1 Tuesday, 12 May 2009
2 [Status Conference]
3 [Open session]
4 [The Accused Simatovic entered court]
5 [The Accused Stanisic not present]
6 --- Upon commencing at 2.29 p.m.
7 JUDGE ORIE: Good afternoon to everyone. We are here for a
8 Status Conference in the case against Mr. Stanisic and Mr. Simatovic.
9 Could we have the appearances. Prosecution first.
10 MR. GROOME: Good afternoon, Your Honour. My name is
11 Dermot Groome, I'm representing the Prosecution as the senior trial
12 attorney in this Prosecution. I'm accompanied today by
13 Ms. Doris Brehmeier-Metz, Mr. Klaus Hoffman, and we are assisted by
14 Thomas Laugel. Thank you, Your Honours.
15 JUDGE ORIE: Thank you, Mr. Groome. For the Defence, Mr.
16 Stanisic Defence first.
17 MR. JORDASH: Good afternoon, Your Honour, myself Wayne Jordash
18 accompanied by Anne-Marie Verwiel and Amy Walsh.
19 JUDGE ORIE: Thank you, Mr. Jordash.
20 For the Simatovic Defence.
21 MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honours, I'm
22 Zoran Jovanovic representing the accused Franko Simatovic.
23 JUDGE ORIE: Thank you, Mr. Jovanovic. When we are talking about
24 appearances, I would like to explain also the situation we are in here
25 with two Judges, that means not just the Pre-Trial Judge, not the whole
1 of the Chamber. Judge Picard is on another case, and, of course, I could
2 have appeared here alone but I very much appreciate being -- having
3 Judge Lattanzi present as well. And although we are somewhere in between
4 Pre-Trial Judge and a Chamber, may I assume that the parties have no
5 difficulties, that a Chamber not provided for the rules, that is two
6 Judges, causes no problems at this moment to continue with this
7 Status Conference?
8 MR. GROOME: No objection from the Prosecution, Your Honours.
9 MR. JORDASH: Absolutely not, Your Honours.
10 MR. JOVANOVIC: [Interpretation] No objections, Your Honour.
11 JUDGE ORIE: Thank you for your cooperative attitude.
12 The first item on the agenda I would have to address is that the
13 absence of Mr. Stanisic. Let me start telling the parties what knowledge
14 is available to us at this very moment. We were informed that
15 Mr. Stanisic has claimed that he is too unwell to attend court or be
16 present in a videolink room. We were also informed that Mr. Stanisic is
17 unwilling to waive his right to be present in court.
18 We received this morning a letter by Dr. Eekhof stating that
19 Stanisic is not well enough to attend court, although the letter doesn't
20 say anything about the videolink. This is information we received partly
21 in writing, that is the form we received Dr. Eekhof's report in writing
23 The Chamber was informed by Mrs. Painter [phoen] that Dr. Falke
24 had told her, and that this could be revealed to you in court - we are
25 talking about yesterday - that it would not be inhumane for Mr. Stanisic
1 to be transported to the court to appear before this Chamber.
2 In the report of this morning sent to us by Dr. Eekhof, we read
3 as his conclusion that Mr. Stanisic cannot attend court on medical
4 grounds. This conclusion has raised some questions with the Chamber in
5 view of the content of the report. In the report, we find that
6 Mr. Stanisic has been -- has visited, yesterday, Dr. Cazemir, the
7 gastroenterologist, and that there were no new aspects as far as this
8 medical specialism concerned and that the medication was not changed.
9 We also received a report, in this report we read that
10 Mr. Stanisic underwent an MRI
11 herniation was seen and that a visit to a neurologist is planned for this
12 Thursday, and that Mr. Stanisic states that he cannot stand or walk for
13 more than a few moments. It further indicates that the psychological
14 situation has worsened, and as Dr. Eekhof writes:
15 "As the neurological evaluation has not yet been completed, I
16 cannot exclude a somatic reason for the problems with walking and
18 On the basis of this report, the Chamber wondered on what the
19 conclusion was based that on medical grounds Mr. Stanisic could not
20 attend court. Therefore, the Chamber sought clarification with Dr. Falke
21 in a telephone conversation which took place less than one hour ago; and
22 Dr. Falke, in response to a question put to him by me, as the
23 Pre-Trial Judge said that there are insufficient medical grounds to know
24 today whether Mr. Stanisic can attend court, which has some logic in view
25 of what was factually established by Dr. Eekhof who said that he cannot
1 exclude a somatic reason for the problems with walking and standing. At
2 the same time, much of the conclusions seem to be directly related to
3 the -- what Mr. Stanisic himself expressed.
