to any authorities

2 outside of this Tribunal while there are pre-trial proceedings pending

3 against them before this Tribunal without giving them first the

4 opportunity to consult their lawyers. I cannot give advice or directives

5 to your clients because obviously you know I cannot -- I am not here to do

6 that. But you are here present, hearing what I am saying, listening to

7 what I am saying, and you are definitely in a position to give advice. I

8 can't give advice neither to you nor -- and it's not my role to do that in

9 any case. But the thing is I am saying in no unclear terms that the

10 accused should not be put in a position such as to compromise their right

11 to remain silent as it exists for the purposes of this trial. And that

12 right can be violated inside this Tribunal but also outside this Tribunal.

13 So I will involve myself and the Trial Chamber only when it's the case of

14 doing so if it is -- it falls within our jurisdiction. But then the

15 Registrar, of course, and the administration at the Detention Unit operate

16 within their own boundaries, they still have to operate in accordance with

17 our Statute and our Rules, but I am not in a position to go any further

18 from what I have stated. I won't state anything more because I do not

19 have proof here that the Registrar or the authorities of the Detention

20 Unit in any way tried to force your clients to release statements or to --

21 or conspired with the authorities in Belgrade to trick your clients into

22 giving evidence. There is no evidence before me of any such thing

23 happening. In fact, the only indication I have - and I don't think I am

24 far off the mark - is that it seems that at one time such an interview was

25 scheduled and it never materialised. What is the reason behind that? I

Page 300

1 don't know. But I think I carry enough years on my shoulder to guess what

2 the reason is -- Zagreb. He is saying Zagreb. Anyway, Belgrade, Zagreb,

3 I don't know. I have no information on this.

4 The other position mentioned raised by both lawyers with regard to

5 cooperation with the Government of Croatia, I understood what you said.

6 There is one point on what you said that I didn't quite get. Probably

7 it's -- the reason is the transcript and not what you said. The

8 transcript that I have here says that basically there were some

9 documentation provided by the Government of Croatia for your client which

10 your clients were not allowed to receive. Is that correct? That's what I

11 got.

12 MR. VASIC: [Interpretation] Your Honour, if you're referring to

13 the part when I was saying that our clients, by the Registrar, were -- an

14 attempt was made by the Registrar to deliver certain documents to our

15 clients from the court in Osijek and the Defence was not informed of this.

16 So through the Registrar someone wanted to give to our clients some sort

17 of correspondence, some sort of a document, from the court in Osijek. It

18 is our submission that we should have been informed about this before

19 that, and that is the problem that the Defence is raising and which it

20 wishes the Court to be aware of.

21 JUDGE AGIUS: Okay. That is fair enough. And what I will do is I

22 will block this part of the transcript and have it copied and sent to the

23 Registrar, starting from page 27, line 6 - all right - for his

24 information. And I will then see what -- if there will be a reaction.

25 As regards the rest, I take it that you are both complaining that

Page 301

1 there is a kind of lack of cooperation from the Government of Croatia.

2 Again, I think for the time being there is very little available on the

3 basis of which I can act, so what I suggest to you is the following: That

4 if the situation remains the same and if you have reason to believe that

5 the -- either the refusal of the Government of Croatia or the fact that

6 the same government fails to react to your demand is prejudicial to your

7 clients' interests and an obstruction to your duty to provide for your

8 clients the best Defence possible, then please do bring this officially to

9 the Trial Chamber's notice because there are remedies, as you know, under

10 the Statute and under the Rules to make sure that every country extends

11 full cooperation to the Tribunal. And when I say "to the Tribunal," also

12 to its officers. But for the time being I will not say anything more than

13 that because governments sometimes need time before they can react and

14 they take time before they react. So let's not jump the gun, and take

15 everything in its stride.

16 The last matter was raised with regard to the decision of the

17 Registrar to retain your case at level one. I've taken note of your

18 submission, Mr. Vasic. More or less, it's a repetition of some of the

19 points that have been raised in the motion. I can assure you that our

20 decision will address whatever is within our jurisdiction or our

21 competence when we decide the relative motion in due course. I mean, when

22 I said other motions will receive prior attention, I didn't mean that we

23 are going to shelve this, I just mean that it will be the last one to be

24 decided from the five outstanding motions that we have. I am hopeful that

25 the five motions, all of them, will be decided within a month or so. All

Page 302

1 right.

2 Mr. Mrksic, as I said earlier on, one of the purposes of the

3 Status Conference is to inquire whether you have any complaints or remarks

4 or requests with regard to your health, state of health, and conditions of

5 detention. Let's take state of health. Do you have any problems there

6 that you would like the Trial Chamber to address or me as Pre-Trial Judge

7 to address? It's not on. The microphone is still --

8 THE ACCUSED MRKSIC: [Interpretation] Your Honour, no, nothing

9 special, nothing that I haven't said already. This is the seventh or

10 eighth Status Conference. I think we have got to know one another. And

11 as I can see the way you're presenting matters now, it seems that the

12 trial is imminent and will go ahead. However, if it's up to my lawyer it

13 might take some time. But our country Serbia I see now has encouraged

14 people to give themselves up and there seems to be cooperation along that

15 line. I think the idea of provisional release would also have a political

16 meaning and I would like to say that, generally speaking, I support your

17 ideas.

18 Now, as far as the Detention Unit is concerned, it is at such a

19 high level that even if we -- some of us go anywhere else to serve our

20 sentences, we will always have good memories of this detention centre.

21 JUDGE AGIUS: I thank you, Mr. Mrksic. You may sit down.

22 Mr. Radic, the same questions to you. Any comments you might

23 have?

24 THE ACCUSED RADIC: [Interpretation] Your Honour, as far as I'm

25 concerned I don't have any health complaints or problems, and everything

Page 303

1 is all right in the Detention Unit for the time being. Thank you.

2 JUDGE AGIUS: I thank you, Mr. Radic.

3 Mr. Sljivancanin.

4 THE ACCUSED SLJIVANCANIN: [Interpretation] Mr. President, I said

5 last time --

6 THE INTERPRETER: Microphone, please. I'm afraid we can't hear

7 the speaker.

8 JUDGE AGIUS: Do sit down because you're tall and you're too far

9 from the microphone. Do sit down, please.

10 THE ACCUSED SLJIVANCANIN: [Interpretation] I'll repeat. After the

11 Status Conference I said that I found it -- find it hard to wait for the

12 trial to begin, and I would like everything to become known and that you

13 should know that there are innocent people sitting here in prison. But as

14 far as the staff of the Detention Unit are concerned, their conduct is

15 proper.

16 THE INTERPRETER: I'm afraid we cannot hear the speaker at all

17 now. The interpreters apologise.

18 JUDGE AGIUS: He's not saying anything else.

19 That means we can bring -- I thank you, Mr. Sljivancanin.

20 I think we can bring the Status Conference to an end also because

21 there is another case coming up within a few minutes and I have to clear

22 the courtroom.

23 The next Status Conference will be summoned according to our

24 rules, that is within the time limit -- the time frame of 120 days. In

25 the meantime, if there is a motion under 11 bis, we'll see what the

Page 304

1 position will be. There will be, of course, two Chambers having

2 concurrent jurisdiction on this case; one Chamber with a special

3 jurisdiction, the other Chamber with the rest. But we'll have the next

4 Status Conference within the 120 days.

5 I thank you all and have a nice weekend.

6 --- Whereupon the Status Conference

7 adjourned at 3.55 p.m.