1 Tuesday, 16 May 2000
2 [Status Conference]
3 [Open session]
4 --- Upon commencing at 4.07 p.m.
5 [The accused entered court].
6 JUDGE WALD: Will the registrar please call
7 the case.
8 THE REGISTRAR: [Interpretation] Case number
9 IT-98-34-PT, the Prosecutor versus Mladen Naletilic and
10 Vinko Martinovic.
11 JUDGE WALD: Good afternoon. I'd like to
12 welcome all the participants to this Status Conference;
13 the lawyers, Mr. Martinovic, the Registry staff, the
14 translators, and anyone else who is helping to make it
16 The first thing on the agenda is I would like
17 the counsel for the parties, the Prosecution and for
18 Mr. Naletilic and Mr. Martinovic, to announce their
20 First the Prosecution.
21 MR. TERRIER: [Interpretation] Good afternoon,
22 Your Honour, Madam President. The Prosecutor is
23 represented by Mr. Douglas Stringer, on my right-hand
24 side, and Mr. Manuel Bouwknecht, our case manager,
25 together with myself Franck Terrier.
1 JUDGE WALD: Let's have the counsel for
2 Mr. Naletilic.
3 MR. KRSNIK: [Interpretation] Good afternoon
4 to everyone present, in particular to you, Your
5 Honour. My name is Kresimir Krsnik, and I'm the
6 Defence counsel for Mr. Naletilic.
7 JUDGE WALD: Mr. Martinovic's counsel.
8 MR. SERIC: [Interpretation] Good afternoon,
9 Your Honour. I would also like to greet my learned
10 colleagues from the Prosecution. My name is Branko
11 Seric and I'm the Defence counsel for Vinko
12 Martinovic. I'm a member of the Croatian Bar
13 Association. Thank you.
14 JUDGE WALD: Welcome.
15 Now, my understanding is that Mr. Naletilic
16 will not be with us because he is not feeling up to it,
17 and he has sent a note for the record indicating that
18 he wishes you to represent him and for the Status
19 Conference to go ahead. Is that correct, Mr. Krsnik?
20 MR. KRSNIK: [Interpretation] Yes, that is
21 correct, Your Honour.
22 This morning when I visited my client, he
23 felt -- he was very ill, he was medicated, and he
24 expressed his doubts as to whether he would be able to
25 be here at the Status Conference. That is in keeping
1 with what the Defence counsel has been saying right
2 from the beginning, from the first Status Conference,
3 and that is that we need an expert medical examination
4 of my client. This is under way even as we speak, and
5 then well have more information.
6 JUDGE WALD: Thank you, Mr. Krsnik. You are
7 right. Of course the Chamber has ordered that such an
8 examination to take place. The report will be given to
9 us on May 25th, at which time we will be in a better
10 position to evaluate your client's ability to undertake
11 the trial. But we are sure that you will represent him
12 with skill and ardour in the meantime.
13 The Status Conference, which, as you all
14 know, is mandated within 120 days after the Initial
15 Appearance, and 120 days thereafter, under Rule 65 bis,
16 very briefly, it has three objectives which I will
17 remind you of.
18 I know it's very warm in this courtroom, and
19 I hope that we'll be able to achieve all of these
20 objectives and be out of here hopefully within an hour
21 to an hour and a half.
22 The first is to facilitate the exchange of
23 information between the two parties and to examine the
24 progress of the case to make sure that there are no
25 undue delays. In that regard, we're going to discuss
1 very briefly the disclosure of information that's
2 required under the Tribunal's Rules 66, 67, 68, 94 bis,
3 and 94 ter.
4 The second objective of the conference is to
5 manage the preparation by both sides so that the trial
6 will be as efficient as possible. This includes
7 various procedures that may speed the trial up, such as
8 parties agreements on undisputed facts, judicial
9 notice, affidavits, and perhaps depositions. It also
10 includes the pre-trial filings that are required under
11 Rule 65 ter.
12 The third is to give the accused, in this
13 case Mr. Martinovic, at the end of the proceeding, a
14 chance to tell us any concerns he has regarding the
15 conditions of detention.
16 Right off the bat we'll move toward the first
17 of those requirements. So I will ask both sides where
18 you are presently on the status of pre-trial
20 Now, I would remind you that at
21 Mr. Naletilic's Initial Appearance, the Prosecutor
22 indicated that the supporting materials that are
23 required to be given to the accused, to the Defence,
24 under Rule 66(A)(i) would be disclosed promptly. I
25 would now ask the Prosecution what has happened, has
1 that been done; that is, the disclosures that are
2 required under Rule 66(A)(i).
3 MR. TERRIER: [Interpretation] Madam
4 President, as regards the obligations of the Prosecutor
5 to disclose supporting material, this measure has been
6 fulfilled by the Prosecutor as regards both of the
7 accused. Concerning Mr. Naletilic and Mr. Krsnik, this
8 was done, as we indicated to the Tribunal, at the day
9 of the Initial Appearance of Mr. Naletilic, that is, on
10 the 24th of March. We are now fulfilling our
11 obligation in application of Rule 66(A)(i).
12 As regards Mr. Martinovic and his counsel,
13 Mr. Seric, we have already disclosed on several
14 occasions 191 witness statements involving 134
15 witnesses. Some of the witnesses had given several
16 statements. These statements have been given to
17 Mr. Seric, who is representing Mr. Martinovic.
18 As regards Mr. Naletilic and his counsel,
19 Mr. Krsnik, we are now able to disclose these same
20 statements, because we have disclosed to both of the
21 accused all of the statements that are available to us
22 even if they concern the other accused primarily, so we
23 are now able to disclose to Mr. Krsnik, for the accused
24 Mr. Naletilic, these statements as well.
25 This leaves us with about 40 statements that
1 still have to be disclosed. We cannot do it today in
2 the Serbo-Croatian language because we have some
3 problems, involving the translation problems this
4 Tribunal is familiar with. Additional resources are
5 being mobilised, and we have asked for a new deadline
6 to be indicated for the disclosure in the
7 Serbo-Croatian language. We now are able to disclose
8 the statements in the English language but we don't
9 know whether this will be sufficient for the counsel.
10 At the end of next month, we will have all of
11 the remaining statements, including those in the
12 language of the accused, and we will be able to
13 disclose them at that time to both Mr. Seric and
14 Mr. Krsnik.
15 JUDGE WALD: Let me make sure I understand
16 you, Mr. Terrier.
17 When you're talking about the witness
18 statements, the 40 statements that you have not yet
19 been able to translate into the language of the
20 accused, are those witness statements under 66(A)(ii)?
21 In other words, those are statements of witnesses that
22 the Prosecutor intends to call to testify at trial?
23 You have already disclosed the supporting material
24 under 66(A)(i); is that correct?
25 MR. TERRIER: [Interpretation] Yes, that is
1 absolutely correct, Madam President.
2 JUDGE WALD: You are saying, if I understand
3 you, that you need until the end of next month, that
4 would be the end of June, to finish with the 40
5 statements. Did I understand you correctly that
6 that's --
7 MR. TERRIER: [Interpretation] Yes, you have,
8 Madam President. The translation service needs that
9 time in order to finish its work.
10 JUDGE WALD: All right. Thank you very
12 Let me now ask the Defence counsel, first
13 Mr. Krsnik, whether or not you have received the
14 supporting materials, you have received many of the
15 witness statements except for the 40 that the
16 Prosecutor referred to. In other words, is the
17 information he has given us in accord with what you
18 have received, Mr. Krsnik?
19 MR. KRSNIK: [Interpretation] So far I have
20 received statements of about 30 witnesses, that was at
21 the Initial Appearance, and I haven't received anything
22 else until this day. If I understood him correctly, I
23 will get today the statements of an additional 190
24 witnesses. Because right now the Defence counsel for
25 Mr. Naletilic has about 30 witness statements so far,
1 that's the only thing that has been disclosed to us by
2 the Prosecution.