4 Finally, I asked Dr. Falke whether he could exclude that the
5 accused is aggravating or exaggerating his complaints in view of the
6 present situation and Dr. Falke had said that he could not exclude for
7 that possibility.
8 The Chamber has asked itself whether we could proceed with this
9 Status Conference, which, of course, is not the trial itself but --
10 MR. JORDASH: Your Honour, I'm sorry to interrupt.
11 JUDGE ORIE: Yes, Mr. Jordash.
12 MR. JORDASH: I can, perhaps, assist. Lead counsel spoke to
13 Mr. Stanisic I think approximately one to two hours ago, and it was his
14 understanding that Mr. Stanisic was prepared to waive his presence for
15 this hearing. As Your Honour will appreciate in the previous
16 Status Conferences, that's been the situation and that remains as far as
17 we know the situation. I don't know whether what -- the confusion that's
18 arisen is that somebody at the detention centre took a form to
19 Mr. Stanisic who, not quite knowing whether he should put his name to it
20 or not, declined to, but then spoke to lead counsel, as I've said, and
21 indicated he would waive his presence today.
22 JUDGE ORIE: Yes, if this information would have been
23 communicated to the Trial Chamber earlier, then we could have started at
24 quarter past 2.00. Because on the form, the box is not crossed, which of
25 course caused the Chamber to pay attention to that situation, so this
1 would have -- certainly would have shortened our discussions.
2 MR. JORDASH: Apologies. But we hadn't seen the form, and we
3 weren't aware of that situation.
4 JUDGE ORIE: I'm just in this way emphasizing how important it is
5 that every possible new information, and apparently I understand from
6 your words that Mr. Knoops discussed with Mr. Stanisic that he did not
7 fill in because you said he didn't know what to do, so therefore I took
8 it that Mr. Knoops was informed. But let's not spend more time on it,
9 direct communication, shortest lines, with the legal officers would
10 certainly assist in the future.
11 MR. JORDASH: Certainly.
12 JUDGE ORIE: I do understand -- then under those circumstances, I
13 take it that also from you, Mr. Jovanovic, there's no, and Mr. Groome,
14 there's no reason not to proceed as scheduled.
15 We have received the parties' submissions on the modalities to
16 conduct this trial, and the Chamber will consider them, and we'll issue
17 an order soon.
18 Is there any matter as far as the modalities are concerned which
19 needs further attention at this moment, would you like to add anything
20 that we find already in your written submissions?
21 MR. GROOME: Not from the Prosecution, Your Honour.
22 MR. JORDASH: No, thank you.
23 JUDGE ORIE: Then I will --
24 MR. JOVANOVIC: [Interpretation] No, thank you, Your Honour.
25 JUDGE ORIE: Mr. Jovanovic.
1 The next item on the agenda, and it's just an information for the
2 parties, that the composition of the Chamber to hear the case, the cases
3 against Mr. Stanisic and Mr. Simatovic, is not yet final. The present
4 status is that the President of this Tribunal has requested appointment
5 of Judge Gwaunza to the Chamber effective the 18th of May, 2009, and we
6 are awaiting at this moment action on this request.
7 Anything in relation to this agenda item? If not I'll move on to
8 the next one which is the motion to delay the commencement of trial, a
9 motion that has been filed by the Stanisic Defence.
10 The present status is that we are waiting for the response of the
12 MR. GROOME: Your Honour, if I may assist in that regard, earlier
13 today we filed our response, and in essence, Your Honour, the Prosecution
14 is not taking the position, is deferring to the Trial Chamber on matters
15 of schedule.
16 JUDGE ORIE: Thank you. Of course we have to finally consider
17 the motion, and I think the Stanisic Defence asked for four weeks, we'll
18 give a decision on that. But I already informed the parties for many
19 other reasons that the Chamber will grant -- so apart from a final
20 decision on the motion, will grant a delay in the meantime already of two
21 weeks, which would move the Pre-Trial Conference to the 2nd of June. As
22 matters stand now, and again the Chamber has to deliberate on the motion
23 in its fullest form with the orders, but motion or no motion, already now
24 we have decided that we will move the Pre-Trial Conference as matters
25 stand now and not having read yet the written submission by the
1 Prosecution, until the 2nd of June. If that changes, you'll hear from us
2 as soon as possible.
