Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17972

 1                           Monday, 5 December 2011

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.02 a.m.

 6             JUDGE FLUEGGE:  Good morning to everybody in the courtroom and to

 7     those listening to these proceedings.

 8             Mr. Registrar, could you please call the case.

 9             THE REGISTRAR:  Your Honours, this is IT-05-88/2-T, the

10     Prosecutor versus Zdravko Tolimir.

11             Thank you, Your Honours.

12             JUDGE FLUEGGE:  Since we haven't seen each other for quite a long

13     time, I would like to introduce the case in a more formalistic way than

14     we did in the past.

15             Therefore, I would like to ask you, Mr. Tolimir, to confirm that

16     you are receiving interpretation and that you can understand the

17     proceedings.  Should you encounter any difficulties in that regard at any

18     time, please let's know.

19             I would kindly ask the parties for the appearances.

20             MR. McCLOSKEY:  Good morning, Mr. President, Your Honours.

21     Peter McCloskey and Janet Stewart.

22             JUDGE FLUEGGE:  Thank you.

23             Mr. Tolimir, for the Defence.

24             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I would

25     like to greet all the attendants.  May God's peace reign in this house

Page 17973

 1     and may God's will be done in these proceedings.  The Defence is

 2     represented by myself, Mr. Tolimir, and Mr. Aleksandar Gajic.

 3             Thank you.

 4             JUDGE FLUEGGE:  Thank you very much.

 5             Pursuant to Rule 65 bis, the purpose of a Status Conference is,

 6     generally, to review the status of the case and to allow the accused the

 7     opportunity to raise issues in relation thereto, including any issues in

 8     relations to his mental or physical condition and the conditions in the

 9     Detention Unit.  Given that some time has passed since the last session,

10     and the fact that we will soon break for the winter recess, the Chamber

11     considered it appropriate to have this hearing today.

12             On the 1st of December, 2011, the Chamber received the Defence

13     65 ter submission and a notice of two expert reports, as requested by

14     order of the 20th of September, 2011.  The Defence will be calling four

15     witnesses.  It is the estimation of the Chamber on the basis of the

16     approximately 36 hours for examination-in-chief required by the Defence

17     that the Defence case, including cross-examination by the Prosecution,

18     will come to an end around the begin of March 2012, of course, depending

19     on the length of cross-examination.

20             The Chamber will also take this opportunity to tie loose ends

21     with respect to a number of exhibits and other pending matters.

22             The Chamber would firstly like to address the Prosecution

23     submission filed on the 11th of October, 2011, whereby the Prosecution

24     submits that no evidence has been adduced in support of the allegations

25     at paragraph 21.4.1 and part of paragraph 49 of the indictment, relating

Page 17974

 1     to the executions of approximately 15 prisoners at Sandici meadow on the

 2     13th of July, 1995.  The Chamber acknowledges this submission and advises

 3     the Defence that, as a result, they will not need to address this

 4     allegation during the Defence case.

 5             A second pending matter relating to the Prosecution case is the

 6     status of Mr. Pecanac.  As of now, he remains a witness on the

 7     Prosecution's Rule 65 ter list.  At the hearing of this case on the

 8     10th of October, 2011, Mr. Pecanac expressed his refusal to testify,

 9     stating, and I quote:

10             "I shall make my decision whether to testify after those medical

11     examinations and after consulting Tomislav Visnjic."

12             This is at transcript page 17964, and the name of Tomislav was

13     Tomislav Visnjic.

14             The Prosecution requested the Chamber whether, with respect to

15     the possible testimony of Mr. Pecanac, the proceedings would be adjourned

16     sine die or there would be a specific date for another hearing.  The

17     Chamber advised that it was in the hands of the parties to file a motion

18     on this matter.  This is at transcript pages 17968 and there to 17969.

19     The Chamber seeks clarification from the Prosecution as to its position

20     with respect to this witness.

21             Mr. McCloskey, are you in a position to address the Chamber?

22             MR. McCLOSKEY:  Yes, Mr. President.  Regarding Mr. Pecanac, we

23     have really have not discussed thoroughly what our options are, though it

24     appears he is not willing to testify, and I think that probably ends the

25     matter for the Prosecution.  And though I'm not -- I'm not exactly sure

Page 17975

 1     what other options are open.  I have not spoken to Mr. Dieckmann since

 2     the end of the last hearing and so I am not exactly sure where he and

 3     Mr. Pecanac are come from, though I hope to have spoken to him this week,

 4     but I don't really see much options for the Prosecution aside -- given

 5     the position that has been taken thus far.