3 JUDGE WALD: Mr. Terrier.
4 MR. TERRIER: [Interpretation] Madam
5 President, Mr. Krsnik has received, as I have said, the
6 documents that were presented to the Confirming Judge.
7 So that was pursuant to Rule 66(A)(i). What is still
8 pending and what we still have to do in order to fulfil
9 our obligations are a number of other documents.
10 As regards these other documents, we are able
11 to disclose them shortly -- not today, because we have
12 problems involving copying and so on -- we will be able
13 very soon to disclose to Mr. Krsnik the documents that
14 have already been disclosed to Mr. Seric, that is, 191
15 statements, witness statements.
16 JUDGE WALD: Those 191 do not include the 40
17 that you need a longer period of time for; is that
18 right? But those 191, when you say "in a little
19 while," I take that to mean that within the next week
20 or two you will get those, except for the 40, to
21 Mr. Krsnik; is that right?
22 MR. TERRIER: [Interpretation] Yes. Yes,
23 Madam President.
24 JUDGE WALD: All right. Now, let me ask you
25 one further question, Mr. Krsnik.
1 The fact that Mr. Terrier says he needs until
2 the end of next month for these -- assume you get the
3 190 in a week or so. He needs some additional time, I
4 think a month and a half, for the additional 40 to be
5 translated into Serbo-Croat. Is that satisfactory to
7 MR. KRSNIK: [Interpretation] Well, it is
8 acceptable to me because I have no other option. Your
9 Honour, on my own initiative, three weeks ago, I got in
10 touch with my colleagues for the Prosecution, asking
11 them when I will receive the other witness statements.
12 So I did that on my own initiative, and I have nothing
13 else to say. I have to be happy with this.
14 JUDGE WALD: Let me speak now with Mr. Seric
15 and make sure that he agrees with the information that
16 Mr. Terrier has given us about the receipt of both the
17 supporting materials and the 191 witness documents.
18 MR. SERIC: [Interpretation] Your Honour, the
19 information provided by my learned colleague from the
20 Prosecution is correct. I did receive the 132 witness
21 statements, and the Defence counsel for Mr. Martinovic
22 is aware of that, is in receipt of that.
23 JUDGE WALD: All right. I think we have that
24 in hand. My last question on the 66 situation is there
25 is, I take it, no possibility that the translations can
1 be -- of the remaining 40 statements can be
2 accomplished sooner than a month and a half. In the
3 meantime, however, you can provide them in the English
4 language; is that right?
5 MR. TERRIER: [Interpretation] Madam
6 President, the statements are in English. They were
7 taken in the English language. We can disclose them in
8 English if my learned colleagues wish so. But we
9 cannot force the Translation Service of this Tribunal
10 to work faster than they do.
11 JUDGE WALD: Let me ask the two counsel for
12 the Defence. Will it be of any assistance to you to
13 get them in English ahead of the time that they come to
14 you in Serbo-Croat or not? Mr. Krsnik?
15 MR. KRSNIK: [Interpretation] For the time
16 being and at this stage of the proceedings, I don't
17 think it would be of any assistance to me if I were to
18 receive those witness statements in English. But I
19 would just like to make a note. I don't want to meddle
20 in the job of my colleagues, but I believe that those
21 witnesses are all from the former Yugoslavia, and I'm
22 surprised that they do not give statements in their
23 native language. So it seems that their original
24 statements are being translated into English and then
25 have to be translated back into Serbo-Croat. So I just
1 have this little remark. That's rather odd.
2 JUDGE WALD: Mr. Seric, do you want them in
3 English, or are you happy to wait? Not happy, but
4 reconciled to wait until ...
5 MR. SERIC: [Interpretation] Well, Your
6 Honour, it will not change my situation to a
7 considerable degree if I receive these statements in
8 English, precisely because the Defence team, once they
9 receive the statements in English, we can understand
10 them, but we have to involve our client in the defence,
11 in the preparation of the defence, and that really
12 limits our possibility to do so if we don't have those
13 statements in Croatian.
14 JUDGE WALD: All right. I understand your
16 Mr. Terrier, I would request of you that you
17 and your team keep on top of this, and if there is any
18 likelihood that the translation will be delayed beyond
19 the period that you are now estimating for me that you
20 will be in touch with me as the Pre-Trial Judge to let
21 me know if there is any possibility that they will not
22 be able to make that deadline.
23 As you know, the advanced disclosure of
24 witness statements is very important, and unless it's
25 done, it can cause very untoward delays later on in the
1 proceedings. I know you're aware of that.
2 At this point, I would also remind the
3 Prosecution of their duty to disclose any exculpatory
4 evidence under Rule 68 as they move along. That means
5 that any evidence that they come upon which, in the
6 terms of the Rule, tends to suggests the innocence or
7 to mitigate the guilt of the accused, or to affect the
8 credibility of Prosecution evidence, and I'm sure
9 you're aware of that and you'll keep on top of that.
10 Okay. The next question I would ask is to
11 the Defence lawyers: Whether or not they intend, under
12 Rule 66(B), to make a request to review the
13 Prosecution's exhibits. If they do, I know that they
14 are aware that under Rule 67(C), I believe it is, that
15 the Defence -- that the Prosecutor, in turn, will be
16 entitled to inspect any exhibits, books, documents, et
17 cetera, which the Defence has.
18 Do either or both of the Defence lawyers
19 intend to invoke 66(B) for reciprocal disclosure,
20 reciprocal discovery of the documents?
21 Mr. Krsnik.
22 MR. KRSNIK: [Interpretation] For the time
23 being, no, Your Honour.
24 JUDGE WALD: How about you, Mr. Seric?
25 MR. SERIC: [Interpretation] Yes. Just like
1 my colleague; for the time being, no.
2 JUDGE WALD: All right. It does speed things
3 up sometimes, if you will. So you might think hard
4 about that as you proceed through your preparation of
5 the case.
6 I'm also reminding you that under Rule 94
7 bis, any expert reports must be disclosed, the Rule
8 says, as early as possible. And within 14 days after
9 any such report is submitted to the Trial Chamber, the
10 parties must say whether they accept the report or wish
11 to cross-examine it.
12 My question, and I'll start with the
13 Prosecution, would be, at this point, whether or not
14 the Prosecution thinks there will be expert reports
15 that they will be tendering to the Chambers, and if so,
16 approximately when?
17 MR. TERRIER: [Interpretation] Madam
18 President, for the time being we do not think we will
19 invoke more than one expert report by Mr. Colin Kaiser,
20 who is an expert from UNESCO, and he deals with
21 religious and cultural institutions. This particular
22 issue was quite important throughout Bosnia and Mostar,
23 and he made a list of damage caused to these
24 institutions in that area.
25 It is quite a voluminous report. So far
1 we've only had it in the English language, but it
2 concerns the area of Bosnia in its entirety, not only
3 the area of Mostar. So we think, for the time being,
4 that we will be using this report, because it is in
5 connection with paragraph 11 of the indictment, where
6 the Prosecutor states that the destruction of religious
7 and cultural objects was done, was made. I'm referring
8 to paragraph 11 of the indictment.
9 I should like to ask a question at this
10 moment, and it concerns our obligation to translate
11 this report. The report is in the English language.
12 Do we have to translate it -- do we have to translate
13 it in its entirety, or only the passages, the relevant
14 passages which concern the area of Herzegovina, and the
15 area of Mostar in particular?
16 JUDGE WALD: I'm consulting the Rule for the
18 The Rule certainly doesn't say anything about
19 it having to be translated in the language of the
20 accused, but since I am relatively new at this
21 business, let me at least preliminarily consult
22 Mr. Fourmy, who has had somewhat more experience along
23 these lines.
24 [Judge Wald and Legal Officer confer]
25 JUDGE WALD: To answer your question, at this
1 juncture, it doesn't appear to me that the report
2 itself is required by the Rule to be translated in that
3 language. Now, of course if an expert comes on, or if
4 the expert comes on, then the expert would be subject
5 to the expert witness rule. However, I would think
6 that if it were possible, that if there were key
7 provisions of the report, it would facilitate matters
8 greatly if there were a translation of that. But
9 that's certainly my preliminary feeling about this.