3 MR. JORDASH: Thank you.
4 JUDGE ORIE: If we would have a Pre-Trial Conference on the
5 2nd of June, the opening statements and the first presentation of
6 evidence will be rescheduled as well because they have to be adapted to
7 the new situation. Any questions about or any observations about this
9 Then I move on to another matter which is that there may have
10 been some confusion and some questions about the Scheduling Order of the
11 24th of April, 2009, especially as far as the understanding is concerned
12 of the line in that Scheduling Order which reads:
13 "Witnesses heard or exhibits admitted at the initial commencement
14 of trial proceedings in this case shall not be considered as evidence
15 without presentation anew following recommencement of trial."
16 Let me first inquire with you whether you have any questions in
17 this respect and what these questions are.
18 Mr. Groome.
19 MR. GROOME: Your Honour, there is a question with respect to the
20 first witness. If it's acceptable with the Court, I'd ask Mr. Hoffman to
21 address that question to the Chamber.
22 JUDGE ORIE: Yes.
23 Mr. Hoffman.
24 MR. HOFFMAN: Yes, Your Honour. It relates to the first witness,
25 B299. On the day when he started his testimony, just prior to that the
1 then-Trial Chamber granted our motion under Rule 92 ter. I think the
2 Prosecution would appreciate any clarification to on the status of that
3 decision, whether that still stands or whether we have to resubmit the
4 92 ter motion on that witness.
5 JUDGE ORIE: That is a decision -- that's the only decision you
6 want to address or any other 92 bis or just this 92 ter?
7 That decision at least has to be taken again. Now, I can
8 imagine, and that's another very practical matter, how 92 ter statements
9 will be introduced, should that be done as is the practice in some
10 Trial Chambers by filing a motion to have 92 ter statements admitted, or,
11 which is the practice in some other Chambers, that an oral application is
12 made once the witness appears in court where it is secured that the other
13 party has received all the relevant statements which will be tendered so
14 that there's no confusion whatsoever about what the material is that
15 party intends to tender. But in this case, the decision at least was
16 made once the trial had started, so the decision has be taken again.
17 Now, whether you should make the same application again. Was it
18 in writing or was it an oral application? It was in writing before the
19 trial started?
20 MR. HOFFMAN: Yes, that's correct.
21 JUDGE ORIE: Now, I can imagine that you just file a brief, new
22 application, in which you refer to the old application and that you again
23 seek to tender that statement of that witness so there's no need to copy
24 it all -- all over again as long as it's clear and whether you attach or
25 whether you refer to something that has been filed before.
1 The filing was done before the start of the trial, so that is --
2 there's no need to refile it again, but you should invite the Chamber to
3 again give a decision on that filing and for that purpose that you
4 resubmit the application.
5 MR. HOFFMAN: We will certainly do that, Your Honour.
6 JUDGE ORIE: As far as the response of the Defence is concerned,
7 everything that has been done before the trial started is validly done;
8 but if of course there's a renewed application, it might be good that
9 either orally or in writing that we receive a confirmation from the
10 Defence that they still take the same position as they did at the time.
11 MR. JORDASH: Certainly. In relation to the wider question of
12 what happens to evidence which was adduced in the last trial, we had
13 understood from that remark in the recommencement decision that the
14 Prosecution would apply to have the previous evidence adduced and at that
15 point we would, if we had any objections, indicate the same.
16 So in relation to the wider question which Your Honours addressed
17 a moment ago, that would be our respective position.
18 JUDGE ORIE: Yes. Everything that has been decided also, before
19 the trial started, those decisions stand as pre-trial decisions, but
20 everything that happened in court which requires that a decision on the
21 pending matter is to be taken, that is -- has to be re-introduced not by
22 repeating everything, but just so that everything that happened after the
23 start of the trial is more or less annulled, that doesn't count, and
24 therefore has to be repeated. Or since the Chamber is not composed,
25 perhaps as it was at the time -- well, certainly as it was at the time
1 that, of course, the decision will then be the decision taken by the
2 Trial Chamber after the restart.
3 MR. JORDASH: Thank you.
4 JUDGE ORIE: Again, this does not affect any Rulings that have
5 been completed before the trial started. Yes. Any further questions in
6 relation to this matter?
7 If not, I move on to the next item, that is the issue whether the
8 medical reports of the 19th and the 23rd of March, 2009, and the
9 Chamber's order to change the status of the two reports of the
10 23rd of April, whether they should be made public.
11 I do understand that there is no party opposing making these
12 medical reports and the Chamber's orders public documents. Is that well
14 MR. GROOME: That's correct, Your Honour.
15 MR. JORDASH: Yes, Your Honour.
16 JUDGE ORIE: Yes, Mr. Jovanovic, you join Mr. Jordash as far as I
18 Then it is ordered that the medical reports of the 19th and the
19 23rd of March, 2009, and the Chamber's order to change the status of the
20 two reports of the 23rd of April, 2009, will be public documents.
