1 Thursday, 6 July 2006
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.40 p.m.
6 JUDGE AGIUS: So Madam Registrar, good afternoon. Could you call
7 the case, please.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case number
9 IT-05-88-PT, the Prosecutor versus Vujadin Popovic et al.
10 JUDGE AGIUS: I thank you, madam.
11 Start making sure first that all the accused are here, and
12 secondly, that you can follow the proceedings in a language that you can
14 Mr. Popovic, good afternoon to you.
15 THE ACCUSED POPOVIC: [Interpretation] Good afternoon to you too.
16 JUDGE AGIUS: Can you follow the proceedings in your own language
17 or a language you can understand, please?
18 THE ACCUSED POPOVIC: [Interpretation] I can.
19 JUDGE AGIUS: Thank you, you may sit down. Mr. Beara, good
20 afternoon to you too. The same question: I want to make sure that you
21 are receiving interpretation in your own language.
22 THE ACCUSED BEARA: [Interpretation] I can hear it and understand
23 it, yes.
24 JUDGE AGIUS: Thank you, Mr. Beara. You may sit down.
25 Mr. Drago Nikolic, good afternoon to you. Same question: Are you
1 receiving interpretation in your own language?
2 THE ACCUSED NIKOLIC: [Interpretation] Yes, I can hear it,
3 Mr. President.
4 JUDGE AGIUS: Thank you, Mr. Nikolic. You may sit down.
5 Mr. Borovcanin, good afternoon to you. Can you follow the
6 proceedings in your own language?
7 THE ACCUSED BOROVCANIN: [Interpretation] Yes, I hear it well and I
8 can understand it.
9 JUDGE AGIUS: Thank you, you may sit down.
10 Mr. Miletic, good afternoon to you.
11 THE ACCUSED MILETIC: [Interpretation] Good afternoon.
12 JUDGE AGIUS: Can you follow the proceedings in your own language
13 or a language you can understand?
14 THE ACCUSED MILETIC: [Interpretation] Yes, I can hear it and
16 JUDGE AGIUS: I thank you. You may sit down.
17 Mr. Gvero, good afternoon. Can you follow the proceedings in your
18 own language?
19 THE ACCUSED GVERO: [Interpretation] Yes, I'm following the
21 JUDGE AGIUS: Thank you, you may sit down.
22 And finally, Mr. Pandurevic. Good afternoon to you. Can you
23 follow the proceedings in your own language?
24 THE ACCUSED PANDUREVIC: [Interpretation] Good afternoon, Your
25 Honour. Yes, I can.
1 JUDGE AGIUS: Okay. Thank you, you may sit down.
2 As on previous occasions, I'd just like to point out to you that
3 if throughout the sitting, the hearing, at any time you're not receiving
4 interpretation clearly, please draw our attention straight away so that we
5 will look into the matter and rectify it.
6 JUDGE AGIUS: So let's go to appearances. Appearances for the
8 MR. McCLOSKEY: Good afternoon, Your Honours. Peter McCloskey for
9 the Prosecution, together with Janet Stewart, our case manager, and
10 attorneys Julian Nicholls and Lada Soljan.
11 JUDGE AGIUS: Okay. Thank you, Mr. McCloskey, and good afternoon
12 to you and your team.
13 Appearances for Vujadin Popovic.
14 MR. ZIVANOVIC: Good afternoon, Your Honours. Zoran Zivanovic for
15 Vujadin Popovic.
16 JUDGE AGIUS: Thank you so much, Mr. Zivanovic, and good afternoon
17 to you.
18 Appearances for Ljubisa Beara.
19 MR. MEEK: Good afternoon, Your Honours. Christopher Meek and
20 Nebojsa Mrkic for Ljubisa Beara.
21 JUDGE AGIUS: I thank you, Mr. Meek. Good afternoon to you.
22 Mr. Beara, for your information, your lead counsel, Mr. Ostojic,
23 sent a letter to the Senior Legal Officer on July -- it says July 29th,
24 2006; he's living in the future. A few days ago, anyway, he sent a letter
25 to Mr. Von Hebel stating that he will be unable to attend today, that he
1 was delegating Mr. Meek to appear for you. The reason is that his father
2 passed away six months ago in January 18, 2006, and this week, precisely
3 in two days' time, his family will be holding the traditional six-month
4 memorial service, so he asked to be excused. That's the reason why he's
5 not here with us today.
6 Appearances for Drago Nikolic.
7 MS. NIKOLIC: [Interpretation] Good afternoon, Your Honour. Jelena
8 Nikolic and Eleonora Meli Messineo for Mr. Drago Nikolic.
9 JUDGE AGIUS: What happened to Mr. Stephane Bourgon?
10 MS. NIKOLIC: [Interpretation] Mr. Stephane Bourgon is absent this
11 week. He'll be joining us next week.
12 JUDGE AGIUS: Madam Nikolic, welcome, and good afternoon to you
14 Appearances for Ljubomir Borovcanin.
15 MR. LAZAREVIC: Good afternoon, Your Honours. Counsel Aleksandar
16 Lazarevic appearing for Mr. Borovcanin.
17 JUDGE AGIUS: Thank you, Mr. Lazarevic, and good afternoon to you.
18 There is ample space where you are sitting. If you can sit somewhere
19 where we can see you, I think we would prefer it.
20 Appearances for Radivoje Miletic.
21 MS. FAUVEAU-IVANOVIC: Natacha Fauveau-Ivanovic, counsel for
22 General Miletic.
23 JUDGE AGIUS: Good afternoon to you, Madam Fauveau-Ivanovic, and
25 Appearances for Milan Gvero.
1 MR. KRGOVIC: [Interpretation] Good afternoon, Your Honours.
2 Dragan Krgovic, Defence counsel for Milan Gvero. Together with me is my
3 assistant, Natalie Wagner.
4 JUDGE AGIUS: I thank you, and good afternoon to you and your
6 And finally, appearances for Vinko Pandurevic.
7 MR. HAYNES: Good afternoon, Your Honour. We have a full
8 complement here: Myself and Mr. Sarapa appear for Vinko Pandurevic and
9 we're assisted by our case manager Helena Kaker.
10 JUDGE AGIUS: Thank you, Mr. Haynes, and good afternoon to you and
11 your team.
12 So let me start with two very important developments. First, you
13 see that the Status Conference is being presided over by the three of us
14 today. That's because we have had Judge Prost appointed in time to be
15 here for this Status Conference and, due to the proximity of the
16 commencement of the trial, we thought it best to be all here for the
17 Status Conference. So my first act today is to welcome Judge Prost. This
18 will be the Trial Chamber.
19 The other piece of good news that I am pleased to be able to
20 convey to you is that today I've had confirmation that the Reserve Judge
21 that we will have on this trial has been appointed. He will be here to be
22 sworn in on the 13th of this month in the morning, in time for the
23 Pre-Trial Conference. He is the Norwegian Judge Bjorn Stole, and I will
24 have an opportunity to welcome him as well.
25 I'll go first to the usual formality of trying to remind everyone
1 what everyone knows already, namely the purpose of or reasons for Status
3 Last Status Conference was convened by myself on the 19th of May.
4 In light of the proximity, as I said, of the -- of the commencement of the
5 trial, I conferred with the other two Judges, and we came to the
6 conclusion to convene this Status Conference well within the 120-day time
7 limit which is envisaged under the Rules, particularly precisely Rule 65
8 bis. The purpose of the Status Conference pursuant to the said Rule is to
9 organise exchanges between the parties so as to ensure an expeditious
10 preparation for the trial. We are almost there, and I hope that this
11 Status Conference will get us there.
12 Secondly, to give an opportunity to the accused to raise issues in
13 relation to their mental and physical conditions as well as other issues
14 they wish to raise.
15 Last time we met we had another accused, Milorad Trbic. For your
16 information, in case you have not been following the developments, is a
17 few days ago, precisely on the 26th of last month, of June, we handed down
18 a decision on severance of Mr. Trbic's case from that of the rest of you.
19 The reasons, succinctly put, are the following: First, we have already
20 set a date for the start of the trial, but there are some pending motions
21 relating to Mr. Trbic, chief amongst which is the Prosecution motion for
22 the referral of his case to Bosnia pursuant to Rule 11 bis, and then there
23 are several outstanding issues related to his health. There is no
24 possibility that any of these decisions be reached or taken before the
25 start of the -- of the trial as planned, so when we decided to sever his
1 case from yours so that your case can proceed without having to wait for
2 the outcome of the Trbic motions.
3 While we are at this, perhaps I can raise a somehow related issue
4 regarding Tolimir. We are about to start the trial, Mr. McCloskey, and
5 Mr. Tolimir still appears in this indictment. We would like to know what
6 are your plans in this regard. In other words, whether what you are -- or
7 what are you contemplating on the matter, whether you intend to ask for
8 Mr. Tolimir's case to be severed from the case that we will be starting in
9 relation to the other accused? Of course, it's your decision, but we need
10 to know because, I mean, there is no point in proceeding with a case with
11 one person still on the indictment if he is not here.
12 MR. McCLOSKEY: Your Honour, just given that -- what we all know
13 would be the time and expense of -- of trying this case again, we'd like
14 to put that decision off until as long as possible, though the fact that
15 he's on a piece of paper of an indictment doesn't mean we can't just go
16 forward with him on the piece of paper. He's obviously not going forward
17 with us. But if the Court would like us to remove him at some point, I
18 would like to take it perhaps through the -- through the summer recess,
19 and if he's not here after the summer recess, we -- if you wish, we can
20 take him off, though I have no objection to leaving him on. The fact that
21 he's on this indictment doesn't -- doesn't change anything. In fact, it
22 gives everyone the appropriate context factually of having him there.