10 However, if upon doing any further research I come to a
11 different conclusion, I will let both parties be aware
12 of that.
13 When do you think that you would be
14 submitting such a report either to the Defence, for
15 their advance knowledge, or later on to the Chamber?
16 MR. TERRIER: [Interpretation] Madam
17 President, I can just inform you about my experience in
18 another case.
19 JUDGE WALD: Please.
20 MR. TERRIER: [Interpretation] Even, of
21 course, in the Rules, and I'm referring in particular
22 to Rule 67, the Rule does not oblige us to have that
23 translation. But we have a similar obligation in some
24 other systems.
25 What concerns me is the following: I think
1 it is perfectly normal, logical, and feasible, without
2 too much difficult, to translate the pages that concern
3 the area of Mostar and Herzegovina, but it is
4 absolutely useless, on the other hand, and it would be
5 a waste of time, if we have to translate the report in
6 its entirety. The report consists of about 400 pages
7 and it concerns the area of Bosnia as a whole, and some
8 areas in Croatia, in particular, the area of
10 So what we would like to do is that we be
11 allowed not to translate the entire report but only,
12 and as soon as it is practically possible, the pages
13 that concern the area of Mostar, and, I think, I'm not
14 quite sure, that it must be about 50 pages, 50 pages
15 concerning the area of Mostar, that is.
16 JUDGE WALD: Let me get the reaction of
17 Mr. Seric and Mr. Krsnik.
18 Would that be satisfactory to you, if the
19 parts of the report which have any relevance to the
20 episodes that we're considering in this case are
21 translated to you in the native language? Will that be
22 satisfactory to you?
23 Mr. Krsnik.
24 MR. KRSNIK: [Interpretation] Your Honour, it
25 seems logical to the Defence that the Prosecutors
1 should stick to their indictment and to translate only
2 those parts that are relevant for the indictment, which
3 would enable us to defend our clients to the best of
4 our abilities. I do not see any sense in translating
5 things that concern the overall situation in Bosnia, in
6 particular in Croatia, because these proceedings have
7 to do with the indictment that was issued by our
8 learned colleagues.
9 JUDGE WALD: Fine.
10 Mr. Seric.
11 MR. SERIC: [Interpretation] Your Honour, as
12 regards the destruction in Bosnia and in the wider
13 area, my client, Vinko Martinovic, doesn't have
14 anything to do with that. Only the things that
15 happened in Mostar have to do with him, and he knows
16 best what happened there. So we agree -- I agree that
17 only those parts that are relevant for this area be
18 translated, and then we can examine it and challenge
19 those parts that we deem fit.
20 JUDGE WALD: All right. I'm also informed,
21 and you can correct me if I'm mistaken here,
22 Mr. Terrier, that the author of the report, Mr. Kaiser,
23 is it, has already testified before this Tribunal in
24 another case. So there will be available transcripts
25 which have been translated in B/C/S as to his
2 Okay. Now, I'd like then -- and do you have
3 a rough idea when you're likely to submit that report?
4 If the conditions which you specified and which are
5 satisfactory to the Defence; namely, just the
6 translation of the relevant portions.
7 MR. TERRIER: [Interpretation] Madam
8 President, frankly speaking, today I am unable to give
9 you a specific date. We have to contact the
10 Translation Service once again for that purpose. And I
11 do not think that we would be able to disclose a
12 translation of those 50 pages before the month of
14 JUDGE WALD: Well, I have in mind, although
15 it is skipping ahead some, that we would have another
16 Pre-Trial Conference in which I hope many of these
17 things will have settled into, probably in early July.
18 That would satisfy both the 120-day period for your
19 client, Mr. Krsnik, and allow some of these matters,
20 including the witness statements that you talked about,
21 to be settled in. So that timing sounds as though it's
22 a reasonable one.
23 Let me move on to a quick survey of whether
24 or not the parties have considered -- I hope they
25 have -- and will continue to consider and perhaps to
1 execute some of the methods for shortening trial.
2 Now, the first obvious method would be taking
3 some of the testimony by deposition, pursuant to 71, or
4 even possibly by video conference, to 71 bis.
5 Does the Prosecution presently have any
6 intention to take any of the testimony by deposition?
7 MR. TERRIER: [Interpretation] Yes, Madam
8 President. When we established, initially, contact
9 with Defence counsel and when we were able to assess
10 these points of agreement and disagreement, so once we
11 establish that kind of contact, we will be able to tell
12 you what witnesses exactly can be heard here by the
13 full Chamber and what witnesses can be heard, in
14 accordance with Rule 71, by videolink, if, of course,
15 it involves certain problems, in particular those
16 relating to security.
17 So we should like to ask the Chamber to use
18 this particular provision for a limited number -- a
19 certain number of witnesses, but today we are not able
20 to provide you with that list because we have to
21 establish this type of contact with our colleagues from
22 the Defence so that we can see on what issues we can
24 JUDGE WALD: I understand that, and I assume
25 again that by the time -- if we have another Pre-Trial
1 Conference, say, in early July, you will be far enough
2 long to be able to inform us.
3 How about the Defence? Mr. Krsnik and then
4 Mr. Seric. Do you have any intention of using
5 deposition testimony for any of your witnesses? Go
6 ahead, Mr. Krsnik.
7 MR. KRSNIK: [Interpretation] The Defence does
8 not intend to do so, in particular as the Defence
9 counsel for Mr. Naletilic thinks that this Court is a
10 court of the highest standard. The Defence does not
11 wish to discuss these proceedings in terms of
12 expediting them or making them shorter. We want to see
13 the justice done and to be done in its entirety. For
14 that to be done, we think that all the witnesses have
15 to come here, be heard before this Trial Chamber, and
16 cross-examined, because we already have some
17 information about the conditions -- circumstances in
18 which the witness statements were taken in Bosnia. We
19 know that --
20 JUDGE WALD: I'm sure that -- I'm sorry. Go
22 MR. KRSNIK: [Interpretation] I just wanted to
23 complete my sentence. So in principle, the stand of
24 the Defence is that all the witnesses have to come here
25 and be heard before this Trial Chamber and be
1 cross-examined here in the courtroom.
2 JUDGE WALD: I understand your position,
3 though I'm sure you're aware that if testimony is taken
4 by deposition, that means that it is taken subject to
5 cross-examination. And indeed, sometimes justice best
6 done by being done as quickly as is possible under
8 But how about you, Mr. Seric? Have you
9 considered the possibility of depositions?
10 MR. SERIC: [Interpretation] Your Honour, I
11 wish to support the statement of my colleague,
12 Mr. Krsnik, but I wish to give a theoretical
13 introduction on which we base our view. I will repeat
14 that this International Criminal Tribunal was
15 established by the Security Council of the United
16 Nations to prosecute serious violations of humanitarian
17 law in the territory of the former Yugoslavia. It's an
18 authority par excellence for the whole world and for
19 Croatia. That is why we, the Defence, deem that we
20 should pursue the principle of adversarial proceedings
21 and direct examination, and in the interests of justice
22 and of having a fair trial to which we are obliged
23 under Article 20 of the Statute, the witnesses have to
24 be heard before the Trial Chamber.
25 The Defence wishes to stress that our
1 experience so far tells us something about how the
2 witnesses feel when they testify at home, so to speak,
3 because it may, and indeed it happened already, that it
4 may be different than when they testify before the
5 Court. And it is precisely this feeling, this sense,
6 that they are testifying in their own home, in their
7 own village, in their own environment, and that after
8 they inculpate my client very seriously, they just
9 cross the street and go back to their home as if
10 nothing has happened, without even seeing the accused,
11 and the entire street, the entire village, knows that
12 they testified the way they did. And then at the same
13 time, somebody else who has an impact -- who affects
14 their financial and other status, and that has
15 happened, the Defence has information that in some
16 cases the witnesses' houses were not repaired until
17 they testified, so they have this feeling that their
18 testimony affects the quality of their lives, and
19 indeed their security, this affects the accuracy of
20 their testimony.