 6             JUDGE FLUEGGE:  When can we expect any submission by the

 7     Prosecution in this respect?

 8             MR. McCLOSKEY:  Certainly within the next few days to try to see

 9     really, what, if anything, there is for the Prosecution to do aside from

10     just letting you know that there is nothing we have to do.

11             JUDGE FLUEGGE:  If you don't want to call him again in this

12     trial, then, indeed, you should withdraw him as a witness from the

13     witness list.

14             MR. McCLOSKEY:  Yes, I will speak to Mr. Dieckmann and see if

15     there is any change or any situation there and do, well, the practical

16     thing.  So give me that chance and I'll get something back to you on that

17     very soon.

18             JUDGE FLUEGGE:  Can we receive something by Wednesday this week?

19             MR. McCLOSKEY:  Certainly.

20             JUDGE FLUEGGE:  Thank you very much.

21             The Chamber will now turn to pending issues related to exhibits

22     in this case.  It understands that the Prosecution will be addressing the

23     Chamber on that point.

24             Is that correct, Mr. McCloskey?

25             MR. McCLOSKEY:  Yes, Mr. President.

Page 17976

 1             JUDGE FLUEGGE:  You have the floor.

 2             MR. McCLOSKEY:  Yes, I would refer everyone to the e-mail we --

 3     Janet Stewart sent out just listing a few items.  We started with P01596,

 4     which is the Zvornik Brigade.  We call them vehicle logs.  We have listed

 5     them as the transportation records for July 1995.  These contain, you may

 6     recall, some of the key records of vehicles involved in the various

 7     incidents in the indictment.  And we noted that they had -- this had been

 8     admitted through Srecko Acimovic but had been changed by the

 9     Trial Chamber, we believe, as part of an associated exhibits with another

10     witness, PW-051, and that it should, actually, stay with the -- within

11     the evidence as it came in through Srecko Acimovic, and Ms. Stewart

12     points out the details of that in the e-mail.  And I think there is no

13     need to make a ruling immediately if -- if that needs to be studied a

14     bit, but I think she's got that correct.

15             JUDGE FLUEGGE:  I take it, Mr. McCloskey, that this exhibit,

16     P1596 was previously admitted, then later on marked for identification?

17             MR. McCLOSKEY:  That's correct.

18             JUDGE FLUEGGE:  And now you are tendering it again; is that

19     correct?

20             MR. McCLOSKEY:  That's correct.

21             JUDGE FLUEGGE:  It will be received.

22             MR. McCLOSKEY:  And the next point was Exhibit 1241 and 1242, and

23     we now have 1242 as the English translation of Exhibit 1241, and they

24     were just requesting that we -- 1241 is admitted.

25             JUDGE FLUEGGE:  1241, including the English translation.

Page 17977

 1     Therefore, Exhibit P1242 will be vacated.  Is that a correct

 2     understanding?

 3                           [Trial Chamber and Legal Officer confer]

 4             JUDGE FLUEGGE:  Is it a correct understanding that P1241 will

 5     have attached to it the English translation which was previously assigned

 6     with P1242, and your intention is to combine both; is that correct?

 7             MR. McCLOSKEY:  Whatever is easiest.  They are now two exhibits,

 8     1241 and 1242, and English and B/C/S separately, so whatever is easiest.

 9             JUDGE FLUEGGE:  Mr. Gajic.

10             MR. GAJIC: [Interpretation] Mr. President, greetings to all.

11             Our practice so far has been that the translation accompanies the

12     original of the document and that they are both covered by one P number,

13     one P exhibit number.  I don't see any reason that P1241, as a

14     translation of P1242, has a different exhibit number from the original.

15     It has not been our practice so far.

16             JUDGE FLUEGGE:  If I am not mistaken, it's just the other away

17     around.  However, you should combine both, the original B/C/S version

18     with the English translation, and they are admitted under P1241.

19             And I would like to add, as I indicated earlier, P1242 is

20     vacated.

21             MR. McCLOSKEY:  Thank you.

22             So the next, number three, we have two exhibits for the

23     transcript of testimony Milanko Jovicic, and, as we have noted, there

24     were procedural matters that were really not necessary or appropriate to

25     be in the transcript that was originally entered.  And so since there no

Page 17978

 1     closed or private session in the witness's testimony, there is no need to

 2     have an under seal version, so -- which is P1700, so we don't -- we don't

 3     need the 1700 any further because there is no under seal version, is my

 4     understanding.  I'm sorry, I reverse that, we don't need 1701.

 5             JUDGE FLUEGGE:  In fact, you withdraw P1701 and you only want to

 6     have P1700?

