Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 30 July 2008

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 4.02 p.m.

 6             JUDGE PROST:  Good afternoon, Madam Registrar, could you call the

 7     case, please.

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

 9     everyone in and around the courtroom.  This is case number IT-05-88/2-PT,

10     the Prosecutor versus Zdravko Tolimir et al.  Thank you.

11             JUDGE PROST:  Thank you, ma'am.

12             Good afternoon to everyone.

13             Mr. Tolimir, as per usual, if -- I just want to confirm that

14     you're receiving -- oh, we seem to have a problem.

15             Can we check on the interpretation, please.  Okay.

16             Now, if you have any difficulties during the course of the

17     proceedings, please just let me know and we'll deal with it.

18             Noting the appearances, Mr. Tolimir of course self-represented,

19     but I note that Mr. Gajic is present in the courtroom, one of his legal

20     advisors.  Good afternoon to you, sir.

21             And for the Prosecution, I see Mr. McCloskey and Mr. Nicholls

22     this afternoon.  Good afternoon, gentlemen.

23             This is the fifth Status Conference in the matter, and I think

24     we're all well familiar with the reasons for a Status Conference at this

25     point, for organization, to ensure trial preparation, and reviewing the

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 1     status of the case.

 2             I have a few issues to deal with this afternoon on my agenda, and

 3     then I will hear from both parties if they have any additional matters

 4     that they wish to cover this afternoon.

 5             I want to start by concluding on the matter that was discussed at

 6     the last Status Conference, which relates to the filing of documents.  I

 7     want to make the status of that matter very clear on the record.  After

 8     the last conference, Mr. Gajic exceptionally, with the authorisation of

 9     the Chamber, filed a document indicating that the legal advisors for

10     Mr. Tolimir would receive all documents served in this case by the

11     Registry or by the Prosecution.  This was subsequently confirmed by

12     Mr. Tolimir in a written filing.  I am further advised that this process

13     has been used successfully to serve documents.  So I am confirming on the

14     record that for the time being, unless ordered otherwise, this will be

15     the process to be followed in this case for the service of documents and

16     such service on the legal advisors by the Prosecution, by the Registry

17     will constitute proper service on Mr. Tolimir for the purposes of this

18     case and in accordance with the Rules.

19             Now, on a related issue, I have the submission of the Prosecution

20     of the 25th of July and I have as well your response, Mr. Tolimir, which

21     was filed on the 29th of July.  Let me just say this about both filings.

22     I don't intend to hear further from either of you this afternoon on that

23     particular issue.  For the moment - and I stress that - for the moment

24     the topic of language is closed and we won't deal with the issue today.

25     However, should we encounter problems, should further issues arise as we

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 1     proceed along, both in the pre-trial phase and obviously later, we will

 2     and can re-visit the issue.  But for today, in order to try and move

 3     matters along, we're going to deal with other subjects for today's

 4     Status Conference.

 5             Now, there is a third somewhat related albeit distinct point.

 6             Mr. Tolimir, I need to clarify something with you on this issue.

 7     While it is acceptable and the Trial Chamber has accepted for you to

 8     designate your legal advisors to accept material that is being served

 9     upon you, the same is not true when it comes to representations orally or

10     to your own filings.  You have elected, as you know, to represent

11     yourself, and what that means, as I've explained to you previously, is

12     that the responsibility for oral submissions, filing of written materials

13     rests entirely with you.  As a result, absent an exceptional circumstance

14     such as we had, and specific authorisation of the Chamber, you must

15     personally make all the filings and representations.  How you arrange

16     that with your legal advisors is your matter, but this is the very nature

17     of self representation.  Your legal advisors have no right of audience

18     nor will their filings be accepted.  In essence, by electing self

19     representation, it's not possible for you to have it both ways.  So by

20     that election, it is you who is responsible for all the filings.

21             Is that clear, Mr. Tolimir?  Do you have any questions on that

22     point?