23 I know some Judges have liked to remove a person, but it's just a
24 piece of paper, and it's a charging document. It doesn't mean anything by
25 itself, as you know. So we can take him off if he's not here after the --
1 after the summer recess. And the same with Mr. Trbic. I know that
2 there's been some issues about that too.
3 JUDGE AGIUS: Trbic has already been severed. There is a motion
4 for reconsideration which we need to consider, and we will decide it in
5 due course, but this is something different. So I do appreciate that you
6 may not have had sufficient time or -- to consult with your superiors on
7 this or that we may be taking you by surprise, but what I suggest is --
8 [Trial Chamber confers]
9 JUDGE AGIUS: As you can imagine, we discussed this in Chambers
10 before we came here, and our position I wish to reiterate now because we
11 really are in complete disagreement with you when you consider his
12 permanence in the indictment as basically meaning nothing except that his
13 name appears on a piece of paper. We don't want to give the impression
14 that he is being tried in this trial, so we are instructing you to proceed
15 with a motion to have him -- his case severed from that of the others,
16 unless of course you are anticipating producing him within a relatively
17 short time, in other words, before we start. But we wouldn't like to
18 start the trial with Mr. Tolimir still featuring on the indictment.
19 MR. McCLOSKEY: I understand, Your Honour. I believe Serbia knows
20 where Mr. Tolimir is. I believe Serbia knows where General Mladic is, and
21 if they were of the mood to bring him in, or both of them, they could be
22 here. So hope springs eternal on that, but we will obviously follow your
23 -- your order.
24 JUDGE AGIUS: Thank you. So let's start with the first real item
25 on the agenda, first material, significant one. That's outstanding
1 motions. I'll briefly recapitulate what needs to be stated and then
2 follow up from there.
3 You're all aware that the Prosecution way back in -- on 14th June,
4 in the wake of our 31st May decision, followed up with the filing of a
5 Second Consolidated Amended Indictment. Subsequent to that, we have
6 received a number of motions challenging the Second Consolidated
7 Indictment. These were filed on the 23rd and on the 30th of June. I will
8 be coming to these very shortly.
9 The Prosecution sought to file a consolidated response, which has
10 been filed and which we have gone through. We had the intention to -- to
11 issue our decision, to come with our decision on these motions possibly
12 before today, before this Status Conference. That was our desideratum,
13 but there are several issues involved which have engaged us in
14 discussions, particularly Judge Prost appeared on the scene only a few
15 days ago. She was sworn in on the 3rd of July, and therefore it has not
16 been possible for us to have these decisions ready. We are expecting to
17 be -- to come down with -- with our decisions mid next week, in time
18 before the Pre-Trial Conference.
19 Now, you will recall that at the last Status Conference and the
20 previous one we had the issue of some of you not yet having entered a
21 plea, and I'm referring to Mr. Gvero, Mr. Miletic, for the simple reason
22 that they were not in The Hague, they were on provisional release, and
23 Mr. Borovcanin, because of his position in relation to count -- count 2,
24 which we dealt with in our decision of the 31st of May.
25 Now, the various motions that have been filed following the
1 Prosecution filing of the Second Amended Indictment raise the question as
2 to whether there are new charges. Basically, the substance of some of the
3 changes incorporated in the Second Amended Indictment have been questioned
4 by some of you.
5 We have carefully considered both your motions - and I'll be
6 referring to them - both your motions and the situation as it is, and
7 unless Mr. Gvero, Mr. Miletic, and Mr. Borovcanin wish to enter a plea
8 today, then our idea is to postpone the entering of the plea of the part
9 -- on the part of these three accused until Thursday when we have the
10 Pre-Trial Conference.
11 I wish -- I would like to hear feedback from Madam Fauveau, from
12 Mr. Lazarevic, and from you. Would you agree with this or do you prefer
13 to enter a plea today?
14 Madam Fauveau.
15 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, we don't
16 have anything against it. The only thing I remember is that the
17 Consolidated Amended Indictment does not include any new charges against
18 Mr. Miletic. In other words, he already pleaded for all these charges
19 last year.
20 JUDGE AGIUS: I don't quite agree with you because the amended
21 indictment changes -- changes a few things for practically every single
22 one of you. But what I want to know is whether you agree to have your
23 client enter pleas next week, or whether he wishes to enter a plea today.
24 To us he hasn't entered any pleas as yet. Yes.
25 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, I'd like to
1 consult with my client on that matter. May I go and confer with him for
2 about 20 seconds?
3 JUDGE AGIUS: By all means, Ms. Fauveau.
4 MR. KRGOVIC: Your Honour, can I have the same permission?
5 JUDGE AGIUS: Yes. Mr. Lazarevic, your position is a little bit
7 MR. LAZAREVIC: Well, yes, my position is actually a very simple
8 one. I believe it's much more practical for my client to enter a plea
9 next Thursday.
10 JUDGE AGIUS: Fair enough. Because we will be dealing with one of
11 the issues that has been raised. Yes, Madam Fauveau-Ivanovic.
12 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, my client
13 would like to enter a plea today.
14 JUDGE AGIUS: And Mr. Krgovic?
15 MR. KRGOVIC: Yes, Your Honour, my client would also like to enter
16 a plea today.
17 JUDGE AGIUS: Okay. We will be receiving the pleas from your
18 respective clients later on during this Status Conference while
19 Mr. Borovcanin -- Mr. Borovcanin will enter his pleas this coming
20 Thursday. Thank you.
21 Now, in the previous Status Conferences we had dealt with the way
22 to proceed in relation to two very important motions of the Prosecution,
23 namely the one relating to judicial notice of adjudicated facts and the
24 other one relating to 92 bis statements. We're agreed that you would have
25 30 days from the -- our decision on Rule 72, on the Rule 72 motions for
1 your responses. I'm very happy to note that you have all respected the
2 deadline. We have received responses from all of you except for Accused
3 Beara. We do not have any responses to these two motions from your
4 lawyers. I just wanted to make that clear.
5 Now, start -- I'll start with the first one. All I need to tell
6 you is that we are studying the -- the responses as well. We had seen
7 already the motion, Prosecution motion. We should be in a position to
8 hand down our decision soon. Still, this will engage us for some time,
9 and we do not consider it as a sine qua non to have it decided before we
10 start the trial, but we will hand down the decision as early as possible.
11 In relation to the Rule 92 bis statement motion, we are waiting
12 for the Prosecution reply, which is due tomorrow, and then we will proceed
13 with dealing -- dealing with it and ultimately deciding, decide it.
14 However, having already studied thoroughly most of the material that
15 accompanied the Prosecution motion, and also having gone through your
16 responses, we would like to raise some issues which are, however, not
17 raised by the Defence. We are raising these issues ourselves. They
18 shouldn't involve you in major problems, but I think you will need to look
19 into some issues.
20 During the prior testimony of quite a number of proposed 92 bis
21 (D) witnesses, Mr. McCloskey, exhibits were used that were admitted in
22 that trial, or in the respective trials, through the testimony of a
23 different witness. These were, for example, maps and photos that were not
24 introduced as part of the witness's testimony but indirectly as they had
25 already been introduced through other witnesses.
1 We haven't got an opportunity to look into these documents for a
2 very simple reason, that upon checking the CD-ROM that you provided, these
3 are not included. It's obvious that the witnesses are referring to these
4 exhibits, but we don't have them. So what -- our position is that we
5 consider it necessary to have these documents if we are to fully evaluate
6 the prior testimony of the proposed 92 bis (D) witnesses.
7 What we suggest is the following: That you provide us and also
8 the Defence with a list which cross-references these exhibits with the
9 proposed exhibit list attached to your 65 ter submission.
10 Basically our problem is this: That we don't know whether these
11 unincluded exhibits are amongst the exhibits that you intend to tender in
12 this -- in this case, and therefore we need this cross-referencing. If --
13 we don't know whether you intend to tender them in this case in any case.
14 It's not clear. So if you are intending, it's not clear to us which one,
15 which documents will these be and which number you propose to assign, what
16 number you propose to assign, so we need these details.
17 One other practical solution which may fill in this blank,
18 provided it is accompanied with some kind of explanation, is to provide us
19 with -- and the Defence, of course, with a new CD-ROM which would
20 incorporate these unincluded exhibits. That would make it -- make them
21 available to us, also available to the Defence. Most importantly, we need
22 them in order to be able to weigh properly the arguments that you put --
23 bring forward for the admission of these statements under Rule -- or Rule
24 92 bis (D).
25 Yes. Any comments on ...
1 MR. McCLOSKEY: Just upon first thought, I believe we would be
2 offering, ideally, every exhibit that is referred to by a witness should
3 be offered into evidence, for obvious reasons, to help you make sense out
4 of that witness. We are -- I'm still getting used to the idea of
5 providing exhibits prior to trial that haven't been discussed, but that's
6 fine. No -- no problem there. And all the -- all those exhibits are
7 available to everyone on the judicial database with a few clicks, and
8 practically as easy as on a CD. And we have explained that before. I
9 don't know how computer savvy all of us are. I'm not the best at it, but
10 I know they're there and it's just a few clicks away, be it CD or be it
11 the judicial database.