 7             MR. McCLOSKEY:  Yes, that's correct.

 8             JUDGE FLUEGGE:  Mr. Gajic, is there any objection to that?

 9             MR. GAJIC: [Interpretation] No, Mr. President.  No.

10             JUDGE FLUEGGE:  Thank you very much.  Then P1700 is the only

11     version of this document.

12             MR. McCLOSKEY:  And the fourth item, P1685, the second page was

13     missing from both English and the B/C/S documents.  They have now been

14     uploaded so that should be admitted in the new format.

15             JUDGE FLUEGGE:  It was already admitted and we acknowledge this

16     addition.

17             MR. McCLOSKEY:  Thank you.  And number five is the same thing,

18     for 1686.

19             JUDGE FLUEGGE:  Indeed.

20             MR. McCLOSKEY:  And we have -- at number six, we now, as per the

21     order of the Trial Chamber, redacted 65 ter 07564 and 65 ter 07565, which

22     was the transcript of the testimony PW-006.

23             JUDGE FLUEGGE:  Okay.  Thank you very much for this information.

24             Please go ahead.

25             MR. McCLOSKEY:  And number seven has to do with 65 ter 07563,

Page 17979

 1     what we have referred to as the updated Srebrenica trial video, and that

 2     we have prepared those matters pursuant to the Trial Chamber's order of

 3     20 September this year.  And the new trial video comprises four videos,

 4     which we've noted are:  V000-9014-V000-9014 is the first one; the second

 5     is V000-9035-V000-9035 -- is the second; the third is the

 6     V000-9016-V000-9016; and then V000-9067-V000-9067; and the accompanying

 7     transcript for the last video mentioned, it's V000-9067 to V000-9067,

 8     it's also been revised and placed in this record.  And at this point we

 9     request permission to replace the last 46 pages of the transcript, which

10     amounts from page 110 onwards in e-court with the revised transcripts,

11     and this was all part of that e-mail from 29 November, the request.

12             JUDGE FLUEGGE:  Thank you.

13             Mr. Gajic.

14             MR. GAJIC: [Interpretation] Your Honours, I believe we have a

15     little problem here, or we might have just a little problem.  It's not

16     just the transcript or the video.  It's the old transcript was used in

17     the examination of different witnesses.  We all remember that the video

18     footage Mr. McCloskey is referring to has been used with many witnesses

19     under many different circumstances, and if we changed anything in that

20     transcript then we would lose a clear transcript, quiet simply.  We would

21     have to search for which part of the transcript or which part of the

22     video footage had been presented to a particular witness.  Perhaps these

23     revised versions could receive new exhibit numbers or be admitted as

24     separate exhibits.

25             JUDGE FLUEGGE:  Mr. McCloskey.

Page 17980

 1             MR. McCLOSKEY:  That is an interesting point.  It makes some

 2     sense.  If we could just connect on that we will be able to sort that

 3     out, the best way to do that.

 4             JUDGE FLUEGGE:  At the moment it would be, perhaps, the best to

 5     mark the new one for identification, and then we will see how you deal

 6     with these matters among the parties.  And then perhaps to have two trial

 7     videos, the old version, the new version, but you should consult on that.

 8             MR. McCLOSKEY:  I think that's, as I think about it, probably a

 9     good idea, but we will get back to you very soon on that.  That shouldn't

10     be a problem.

11                           [Trial Chamber confers]

12             JUDGE FLUEGGE:  Not only the Prosecution, but the Chamber, sees

13     some merit in that comment of Mr. Gajic, and, therefore, indeed we should

14     have both versions in evidence so that we can use it further during the

15     trial and for the judgement, if necessary.  Therefore, the Chamber will

16     now issue the following oral decision.

17             Are you still considering the situation, Mr. McCloskey?

18             MR. McCLOSKEY:  One second, Mr. President.

19             JUDGE FLUEGGE:  Yes, please.

20                           [Prosecution and Case Manager confer]

21             MR. McCLOSKEY:  I think we're okay to go.  We agree with

22     Mr. Gajic and the Court that we need both in evidence so that the --

23     what's in the record is clear.

24             JUDGE FLUEGGE:  Therefore, as there is an agreement how to

25     proceed, we can briefly -- there is no need to go into details again.

Page 17981

 1     The old trial video shall remain an exhibit, including the transcript in

 2     this case with the previous exhibit number, and the new trial video,

 3     including the exhibit, shall be a new exhibit, and I will ask the

 4     Registrar to assign exhibit numbers.

 5             THE REGISTRAR:  Your Honours, the 65 ter document 7563 shall be

 6     assigned Exhibit P2798.  And the new updated version of Srebrenica trial

 7     video shall be assigned Exhibit P2799.  Thank you, Your Honours.