21 The next matter on the agenda is Annex E to the Prosecution's
22 re-assessment motion of the 6th of April. Mr. Groome, if the Chamber is
23 well informed, the Prosecution is still awaiting consent of the providing
25 MR. GROOME: Your Honour, I believe we have that,
1 Ms. Brehmeier-Metz has been is more familiar with these recent
2 developments, Your Honour, I'd ask her to address the Chamber.
3 JUDGE ORIE: Ms. Brehmeier.
4 [Trial Chamber and legal officer confer]
5 JUDGE ORIE: I see that the consent has been filed, which also
6 lifts any -- takes away any reason to keep this Annex E confidential, and
7 since I hear of no objections to this conclusion, it means that the
8 Chamber hereby orders that the confidential status of Annex E to the
9 Prosecution's re-assessment motion of the 6th of April is lifted.
10 The next item I'd like to briefly raise is that the Chamber would
11 like to instruct the parties to request for leave to reply and request
12 for leave to exceed word limits in separate filings and not to proceed
13 until the Chamber has decided upon such requests. We want to avoid the
14 situation where, at the end of a filing which is usually only accepted
15 with leave, that we find at the end of the filing after you've read the
16 whole submission a request for leave to either exceed the word limit or a
17 leave to reply. That should be done in a separate filing, and the
18 Chamber will, of course, then decide as quickly as possible; it, of
19 course, also depends on the subject matter of such a request.
20 Any questions or any comments or submissions in relation to this
22 Then I move on to the consolidated witness list. The Chamber has
23 received the Prosecution's consolidated witness list and has nothing
24 further to add at this moment, unless the parties would raise any issue
25 about this? I hear of no comments or questions.
1 Then we will move on to the -- to the disclosure, agreed facts,
2 and adjudicated facts. Are there any outstanding disclosure issues at
3 this moment? The Chamber is not aware of any but would like to be
4 informed if there are any.
5 MR. GROOME: Your Honour, just a couple of translations of
6 exhibits rather minor matters that will be -- the translations will be
7 received later this week or early next week.
8 During the course of the trial I'm going to ask Mr. Hoffman to
9 keep abreast of all the current information regarding any disclosure
10 issues that arise, and he will be prepared at any time to address any
11 concerns by the Defence counsel and the Chamber with respect to the
12 disclosure and is prepared today to give a summary of the disclosure that
13 has occurred, if the Chamber wishes.
14 JUDGE ORIE: Well, if there are no problems, if the disclosure is
15 complete, and I do not hear from any Defence team yet that it's not, the
16 Chamber doesn't need to be -- to receive a full chronological overview of
17 what has happened.
18 MR. JORDASH: There are some issues.
19 JUDGE ORIE: Yes.
20 MR. JORDASH: But there are none which we need to concern
21 Your Honours with today. We will address the Prosecution. They ought to
22 be easily solved, and if they are not, we will return at the right
24 JUDGE ORIE: Yes. You have already taken the right approach,
25 Mr. Jordash, whatever you can resolve among yourselves is, of course,
1 appreciated. And once it causes difficulties, then, of course, the
2 Chamber will address any matter the parties are raising.
3 This about disclosure, I see no other comments. I take it that
4 especially if translations arrive late, that you will certainly
5 communicate with the Defence when you intend to use any of those
6 documents, if you want to use them, and then to inquiry with the Defence
7 teams whether this causes them any specific problems.
8 MR. JORDASH: May I raise the issue of translations, not
9 translations of the Prosecution documents, but Defence translations.
10 JUDGE ORIE: Yes.
11 MR. JORDASH: We submitted to the translation unit over 100
12 documents in June of 2008, and we received, understandably at that time,
13 an indication that our case was not a priority. We've received four
14 translations since that time, three which came yesterday, and one which
15 came in January. These are, we submit, critical documents for us. They
16 are largely reports concerning the DB, the intelligence service. And so
17 we would hope to have them as soon as possible, and we raise it now in
18 the hope that Your Honours could indicate that this case is now a
19 priority and that those translations should take place as soon as
21 JUDGE ORIE: It may be clear that since the Chamber decided that
22 the case will recommence, that the attitude or the approach might be
23 quite different. If there are any problems, again, also, if you could
24 try to resolve them with CLSS, that would be appreciated. If there's any
25 outstanding issue, the Chamber will be glad to assist to resolve problems
1 in relation to translations. The Chamber highly appreciates the work and
2 also the efforts made by CLSS to provide translations well in time, but
3 it's known to all of us that the workload is huge, and we'll certainly
4 find a way to resolve these matters.