12 JUDGE AGIUS: Yes, but make that proposition to the Defence.
13 Please don't make it to us.
14 MR. McCLOSKEY: You don't like the judicial database?
15 JUDGE AGIUS: I'm not saying we don't like the judicial database.
16 I don't think we should be expected to fill in the blanks for you. If you
17 submitted these statements for us to take into consideration for the
18 purpose of deciding whether to admit them or not under Rule 92 bis, they
19 should be accompanied with the entire documentation and not with part of
20 it and then ask us to go and check the judicial database. That's not part
21 of our job.
22 MR. McCLOSKEY: Understood. And if the Defence has no objection
23 to us providing these other exhibits that were not entered into by these
24 witnesses, that shouldn't be a problem. Having heard no objections, we'll
25 do that.
1 JUDGE AGIUS: No, let's wait, because the Defence teams, some more
2 than others, take time before they decide whether to answer and what to
3 answer. Are there any comments from any one of you?
4 Yes, Madam Fauveau. I don't know why but I was actually looking
5 at you as if I was expecting you to rise.
6 MS. FAUVEAU-IVANOVIC: [Interpretation] Yes, Your Honour. We fully
7 agree with your suggestion. We believe that the Prosecutor should submit
8 all the exhibits produced in the previous trials. However, since these
9 are exhibits that we did not review whilst preparing our response, we'd
10 like to have additional time, maybe not 14 days but additional time to
11 respond with regard to these exhibits.
12 I would also like to add, and I'd like to apologise in advance to
13 the Prosecutor if I'm mistaken, but it seems to me that for some of the
14 proposed witnesses, some of the proposed 92 bis witnesses we have not
15 received all the statements of these witnesses in previous trials. If we
16 moved for a few minutes into private session I could give you the names of
17 the relevant witnesses.
18 JUDGE AGIUS: I was going to bring that up myself later on, but
19 let's -- let's deal with it now while we're at it. Let's go into private
20 session for a while, please.
21 [Private session]
15 [Open session]
16 THE REGISTRAR: We are in open session, Your Honour.
17 JUDGE AGIUS: Yes. The thing is this: I don't wish to have this
18 escalate into a matter of controversy, either between the parties or the
19 Prosecution and the Trial Chamber. We're making our position very clear:
20 That we are called upon to decide on the proposed admission of over 40
21 Rule 92 bis statements. It's a laborious exercise. It's an exercise that
22 we do with the utmost attention, and apart from issues relating to whether
23 there should or shouldn't be cross-examination, there is in the initial
24 most fundamental issue involved in each case whether the various
25 requirements under the Rule which would make it possible or make it
1 impossible to admit statements under Rule 92 bis exist or not. For that
2 we need the entire documentation. Some of it is missing. You have been
3 extremely practical in your approach throughout, and I would take it that
4 you will look into this matter and fill in those blanks for us at your
5 earliest, and we -- that would put us in a position to dispose of the
6 motion and the responses within -- within a good time. We've worked a lot
7 already on -- on these issues.
8 As regards what you said, Madam Fauveau, I don't think it's the
9 case of obtaining another 14 days. I mean, once these are disclosed, if
10 there are any other comments or remarks that you would like to add in
11 addition to what you have already submitted in your earlier responses, you
12 are authorised to do that provided we have not decided the Prosecution
13 motion in the meantime. It's not a question of asking for 14 days. That
14 would be provoking unnecessary responses maybe.
15 Is it clear, Mr. McCloskey?
16 MR. McCLOSKEY: Absolutely.
17 JUDGE AGIUS: Okay. Thank you for your cooperation. I didn't
18 doubt in the least that I would -- that we would find it.
19 Something which is related. It's not exactly Rule 92, it's 94
20 bis. You had stated earlier on during the 65 ter submissions that you
21 would be filing expert reports pursuant to Rule 94 bis (A), or -- of five
22 of the six experts whose prior testimony you propose for admission
23 pursuant to Rule 92 bis. This is why it is related.
24 What is the position now? How early can we expect you to file the
25 expert reports?
1 MR. McCLOSKEY: We'll get right on that along with the exhibits so
2 that you can look at them, hopefully, in the same time frame, because
3 they're so related, as you say. We just, I think, got slightly
4 sidetracked from 92 and 94 and we need to get them more joined together.
5 JUDGE AGIUS: Okay. All right. That's why I said they are
6 related because they are intimately related, but I'm dealing with them
8 All right.
9 [Trial Chamber confers]
10 JUDGE AGIUS: So always in the context of outstanding motions
11 there are two further issues that I will deal with very briefly and then
12 one major issue which will -- on which we will address you and give you
13 instructions, Mr. McCloskey.
14 Now, on the 18th May, the Prosecution filed a motion for
15 protective measures to be extended to five witnesses. We have received
16 the responses -- responses from the Defence teams on the 1st and 2nd June
17 respectively. We are dealing with this, with this motion, and we will
18 decide it in due course.
19 There is also -- or there are two outstanding motions, one by
20 Mr. Miletic, one by Mr. Gvero, requesting temporary provisional release
21 from the 15th of July until the continuation of trial which is anticipated
22 for 14th -- 14th of August. On the 9th of June, the Prosecution filed a
23 response taking no position on this Defence request. We will decide the
24 matter definitively on Thursday when we have the Pre-Trial Conference, or
25 on Friday. So we'll know exactly what your position will be.
1 And this brings me to a very important matter that arises in the
2 wake of the filing of the Second Amended Indictment and the responses that
3 we have received challenging that indictment once more. So I'm referring
4 to a motion filed by you, Mr. Popovic, through your counsel, of course,
5 Mr. Pandurevic, and Mr. Borovcanin, to which the Prosecution filed a
6 consolidated response on the 3rd of July. In addition, Mr. Lazarevic for
7 Mr. Borovcanin filed a -- a reply -- actually, sought permission to file a
8 reply, which he filed in any case. So we have been actively involved in
9 these issues, particularly because there are submissions on the part of
10 defendants in these three motions alleging that there are new charges, new
11 facts, and whatever.
12 As I said earlier, we expect to hand down the decision before the
13 Pre-Trial Conference next week, and we have been actively working on it.
14 However, in anticipation of that decision and for the purpose of it, we
15 are handing down an oral decision now, which is basically the following:
16 Under Article 19 of the Statute and Rule 50 of the Rules, which
17 incidentally also makes cross-reference to Article 19 of the Statute, so
18 under these -- this Article and under this Rule as interpreted in our --
19 in the jurisprudence of this Tribunal, the Prosecution must provide
20 supporting documentation for every material -- "material proposed
21 amendment to an indictment or it must identify such documentation from the
22 items already in the Trial Chamber's possession to enable the Trial
23 Chamber to determine whether the Prosecution has established a prima facie
24 case with respect to those particular amendments.
25 "The Trial Chamber is of the view that this principle applies
1 equally where an amendment has been proposed on the initiative of the
2 Prosecution as well as when an amendment is made in response to an order
3 of the Trial Chamber.
4 It is our consideration that in response of our decision of the
5 31st of May, 2006, the Office of the Prosecutor has made a number of
6 material proposed amendments which now appear -- feature in the Second
7 Consolidated Amended Indictment. However, it's also our consideration
8 that the Prosecution has not yet provided the Trial Chamber with the
9 corresponding supporting documentation or, if the documentation is already
10 in the material submitted with the earlier indictment, the Prosecution has
11 not yet identified where in that material the supporting documentation for
12 each proposed amendment can be found.
13 So our disposition is as follows: We are accordingly ordering the
14 Prosecution to provide the Chamber, no later than this coming Monday, the
15 10th of July, 2006, with supporting documentation or to identify clearly
16 on which pages of the supporting material for the previous indictment such
17 documentation can be found for the following items which are included in
18 the Second Consolidated Amended Indictment.
19 First, paragraph -- when I say "paragraph," these are paragraphs
20 in the decision. Paragraph 30 -- Consolidated Indictment 30.3.1
21 concerning Nova Kasaba; paragraph 30.4.1 concerning Sandici Meadow;
22 paragraph 30.8.1 concerning Rocevic school; paragraph 30.15.1 concerning
23 Snagovo; and lastly, paragraph 52, alleging that the Bratunac Brigade
24 deliberately targeted civilian areas of the Srebrenica enclave with
25 artillery fire on 25th May, 1995. These are the only five instances where
1 we still need to find out whether there is existing supporting material,
2 short of which you need to provide it. All right? And we are fully
3 confident that you can easily do this by Monday the 10th, which would make
4 it possible for us to hand down our decision then before the Pre-Trial
6 That's all I had to say in relation to outstanding motions. If
7 there are any matters that you would like to raise only on this subject
8 matter, please go ahead.
9 I see -- yes, Mr. McCloskey.
10 MR. McCLOSKEY: Your Honour, as you know, we -- as you mentioned,
11 we have an outstanding application for judicial notice of adjudicated
12 facts. As I'm sure you're aware, there's been a recent Trial Court
13 judgement related to Srebrenica, some slight crossover. We're in the
14 process of reviewing that to see if it is relevant as a citation. As
15 you're aware, having authored that judgement, we are in the process of
16 reviewing that to see if it has relevance. I don't know what you feel
17 about that or if you -- one way or another, but as you can see that the --
18 our indictment does talk a little bit about that period and there's some
19 -- there's some relevance.