 8             JUDGE FLUEGGE:  Thank you very much.

 9             No, there is some doubt.  Mr. McCloskey, can you help us?

10             Mr. McCloskey.

11             MR. McCLOSKEY:  So our understanding, the trial video and the

12     transcripts are one exhibit, the old one, so we may just need one exhibit

13     for the new one, I believe.

14             JUDGE FLUEGGE:  If I am not mistaken, we have two 65 ter numbers.

15     This is 65 ter 07563, the updated Prosecution trial video and transcript,

16     and we have 65 ter 07460, the updated trial video still book; is that

17     correct?

18             MR. McCLOSKEY:  Yes.  I hadn't gotten to the stills book, you'd

19     gotten ahead of me with this.  It's the same problem, same issue, so

20     that's perfect.

21             JUDGE FLUEGGE:  And I would kindly ask the Registrar to confirm

22     that on the record, that 65 ter 07563 is P2798; is that correct?

23             THE REGISTRAR:  That is correct, Your Honours.  Thank you.

24             JUDGE FLUEGGE:  And 65 ter 07460 shall be P2799.  This is the

25     video stills book.

Page 17982

 1             THE REGISTRAR:  That is correct, Your Honours.  Thank you.

 2             JUDGE FLUEGGE:  Now, we have resolved this problem, too.

 3             Mr. McCloskey, please proceed.

 4             MR. McCLOSKEY:  Thank you, Mr. President.  Yes, you and

 5     Ms. Stewart are right on the same page, and thank you for that.  And we

 6     also have the hard copies of the revised still book for you, if the

 7     parties would -- if everyone would like to have copies.  Ms. Stewart has

 8     those here.

 9             JUDGE FLUEGGE:  Yes, thank you, with the assistance of the usher.

10     Perhaps not at the moment but at the end of today's session we can do

11     that.

12             MR. McCLOSKEY:  And we, of course, had been reviewing some of the

13     filings by the Defence, including the -- some bar table motions, so I

14     don't think we will have any problems with -- with bar table motions.

15     We've been discussing this with Mr. Gajic.  We may I have a document or

16     two of our own, if the Court would allow us to put in a document or two

17     related to the last witness, but we have been discussing that also with

18     Mr. Gajic and it should all go forward well.

19             JUDGE FLUEGGE:  You say the last witness.  You are referring to

20     Mr. Pecanac; is that correct?

21             MR. McCLOSKEY:  No, the last witness that actually testified.  It

22     was Mr. Dumanjic, the imam.

23             JUDGE FLUEGGE:  Thank you.  The Chamber has found that there are

24     some duplicate exhibits.  The Prosecution indicated them, and I hope

25     there is an agreement which one should be the right exhibit with a D

Page 17983

 1     number or P number, and I would kindly ask you to provide us with the

 2     relevant numbers.

 3             I can put that on the record, but it's up to you to decide.  For

 4     instance, I start with D21 is the same as P987.

 5             Mr. McCloskey.

 6             MR. McCLOSKEY:  Thank you, Mr. President.  That is not something

 7     we prepared for in detail.  It's probably just easy to pick numbers, but

 8     perhaps we should take a bit of time to see if one version is better than

 9     the other, just so we have the best possible -- sometimes, you know,

10     there's versions that are not quite identical that may have the same

11     number.  I am not sure.  I don't recall discussing this with Ms. Stewart

12     recently, so perhaps we should take just a little bit of time to check

13     this out and get back to you.

14             JUDGE FLUEGGE:  In that case, since the parties are not prepared

15     for this part of the Status Conference, I just want to indicate that we

16     are dealing with eight different exhibits with two different exhibit

17     numbers.  That should be resolved by informal communications, I think,

18     between the parties and the Chamber staff.

19             MR. McCLOSKEY:  Thank you, Mr. President.  Otherwise, the

20     Prosecution has nothing else to add at this time.

21             JUDGE FLUEGGE:  Thank you very much.

22             Mr. Gajic.

23             MR. GAJIC: [Interpretation] Mr. President, the Defence has a

24     request for the Chamber, not because the Defence is not ready but because

25     of the witnesses.

Page 17984

 1             In January, from the 9th to the 20th January, abounds in

 2     Christian holidays in the Republic of Serbia, Republika Srpska, and our

 3     four witnesses are not really willing to come during that period of time

 4     because it is a celebration period.  It is the end of Christmas on the

 5     6th and on the 7th, and the Serbian new year on the 13th and on the 14th,

 6     and the every two or three days there is a Saint's day, including on the

 7     9th, when we are supposed to start.  As far as myself and Mr. Tolimir are

 8     concerned, we don't have a problem at all.  The only request we had was

 9     not to sit on the 20th because that is Mr. Tolimir's big celebration.