21 Well, we are all experts here. We know what
22 Grasburger [phoen] wrote about this issue. The effect
23 of the environment from which the witnesses come is not
24 so strong. If they are there, they have to testify the
25 way that the environment expects them too.
1 JUDGE WALD: I think I understand your
2 position and the reasons why you're taking it. At this
3 point, I would simply remind you that the Rules of the
4 Tribunal do provide for depositions to be taken where
5 it is in the interests of justice to do so.
6 Now, if you decide you do not want to do any
7 of your witnesses by deposition, you have given us some
8 of the reasons to do so. If the Prosecution, however,
9 decides that it wishes to advance some of its witness
10 testimony by deposition, I'm sure there will be an
11 opportunity for you to object. But I would again
12 remind you that many of the trials before the Tribunal
13 have had deposition testimony in them, which, I think
14 it is the consensus, they have not suffered to any
15 degree for lack of fairness. And in some cases, it is
16 a question not of getting the absolute best possible
17 means in every case but of losing the witness
18 altogether if the witness cannot come by deposition.
19 But I don't think we have to, at this
20 juncture, go into all of the arguments, pro and con, on
21 that. I wished merely to find out your intent on
23 The same is true of the next two questions
24 which I may surmise you may answer similarly, but you
25 may surprise me, and I'll ask the Prosecution first
1 whether or not they've identified any facts that they
2 think might be the subject of judicial notice, pursuant
3 to Rule 94.
4 In some of the cases that we've had, there
5 have been consensual -- consent of both sides to
6 recognising some adjudicated facts. Now, I'm not sure
7 that there are that many similar proceedings to the
8 issues that are involved in this case, but I wonder if
9 you've thought about. If not, if you will think about
11 MR. TERRIER: [Interpretation] Madam
12 President, I will reply to your question as completely
13 as possible. Will you just help me to understand, and
14 to add something under Rule 71, the way we understand
15 it at the Office of the Prosecutor.
16 Let me first tell you, and I should like to
17 answer the argument of Mr. Seric, namely, that some of
18 the witnesses could be led to testify in a different
19 manner. My answer is that Rule 71 does not provide
20 that it can be heard in their kitchen at home. This is
21 something that's transmitted here, to this courtroom.
22 In those conditions and bearing in mind those
23 circumstances, I have to say that the witnesses will be
24 in an appropriate environment and they will have to
25 testify sincerely and as completely as possible.
1 Let me add one more thing. The witnesses who
2 will be saying, maybe, "I recognise the accused
3 Naletilic or the accused Martinovic," those witnesses,
4 the witnesses who are able to identify the accused and
5 to say that the accused committed a crime, namely, the
6 fact witnesses, I think that those witnesses will have
7 to be called and testify before the Chamber.
8 This will not be the case of all of the
9 witnesses that we intend to call. Other witnesses will
10 bring other important information to this Chamber but
11 they will not necessarily identify either of the
12 accused. And those witnesses are the ones that I had
13 in mind when I said that they could be heard if not by
14 the procedure provided -- that they could be heard by
15 the use of videolink. So this is my answer to the
16 position exposed by my learned colleagues.
17 If we have a fact witness, that witness is --
18 of course, it will be easier for him to express himself
19 in the absence of the accused, but those witnesses will
20 be called. And I think that this is very useful in the
21 determination of the truth. So we do not intend, in
22 accordance with Rule 71, to hear witnesses by
23 videolink. Witnesses who are fact witnesses and who
24 can seriously inculpate the accused.
25 To go back to the judicial notice that you
1 mentioned, we primarily have in mind the issue of the
2 conflict in Bosnia and Herzegovina in the relevant
3 times. This has already been the subject of some
4 debate and discussion and evidence that was heard in
5 other cases before this Tribunal.
6 However, this discussion has not completed,
7 has not been completed to this date. So we suggest
8 that the Chamber base itself on the adjudicated facts
9 in other cases as regards the issue of the armed
10 conflict in Bosnia-Herzegovina at the relevant times.
11 For the time being, I see it as the only
12 issue that we intend to invoke, in accordance with Rule
14 JUDGE WALD: Thank you, Mr. Terrier. That's
15 very helpful for you to focus us on that. And I might
16 get an initial reaction from the two Defence counsel on
17 that, whether or not you think, after discussions, you
18 may be in a position to agree to using judicial notice
19 on adjudicated facts, just on that single issue on the
20 nature of the armed conflict here, which I know you
21 consider to be an issue in the case from your prior
23 You certainly don't have to give any final
24 answer today. Mr. Terrier has put us on notice that
25 that's something which he thinks is certainly worthy of
1 discussion and might become the subject of a motion
2 which he would put before the Chamber.
3 If you wish to share with us your initial
4 reaction, it certainly doesn't have to be your final
5 position on that, I'd be happy to hear you. It might
6 be useful to him too.
7 Do either counsel wish to say something on
9 Mr. Krsnik.
10 MR. KRSNIK: [Interpretation] Madam President,
11 the musings of the Prosecutor, I take them to be just
12 that, the musings. You will have to excuse us.
13 Mr. Seric and myself are rather new here, and we are
14 just studying the precedents of all the cases that were
15 tried before this Tribunal. And as far as we know, no
16 facts have been concluded, no judgements are final,
17 because no cases have been completed, the appeals are
18 still pending.
19 So we don't know what are those things that
20 our learned colleague from the Prosecutor thinks has
21 already been adjudicated, because in the view of the
22 Defence, no Trial Chamber has yet proven or accepted,
23 established, that the existence of an international
24 armed conflict in Bosnia.
25 So in our discussions, we will have to go
1 case by case to see what has been accepted and to see
2 whether the Defence can admit to that or accept it.
3 JUDGE WALD: All right. Well, I think we've
4 established that it's the subject of discussion.
5 Perhaps we can go no further than that.
6 Now, the next and last issue on methods that
7 I want both sides to think about and discuss before the
8 next Pre-Trial Conference has to do with a motion which
9 has already been submitted by the Prosecution and has
10 been under advisement by the Chamber, I think, for more
11 than a month, maybe two months now, and that is a
12 motion made under Rule 95 -- I'm sorry, 94 ter, dealing
13 with so-called affidavit evidence.
14 Now, the Prosecution's submission was that
15 because it is not feasible for them in many cases to
16 satisfy technically the requirement of an affidavit
17 because Bosnian law doesn't recognise that particular
18 term, and they think many of their witnesses would have
19 some problem in testifying even before -- or in making
20 out an affidavit or formal statement before the local
21 judges, which has been done in some other cases, they
22 would like the Chamber to interpret Rule 94 ter to
23 allow a procedure whereby the Prosecutor's staff would
24 take the statement and would require the witness to, in
25 effect, affirm that they were telling the truth under
1 pain of any penalty that would follow a false statement
2 for the Tribunal.
3 Now, we've heard from Mr. Krsnik about all --
4 I've read with great interest and care the oppositions
5 that you have filed to that. The first thing I'd like
6 to ascertain, however, is we have not heard from
7 Mr. Martinovic's counsel, and I wondered if you wanted
8 to say something on that issue here today. You
9 received that motion, I take it, a few months ago.
10 MR. SERIC: [Interpretation] Your Honour, I
11 did receive the motion, and speaking conditionally, if
12 the witness statements that the Court and the
13 Prosecution and the Defence are of such probative
14 value, then what is at issue is what the other indirect
15 evidence -- what is the importance of that indirect
17 The Rule, as is stands, is fine. So speaking
18 conditionally, I cannot say whether I agree or not. I
19 can say that on a case-by-case basis, depending on each
20 individual witness statement. If the witness statement
21 is good, then we do not need the indirect evidence, the
22 indicia, the circumstantial evidence that would speak
23 to the credibility of the witness statement that is at
24 issue and that the Prosecution uses to prove a point.
25 JUDGE WALD: Well, I'm going to give
1 Mr. Terrier a chance to add any additional thoughts he
2 has on it. But I'm not going to -- this is a matter
3 which would have to be ruled upon by the entire
4 Chamber, obviously, and I'm not going to rule upon it
5 today. But I will relay back to them the comments that
6 are made.