20 JUDGE AGIUS: Yes. I haven't discussed this with my colleagues,
21 obviously, and therefore don't expect me to tell you anything. I do,
22 however, point out to you that I made it very clear in that judgement that
23 the events of 1995 were not an issue in any -- in any manner and whatever
24 was dealt with as historical events are events that have practically been
25 dealt with by every judgement that has been pronounced by this Tribunal
1 dealing with the events in Bosnia. So I think -- I wouldn't like to -- to
2 say more until I have discussed the matter with my two colleagues, and
3 only if the matter is addressed ad hoc by either of you, by the parties.
4 Yes, Mr. McCloskey.
5 MR. McCLOSKEY: I also meant to mention the case that came out of
6 Rwanda recently of --
7 JUDGE AGIUS: Yes.
8 MR. McCLOSKEY: That's another issue related to --
9 JUDGE AGIUS: That's a legal issue, yes.
10 MR. McCLOSKEY: That we're also reviewing that to see whether it's
11 worth opening this door up again.
12 JUDGE AGIUS: That's definitely important for the issue of
13 adjudicated facts, yes, and I think if Defence counsel have not had the
14 opportunity, like it seems you, to address the legal principles enunciated
15 in that decision in relation to genocide, for example, in Rwanda, and you
16 will require an opportunity to address that issue, you will be given
17 opportunity, of course. It applies equally to you and to Defence. I
18 think it's important. Yes.
19 We'll now move on to disclosure matters. Let's start with Rule
20 66(A)(ii) disclosure. I anticipate to have a confirmation from you,
21 Mr. McCloskey, that this category of disclosure has been completed by now.
22 Is that so?
23 MR. McCLOSKEY: I certainly think so. Let me just -- we believe
24 so. It mentions 92 bis in here as well, so we're working on that. Yes.
25 We have made all efforts. There may be some translations out, although I
1 think we've gotten -- there's just very few translations of some of these
2 witness statements, usually into B/C/S, but we were able to knock off the
3 -- most of them. I don't have the exact number, but we're very -- we
4 were able to work with some Defence counsel and prioritise statements that
5 they were interested in, and I think we've just about -- just about got
6 the translation issues sorted out.
7 As you know, there always seems to be statements hiding somewhere
8 and we're endeavouring to ferret out all of those statements. That's a
9 principal priority here, and we feel pretty comfortable at this point but
10 we'll be continuing to do that.
11 JUDGE AGIUS: Okay. I thank you, Mr. McCloskey. Of course first
12 I would like to hear any comments that either any of the Defence teams
13 would like to make before I then remind you of what we discussed and we
14 agreed upon at the last Status Conference in relation to 34 witnesses.
15 Yes, Madam Nikolic.
16 MS. NIKOLIC: [Interpretation] I agree with what my learned friend
17 has just said, however, I do have to point out one thing. We still don't
18 have a total of 16 translations, 16 different statements of different
19 kinds of witnesses, and this is something that our clients are not yet
20 familiar with. The list that has been prioritised, and we have received
21 some of these on a CD, but there are some missing. We are talking about
22 another set of statements that have been disclosed to the Defence,
23 statements by various kinds of witnesses from the army and the Ministry of
24 the Interior. The statements are from the Sarajevo trial, statements made
25 to the police or the investigating judge of the Bosnian court, but we
1 don't have a single statement or an interview that the OTP have conducted
2 with these witnesses, and we assume that they must have since these are
3 witnesses who are on their list.
4 There's another witness that the Defence teams so far have been
5 completely unable to identify. This is a member of an OTP team. They
6 conducted the Kravica investigation and a number of interviews related to
7 that investigation. We're not familiar with the substance of that
8 statement. I do not believe this witness has been identified yet, and we
9 certainly don't know who he is.
10 So much for the OTP pre-trial brief, the exhibits, and witness
11 statements as it relates to the list. Disclosure, however, is ongoing,
12 and this has to do with the new archives being opened up in Bosnia and the
13 Republika Srpska on a daily basis.
14 JUDGE AGIUS: I thank you, Madam Nikolic. Any further remarks
15 from any of the Defence teams?
16 The reason why I mentioned this, Mr. McCloskey, is that during --
17 at the last Status Conference there were 34 witnesses, to my recollection,
18 whose statements had not yet been translated into B/C/S and made
19 available. Now I hear that the list has come down to 16. What I think is
20 that we had given you three weeks from the Status Conference to complete
21 that exercise. I understand that you may have encountered problems. My
22 preoccupation, and I'm sure it would be the preoccupation of my
23 colleagues, too, is if any of these 16 witnesses whose statements have not
24 yet been provided in B/C/S are amongst the first set of witnesses to be
25 heard until the end of September, because if that is the case, I would
1 enjoin you straight away to accelerate the process and make sure that they
2 are made available before we start the trial. If not, we will give you a
3 further chance, of course, which would reflect also your difficulties,
4 but ...
5 MR. McCLOSKEY: I believe the list is closer to five, and it gets
6 smaller every day. So -- and we have good communication with counsel
7 normally, and I don't have any outstanding priority requests or concerns
8 from counsel aside from what I've heard today, and we'll work with them
9 and get right on that, so anything that comes to our doorstep we'll work
10 with, but right now I've got no requests except for what I've just heard,
11 and we're close to that, but we are focusing definitely on that group of
12 first witnesses.
13 JUDGE AGIUS: Thank you.
14 [Trial Chamber confers]
15 JUDGE AGIUS: Yes, all right. We are not establishing any further
16 deadlines. We are fully trusting you, Mr. McCloskey, that you are dealing
17 with this matter within the limits of what is possible.
18 You will recall during the previous Status Conference we had
19 mentioned the report of the military expert Butler. This was submitted by
20 9th June. I understand, however, that until a few days ago, until the end
21 of last month, end of June, the Prosecution had not yet received the B/C/S
22 translation of the material. Can I have a confirmation of that from the
23 Defence teams? You have received the report but you have not received the
24 B/C/S version of it?
25 Madam Fauveau?
1 MS. FAUVEAU-IVANOVIC: [Interpretation] If the translation arrived
2 today, we haven't received it yet, Your Honour.
3 JUDGE AGIUS: Yes, Mr. McCloskey. This is a problem that needs to
4 be addressed and which can be addressed with relative ease because the CD
5 that was made available contains the report in English and there is some
6 material already existing in B/C/S. So I don't see why it has not been
7 made available to the Defence in B/C/S too.
8 MR. McCLOSKEY: The report was submitted to CLSS the day afterward
9 and we have not received it back yet. And they've been doing a very good
10 job at working under tremendous pressure. So we will check with them and
11 get an estimated date for that. The materials Mr. Butler mentions in his
12 report are hyperlinked and are in original B/C/S for that help, but we
13 haven't received it back from CLSS yet, but we hope to soon, but I haven't
14 checked with them.
15 JUDGE AGIUS: But the thing is this: How early in the trial do
16 you expect to produce -- to be dealing with this report?
17 MR. McCLOSKEY: Mr. Butler would be several months down the road,
18 which is normal because it's more appropriate for everyone to see a lot of
19 material --
20 JUDGE AGIUS: Just wanted to make sure that he will not be amongst
21 the early witnesses to be brought over.
22 MR. McCLOSKEY: No.
23 JUDGE AGIUS: Okay.
24 MR. McCLOSKEY: And this has been discussed somewhat with the
1 JUDGE AGIUS: Okay. Now, the famous hard disk that appeared and
2 disappeared. Let's hope that everyone has seen it and everyone knows
3 where it is.
4 The Rule 68 disclosure.
5 Mr. Haynes, you and Ms. Soljan had the last word. After some big
6 efforts, the hard disk was traced, was found, and that was supposed to
7 make the round --
8 MR. HAYNES: Yes. I don't know how comfortable I am being
9 spokesman on this particular topic. The hard disk drive was found to be
10 more usable by being converted into a series of DVDs. We had those burnt
11 and copied and made them available to those who wished to have them. The
12 original hard disk drive is back with the Office of the Prosecution now.
13 JUDGE AGIUS: That's good. Are you satisfied with -- now, I'm not
14 addressing you as a spokesman, I'm just addressing all the Defence teams:
15 Are you all satisfied with the standard of Rule 68 disclosure?
16 MR. HAYNES: Speaking for my part, I think we still find EDS a
17 better system to search than the hard disk drive. The hard disk drive is,
18 of course, more portable but the searching is not very good. But that's
19 just for my part.
20 JUDGE AGIUS: Any further remarks from any of the Defence teams?
21 Yes, Madam Fauveau?
22 MS. FAUVEAU-IVANOVIC: [Interpretation] Yes, but it's a question
23 which is not at all technical. I'm perfectly aware the Prosecutor has
24 tried to identify the documents for Rule 68 as best he can, but he's not
25 always in a position to identify the documents, exculpatory material.
1 Another problem in this procedure is that today we have seven accused. We
2 received documents for 68, and we don't know immediately which accused is
3 concerned. It's rather difficult. It doesn't really help us, because
4 when we receive 68 documents, if they don't concern this or that accused,
5 for us its documents which are equivalent to others, whether it is 68 or
6 another. We have to analyse it, see it, appreciate, evaluate in the same
7 way. The identification of Rule 68 doesn't mean much in this case.