5 And so the first person to be addressed would be Mr. Nilsson; he
6 would be the first one, he has close contacts with CLSS and we'll offer
7 his assistance in resolving the problems. But if finally that will not
8 work out, and that's not our experience that it doesn't work out, then,
9 of course, the Chamber will further look into the matter.
10 MR. JORDASH: Thank you.
11 JUDGE ORIE: Second, agreed facts. Any progress made there?
12 MS. BREHMEIER-METZ: We have, indeed, made a little progress
13 since our last Status Conference. I have since received a letter from
14 the Defence Mr. Stanisic conditionally agreeing on certain facts that the
15 Prosecution has proposed and on identities of victims.
16 Mr. Jovanovic has unfortunately not been able to agree to any of
17 my facts, but I understand that he is in the process of revising his
18 position with regard to the adjudicated facts. The Prosecution, of
19 course, remains available for any further discussions on this matter, and
20 I assume that in the near future we will have a meeting amongst the
21 parties to further discuss any progress that could be made.
22 JUDGE ORIE: Yes. It is -- I hope it is not a never-ending
23 story. Until now it seems that progress is at least very slow. I'm not
24 blaming any of the parties at this moment, we were not involved; but the
25 Chamber encourages the parties very much to make progress, and I'll
1 address this matter perhaps within the next five or ten minutes in
2 relation to another matter.
3 Next one is adjudicated facts. We have received the responses,
4 also by the Stanisic Defence, of the adjudicated facts. This raised at
5 least, Mr. Jordash, one question in relation to -- in relation to at
6 least some positions taken by the Stanisic Defence. I do understand that
7 in respect of some of the adjudicated facts, the Defence takes the
8 position that the Prosecution is misrepresenting these facts in its
10 Now, we see a motion, we see your response. And the first thing
11 that comes on to my mind is that if there's a misrepresentation, that
12 apart from responding to the Chamber that there is, that you immediately
13 approach Ms. Brehmeier and say it misrepresents this and this respect,
14 it's not complete, would you mind to add two or three words or five words
15 so as to make us agreeable to not further opposing these adjudicated
16 facts. Has this been done?
17 MR. JORDASH: Well, we'll hoped that our response was detailed
18 enough to indicate to the Prosecution what our objections were and how
19 they could be reformulated. I think the ones we objected to we certainly
20 tried to do that.
21 JUDGE ORIE: Ms. Brehmeier, do you see -- has it triggered any
22 review of the way in which you formulated them? Of course, if an
23 adjudicated fact does not present the totality of the event or whatever
24 is described in the adjudicated facts, of course that, in itself, if it's
25 not complete, that means that only part of that fact, the part presented
1 by Ms. Brehmeier, can be taken judicial notice of. Ms. Brehmeier, of
2 course, is not expected to include portions you would consider relevant.
3 I could imagine the accused say, Well, then we'll file a motion for
4 adjudicated facts in which we complete those facts exactly or reformulate
5 them in such a way that we can move on, rather than to say, This is what
6 you say, we are opposing for this and this reasons. An active
7 contribution to finding a solution is -- would be highly appreciated.
8 And in this respect, as I announced earlier, I would like to draw
9 your attention to a set of adjudicated facts that you also opposed now,
10 however, for other reasons, it being that these were facts that were
11 established on the basis of an agreement between the parties, rather than
12 having been litigated in full.
13 Let me just try to find a few of them. For example, you raise
14 this issue in relation to 1, 3, 4, 5, 7, 10, 12, 13, 14, 15, well, quite
15 a number, where you say, We appose because they do not meet the
16 requirements. That is, that they are litigated rather than the result of
17 an agreement between the parties.
18 You are right, formally. Now, let's take number 1, just for an
20 "In April and May, 1990, multi-party elections were held in the
21 Socialist Republic
22 41.5 per cent of the votes and two-thirds of the seats in parliament. On
23 the 30th of May, 1990
24 president of the presidency of the Socialist Federal Republic
1 Now, just based on the assumption, I didn't check it at this
2 moment, but just based on the assumption that this was a fact which was
3 agreed upon by the parties and in that sense adjudicated and not as a
4 result of full litigation, what is it that is challenged by the
5 Stanisic Defence about this fact number 1, apart from the formal reason
6 that it may have been the result of agreement rather than -- could you
7 explain to us what's the basis for your opposition, your objection
8 against, apart from the formal point of view?