7 I wish to inform you of one thing, and that
8 is that the Chamber has been seriously considering
9 this. It has not been sitting on the table not being
10 looked at, as it were. And one question which I would
11 address to you is that Rule 94 talks about an affidavit
12 or formal statement which is signed by a witness. This
13 is in corroboration cases in accordance with the law on
14 procedure for such state in which such affidavits or
15 statements are signed.
16 Now, in your motion, you told us about one
17 provision in Bosnian law which allows evidence to come
18 in if it is sworn before a local judge, I think. But a
19 question that was raised in our mind is whether or not
20 there is not some provision in Bosnian law which would
21 be in full accord with the terms of 94 ter which do not
22 require that the statement be sworn before a local
23 judge, but rather that it be acknowledged before some
24 authority that's recognised by Bosnian law akin to the
25 kind of notary, or notary public which we have not only
1 in French law but in American law, and in at least one
2 of these cases in this Tribunal has been accepted under
3 94 ter.
4 In other words, you don't have to have a
5 local magistrate, but does Bosnian law recognise a kind
6 of statement which is confirmed before a type of
8 In that regard, we plan to submit a letter to
9 the Bosnian government simply asking them for
10 information about the state of their law as to whether
11 or not they have a kind of notary procedure but --
12 which again, I point out, has been accepted in other
13 cases before this Tribunal. But I would like to find
14 out from you whether or not, from your point of view,
15 if such a system existed, that would alleviate some of
16 the concerns you have or not.
17 MR. TERRIER: [Interpretation] Madam
18 President, Mr. Stringer will answer your question on
19 behalf of the Office of the Prosecutor.
20 MR. STRINGER: Good afternoon, Madam
21 President, and greetings to counsel.
22 Your Honour, in respect of this issue, your
23 first question and the question of the Trial Chamber,
24 in respect of whether provisions exist under Bosnian
25 law for what we call a notary in the English language,
1 I've had some dealings with this issue for some time
2 now. It's my vague impression that there may exist in
3 Bosnian law such a provision; however, it's not found
4 in any of the laws or procedures that apply in criminal
6 It may be that such a person exists under the
7 law of Bosnia-Herzegovina in other sorts of areas,
8 other legal areas, such as areas involving real estate,
9 other forms of property, other areas in which persons
10 may be called upon to notarise or to place some sort of
11 official seal or to ascertain the authenticity of
12 signatures on documents. So it may be that a provision
13 exists under some part of the law in
14 Bosnia-Herzegovina; however, I don't believe it exists
15 under the law that applies in criminal proceedings.
16 The law that we've cited in the motion is
17 what we believe is the closest provision that exists;
18 that is, Article 230 which empowers a judge to put a
19 witness under oath and to take a statement during the
20 pre-trial or investigative phase of the case. But as
21 Your Honour is aware, that procedure is only -- can
22 only be used in Bosnia when there is an apprehension
23 that the witness, because of sickness or some other
24 reason, will not be able to appear at the hearing.
25 So that is really something that's the
1 opposite from what's envisioned in our Rule, and
2 applying the language of 94 ter strictly, we don't
3 think that we can meet that criterion in terms of
4 illness or other reasons which would prevent a witness
5 from coming to the Tribunal.
6 JUDGE WALD: I think, Mr. Stringer, however,
7 in reading the question, I don't propose to answer it,
8 but the question is at least raised by the wording of
9 94 ter, whether or not the procedure which is talked
10 about in accordance with the law and procedure in which
11 such affidavits or statements are signed relates to the
12 fact that it is legal to have a particular official
13 witness the statement, as opposed to whether or not
14 that particular witness statement would be admissible
15 in a criminal proceeding in that particular country.
16 For instance, as I say, in at least one other
17 proceeding, a statement that was notarised by an
18 American notary public was accepted under this
19 particular provision, whereas I think it would be
20 probably doubtful whether or not that would be
21 admissible in a criminal proceeding.
22 This is simply a question that has been
23 troubling us. I think it's no secret that the
24 interpretation of 94 ter is involved in many cases
25 before -- several cases before the Tribunal, and in
1 fact we do have an interlocutory appeal which is
2 pending upon whether or not a witness statement that
3 was taken by a prosecutor, not perhaps under the exact
4 wording of the oath that you -- not the oath, but the
5 acknowledgement that you propose, whether or not that is
7 So I simply wanted to apprise you of this.
8 We are working on it, and we will come down with a
9 ruling on that in time to make it of use to the
11 MR. STRINGER: Thank you, Your Honour.
12 JUDGE WALD: Now, the next item, and I am
13 bound to get us out of here within the next -- all
14 right. Mr. Krsnik, do you have something to say? Go
16 MR. KRSNIK: [Interpretation] I apologise,
17 Your Honour, but I do believe an intervention is in
19 Madam President, my colleague and myself, and
20 most of us, the Defence counsel representing our
21 clients here before this Court, we graduated from law
22 schools in the former Yugoslavia. I just want to
23 present a view that is contrary to the one expressed by
24 my learned colleague. I think that he is not really
25 familiar with what he terms "the Bosnian law." This
1 law has not changed substantially from the law that was
2 in effect in the former Yugoslavia, the criminal and
3 property law.
4 In fact, there was substantial law and
5 procedural law in Yugoslavia and all of the republics.
6 It is similar to the system that is in effect in the
7 United States. For some -- in some cases, some cases
8 are tried under the federal law and some under the
9 republican law.
10 After all the events that we are familiar
11 with, these laws have changed to a very little degree.
12 What I want to say is that in the criminal procedure
13 law in force both in Bosnia and in Croatia, it does not
14 envisage the possibility of oath-taking similar to the
15 one that is in effect here.
16 The witness is presumed to be under an
17 obligation to speak the truth. They do not take an
18 oath. It is presumed that they are speaking the
19 truth. And if it is proven that they haven't been
20 speaking the truth, then appropriate measures are
22 And as to notaries public, this system of
23 notaries public has not been established in
24 Bosnia-Herzegovina yet. In Croatia there is such a
25 system in place.
1 In Bosnia-Herzegovina, all the statements and
2 all the other papers that need to be notarised, in
3 France, in the US, and so on, they have to go to the
4 local authorities, to the municipal administrative
5 body, and have it notarised there.
6 So what is being discussed in Rule 94 ter,
7 and what our learned colleagues from the Prosecution
8 are talking about, it's irrelevant. And it is
9 inappropriate, in fact, to use such statements taken in
10 this way before this Court.
11 This is a very short representation of the
12 situation now.
13 JUDGE WALD: All right. Thank you,
14 Mr. Krsnik.
15 MR. STRINGER: Your Honour, may I just make
16 one very brief rebuttal?
17 JUDGE WALD: Yes. Go ahead.
18 MR. STRINGER: We were actually looking
19 forward to getting the views of the Defence on this
20 very point because I think it's clear to all of us that
21 they are in a better position to know what is the law
22 of the Federation of Bosnia-Herzegovina now.
23 In the response that was filed by counsel for
24 Mr. Naletilic, there is no indication whatsoever of any
25 disagreement with the characterisation of the law that
1 the Prosecutor included in her submissions on this,
2 including the copies of the legislation which we
3 believe applies. And, of course, on the part of
4 counsel for Mr. Martinovic, there was no response
6 So it is, I think, something to be borne in
7 mind at this late date the positions of counsel on what
8 is the applicable law. That is number one.
9 Secondly, it may be that counsel's in a good
10 position to know the law that prevailed in the former
11 Yugoslavia prior to its dissolution. However, the law
12 that we've cited to the Trial Chamber is the current
13 law of Bosnia-Herzegovina, their laws on criminal
14 procedure enacted in December of 1998.
15 So again, we believe that's the current law.
16 It's certainly law that was enacted in that country
17 long after the former Yugoslavia ceased to exist, and
18 it is the law which, in our view, comes closest to what
19 is envisioned by Rule 94 ter.