8 JUDGE AGIUS: Do you have a position on that, Mr. McCloskey?
9 MR. McCLOSKEY: Ms. Fauveau asked -- was one, I think the only,
10 counsel that provided us with a bit of an outline of some of the material
11 she thought was Rule 68, and we endeavoured to provide her with that
12 material, and recently, I believe, an index of that material. So that was
13 the material specifically for her concerns. I believe we gave that
14 everyone as well, naturally.
15 Rule 68 is such a broad, broad, broad topic, especially as it goes
16 to the potential -- for example, a statement that may be in conflict with
17 a witness's statement is Rule 68. So it has not been our intention to go
18 through for seven accused and find out where this person may be consistent
19 or inconsistent. It's an impossible, impossible task. So it's not the
20 Prosecution's position to try to identify individual accused Rule 68. If
21 we find something that is -- actually appears to be exculpatory, we will
22 -- I mean, when I say "appears to be exculpatory," that's different than
23 the broad ambit of Rule 68. We will tell the Defence that. And something
24 that suggests that Mr. Beara wasn't in Bosnia in July of 1995, we would
25 absolutely give them that document, and they would see what it was. We
1 don't have any such document.
2 So anything that rises to the level of exculpatory evidence of
3 that nature, yes, certainly, we would. We'd tell them and identify it to
4 them, but the masses of what could be possibly inconsistent or they may
5 consider to be Rule 68. For example, what Ms. Fauveau asked for I don't
6 personally consider to be Rule 68. A lot of Muslim material. But she
7 asked for it, and she -- and that's what her defence may involve, so we
8 got that for her. But to try -- for me to sort out what I think is Rule
9 68, I don't think there is any Rule 68 in that, but if it looks
10 substantive, if it looks like some significant piece of material, no
11 problem, we can alert them to that, and -- besides giving them the
12 material. But we don't generally give them great big hunks of, you know,
13 a thousand-page document and say this is Rule 68. It's usually these
14 documents come in one- or two-page forms, or they're an intercept that is
15 one or two pages, and they -- each document speaks for itself. So it's
16 not a difficult process document by document. And there's not -- you
17 know, we're not identifying all that much Rule 68. I mean, we're looking,
18 but we're not -- it's not a massive amount of material.
19 JUDGE AGIUS: Mr. McCloskey, I won't say much at this stage, but I
20 get the impression that you have a somewhat distorted idea of what Rule
21 68(i) is all about and how it has been interpreted throughout the years.
22 In spite of various attempts to have the first paragraph changed, it's
23 still as it is and as it was, which is material which is in the actual
24 knowledge of the Prosecutor. I've already decided on more than one
25 occasion that you cannot rely on the electronic database and say
1 everything is available there, therefore, I don't have to go through the
2 material and identify exculpatory material. I agree with you that you
3 shouldn't look at Rule 68 as applying to the collectivity. It should
4 apply to each and every individual accused here. It's your responsibility
5 if you have material which in your knowledge is -- may suggest the
6 innocence or mitigate the guilt of the accused to disclose it.
7 I don't want to pass through the unfortunate experience I had in
8 Oric where, throughout the entire trial, even from -- even before the
9 commencement of the trial, there are allegations of Rule 68 material being
10 available in the hands of the Prosecution and being withheld in violation
11 of Rule 68. And this went right not only through the entire trial but
12 until two days before we handed down the decision. All of a sudden the
13 Prosecution discovered another bulk, bulk, an amount of documents, quite
14 bulky, that went to either suggest not the absence of guilt or -- in that
15 case it was absence of guilt of the accused, and it had not been
16 disclosed. I don't want to find ourselves in that situation because it
17 will require us to take drastic action as we go -- as we go along. It's
18 your responsibility. Whatever changes were effected to Rule 68 in the
19 past years have never affected the obligations that you have under the
20 first paragraph of Rule 68. I won't say more, but if there are any doubts
21 as to whether a particular piece of material is exculpatory or not, the
22 practice has been not for you to decide that it is not but for you or the
23 Defence or for both of you to refer it to the Trial Chamber and then the
24 Trial Chamber will decide whether it is exculpatory or not. If, on the
25 face of it, it is exculpatory, then you have an obligation to disclose it.
1 MR. McCLOSKEY: Just -- I want to be perfectly clear: I do not
2 believe just giving them EDS that overrides my Rule 68 obligation. In no
3 way. What I was speaking of is they were suggesting that I need to
4 identify precisely in a document what is Rule 68 and which accused it has
5 to do with. That's what I was objecting to. And I was saying that if I
6 have something that that's obvious I will give it to them and talk to them
7 about it. That's easy. But the vast amount of material that may be Rule
8 68, that we may provide to them as Rule 68, we will make every effort to
9 identify it and provide it to them and I guarantee you will not go through
10 the experience you went through with Oric.
11 JUDGE AGIUS: I hope not. However, what your responsibilities are
12 under Rule 68 are clearly stated in the Rule, and we take it that you will
13 act accordingly. I hope we will not pass through what I passed through in
14 Oric, repeated and flagrant violations of Rule 68, flagrant.
15 So any further submissions in relation to Rule 68 disclosure, and
16 any other kind of disclosure, for that matter, before I close on this part
17 of the agenda? I see none.
18 Let's move to agreed facts. Yes. I see a few smiles on the face
19 -- on some of the faces. Have you endeavoured to try and meet and come
20 forward with some agreed facts? Mr. McCloskey?
21 MR. McCLOSKEY: Yes, Your Honour. We a long time back sent quite
22 a few facts and we got a couple of responses with a few facts but not
23 anything that would help the Court or anyone else.
24 JUDGE AGIUS: Isn't it possible for various Defence teams to take
25 a practical approach and agree on what could be agreed upon without
1 compromising the position of your respective clients? Absolute silence.
2 Mr. Lazarevic won't even look at us. Absolute silence.
3 MR. LAZAREVIC: No, Your Honour, I have absolutely no problem with
4 looking at you. What I can assure you is that we're not avoiding any such
5 conversation with the Prosecution. We were quite busy in last couple of
6 weeks dealing with all these motions, all these submissions that you're
7 all aware of, and we're just -- we are not avoiding discussion with the
8 Prosecution. Let them file the motion asking for our assistance and we
9 will sit and talk to them.
10 JUDGE AGIUS: We'll come to this again Thursday during the
11 Pre-Trial Conference and see whether there have been any positive
12 developments. I'll pretend to be optimistic for once.
13 Let's go into private session now, please. We need to discuss
14 something in private.
15 [Private session]
11 Pages 207-212 redacted. Private session.
7 [Open Session]
8 JUDGE AGIUS: Everyone is here. Yes. Before we proceed on the
9 same subject matter, we are in open session, Madam Fauveau and
10 Mr. Krgovic, may I ask you to be kind enough to approach your respective
11 clients for the purpose of entering the plea, whether they will waive the
12 right to have the indictment read out in its entirety as far as they are
14 MS. FAUVEAU-IVANOVIC: [Interpretation] We waive this right. It's
15 not necessary to read the whole indictment.
16 JUDGE AGIUS: And Mr. Krgovic?
17 MR. KRGOVIC: Yes, Your Honour, it's not necessary to read the
19 JUDGE AGIUS: Thank you. I just wanted to make sure of that
20 because we would have to regulate our schedule accordingly otherwise.
21 Okay. So we have discussed in the meantime about your preferences
22 in relation to (redacted). Let's go into private session
23 again, please.
24 [Private session]
11 Pages 214-215 redacted. Private session.
19 [Open session]
20 THE REGISTRAR: We are in open session.
21 JUDGE AGIUS: We are back to open session. Mr. McCloskey, I think
22 we have settled now that opening statements of the Prosecution will be
23 made on -- starting on the 21st of August. Is that correct?
24 MR. McCLOSKEY: That is my understanding. That's what we've been
25 planning on. We would not complain if it was August 28th, and I know the
1 Defence had some issues on that, but we've seen August 21st and understand
3 JUDGE AGIUS: Okay. As an addition to that, please consult your
4 clients to see what you'll be -- your decision in relation to any opening
5 statements that you may wish to make, you or your clients according to the
6 existing rules. We would appreciate having the relative information from
7 you in good time so that we can plan ahead, especially since, if there are
8 no statements to be expected from Defence, then the Prosecution must be
9 put notice of that so they bring forward the witnesses without any time
11 Actually we had agreed in the Status Conference of 19 May that
12 today you should be in a position to give us that indication. So if any
13 one of you is in a position to give us an indication now, it would help us
14 immensely to plan ahead.
15 Yes, Mr. Haynes.
16 MR. HAYNES: I shan't be making an opening statement.
17 JUDGE AGIUS: I thank you. Mr. Meek.
18 MR. MEEK: I believe it's the intention of our Defence team to
19 also make an opening statement.
20 MR. HAYNES: I said I wouldn't, but I -- the transcript will
21 reveal the --
22 JUDGE AGIUS: That's why I'm looking at you. So you intend to
23 make an opening statement.
24 MR. MEEK: Again, at this point I believe that an opening
25 statement will be made, Your Honour.
1 JUDGE AGIUS: Any other indication? Mr. Zivanovic.
2 MR. ZIVANOVIC: I not make opening statement too.
3 JUDGE AGIUS: You will.
4 MR. ZIVANOVIC: No, no.
5 JUDGE AGIUS: You won't. My previous question also was directed
6 to obtain information whether any of the accused would be making any
7 statements. Of course that is a choice, an option that is available under
8 the Rules.