9 Is it that it was not in April and May 1990 that the multi-party
10 elections were held, or do you challenge the outcome of that election, or
11 that the HDZ did not get two-thirds of the seats in parliament, or that
12 Mr. Franjo Tudjman was not elected on the 30th of May, 1990 as president
13 of the presidency of the Socialist Republic of Croatia? What is it?
14 MR. JORDASH: It's -- Your Honours identified precisely, I
15 suppose, the issue, which is, it was a formal objection. I won't pretend
16 otherwise. It was a formal objection.
17 JUDGE ORIE: What is your position in relation to this, I mean
18 now on the substance?
19 MR. JORDASH: I cannot foresee that we'll object to that or be
20 disputing it.
21 JUDGE ORIE: Yes. Which means that instead of taking your time
22 to write down a formal objection against it, it would be one phone call
23 to Ms. Brehmeier to tell her that on the substance you do not agree. So
24 therefore we have a clear fact which can be agreed upon and that you
25 don't have to spend time on writing formal objections.
1 I could give you a few other examples:
2 "On the 29th of May, 1991 the SAO-Krajina government was
3 established with Milan Babic as President Milan Babic appointed
4 Milan Martic as minister of defence. On the 27th of June, 1991
5 Milan Martic was appointed minister of interior."
6 Of course if there's any problem with that, then rather not -- if
7 that is an agreed fact in another case, it seems to be a fact which will
8 be well documented and therefore relatively easy to agree upon, or to
9 identify where the problem is, inform Ms. Brehmeier about what the
10 problem in relation to this one is, and then I take it you'll reconsider
11 or you'll start preparing your evidence to be presented to challenge this
12 adjudicated fact. What I do not understand is that we get a formal
13 response without any sign of any effort to be made to move forwards.
14 MR. JORDASH: Your Honour, it's not that no effort was made. It
15 was that we were waiting to see if Your Honours would rule on the issue
16 of certifying the appeal. Your Honours will be aware that we applied to
17 have Your Honour certify an appeal in relation to our having to deal with
18 the overall issue of adjudicated facts. And we perhaps have left it too
19 late to then consider as deeply as we would like to have done the actual
20 facts themselves.
21 Our position is, as you know from the application for leave, is
22 that we are not in a position to do them. I'm not going to revisit that,
23 Your Honours have ruled, and we wait for Your Honours to rule on the
24 certification. But that's an explanation as to the situation we were in.
25 JUDGE ORIE: Yes, which still would not prevent you from
1 addressing Ms. Brehmeier and to tell her we will maintain our formal
2 position up until the moment that the Trial Chamber has decided whether
3 or not to grant the request for a certificate to appeal, but in the
4 meantime, not stop everything. It may be clear from these two examples
5 that what the Chamber expects the parties to do is to move forward.
6 MR. JORDASH: Your Honour, it's --
7 JUDGE ORIE: Rather than to take every stop in order to take a
8 rest. I'm not -- don't -- I'm not trying to be nasty to you, but I'm
9 trying to be very clear to what the Chamber expects the parties to do.
10 That is, move on, keep moving rather than formally opposing and then sit
11 back and see what next happens. That's what the Chamber expects the
12 parties to do.
13 You are not inviting me to go through the other examples because
14 there are many. I think these two examples would certainly clarify our
16 MR. JORDASH: The point is well made, if I may say so, and very
17 clearly understood.
18 JUDGE ORIE: Yes, so the message was received by all parties, I
19 take it. The Chamber would like to come, as soon as possible, to the
20 core of the case rather than to lose itself in all kind of marginal
22 As a Presiding Judge, I have developed in the past a system which
23 I would not propose to you as the preferred system by myself, that is, to
24 meet with the parties at 7.00 in the morning to further hear about any
25 progress made in certain respects. It's my experience that after one or
1 two 7.00-in-the-morning meetings, that more progress is made which has,
2 as a result, that not many 7.00-in-the-morning meetings need to be held.
3 I don't know how much you like your early-morning hours, I do
4 like them, but I'm glad to give them up now and then if need be. I hope
5 that this message is received as well.
6 One specific disclosure issue in relation to Rule 94 bis; is
7 there any outstanding disclosure issue in relation specifically to
8 Rule 94 bis?
9 MR. GROOME: Your Honour, there is with respect to Mr. Masovic,
10 if I could ask Mr. Hoffman to inform you about that disclosure issue.
11 JUDGE ORIE: Yes, Mr. Hoffman.
12 MR. HOFFMAN: Very briefly, Your Honour, it's related to the
13 expert witness Amor Masovic. He has submitted a report, but he is
14 currently working on updating the figures and some of the details in
15 annex related to the victims of the charged crimes. I've spoken to him
16 lately, recently, and he promised to have that updated report ready by
17 the end of this month.