20 JUDGE WALD: Thank you, Mr. Stringer. This
21 particular debate will be continued inside Chambers,
22 and we'll will let you know how we come out of that.
23 But I point out to you that I take no umbrage at all
24 with your statement of the law in Bosnia insofar as 230
25 is concerned, and as far as the criminal procedure
2 The question that concerns the Chamber,
3 because it is a Tribunal-wide question which has
4 occurred in other cases too and is currently being
5 debated in other cases, is whether or not if, indeed,
6 the Bosnian law, under your view, would allow only
7 something in its present form, pursuant to 230, whether
8 or not we should then take the step ahead that you urge
9 upon us and the Defence counsel would be very negative
10 about. So we're seeking to look at all possible
11 alternatives before we make that choice.
12 Now, let me talk a little bit about the next
13 step before the Pre-trial Conference, which in light of
14 some of the information that we have gotten so far
15 suggests that that will probably be in early July, by
16 which many of these other disclosure requirements
17 should be satisfied.
18 Now, I point out to you that what I'm aiming
19 at, what I am aiming at and I hope you all are aiming
20 at, is that we would be through with the pre-trial
21 stage of the case in -- certainly by the end of
22 September. In other words, the case would be ready,
23 positioned, to go to trial by the end of September.
24 Now, I know you might say, "A-ha, but what
25 are the possibilities that we really would be able to
1 go to trial?" As you know, our Chamber is currently
2 occupied with two trials; one of them, with any kind of
3 luck, will be over, the trial phase will be over in the
4 late fall; the other one we're not sure about, but
5 we're aiming about something that's close to that.
6 There, too, is also the possibility that
7 another Chamber might become free and be able to take
8 the case if it were positioned. So I think there is a
9 real virtue in us having all the pre-trial management
10 phase done by the end of September. And as I say, I
11 would envision having another Pre-Trial Conference in
12 early July.
13 Now, let me -- that would also assure
14 Mr. Naletilic's 120-day right to be heard from from the
15 time of his Initial Appearance.
16 But let me tell you what I hope the parties
17 will be able to do aside from the disclosure business
18 that we talked about earlier.
19 One, I think that the parties should get
20 together and exchange information and documents to the
21 point that they can decide and tell me at the next
22 Pre-Trial Conference what points are disputed and what
23 are undisputed in the indictment, almost paragraph by
24 paragraph, to see whether indeed there are some things
25 which it is not necessary for you to dispute in order
1 to provide the fullest possible defence to your
3 So we're hopeful that you would be able to
4 come to us, as has been done in some of the other cases
5 of which I'm familiar with it, the indictment which
6 says, "Paragraphs 1, 2, and 3," or "Parts of paragraphs
7 1, 2, and 3 we don't dispute; the rest we do." That
8 would be helpful.
9 Rule 65 ter (E) requires that the Prosecutor
10 go first in terms of putting together some statement
11 for the Chambers of exactly what the issues will be in
12 the trial. And Rule 65 ter (E) requires that that
13 pre-trial brief, which I would see as coming sometime
14 in September so that we can have a final Pre-Trial
15 Conference at the end of September, that that would
16 include, as is in the Rule, a preliminary statement on
17 the facts and the law from the Prosecutor's point of
18 view; a statement on the points of law and fact that
19 are disputed and undisputed; and a list of witnesses,
20 I'm now talking mainly from the Rule, with any requests
21 for pseudonyms, and the estimated time that their
22 testimony will take.
23 Let me make three comments vis-à-vis
24 witnesses: One, the Chamber would really like to know,
25 and hopes the Prosecution will be in a position at that
1 time to know what protective measures, such as facial
2 distortion, pseudonyms, keeping the name out of the
3 public domain, even in extreme cases -- and I point out
4 very extreme cases -- closed session that the
5 Prosecution will be requested for witnesses ahead of
6 time. In some other trials, as I'm sure you're aware,
7 it's caused some delay in the trials to have those
8 arise at the last minute.
9 Now, the Rule also requires that the
10 Prosecutor include a summary of the witness'
11 testimony. I've seen various forms of summaries. Some
12 of them appear to be merely a kind of summary of the
13 statement as the statement which is not too helpful for
14 us. I think that the summary should be very specific
15 as to the points of the indictment or the Prosecution's
16 theory of the case that are affected or that are
17 made -- that the witness' statement is relevant to,
18 because that will make it much easier to move ahead.
19 I hope this does not fall on deaf ears, but
20 we must emphasise the need for, in all cases possible,
21 shortening the list of witnesses, and perhaps
22 classifying them in terms of the importance and again,
23 whether their evidence might be taken by deposition or
24 by affidavit because I'm sure you're all aware of the
25 number of cases that are waiting to be tried and it
1 will take an interminably long time if every single
2 case has hundreds of witnesses and takes more than a
3 year to try. It simply will be impossible to get the
4 work of the Tribunal accomplished.
5 So with that in mind, I would like to hear,
6 even now, very preliminarily, and I think you can give
7 this to me because it would be a very preliminary
8 estimate, of the number of witnesses you think -- the
9 range of the number of witnesses that you think that
10 you'll be calling. And I'm going to ask the Defence
11 witnesses the same. Knowing that you can't tell
12 finally until, perhaps, a few months from now. But
13 give me a rough idea of how many witnesses you think
14 you're going to be calling, live witnesses, at this
16 Mr. Terrier.
17 MR. TERRIER: [Interpretation] Madam
18 President, as you say, today it is very difficult to be
19 precise in response to your question. So what I can
20 tell you at this point, and I have to express myself
21 under a caveat because we do not know what is going to
22 be accepted as a fact not in dispute to this date; and
23 secondly, we still do not know whether we will be able
24 to use the procedure provided for by Rule 71 or Rule 94
1 So with this double caveat, we can tell you
2 that we intend to call to testify before the Tribunal,
3 before the Chamber sitting in full, between 60 and 70
4 witnesses. If we count one witness per day, we will be
5 able to hear -- we would actually be able to hear 1.5
6 witnesses per day, working day, and this applies only
7 to the Prosecution's time. So that will take us to 45
8 to 47 days of hearing, and this is indeed a very rough
9 estimate that I'm able to give you today. We hope that
10 we will be able to further reduce the number of
11 witnesses. Thank you, Madam President.
12 JUDGE WALD: You've told us that at the
13 present time the range would be in the vicinity of nine
14 weeks; right? Forty-five days.
15 MR. TERRIER: [Interpretation] Yes, Madam
17 JUDGE WALD: Okay. I understand the
18 Defence's job of estimating is a much more difficult
19 one at so early a stage in the game, but perhaps you
20 can give us a notion of the range of numbers of
21 witnesses that you think you may bring in for the
23 Mr. Krsnik.
24 MR. KRSNIK: [Interpretation] Well, Madam
25 President, you are indeed right. The position of the
1 Defence right now, and I believe for the entirety of
2 the trial, will be more difficult because we do have a
3 feeling that our learned colleagues from the
4 Prosecution are more privileged than we are. I don't
5 have my team as yet. I did not receive a decree
6 nominating my co-counsel, and only today did I receive
7 the decision that I have been appointed for three
8 months, provisionally. So I don't have the security,
9 and all this results in a certain insecurity in the
10 Defence counsel.
11 For all these reasons, the Defence really,
12 for the time being, cannot envisage the number of
13 witnesses or the number of trial days for the Defence.
14 And what we really depend on is the quality of the
15 witness statements tendered by the Prosecution. Only
16 then will we be able to give you an answer and to reply
17 to those allegations with our witnesses.
18 My client has been charged with 22 points of
19 the indictment. I need, let's say, two witnesses for
20 each count, and that would take us to 44 witnesses,
21 let's say. So the roughest estimate would be the same
22 number of trial days as my learned colleague. But do
23 not take us -- do not hold us to that. This really is
24 the roughest of estimate.