23             THE ACCUSED: [Interpretation] God help you all who are present.

24     I wish that this case before this Tribunal be ended with God's will and

25     that everything be done with God's will and design.  I don't know why

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 1     this issue is being raised because my legal advisors have not filed

 2     anything without my permission and I don't think they will be doing so in

 3     the future.  They have no such ambition to take upon themselves what is

 4     not within their competence.  My greetings to you all.  Thank you.

 5             JUDGE PROST:  Thank you, Mr. Tolimir.  That's fine.  I just

 6     wanted to make sure, because we did have actually a matter that I'm going

 7     to move to now.  We did have an issue regarding a previous attempted

 8     filing by your legal advisors, which is what has prompted me to raise the

 9     issue today.  And perhaps I can just deal with that matter since it's

10     relevant to this point.

11             On the 26th of June your legal advisors attempted to file an

12     appeal against the Registrar's decision of June 3rd relating to financial

13     matters.  Now, having now clarified the process for you, that filing at

14     the time was refused, properly, by the Registry because it was coming

15     from your legal advisors, and that is in accordance with the process I

16     just outlined.  In relation to that specific filing, Mr. Tolimir, which

17     is still not before the Tribunal, albeit I know you made representations

18     upon -- in relation to it.  But on this occasion and only this occasion,

19     exceptionally, I am going to authorise the acceptance of that particular

20     filing and I'm going to ask that it be considered to have been filed as

21     of the 26th of June.  And I would instruct the Registry to file that

22     appeal with that date accordingly.

23             But I do stress again that that's exceptional and all future

24     filings must come from you personally.

25             I just mentioned, and I'm certainly not going to re-open the

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 1     issue today, but I just mention, Mr. Tolimir, that should you reach a

 2     point where you feel you would prefer to have the filings of your legal

 3     advisors directly permissible, then your option is simply to alter your

 4     election regarding representation, and you are certainly free to do that

 5     at any time in these proceedings.  You simply have to notify that.  But

 6     again, we're not going to re-visit that issue today.  I just wanted to

 7     clarify the process.

 8             Okay.  The next matter I wanted to address, earlier this week the

 9     Chamber, as all of you will be aware, issued a decision dismissing

10     Mr. Tolimir's June 20th submission relating to contempt and while that

11     submission is finished and that issue is finished, it does not totally

12     end the subject matter.  The issue to which that submission related or

13     the underlying issue was the circumstances surrounding your arrest,

14     Mr. Tolimir.  And I note again, as you're aware, the Chamber's already

15     decided the jurisdictional challenge based on the circumstances of your

16     arrest in its decision on preliminary motions on the 14th of December,

17     and there's nothing before us at this time to justify any

18     re-consideration of that.

19             But notwithstanding this, Mr. Tolimir, the Chamber does

20     acknowledge that that is always a serious issue, and if there were

21     evidence which in some way altered the factual basis on which the issue

22     was decided, that should be before us.

23             And to that end, Mr. McCloskey, I know that at the time of the

24     initial appearances you made a request, the Office of the Prosecutor made

25     a request, to Serbia for a report on the circumstances of the arrest, a

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 1     request which was never responded to.  And I seem to recall that you also

 2     made -- renewed the request or made reminders of it.  But it's still, I

 3     take it, not been responded to.  Would that be correct?

 4             MR. McCLOSKEY:  Yes, Madam President.  Those sorts of things go

 5     on a schedule and they get re-reminded and re-reminded, and I am not

 6     aware that we've ever received anything, but it's something that I will

 7     again look into because you always have to look to see what the latest

 8     may be around here.  So I will look again and see, and of course we'll --

 9     that request will continue to be there and we'll see if the winds change.

10             JUDGE PROST:  Thank you for that, Mr. McCloskey.  Yes, in fact, I

11     would appreciate it if you could check on the matter and renew -- if

12     there's some way of placing a renewed with emphasis, that the

13     Trial Chamber is interested -- Pre-Trial Chamber is interested in

14     receiving this information, and if you can perhaps report back as to any

15     developments on that at the next Status Conference that would be

16     appreciated.