9 Let's put it like this: Can I ask all of -- each and every one of
10 you to decide on this between now and the Pre-Trial Conference on Tuesday
11 [sic] and come back with an affirmative position on -- on this, definitive
12 position on this. All right. We have that of Mr. Zivanovic, Mr. Meek,
13 and Mr. Haynes. And the others, please, will be asked the same question
14 on Thursday when we meet next.
15 Yes, Madam Nikolic.
16 MS. NIKOLIC: [Interpretation] Just something about the transcript.
17 The transcript says that the Pre-Trial Conference will be held on Tuesday.
18 I think we're talking about a Thursday, Thursday the 13th, and we believe
19 that this a useful instruction from the Chamber because we do need to
20 confer with our clients.
21 JUDGE AGIUS: I thank you so much for pointing out the transcript
22 error, which I'm sure will be corrected. And of course we do appreciate
23 that you need to consult with your clients on this, but please on Thursday
24 try to give us your position.
25 Now, the work -- the work plan. Let's go through what we have
1 agreed upon, and I want to make sure that the pattern that has been
2 followed very efficiently, I must say, by both of you will continue until
3 we come to the commencement of the trial. I had said earlier on that you
4 have been very punctual in filing all your responses relating to Rule 92
5 bis motion and the adjudicated facts by the deadline.
6 We established the last time we met that the -- we had to shift
7 somewhat the other dates that we had communicated to you in a way which
8 would find us have the Pre-Trial Conference on Thursday coming, the 13th,
9 then tentatively start with the trial on the 14th with the understanding
10 that there will not be the opening statements on that day. We had also
11 agreed that when -- then we will adjourn until August, and -- both on the
12 14th, and when we reconvene in August, we will conclude on various initial
13 procedural issues that need to be taken care of, need to be taken care of,
14 amongst which, of course, there will be the question on how we will be
15 regulating the time to be allocated for examination-in-chief and also
16 cross-examination considering that you are now seven -- seven teams.
17 During that stage, we will, I hope, already we would have handed
18 down the decision both on the adjudicated facts and the Rule 92 bis, which
19 would enable the Prosecution to be in a better position to give an
20 indication to the Trial Chamber how long you anticipate your -- your case
21 to last, because I understand that until you have those two decisions in
22 place, you can speculate but you may not necessarily be near the -- the
23 real situation.
24 We had also agreed that because of this shifting, and while
25 initially I had told you you would have until the 14th of July to file
1 your pre-trial Defence briefs, that that was brought forward by two days,
2 and we agreed that that would be advanced to July 12th so that when we
3 start the Pre-Trial Conference the day after, we'll have something in our
4 hand, knowing that we will not be able to conclude in any case. But I
5 want to make sure that you are all preparing to meet this deadline which
6 would help us immensely when we come to the Pre-Trial Conference. I have
7 your commitment. We had agreed also that there will not be the need for
8 the Trial Chamber to issue a Scheduling Order because so far you have kept
9 to your commitments and we have no reason to -- to doubt your word.
10 Yes. So the understanding is that by Wednesday, end of business
11 on Wednesday, you would come forward with your pre-trial Defence briefs in
12 accordance with what is required by -- by the Rules.
13 Then the understanding is that -- what is left over after the 13th
14 will have to be taken up on the 14th or later on in August when we meet
16 The proofing chart. Those of you who have been following the
17 developments, know that just for the witnesses' documents that will be
18 made use by the end of September, the Prosecution has provided all this
19 material. And that made us understand a little bit better why they were
20 encountering problems in completing the proofing chart. We understand
21 your problems, and for that reason we have revised a little bit our
22 assessment which we had communicated earlier, and the position is as we
23 have handed it down in our decision. This covers the testimony until the
24 end of September. Then by the 18th of August you need to deal with the
25 rest of the witnesses, and by the 31st of October you need to complete the
1 proofing chart in relation to the documentation, to all the documentation.
2 We trust you will make every effort. We've been cooperative, we've been
3 forthcoming with you, and we expect you to be as cooperative as you have
4 been already.
5 And there's the question of length of trial. There is one
6 defendant, one accused, less now. Mr. Trbic is out of the scene is for
7 the time being for sure. Does that affect your earlier prognosis of the
8 anticipated time required, Mr. McCloskey, or minimally?
9 MR. McCLOSKEY: I would say minimally because most of the Trbic
10 witnesses were witnesses that would have been called anyway, and the time
11 that cross-examination would take wouldn't have been that much more with
12 just one more lawyer, so I can't think of any reason why that is a big
13 savings of time, but it's some and every little bit helps.
14 JUDGE AGIUS: All right. And I mentioned earlier the question of
15 cross-examination and examination-in-chief. What I suggest on behalf of
16 the Trial Chamber is that between now and when we next meet you try to
17 discuss this amongst yourselves, between yourselves, because it would help
18 immensely the Trial Chamber when it comes to deliberating on -- on the
19 issue. If there is an agreement between you, that is always an advantage.
20 In the meantime, may I also draw your attention to the decision of
21 the Appeals Chamber of a couple of days ago which relates to the decision
22 that had been taken in the Prlic case regarding the distribution of and
23 allocation of time for the purpose of examination-in-chief and the
24 cross-examination. I think it would be very useful to you to have a good
25 look at it.
1 Yes, Mr. McCloskey.
2 MR. McCLOSKEY: I can tell you, Mr. President, the Prosecution
3 fully supports the decision as it set that out. I think that was an
4 excellent decision, and it gives the Defence also some room to move. So
5 we fully support the basic precepts of that decision.
6 JUDGE AGIUS: I will not ask the Defence today for a position on
7 this. Yes, Mr. Meek? You disagree with that decision?
8 THE INTERPRETER: Microphone for counsel, please.
9 MR. MEEK: Pardon me, Your Honour. On behalf of the accused
10 Beara, we don't think that decision was very good at all, however we do
11 agree with the Prosecution that they should start their opening statements
12 on the 28th of August rather than the 21st. Thank you.
13 JUDGE AGIUS: You will not have your wishes fulfilled, Mr. Meek.
14 We'll start on the 21st of August with the opening statements.
15 So at the same time and on the same score, if -- we will be coming
16 back to you later on for your submissions in relation to the distribution
17 and allocation of time for the purposes of examination-in-chief and
19 Now, the most solemn part of today's Status Conference,
20 Mr. Miletic and Mr. Gvero, I will be proceeding on behalf of the Trial
21 Chamber to enter a plea to the counts which are applicable to you. Madam
22 Fauveau and Mr. Krgovic, the facts I'm referring to are the counts as they
23 are in the indictment of the 11th November, 2005.
24 Let me make something clear. This is the indictment they would
25 have entered a plea upon had they been present together with the others
1 when pleas of -- were entered.
2 Now, it may well be that as a result of the decision that we plan
3 to hand down in the coming week there will be the need to come back to
4 some or more or all of the accused to re-enter pleas. That's quite
5 possible, but for the time being, I think what we need to concentrate upon
6 are the charges that arise, emerge from the indictment of the 11th
7 November, 2005, and I take it that there is a waiver. We don't need to
8 read the indictment.
9 Can I proceed with Mr. Miletic, Madam Fauveau?
10 MS. FAUVEAU-IVANOVIC: [Interpretation] Yes, of course,
11 Mr. President.
12 JUDGE AGIUS: Thank you.
13 Mr. Miletic, please stand up. I am very soon asking you -- going
14 to ask you to tell me whether you wish to enter a plea to the various
15 indictments that concern you and that are brought against you by the
16 so-called Consolidated Amended Indictment of the 11th November, 2005.
17 THE ACCUSED MILETIC: [Interpretation] Yes.
18 JUDGE AGIUS: You have also waived your right to have the
19 indictment in its relevant parts read out to you, but I want to know first
20 and foremost whether you are aware of the contents of this indictment as
21 it relates to you, the various counts that relate to you, and whether you
22 understand the import of the substance of these counts and the accusations
23 that are brought against you.
24 THE ACCUSED MILETIC: [Interpretation] Your Honour, I understand.
25 I understand the counts. I understand the indictment in its entirety.
1 JUDGE AGIUS: Mr. Gvero, I take it therefore that you have read
2 the Consolidated Indictment and that you have also -- not Mr. Gvero,
3 sorry, Mr. Miletic. I apologise to you, Mr. Gvero, you may remain seated.
4 Mr. Miletic, I take it therefore that you have read the Consolidated
5 Amended Indictment that was provided to you in your own language and
6 you've had an opportunity to discuss it with your counsel and take advice
7 from him?
8 THE ACCUSED MILETIC: [Interpretation] Yes. Indeed, Your Honour.
9 JUDGE AGIUS: And are you prepared to enter your pleas to the
10 various counts that are applicable to you today?
11 THE ACCUSED MILETIC: [Interpretation] Yes.
12 JUDGE AGIUS: You know, Mr. Miletic, that you are charged under
13 count 4, count 5, count 6, count 7, count 8 of the Consolidated
14 Indictment, Amended Indictment.
15 THE ACCUSED MILETIC: [Interpretation] Yes.
16 JUDGE AGIUS: I'll start with count 4. Count 4 of the
17 Consolidated Amended Indictment charges you with murder, this being a
18 crime against humanity, punishable under Articles 5(A) and 7(1) of the
19 Statute of the Tribunal. How do you wish to plead to this count of
20 murder; guilty or not guilty?