25 JUDGE WALD: No. This is not a committal,
1 but it gives us some idea in planning. And I would
2 expect by the time of the next Pre-Trial Conference, in
3 early July, when you've received all of these witness
4 statements, that you would give us a much firmer
6 How about you, Mr. Seric? Remembering that
7 there may well be that between you one witness may
8 serve, in some cases, both of your purposes.
9 MR. SERIC: [Interpretation] Your Honour,
10 absolutely, and not only that. According to the
11 preliminary discussions between myself and my
12 colleague, we will have joint witnesses, so to speak,
13 which will reduce the number of witnesses required for
14 each individual Defence.
15 Regardless of the fact that this is a joint
16 indictment, the places and counts are different for
17 each of the indictees. My position is a bit more
18 favourable, since I did receive the provisional
19 decision on appointment several months before my
20 colleague, so I do not have any complaints, despite the
21 fact that not all of my colleagues in the team have
22 been paid, those working in the field.
23 The Defence has contacted about 151 witnesses
24 so far. We intend to call anything between 60 and 70
25 witnesses, similar to the number called by the
1 Prosecution. Some of the witnesses may overlap with
2 the Defence of Mr. Krsnik. I cannot tell you that with
3 any certainty because I have not been able to advise
4 Mr. Krsnik about the material that I received from the
5 Prosecution because I was told to keep it
6 confidential. So this is just a preliminary
8 JUDGE WALD: Thank you. I certainly hope
9 that you and your -- the other Defence counsel can get
10 together and eliminate any duplication in terms of your
11 witnesses, as has been done in some other joint trials
12 in the Tribunal, because otherwise we will go on for
13 years and years and I don't intend that that should
15 I'd also remind the Defence that during this
16 period when the Prosecution is working to put together,
17 with an aim for September, its pre-trial -- final
18 pre-trial brief, that very soon thereafter, under Rule
19 65 ter (E), the Defence must also come up with some
20 brief of its own, talking about which facts it disputes
21 and does not dispute, and also that under Rule 67(A),
22 if either of your clients intends to offer any special
23 defences, like alibi, mental incapacity, that they must
24 be made as soon as possible. I'm well aware of
25 Mr. Naletilic's ongoing examination, and I assume that
1 whatever that produces, you will take that into
2 regard. But if there are to be any defences such as
3 mental incapacity, physical inability, alibi, that sort
4 of thing, then they should be made as soon as you have
5 the necessary information and facts.
6 Also, at an early point, and certainly by the
7 next Pre-Trial Conference, we would like to know
8 whether the defendants themselves plan to testify or
10 I have a few other things to talk to you
11 about very briefly, about the so-called house rules and
12 our Trial Chamber and the way this Trial Chamber
13 handles trials, which will affect the kind of papers
14 that you file. We do have a working practice in the
15 Chamber that requires the parties, before you file any
16 motion with the Chamber, that the parties, the Defence
17 counsel and the Prosecution, should at least contact
18 each other and talk with the other side, attempting to
19 either reach an agreement or to narrow the areas of
20 difference, rather than just sending us the paper
21 motion and then we find out by the reply that there
22 really isn't an issue or the issue is much narrower or
23 it could have been worked out. So we want you to at
24 least talk to each other before you file formal,
25 written motions with us.
1 If it is a relatively simple matter, we would
2 prefer that you consider making an oral motion instead
3 of a written one. Now, I understand when we're in the
4 pre-trial period, we're not in trial every day. But if
5 it is a motion which can, for instance, wait until the
6 next Pre-Trial Conference and will not unduly inhibit
7 your preparation for trial, then we would rather be
8 able to take care of it then but not at the expense of
9 delay. If you need to get it in and get it decided,
10 then go ahead and file it.
11 We do have a rule because this is a mixed
12 Chamber, for which I'm responsible because I'm the
13 English speaking member of it and my colleagues speak
14 French more natively than I do, but we do have a rule
15 for all of our cases now that written motions be filed
16 in both French and English.
17 And lastly, as you prepare your exhibits for
18 trial, and part of the Prosecutor's pre-trial brief has
19 to be a list of exhibits that the Prosecutor intends to
20 offer and if he anticipates -- if she anticipates
21 objections by the Defence to those, please consult with
22 the Registry about the method that this Chamber has
23 been using in its present two trials in organising the
24 exhibits in a way which we think cuts down considerably
25 on the waste of time in the court so that we're not
1 running around with pieces of paper before everybody.
2 We do have a system which we have worked out
3 which seems to be working well in the Kvocka and Krstic
4 trials which are currently in operation, which has a
5 system of pre-numbering the exhibits and cutting down
6 on the time in trial. And you can certainly go to the
7 Registry, Mr. Dubuisson, and you can find out about
8 that, and I'd like you to do that.
9 I also, finally, remind you that at the -- in
10 one of the decisions which has already been rendered on
11 the indictment in the Martinovic challenge, we did ask
12 the Prosecutor in that case to think in terms of trial
13 preparation in terms of the larger offences. This was
14 an answer to challenges about cumulative charging. In
15 other words, the trial may be facilitated if one
16 thinks, and I think Mr. Terrier at an earlier oral
17 argument on this, you agreed with that, with Judge
18 Rodrigues, that if you think in terms of preparing the
19 case in terms of the greatest or the largest or the
20 highest hierarchy offence, as it were, that that may
21 facilitate -- because however we come out ultimately on
22 the question of cumulative charging, many of the other
23 offences, or large parts of them, will be consumed in
24 the more serious offence.
25 Now, that concludes basically the things that
1 I wanted to cover in this conference. I have alerted
2 you to the fact that we will have another conference in
3 early July, and we will tell you about that, and I
4 expect the disclosure to be finished and I expect to
5 have firmer answers on many of the other questions
6 which have been raised and which, when you get a copy
7 of the transcript of this Status Conference, you will
8 be able to see. We will hope to have an answer to your
9 motion by that time to facilitate your preparation.
10 At this point, I'd like to find out if either
11 the Prosecution or the Defence has anything further
12 they want to raise now, and then I will ask
13 Mr. Martinovic, our accused, if he has anything he
14 wishes to raise about the conditions of his detention.
15 Mr. Terrier.
16 MR. TERRIER: [Interpretation] Madam
17 President, I have a very brief question concerning the
18 language or, rather, the languages of this Tribunal.
19 We will prepare a pre-trial brief. I can no
20 longer find the French term for it. We will compose it
21 in English. But do we have to translate it into French
22 at the same time, and do we have to file both versions
23 at the same time? It's a technical problem that we are
24 faced with, and I should like to hear the decision of
25 the Court on this matter.
1 JUDGE WALD: Well, it has been the
2 newly-announced position of the Chamber that we do wish
3 to have them filed simultaneously, because French and
4 English are the working languages of the Tribunal,
5 under the Rule and, I believe, also under the Statute.
6 And because we do have both native-speaking French and
7 native-speaking English Judges, we would like them to
8 be filed simultaneously.
9 Do I have any questions from the Defence?
10 Mr. Krsnik.
11 MR. KRSNIK: [Interpretation] I have three
12 points that I wish to advise you about, Your Honour.
13 First of all, I would like to inform this
14 Chamber that about three weeks ago -- Mr. Terrier, when
15 was it that we last had a discussion with you? I think
16 it was three weeks ago. My client, Mr. Mladen
17 Naletilic, who I feel -- everybody seems to be
18 forgetting the fact that he is a seriously ill person.
19 He is a heart patient, cardiac patient. He was in this
20 Court. He was closed up in a separate room for four
21 and a half hours, and of course he was ill and the
22 nurses had to intervene. He got his medication. And I
23 have been asking for an explanation of that incident
24 and have yet to receive one.
25 The second issue. My client is allegedly,
1 according to the Rules, obliged to wear a bulletproof
2 vest, which is very heavy. Your Honour, this
3 bulletproof vest will kill him before saving his life,
4 because with his fragile health condition, just imagine
5 what it is like for him to be wearing this heavy
6 bulletproof vest, which is almost 20 kilos. So I would
7 like this Trial Chamber to issue an order for him not
8 to be obliged to wear it, because it does more harm
9 than good.