17             I had nothing further on that particular issue.

18             We come then to disclosure -- oh, Mr. Tolimir, go ahead.

19             THE ACCUSED: [Interpretation] Thank you for accepting that my

20     legal advisors filed the appeal to the decision of the Registry because I

21     had authorised them in that case.  I was not able to write myself because

22     I had not received that decision.  I am not able to comment on something

23     I haven't read.  And as for the issue you raised now, I believe that this

24     issue should go into procedure in keeping with my submission because new

25     circumstances have been presented in my submission.  I can speak about

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 1     them, those new circumstances are the book of Carla del Ponte, who says

 2     that I was interested in Belgrade.  She was Chief Prosecutor at the time

 3     of my arrest, so please read the book and look into the circumstances.

 4     How can Serbia provide all the materials about me and cannot submit this

 5     one?  It's not only about the arrest but also the documents that were

 6     found in my apartment during my arrest in Belgrade and that are relevant

 7     to this trial.

 8             If you allow me, I can elaborate further but I have written all

 9     of that in my submission.  So please take it into account and let the

10     procedure run for the sake of the fairness of this trial.  Thank you.

11             JUDGE PROST:  Thank you, Mr. Tolimir.  No, I'm well familiar with

12     the submissions that you have made and that the points which you have

13     raised in them, including the reference to Madam del Ponte's book, but

14     for the moment -- and so there's no need to re-elaborate.  The

15     Trial Chamber is well aware of your concerns and the points you've made

16     on this, and that's the reason I'm asking at this time for a renewed

17     emphasis on the request that's been made to Serbia.  So we'll leave that

18     as it is for the moment, and we'll see by the time the next

19     Status Conference where matters stand on the particular issue.  Okay.

20             Now, if we can move to the question of disclosure.

21     Mr. McCloskey, it's been a bit of time since March I think since we've

22     actually talked about it for obvious reasons, but perhaps you could

23     provide a bit of an update of where you stand in terms of disclosure

24     under Rule 66(A)(ii).

25             MR. McCLOSKEY:  Yes, we've provided all the -- all the

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 1     requirements of 66(A)(ii) as far as I know, all the -- basically the

 2     witness statements, the list of witnesses, and that's been done, both

 3     through the EDS and through actual physical material that has now been,

 4     as you know, accepted.  So that is well on course and has worked.

 5             The next chapter in that, I just spoke to Mr. Gajic about, and

 6     that would be our providing a very detailed list of all the relevant

 7     materials in this case, which is basically the list from the Popovic et

 8     al. case which Ms. Stewart keeps as an internal document.  And I know

 9     she, since the last time we were here on my request, has been turning

10     that from an internal document to a document that can be turned over to

11     the accused because it has the ERN numbers and all the material in a very

12     organized, indexed fashion that will allow the Defence team and the

13     accused to go right to the document in the EDS.  And that's the key item

14     that we hope to get out in a few weeks.  Ms. Stewart is on holiday at the

15     moment, so I -- but I know she's working hard on that.

16             And as we get to know each other better with the accused and the

17     Defence, as they have questions, if they have concerns, if they have

18     particular requests for material like any Defence team would, we are of

19     course open to do that.  But this disclosure list is really -- there's

20     not much more complete thing than this disclosure list.  The large

21     collections of Drina Corps documents and intercepts and all that material

22     is on the EDS and available now and has been available, but the actual

23     ones that were used in court, the ones that we have in our various

24     collections and documents that we've used as exhibits in court, are all

25     laid out on that list.  And in addition to that we periodically go back

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 1     and get DVDs of the ongoing trial, because as you imagine that trial is

 2     full of information which -- well, could be exculpatory because things

 3     will be different from other things, and it's something that I want the

 4     accused to be able to have, whether it's Rule 68 or not.  And so we do

 5     try to provide that on an ongoing basis and we have from -- for example,

 6     they have the other two trials all on DVD and I don't remember precisely

 7     how much we've given them on this trial.  But I know that the process is

 8     in place to get it all copied.  And so that is something else that will

 9     be an ongoing process, and that of course is getting more complicated as

10     more Srebrenica cases come to play.  But that's another thing we are

11     doing.