21 THE ACCUSED MILETIC: [Interpretation] Not guilty.
22 JUDGE AGIUS: I thank you. And the registrar will enter into the
23 record that the accused has pleaded not guilty to count 4.
24 We move to count 5. This count charges you with -- again with
25 murder, however this time murder is being charged as a violation of the
1 laws or customs of war punishable under Articles 3, and 7(1) of the
2 Statute of this Tribunal. How do you wish to plead to this fifth count of
3 murder; guilty or not guilty?
4 THE ACCUSED MILETIC: [Interpretation] Not guilty.
5 JUDGE AGIUS: Thank you so much, Mr. Miletic. We move to count 6,
6 which charges you with persecutions on political, racial, and religious
7 grounds, this being a crime against humanity, and it includes murder,
8 cruel and inhumane treatment, terrorising the civilian population,
9 destruction of personal property and forcible transfer, punishable under
10 Articles 5(H) and 7(1) of the Statute of this Tribunal. How do you wish
11 to plead to this count 6 of persecutions; guilty or not guilty?
12 THE ACCUSED MILETIC: [Interpretation] Not guilty.
13 JUDGE AGIUS: I thank you, Mr. Miletic. We move to count 7 which
14 charges you with inhumane acts consisting in forcible transfer, this being
15 a crime against humanity which is punishable under Articles 5(I) and 7(1)
16 of the Statute of the Tribunal. How do you wish to plead to this seventh
17 count of inhumane acts consisting in forcible transfer; guilty or not
19 THE ACCUSED MILETIC: [Interpretation] Not guilty.
20 JUDGE AGIUS: Thank you. And the last count applicable to you is
21 count 8, which charges you with deportation, this being a crime against
22 humanity punishable under Articles 5(D) and 7(1) of the Statute of this
23 Tribunal. How do you wish to plead to this final count 8 of deportation;
24 guilty or not guilty?
25 THE ACCUSED MILETIC: [Interpretation] Not guilty.
1 JUDGE AGIUS: I thank you, Mr. -- Please, Mr. Gvero, you were
3 THE ACCUSED GVERO: [Interpretation] Yes, Your Honour.
4 JUDGE AGIUS: You were disturbing us. You shouldn't be laughing.
5 You were disturbing us. This is a very -- this is a very solemn moment,
6 Mr. Gvero. You're not understanding the solemnity of this moment when
7 you're asked to enter a plea. Then you better learn it and learn it very
8 quickly. Mr. Miletic was entering a plea and you were talking aloud to
9 your colleague over there.
10 THE ACCUSED GVERO: [Interpretation] My apologies, Your Honour. I
11 was seeking some information.
12 JUDGE AGIUS: Thank you. You may remain standing for the time
13 being because we're coming to you.
14 Madam Registrar, could you enter into the records that accused
15 Miletic pleaded not guilty to all the counts that were referred to him;
16 counts 4, 5, 6, 7, and 8 of the Consolidated Amended Indictment.
17 THE REGISTRAR: Yes, Your Honour.
18 JUDGE AGIUS: I thank you, madam.
19 We come to you, Mr. Gvero. And I start with putting the same
20 questions to you. Have you read the Consolidated Amended Indictment?
21 THE ACCUSED GVERO: [Interpretation] Yes, Your Honour.
22 JUDGE AGIUS: It was delivered to you, handed to you in your own
24 THE ACCUSED GVERO: [Interpretation] Yes.
25 JUDGE AGIUS: [Previous translation continues] ... language. And
1 have you had an opportunity to discuss it with Mr. Krgovic?
2 THE ACCUSED GVERO: [Interpretation] Yes, Your Honour.
3 JUDGE AGIUS: Take advice from him?
4 THE ACCUSED GVERO: [Interpretation] Yes.
5 JUDGE AGIUS: Do you understand what you're being charged with
6 under the counts -- the same counts that I actually read out to
7 Mr. Miletic? Do you understand the import or the substance of these
8 counts and the charges contained therein?
9 THE ACCUSED GVERO: [Interpretation] Your Honour, I've read the
10 indictment and I understand it.
11 JUDGE AGIUS: And are you prepared to enter your plea today?
12 THE ACCUSED GVERO: [Interpretation] Indeed I am, Your Honour.
13 JUDGE AGIUS: So let's start with count 4, Mr. Gvero, which
14 charges you with murder, a crime against humanity punishable under
15 Articles 5(A) and 7(1) of the Statute of this Tribunal. How do you wish
16 to plead to this count 4, murder, a crime against humanity; guilty or not
18 THE ACCUSED GVERO: [Interpretation] Not guilty.
19 JUDGE AGIUS: Thank you. Count 5 charges you with murder, a
20 violation of the laws or customs of war, punishable under Article 3 and
21 7(1) of the Statute of the Tribunal. How do you wish to plead to this
22 count 5 of murder being a violation of the laws or customs of war; guilty
23 or not guilty?
24 THE ACCUSED GVERO: [Interpretation] Not guilty.
25 JUDGE AGIUS: And count 6 charges you with persecutions on
1 political, racial, and religious grounds, this being a crime against
2 humanity and which includes murder, cruel and inhumane treatment,
3 terrorising the civilian population, destruction of personal property and
4 forcible transfer punishable under articles 5(H) and 7(1) of the Statute
5 of this Tribunal. How do you wish to plead to this sixth count, namely
6 one of persecution?
7 THE ACCUSED GVERO: [Interpretation] Not guilty, Your Honour.
8 JUDGE AGIUS: And count 7 charges with you inhumane acts, being
9 forcible transfer, a crime against humanity, also punishable under
10 Articles 5(i) and 7(1) of the Statute of the Tribunal. How do you wish to
11 plead to this 7th count of inhumane acts; guilty or not guilty?
12 THE ACCUSED GVERO: [Interpretation] Not guilty.
13 JUDGE AGIUS: And finally count 8, which charges you with
14 deportation, being a crime against humanity punishable under Articles 5(D)
15 and 7(1) of the Statute of the Tribunal. How do you wish to plead to this
16 eighth count, being one of deportation; guilty or not guilty?
17 THE ACCUSED GVERO: [Interpretation] Not guilty, Your Honour. And,
18 Your Honour, I wish to apologise once again. It wasn't my intention to
19 disturb. I was just seeking some information. Thank you.
20 JUDGE AGIUS: I thank you so much, Mr. Gvero.
21 And, Madam Registrar, could you kindly enter into the records of
22 case the fact that the accused Gvero has pleaded not guilty to counts 4,
23 5, 6, 7, 8 of the Consolidated Amended Indictment.
24 THE REGISTRAR: Yes, Your Honour.
25 JUDGE AGIUS: I thank you so much.
1 You may sit down, Mr. Gvero.
2 THE ACCUSED GVERO: [Interpretation] Thank you.
3 JUDGE AGIUS: So we come to the next item, namely -- you know that
4 I've explained it to you in the past that we are required by the Rules
5 each time we have a Status Conference to inquire from you -- of you the
6 state of your detention, any issues you may wish to raise in relation to
7 that state of detention but also in relation to your state of health and
8 other -- any other matter that you would like to raise.
9 I start with you, Mr. Popovic. And before -- before I give you
10 the floor, I wish to inform you that following your address to me as the
11 Pre-Trial Judge in May when we had the last Status Conference, I
12 instructed the Registrar of this Tribunal to inquire for the Trial Chamber
13 -- make a full inquiry following your complaint, and we have had a series
14 of information coming from the Registrar based upon information he was
15 receiving from the Detention Unit. The final outcome is that according to
16 the information contained therein is, yes, it's true, you were diagnosed
17 with diabetes type 2 when you first arrived. Before I continue, last time
18 you told me that you did not have any problem with having this discussed
19 in open session. If you wish to have this discussed in private session,
20 we can go into private session. It's up to you.
21 THE ACCUSED POPOVIC: [Interpretation] No need.
22 JUDGE AGIUS: So the information that I have, because I also asked
23 for the medical reports that are in your file to see what treatment you
24 have been receiving, indicate that you were first -- you had some analysis
25 carried out, laboratory analysis to establish your condition and also what
1 treatment you required, that you have been under treatment since your
2 arrival. That's an oral administration of some drug. I have the name but
3 I can't remember it.
4 I'm also told that once a month your blood sugar level is tested
5 and that every effort is made to provide you with meals that are adequate
6 for persons who have this diabetes type 2 condition. I wish confirmation
7 -- I would like confirmation from you that the information that I have
8 received is correct, and then of course you are free to make any
9 additional statement that you may wish to.
10 THE ACCUSED POPOVIC: [Interpretation] Very well.
11 JUDGE AGIUS: All right. "Very well" means what? It is correct?
12 In other words, the information that I have been given is correct?
13 THE ACCUSED POPOVIC: [Interpretation] Correct, yes. Correct,
15 JUDGE AGIUS: Do you have any further concerns which relate to
16 your state of detention and also your state of health that you would like
17 to communicate to the Trial Chamber today?
18 THE ACCUSED POPOVIC: [Interpretation] For the time being, there's
20 JUDGE AGIUS: I appreciate your honesty, Mr. Popovic. Please make
21 yourself comfortable, and let me move to Mr. Beara.
22 The same question to you: If you have got any issues you'd like
23 to raise in relation to both detention and state of health or any other
24 issue, please come forward.