18 JUDGE ORIE: And do you have yet any idea when you want to
19 present this report, in the early stages of the proceedings or ...
20 MR. HOFFMAN: At the moment we intend to present that evidence at
21 a later stage, so it shouldn't be of any prejudice to the Defence.
22 JUDGE ORIE: Now, you told us that it was updating figures and
23 some details. Has the original report -- with a clear understanding that
24 this gives not the final figures and that updates have to be done, could
25 it be made already available to the Defence, or is it already available
1 to the Defence?
2 MR. HOFFMAN: I'm not quite sure if I understand you correctly,
3 but the initial report of Mr. Masovic --
4 JUDGE ORIE: Was already filed.
5 MR. HOFFMAN: -- was filed, has been disclosed --
6 JUDGE ORIE: Yes.
7 MR. HOFFMAN: -- in the original in translation, it's just a
8 matter of him getting more information about the exhumation, the -- some
9 of the identities and --
10 JUDGE ORIE: Yes.
11 MR. HOFFMAN: -- things like that.
12 JUDGE ORIE: So you are just giving notice that this is not the
13 final version of the report that was filed.
14 MR. HOFFMAN: Exactly.
15 JUDGE ORIE: Any questions or submissions in relation to any
16 expert reports, apart from this one?
17 If there's nothing there, then I have my last item, as far as I'm
18 concerned, on the agenda before briefly addressing the detention
19 situation and the health of the accused, that is, the technicalities for
20 trial. As I said earlier, the practice in this Tribunal, especially in
21 relation to 92 ter motions, is not the same in every Chamber. I would
22 invite the parties to see whether they prefer to receive and - of course,
23 later for the Defence - file, 92 ter statements in formal motions, or
24 just to disclose all the material which will be tendered under
25 Rule 92 ter sometime in advance, three weeks, two weeks, whatever the
1 parties would agree upon so as to enable them to properly prepare for
3 The Chamber is - especially since we are not yet in our final
4 composition at this moment - is rather neutral on the matter and invites
5 the parties to further discuss the matter whether 92 ter statements
6 should be filed formally in advance of being tendered in court, or
7 whether it's timely disclosure of the final versions; and, of course,
8 proofing notes may change matters at a last moment. If the parties would
9 prefer a system in which disclosure well in advance of tendering the 92
10 ter statement at trial, then of course the Chamber would like to receive
11 copies of those statements at that same moment.
12 If 92 ter statements are introduced through a formal motion, then
13 of course the Chamber will have received it as an attachment, as an annex
14 to those motions, or rather, these statements. I do not know whether you
15 have any thoughts already developed on the matter or whether you would
16 like to discuss it and then inform the Chamber what the preferred course
17 of action is.
18 MR. GROOME: Your Honour, the Prosecution has already made a
19 number of 92 ter filings. Would it assist the Chamber if we were to
20 discuss whether there might be agreement between the Prosecution and the
21 respective Defence teams and save the Chamber from having to draft
22 decisions where there is agreement?
23 JUDGE ORIE: If there's agreement, certainly sometimes, of
24 course, decisions on -- finally decisions on admission of
25 92 ter statements, of course, depend on the evidence the witness gives in
1 court, so, therefore, these will then be often oral decisions anyhow.
2 But we see that there is difference in practice, for example, in
3 the Perisic case, motions are usually not filed, and there is a Perisic
4 guide-lines on admissibility of evidence and conducts of counsel. If you
5 would consult that and see to what extent you would agree with this
6 practice, and then inform the Chamber, that would be appreciated.
7 Another such matter is when exactly the Prosecution gives advance
8 notice to the Defence on how witnesses are scheduled to appear and what
9 exhibits will be used. For example, two weeks in advance might be a good
10 thing to do. At the same time, of course, we have to gain experience in
11 how this trial will proceed to see to what extent time-limits are to be
12 applied as usual or whether we have a different approach.
13 The parties are invited to communicate on this matter and see to
14 what extent they can agree on a practice then to be reported to the
15 Chamber so the Chamber can consider whether it agrees with this practice,
16 but, of course, the Chamber is very much inclined to rely on any matter
17 on which the parties agree, unless the Chamber considers it's not an
18 appropriate way to proceed.
19 These were the, if I could say so, rather technical matters on
20 our agenda. I would like to be informed, Mr. Simatovic, either by
21 yourself or through counsel, whether the detention situation or your
22 health triggers any need to inform the Chamber. And about health issues,
23 if there's anything, if you'd like to deal with it in private session,
24 please indicates so.