12             JUDGE PROST:  Thank you very much for that, Mr. McCloskey.  Yes,

13     certainly I would agree that that continuing disclosure of material which

14     I can factor into our planning here, keeping that on an ongoing basis is

15     good news.  And I can tell from the submissions you just made that the

16     Rule 68, I don't need to remind you of your Rule 68 obligations, you seem

17     quite cognizant of them.

18             So that deals with the disclosure issue from your side.

19             Mr. Tolimir, do you have any particular issues that you want to

20     raise on the question of disclosure, as the Prosecution has just

21     indicated their view that the Rule 66(A)(ii) disclosure process is

22     complete, subject of course to ongoing material arising from the current

23     trial and Rule 68 material which is exculpatory material?  Do you have

24     anything you wish to raise at this stage on that issue?

25             THE ACCUSED: [Interpretation] Thank you very much.  I would like

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 1     to thank the Prosecutor for his efficient assistance and I would like to

 2     ask him to provide that efficient assistance to my legal advisors and to

 3     disclose material in hard copies as he does to other accused.  Since I am

 4     self represented, it would not be fair to them to have to translate all

 5     these papers as if they were lawyers.

 6             I would also like to ask you to talk to the Detention Unit and

 7     see if I can have a cell where I could keep this material and work on it.

 8     On my floor there are over 30 cells that are free, and I have requested

 9     this back at my third Status Conference and it's still not resolved.  I

10     don't know whether it's up to the Court or the Registry or the Detention

11     Unit.  I just don't know.  It's not my business, so to speak.  I would

12     like you to look into the problem.  Thank you.

13             JUDGE PROST:  I'll take your second point first, Mr. Tolimir.  I

14     will ask the Registrar to perhaps provide me with an update of their

15     perspective on the issue that you've raised about accommodating in terms

16     of material and working space.  That is primarily and almost exclusively

17     a matter for the UNDU and for the Registrar, but if perhaps we can work

18     something out, I'll certainly take a look at what the Registrar has to

19     say on that particular issue.  But as I say, that is really a matter that

20     I would encourage you with your advisors to discuss with the officials at

21     the UNDU.

22             Before I say anything on the first issue, which I take to be a

23     request for hard copies, Mr. McCloskey, do you have any comments on that

24     particular issue?

25             MR. McCLOSKEY:  Yes, Madam President.  As you can imagine, the

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 1     materials I just described, basically the materials from the Popovic

 2     case, would be hundreds of thousands of pages.  And it would not be my

 3     intention to provide hundreds and hundreds of thousands of pages in hard

 4     copy.  That would bury the accused, his counsel, the unit, and would be

 5     unworkable.  However, we're always open to specific designated requests,

 6     practical requests where something is wanted in the hard copy, and those

 7     we'll always have consider and have in the past and will be able to

 8     provide some limited, you know, hard copy material, though they also have

 9     the ability and a budget to print out material themselves and it's all on

10     the electronic disclosure.  And like other people that have electronic

11     disclosure, they need to be like those other people and print out

12     material they need.  That's part of what their -- the budget goes for.

13             But as I say, if there's specific reasons -- specific material

14     that we can help with, it shouldn't be a problem.  A large request for

15     everything with -- is something that would require the judicial

16     intervention.

17             JUDGE PROST:  Thank you, Mr. McCloskey.

18             Mr. Tolimir, what I'm going to suggest we do, having heard both

19     you and the Prosecution on this, and I think that there is much room for

20     a coming to a reasonable compromise on the issue, what I will suggest is

21     that you have a discussion with your legal advisors and, Mr. McCloskey,

22     if the Prosecution could have a discussion as well with Mr. Tolimir with

23     the advisors to try and identify perhaps a practical way forward on this

24     issue that would not involve necessarily disclosing all of the material

25     in hard copy, but as you suggested perhaps identifying certain areas for

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 1     that and we will take the issue up again at the next Status Conference.