25 THE ACCUSED BEARA: [Interpretation] No, Your Honour. No. I
1 haven't got anything, no. Thank you.
2 JUDGE AGIUS: I thank you so much, Mr. Beara.
3 Mr. Nikolic, same question. Same question to you.
4 THE ACCUSED NIKOLIC: [Interpretation] Mr. President, I have no
5 objections whatsoever to the conditions in the Detention Unit. My health
6 is good. There are no problems.
7 JUDGE AGIUS: I'm glad to hear that, Mr. Nikolic. Mr. Borovcanin
8 -- you may sit down.
9 Mr. Borovcanin.
10 THE ACCUSED BOROVCANIN: [Interpretation] Your Honour, I have
11 nothing particular to say. Everything is as usual except that two days
12 ago I broke my foot during sport activities, but I have been treated
13 properly and there is no problem.
14 JUDGE AGIUS: Thank you. Please keep us informed if you encounter
15 any problems in this regard.
16 THE ACCUSED BOROVCANIN: [Interpretation] If things get worse, I
17 will let you know, but if they move for the better I assume there's no
18 need. Thank you.
19 JUDGE AGIUS: That's correct. Thank you. Mr. Miletic, I know
20 that you've been here only a couple of days, and hopefully you won't have
21 to stay much longer for the time being, but I would like to know whether
22 you have any concerns in relation to your state of detention and physical
23 or mental health.
24 THE ACCUSED MILETIC: [Interpretation] Mr. President, as usual, I
25 have no objections. I'm a soldier, and I do not complain. I am satisfied
1 with the conditions here, yes.
2 JUDGE AGIUS: I thank you so much, Mr. Miletic. Mr. Gvero -- you
3 may sit down.
4 Mr. Gvero, same question to you: Do you have any concerns in
5 relation --
6 THE ACCUSED GVERO: [Interpretation] Mr. President, I do have some
7 health problems. However, they're not recent ones. They are kept under
8 control, I'm being treated well, and I hope that things will remain that
9 way. Thank you for asking.
10 JUDGE AGIUS: I thank you, Mr. Gvero. Mr. Pandurevic.
11 THE ACCUSED PANDUREVIC: [Interpretation] Your Honour, I have no
12 questions to raise.
13 JUDGE AGIUS: I thank you so much.
14 Are there any other matters that either of you would like to raise
15 before we adjourn to Thursday? Yes, Mr. McCloskey.
16 MR. McCLOSKEY: Thank you, Mr. President. Just a couple of issues
17 going back a bit to discovery that I have everyone here that I want to
18 alert folks to. As they're aware, there's been a trial related to this
19 case in -- in Belgrade, the Skorpion trial. There's an ongoing trial in
20 Sarajevo right now regarding the Kravica case, and there is also now a
21 trial in Boston regarding the trial of a -- Boston, Massachusetts, the
22 trial of a member of the 10th Sabotage Detachment related to his conduct
23 in our case. We're endeavouring to find the information and the testimony
24 that will be relevant in this case as there will undoubtedly be Rule 68 in
25 that there will be inconsistencies, however, there's no easy answers to
1 this. In any of those three jurisdictions it's not as simple as just
2 getting a transcript. So we're endeavouring to identify that material and
3 capture it and get it out to everyone as soon as possible, but as you can
4 imagine, given the nature of this case and that there's cases all over the
5 world on it, it's an interesting endeavour to be -- to be involved in.
6 That in combination, I expect to get a report within the next week about
7 the level of material in these Banja Luka archives, just to determine if
8 there is -- seems to be voluminous material so -- that's significant to
9 our case or not. And I don't know anything on that yet, but I should have
10 it soon and I will, of course, be in touch with everyone.
11 JUDGE AGIUS: With regard to these other cases that you mention,
12 of course that information may or may not become easily accessible
13 depending on circumstances. You know what happened in the Ovcara trial,
14 how long it took to obtain information. It may not be easy. However, I
15 do appreciate, of course, that you realise your involvement and
16 obligations under the Rules, and we would appreciate, of course, every
17 effort that you put into this.
18 In relation to the Banja Luka archive or documents, these have now
19 been in possession of the Trial Chamber for a year, I would imagine, or
20 just under a year. They were being consulted already during the
21 Prosecution case in Oric, and that finished -- and that finished in --
22 Prosecution finished in January of -- of this year.
23 MR. McCLOSKEY: I will double-check that, but it's my
24 understanding that this is something that we've become aware of just in
25 the last few weeks.
1 JUDGE AGIUS: No, no. The Banja Luka collection has been in the
2 possession of the Prosecution -- while the Oric Prosecution case was still
3 ongoing, and I had this special problem with the Prosecution at the time
4 precisely because of Rule 68 disclosure -- disclosure issues. But there
5 was someone already from the Office of the Prosecutor analysing this
6 entire collection at the time. At least, that's what I was informed
7 earlier, much earlier on this year, much earlier on this year.
8 MR. McCLOSKEY: Mr. President, it's my understanding that that's a
9 different archive. It may have had to do with Muslim documents. This is
10 a VRS and --
11 JUDGE AGIUS: Yes, yes, yes. It's a VRS.
12 MR. McCLOSKEY: I think we're talking about two different things
13 but I'll confirm that for you.
14 JUDGE AGIUS: Maybe, but I think we're talking about the same one
15 because this was the latest acquisition of the Tribunal.
16 MR. McCLOSKEY: We don't have this material. We have just gotten
17 access to it within the last two weeks. There are people that are at this
18 archives looking at it, and they have scanners, and what they bring back
19 will be in our possession soon, but as -- as yet, all we have is rumours
20 and -- but there's so many collections out there that --
21 JUDGE AGIUS: I understand, Mr. McCloskey, but I would suggest
22 that you consult with Ms. Sellers or Mr. Di Fazio and they can indicate to
23 you whether they are talking of the same collection or not. I am pretty
24 confident that we are talking about the same collection because I'm not
25 aware of a fresh Banja Luka discovery since -- since then. But anyway,
1 it's up to you. But I do appreciate you bringing up this issue because it
2 may turn up to extremely important later on.
3 On the Defence side, any one of you would like to raise any other
4 matter that we have not dealt with? None?
5 So -- yes, Mr. Lazarevic.
6 MR. LAZAREVIC: I apologise, Your Honour.
7 JUDGE AGIUS: You don't have to.
8 MR. LAZAREVIC: Yes. It just slipped my mind but it came back. I
9 just discussed this issue with the Prosecution, and just for the record, I
10 would like to have their position regarding the pre-trial brief that they
11 have already filed. I mean, what I have in mind is that there will be
12 some changes in the indictment -- there has been some changes in the
13 indictment, and I would like to have the information whether they have any
14 intention to, I don't know, to amend their pre-trial brief, to make any
15 changes in it.
16 JUDGE AGIUS: Good -- good point, Mr. Lazarevic. Of course I will
17 not speak for the Prosecution. And in fact I will ask first the
18 Prosecutor to respond to that and then I will tell you what is very
19 relevant for the Trial Chamber at the present moment.
20 Yes, Mr. McCloskey.
21 MR. McCLOSKEY: I would certainly like to think what you hear is
22 relevant, Your Honour, because we remain -- we would like to be able to
23 provide you any information you think you need relating to the -- the new
24 facts, basically, as we see it. If there is some clarification that is
25 needed, we would gladly fill those holes or those gaps and I will
1 certainly find out from the Defence what they would like to hear about.
2 We have our marching orders on a few things already, but if there's
3 anything else, yeah, we're able and willing to provide more information,
4 but we should leave something for the trial.
5 JUDGE AGIUS: I was pretty sure that that was what I was going to
6 hear from you.
7 The position of the Trial Chamber, if necessary, will be made in
8 due course, obviously, and a lot depends also on how we are going to
9 decide the outstanding issues in the wake of your motion and those of the
10 other two accused. However, you will recall the Status Conference of --
11 May Status Conference when I hinted for the first time at proceeding with
12 asking the Prosecution to prepare these proofing charts. My idea of
13 proofing charts at the time was that it is a perfection of the pre-trial
14 brief. Basically, it's reproducing the pre-trial brief in a more visible
15 and more understandable and more practical manner. So ultimately, we will
16 be discussing this and come back to both of you, particularly to the
17 Prosecution, and indicate whether there is a need to have an updated
18 pre-trial brief or whether this matter can be addressed fully in the -- in
19 the proofing chart. We can't tell you what it is because we haven't
20 discussed it enough amongst ourselves to reach a decision, but it is
21 something that we have been thinking about. And thank you, Mr. Lazarevic,
22 for raising the matter.
23 Anything else? Any further issues? I see none, so we bring to an
24 end this Status Conference today at half past 5.00. We will reconvene on
25 Thursday. I think it's in the afternoon, Thursday at 2.15. With us we
1 will have Judge Stole from Norway as the Reserve Judge, and we can have
2 the Pre-Trial Conference. Please try to prepare as much as you can to
3 have that exercise, make it as easy as possible. And I wish to show the
4 Trial Chamber's gratitude for the way you have been conducting yourselves
5 in preparation for the trial. I think it's very constructive, very
6 cooperative, and we really appreciate -- we really appreciate that. I
7 thank you.
8 Please, God willing, we'll meet on Thursday. Thank you, and good
10 --- Whereupon the Status Conference adjourned
11 at 5.31 p.m.