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?
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
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.
1 JUDGE AGIUS: Thank you.
2 Just one question. Is Mr. Momcilo Bulatovic still on the Defence
4 MR. LUKIC: [Interpretation] Yes, Your Honour. Mr. Bulatovic is
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
25 I also wish to inform everyone present here, but particularly the
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
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
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.
1 MR. WUBBEN: Your Honour.
2 JUDGE AGIUS: Yes.
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
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
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
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
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
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
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
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.
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
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
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.
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
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.
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
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
25 JUDGE AGIUS: Okay. I thank you, Mr. Wubben. I'm sure that is
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
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.
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
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
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
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
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
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
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
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
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
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
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
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.