 2             Mr. McCloskey.

 3             MR. McCLOSKEY:  Yes, Madam President, absolutely we'll do that.

 4     But if at this time I could just ask the General if he's now willing --

 5     would be willing to meet with me or my staff on these issues of

 6     disclosure.

 7             JUDGE PROST:  All right.  Well, we'll deal with that issue.

 8             Mr. Tolimir, are you prepared to meet to discuss these kinds of

 9     procedural issues as a self-represented accused with the Prosecution?

10     Obviously you can have your legal advisors with you, but I think it would

11     be helpful since you're self represented and in the lead on all these

12     procedural matters if you were willing to discuss that directly with the

13     Prosecution to avoid miscommunications.

14             THE ACCUSED: [Interpretation] Thank you very much for this.  I

15     believe that my legal advisor, Aleksandar Gajic, is able to discuss this

16     because he is also aware and familiar with all the technical problems

17     encountered here.  I'm talking about the material that needs to be

18     translated.  I said it wouldn't be good for my advisors to have to

19     translate material.  I did not mean asking for material that would create

20     additional costs for the Registry or the OTP.  On the contrary, I believe

21     that all the material that doesn't need to be printed or made public

22     shouldn't be, and it would save time for my legal advisors as well to use

23     in electronic form whatever they're able to.  They have only one week at

24     a time.  I hereby authorise publicly my legal advisor to do that.  If

25     necessary, I can put it in writing.

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 1             JUDGE PROST:  No, that's fine.  Thank you, Mr. Tolimir.  That's

 2     fine.

 3             What I would suggest then for the moment is if the Prosecution

 4     could meet with the legal advisors for the moment and discuss that

 5     procedural issue, and we'll see if we cannot resolve it.  It sounds very

 6     much like it is something that can be solved without any need for

 7     judicial intervention.  So I will leave it to you to handle it in that

 8     manner for the moment.

 9             All right.  Then there is -- I just want to acknowledge,

10     Mr. Tolimir, I know that there is a pending filing from you which I'm not

11     going to deal with and we're not going to deal with today because there's

12     no translation of it.  The OTP will not have received it and I haven't

13     seen it other than I've been made aware that it's there.  So that matter

14     will obviously be received and looked at in due course, but we're not

15     going to deal with it at all today.

16             Now, just before I ask if there are any issues from the parties,

17     I wanted to give fair warning, if you will, to both parties that at the

18     next Status Conference, as we need to move this matter along, we will be

19     discussing very particular matters related to trial preparation, in light

20     particularly of Rules 65 ter (D), (E), and (F).  So that will include

21     matters such as a work-plan, the setting of time-limits for relevant

22     filings, and I expect both parties to come prepared next time to discuss

23     this in really concrete terms so we can set some dead-lines and advance

24     the matter.

25             In the interim, to the extent necessary and possible, the Senior

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 1     Legal Officer, Mr. Cubbon, will liaise with the parties on these matters

 2     and report back to me prior to the Status Conference.  So I just wanted

 3     to be clear that we're going to be moving forward on those Rule

 4     requirements, and if there are issues that you wish to discuss certainly

 5     you can raise them with Mr. Cubbon during the course of the interim

 6     period.

 7             Does any -- do either of the parties have any comment on that

 8     particular point?

 9             MR. McCLOSKEY:  No, Madam President.

10             JUDGE PROST:  Thank you, Mr. McCloskey.

11             Mr. Tolimir?

12             THE ACCUSED: [Interpretation] Thank you.  I would kindly ask you

13     to take into account my filing according to Rule 72.  My first filing was

14     done when I was still not familiar with the procedure and I announced my

15     intention to re-file it again.  It was a month ago and we have, indeed,

16     re-filed our submission.  And the only thing that we referred to are some

17     concrete problems and the Prosecutor will certainly benefit from reading

18     it; and if they want to communicate with us, we are more than happy to

19     continue communicating with them by submitting our filings.  I would

20     kindly ask you to take into account my second filing which was announced

21     a month ago.