10 And, finally, you received my motion in which
11 I asked for an expert evaluation, and both to you and
12 to the Registry, I supplied some names, and I had a
13 reason to do so. We have a problem now. Of course, my
14 client trusts the appointed doctors, but he does not
15 want to relate to them before the doctors that he
16 trusts, especially the psychologists from Croatia that
17 he already was in touch with, because as you know, the
18 trust is the most important thing in the patient-doctor
19 and the patient-psychologist relationship. On the
20 other hand, you ordered that this evaluation be
21 completed by the 25th of May. It will not be possible
22 to complete it by that time unless the attending
23 physicians from Croatia, in particular, Dr. Cikaz
24 [phoen] from the Revro [phoen] hospital in Zagreb, and
25 Dr. Maja Stroci [phoen], who in fact performed three
1 surgeries on my client's heart, they should help the
2 team that is going to be doing the evaluation in order
3 to speed this whole process up.
4 So I would like to ask the Trial Chamber
5 respectfully to meet those requests of mine.
6 JUDGE WALD: Mr. Krsnik, enlighten me. Who
7 obliges your client to wear the bulletproof vest?
8 That's an obligation imposed by whom?
9 MR. KRSNIK: [Interpretation] I don't know. I
10 really don't know.
11 JUDGE WALD: Well, I would suggest that --
12 first of all, we won't even have a Status Conference
13 for another month and a half, but I would suggest that
14 you be in touch with the Registry, who takes care of
15 the logistics of getting both accused and witnesses to
16 court, to find out where that obligation is coming from
17 and to see if you can't work it out at that level.
18 As for the expert evaluation, now, as I
19 recall, we did accord with your wishes that -- at least
20 I think one of the persons conducting the investigation
21 was someone suggested by you. Is that not correct?
22 MR. KRSNIK: [Interpretation] Yes.
23 JUDGE WALD: And the Registry is the one who
24 is accorded, under the law, with the responsibility of
25 picking out the approved people to conduct it. But if
1 my recollection is correct, at least one of the people
2 that you suggested and wanted to was on that team. So
3 I'm not entirely clear. Is it that you don't think
4 that the team will meet the deadline, or what is it
5 exactly that you're ...
6 MR. KRSNIK: [Interpretation] Yes, precisely.
7 Today is the 16th of May, and the evaluation should be
8 completed by the 25th. And for a serious, good
9 evaluation of my client, taking into account the
10 condition -- his condition, it cannot be completed by
11 the 25th, especially if the doctors see him for the
12 first time and especially in light of the fact that
13 they received the documents only yesterday.
14 So in order to speed the whole process up, we
15 should have Dr. Cikaz and Dr. Maja Stroci assist them,
16 because only in that way will this evaluation be
17 completed in time and in an appropriate fashion.
18 Especially after this evaluation, after the findings
19 and the opinion, the Prosecution may want to
20 cross-examine the experts.
21 JUDGE WALD: What I want to tell you is I
22 wish you to get in touch with the Registry and the
23 people who made the initial selections and are
24 overseeing this examination to see if you can work out,
25 in a consensual way, any of your time problems before
1 you come back to the Chamber.
2 As you know, it's an important examination,
3 but until we know what the results are, it's very
4 difficult not only for you to proceed but even for the
5 rest of us to get on with our work and to see whether
6 or not this, in fact, will be a joint trial. So there
7 is a premium on getting it done.
8 Now, initially that date was set, and I don't
9 remember the date of the order, but I don't remember
10 that anybody objected at that moment and said, "We
11 can't meet that deadline." So I would suggest that you
12 talk with the relevant people in the Registry to
13 register any suggestions you have for speeding this up
14 before you -- certainly before the Chamber takes any
15 action on that.
16 MR. KRSNIK: [Interpretation] The Defence is
17 familiar with that. I just wanted to advise the
18 Chamber about those things that are ongoing.
19 JUDGE WALD: All right.
20 MR. KRSNIK: [Interpretation] I will get in
21 touch with the Registry, of course.
22 JUDGE WALD: Okay.
23 Yes, Mr. Terrier.
24 MR. TERRIER: [Interpretation] Madam
25 President, Mr. Krsnik has just said that the
1 Prosecution should cross-examine those expert
2 witnesses. I'm somewhat surprised --
3 MR. KRSNIK: [Interpretation] Yes, but even
5 MR. TERRIER: [Interpretation] I'm still
6 surprised, because I did not think that this would
7 present a defence by the accused. I thought that it
8 was only a matter of health care involving the current
9 situation of Mr. Naletilic and the need to provide the
10 medical services in the best possible way. If this is,
11 indeed, the case, we are in favour of everything that
12 can be done in order to ensure Mr. Naletilic excellent
13 treatment for his condition.
14 However, if we are dealing with Rule 94 bis,
15 if we are dealing with an expert report that is going
16 to be communicated to the Prosecutor and the Chamber,
17 this is an altogether -- this is a completely different
18 problem. This now presents a type of defence offered
19 by the accused. If that is the case, we have to be
20 made familiar exactly with the type of defence he
21 intends to offer, whether we are talking about his
22 diminished responsibility or lack of his responsibility
23 at the relevant times. And, secondly, if this is still
24 a defence offered by the accused, we wish to be able to
25 also have a say in the appointment of experts.
1 But of course we think that the issue goes,
2 first of all, to the health care that has to be
3 provided to Mr. Naletilic while he's in the detention
4 unit, and that particular health care has to be the
5 best possible he can get.
6 JUDGE WALD: Mr. Terrier, let me just read a
7 line from the Chamber's order of 18 April, which says:
8 "Noting the oral motion of the Defence in
9 which the accused asks for an examination to evaluate
10 his mental and physical capacity to attend and
11 participate in trial proceedings, noting that the
12 Prosecution indicated it did not oppose the oral
13 Defence motion for such examination at the Initial
14 Appearance, noting that 74 bis permits the Trial
15 Chamber to order it, for the foregoing reasons orders
16 that an expert medical and psychological evaluation of
17 the accused Mladen Naletilic be conducted to determine
18 his mental and physical capacity to attend and
19 participate in his trial."
20 Now, I think that that's fairly clear, what
21 the purpose is. I think it would be premature at this
22 point for us to -- certainly, until they get that
23 report, I don't see how they can possibly decide
24 whether or not they are going to try to present any
25 kind of motion along these lines. So I would suggest
1 if they can get together with the Registry, get this
2 report in. Then we will know where we're at, and any
3 appropriate motions can be made from that time on.
4 If there isn't anything else, I would like to
5 call upon the accused, who has been very patient here,
6 Mr. Martinovic, and ask him if he has any concerns
7 about conditions in detention that he would like to
8 raise with us at this time.
9 Mr. Martinovic.
10 THE ACCUSED MARTINOVIC: [Interpretation] I do
11 not have any complaints about the detention.
12 I have complaints about the Defence, because
13 the team has not been established yet and we are not
14 able to work on the matter.
15 JUDGE WALD: Well, I think -- I have your
16 concern under appraisal, Mr. Martinovic, and your
17 Defence counsel has already articulated the concern,
18 and we hope that -- he is your Defence counsel now. He
19 is fully authorised to go ahead and continue with your
20 defence, and we certainly hope that any of these
21 problems we will try to work out with him so that you
22 will be fully and fairly represented. Thank you.
23 If there are no other concerns, then we will
24 adjourn this Pre-Trial Conference. We all have to be
25 very busy in the ensuing several weeks. There are
1 motions which have to be outgoing, which have to be
2 decided. We will get the report on one of the
3 accused's condition. And we will be in touch with you
4 as to the time of the next Pre-Trial Conference, and we
5 sincerely hope that you will work on getting the
6 answers to the questions we've talked about and
7 hopefully cutting down on the number of issues which
8 will be disputed, with -- perhaps this is too
9 optimistic -- the hope that the number of witnesses
10 that both sides plan to call can also be cut down.
11 Thank you. This Status Conference is
13 --- Whereupon the Status Conference
14 adjourned at 5.46 p.m.