25 I must admit that I've forgotten, Mr. Simatovic, to ask you at
1 the beginning of this hearing, my apologies for that, whether you could
2 hear me in a language you understand; but from your body language, I
3 understood that you are receiving translation. If you could please
4 confirm that you were able to follow the proceedings.
5 THE ACCUSED SIMATOVIC: [Interpretation] Your Honours, I can
6 follow the proceedings, everything is fine with me as far as health is
7 concerned, and everything is fine in detention.
8 JUDGE ORIE: Thank you for that information.
9 At the beginning of this hearing we spoke already about the
10 health issues which are not dealt with in private session because they
11 have gained some public interest as it was expressed by Judge Robinson at
12 the time. At the same time, I don't think that we have to keep it short;
13 we have the four main issues being pouchitis, stomach problems,
14 psychological/psychiatric issues, depression, I would say, and the fourth
15 now the herniatic disc issue.
16 I think a lot of information has been exchanged. Chamber thinks
17 that it's informed about it. If there's any doubt about that,
18 Mr. Jordash, you are invited to address the Chamber.
19 MR. JORDASH: At this stage, I have nothing to add. Thank you,
20 Your Honour.
21 JUDGE ORIE: Thank you.
22 Then my -- and the same of course is true for detention issues.
23 MR. JORDASH: The same, yes, Your Honour.
24 JUDGE ORIE: Yes. I think the parties were informed that as far
25 as the modalities of trial are concerned, that I visited the UNDU
1 yesterday in order to see how the arrangements for video conference
2 attending of court sessions was organised and what it was so that if, at
3 a later stage, we look at our screens so that I would at least know what
4 I'm looking at. Parties are informed about that.
5 Is there any other matter to be raised by the parties at this
6 moment. Ms. Brehmeier or Mr. Groome?
7 MR. GROOME: Not from the Prosecution, Your Honour.
8 JUDGE ORIE: Mr. Jordash?
9 MR. JORDASH: No, thank you.
10 JUDGE ORIE: Mr. Jovanovic?
11 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. I would
12 like very briefly to go back to one topic, and that's -- concerns the
13 trial. I don't want to burden the Trial Chamber with the problems we are
14 facing due to the delay and postponement of this trial; I would like,
15 however, to know whether the Pre-Trial Conference has now been postponed
16 for at least two weeks with a possibility of further extension.
17 We are in contact with the Registry, and I would like to remind
18 you of the fact that the previous time, when the conference was postponed
19 due to the poor health of Mr. Stanisic, the Simatovic Defence filed a
20 motion for provisional release that was granted. Of course, the Defence
21 would not repeat this motion if the postponement was short, but you know
22 that every day unnecessarily spent in detention is too long. Of course,
23 I'm not asking the Chamber to make this decision earlier than they had
25 JUDGE ORIE: I see, Mr. Jovanovic, what problems it causes the
1 Simatovic Defence, you Mr. Simatovic. As matters stand now, the
2 Stanisic Defence has requested a delay of four weeks. As I said before,
3 a final decision has not been taken yet; but for a variety of reasons,
4 the Chamber has decided at this moment to delay the Pre-Trial Conference
5 until the 2nd of June, that is two weeks, rather than four weeks from the
6 original scheduling.
7 I see your point, two weeks is a -- if I say, short period of
8 time, I must say a relatively short period of time because it's still 14
9 days and to spend 14 days in pre-trial detention is not just to be called
10 short. If, however, further and longer delays come within the -- within
11 our horizon, then, of course, the Chamber will address any matter in
12 relation to pre-trial detention you would raise under those
14 The -- two weeks at this moment has not triggered the Chamber to
15 proprio motu consider any reinstatement of the provisional release as it
16 was -- as your client was in previously.
17 I think there's no misunderstanding you are just mainly drawing
18 our attention to the possible consequences of further delays for
19 pre-trial detention and possibilities of provisional release.
20 Any other matter? If not, then this concludes the
21 Status Conference. We therefore adjourn until the 2nd of June. But the
22 various health issues that are still pending, of course, may, I'm saying
23 may, not will, may cause further meetings. Whether that would be a
24 formal Status Conference or a 65 ter meeting is still to be seen, but as
25 matters stand now, we stand adjourned to the 2nd of June; time is still
1 to be determined.
2 --- Whereupon the Status Conference adjourned at
3 3.35 p.m., to be reconvened on the 2nd day of
4 June, 2009.