22             JUDGE PROST:  Thank you, Mr. Tolimir.  Yes, certainly I'm aware

23     that that is the subject matter of your filing and certainly I will read

24     it carefully, and I know the Prosecution will as well.  It was only that

25     we don't have a translation of it as of yet, but certainly it will be

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 1     given due attention by the Chamber, certainly.  So we can leave it at

 2     that for the moment until we have the translation material.  But yes, we

 3     will certainly have regard to what you have raised in your filing.

 4             All right.  Then prior to dealing where the usual matter of

 5     health and detention issues, is there anything else that either of the

 6     parties wish to raise?

 7             Perhaps I'll start with you, Mr. Tolimir.  Are there any other

 8     issues that you wish to raise today because that's the end of my list,

 9     subject to the health and detention issues.  Is there anything else you

10     wanted to raise today, Mr. Tolimir?

11             THE ACCUSED: [Interpretation] Thank you.  I have nothing to

12     raise.  I would just like to ask you to help me deal with the conditions

13     of my work in the Detention Unit and the communication with my legal

14     advisors.  What I mean by saying that is that I would like to have a

15     place for my archives and I would also like to ask you, once again, to

16     take into account my filing which bears upon the indictment and it will

17     be beneficial both for the Trial Chamber and the Prosecution in terms of

18     understanding our position.  Thank you very much.

19             JUDGE PROST:  Thank you, Mr. Tolimir.  Then just to perhaps

20     compact matters and save time, there's no other issues you wish to raise

21     about the conditions of your detention or any health issues that you

22     wanted to bring to my attention; is that correct?

23             THE ACCUSED: [Interpretation] Thank you.  I do have something to

24     raise.  I would like to say and state that my health condition is

25     excellent, despite the fact that different things have been implied by

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 1     the media.  Members of the ICRC have visited me and asking me whether I

 2     have started taking medication.  I told them that I have not been on any

 3     medication since I arrived here and this is my way to fight for my human

 4     rights in view of the fact that I was arrested in an illegal way, that I

 5     was actually kidnapped.  I can state that my health condition is very

 6     good, but my cell is under surveillance and the guards keep on waking me

 7     every half an hour to perform a visual inspection of my cell.  I hope you

 8     can do something to change that, because I really don't see any reason

 9     for my cell to be visually expected every half an hour.  This has been

10     going on for a whole year.  This interrupts my sleep and the interrupted

11     sleep pattern is never good, and that's why I never go to bed before

12     12.00.  I believe that I should be granted at least six hours of sound,

13     uninterrupted sleep.  When my sleep is uninterrupted, I can go back to

14     sleep again.  Thank you very much.

15             JUDGE PROST:  Thank you, Mr. Tolimir.  Thank you for bringing

16     that to my attention.  I will make some inquiries with the Registry about

17     that issue.  Again, as I've mentioned to you on previous occasions, these

18     are matters in the primary responsibility of the UNDU, but I can

19     certainly understand what you're raising and the issues that you've

20     identified.  So I will make some inquiries and we will see where that

21     takes us on those issues.

22             That brings me then to you, Mr. McCloskey, whether you have any

23     issues you wanted to raise today other than the one that I've indicated I

24     don't wish to discuss today.

25             MR. McCLOSKEY:  Nothing, Madam President.

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 1             JUDGE PROST:  Thank you, Mr. McCloskey.

 2             Well, then, if there are no further issues we will meet again

 3     in -- after the recess period and the conference is adjourned.  Thank

 4     you.  Thank you to everyone.

 5                           --- Whereupon the Status Conference

 6                           adjourned at 4.37 p.m.