10     But due to the witnesses' request and wishing to enable the witnesses to

11     spend that time with their families, we would kindly ask the

12     Trial Chamber to delay the beginning of our case.

13             JUDGE FLUEGGE:  Mr. Gajic, this is a big problem.  We have had,

14     really, a lengthy break since the end of the Prosecution cases.  To have

15     a further detail would really create additional problems.  This would be

16     very serious, and that January is a month for the Orthodox church with

17     some specific holidays, this is not new.  That should have been noted

18     earlier.

19             Mr. Gajic, if you remember correctly, when you provided us with

20     our intention how to proceed with the Defence case, there was one

21     discussion, if we can start with it in December, and then you requested

22     start at the 9th of January just after the winter recess.  A further

23     delay of at least two weeks will create, really, problems for the whole

24     case, and we are bound by the Rules and the Statute to have not only a

25     fair but also an expeditious trial.

Page 17985

 1             Do you want to make a further comment?

 2             MR. GAJIC: [Interpretation] Mr. President, I fully appreciate the

 3     situation.  When we were preparing for our Defence case and when we

 4     considered everything that we needed to do and how much time we needed,

 5     we did not take into account any holidays because, so far, the Defence

 6     has not had any holidays.  The request upon the Trial Chamber is not for

 7     the Defence's sake, not because the Defence is not ready, it is for the

 8     sake of the witnesses.

 9             I have already discussed this issue with Mr. McCloskey.  Our

10     discussion took place 15 days ago, and he agreed with me that it would be

11     very difficult to bring in Orthodox believers from the Republic of Serbia

12     and Republika Srpska during that period of time.  Obviously, we will

13     comply with any decision of the Trial Chamber.

14             I did not discuss the exact timing with the witnesses, but I gave

15     them a general idea of the period when they should appear.  Each of them,

16     to the last, mentioned the possibility and asked me if their testimony

17     could be delayed by just a little, should they be requested to appear in

18     the month of January.  And obviously my discussion with the witnesses

19     I -- I tried to see which of the witnesses could be the first to appear,

20     on the 9th, that is, and none of them were really willing and happy to

21     oblige because of the holiday period.

22             The Defence is ready and there are a few little things that

23     remain to be prepared, but we are absolutely sure that we will be ready

24     by the 9th of January.

25             JUDGE FLUEGGE:  Thank you, Mr. Gajic, and I appreciate that you

Page 17986

 1     informed us about the difficulties with the witnesses.  On the other

 2     hand, just to make it clear, on the 9th we wanted to have a

 3     Pre-Defence Conference on the afternoon.  On the 10th, there is scheduled

 4     a possible opening statement by the Defence, and immediately thereafter

 5     the testimony of the first witness.

 6             Mr. Gajic.

 7             MR. GAJIC: [Interpretation] Mr. President, your last comment has

 8     just reminded me that I forgot to mention one thing.  The Defence will

 9     not have an opening statement.  Immediately after the opening conference,

10     we will proceed with the testimony of our first witness.

11             JUDGE FLUEGGE:  Thank you.

12                           [Trial Chamber confers]

13             JUDGE FLUEGGE:  The Chamber will postpone its decision on this

14     request.  However, I just want to put on the record that in this Tribunal

15     we have had many cases dealing with witnesses with the testimony of

16     Orthodox believers, and I never came across that this creates any problem

17     in the past years in other cases.  We will consider this request further

18     and come back to the parties as soon as possible by informal

19     communication.  At the moment, the Chamber has no reason to reschedule

20     the hearings for January, but we will consider this request by the

21     Defence.  In fact, request by the witnesses conveyed by the Defence.

22             At this stage, the Chamber would like to give the accused the

23     opportunity to address any health issues or conditions of detention.

24             Mr. Tolimir, is there anything you want to tell the Chamber in

25     that respect?

Page 17987

 1             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I am not

 2     on any medication, and I don't want to discuss my health condition

 3     because I leave it in God's hands to deal with any problems that I might

 4     have in keeping with his great idea.  Thank you.

 5             JUDGE FLUEGGE:  Thank you very much.

 6             For sure, Mr. Gajic, the request not to sit on the

 7     20th of January is granted, in any case, because we intend to sit again,

 8     like during the Prosecution case, four days a week, without Friday.  The

 9     20th of January is a Friday and therefore there is no concern with that

10     respect.

11             We have noted that there will be no closing -- no pre-defence

12     statement by the accused, therefore we adjourn to assume on the 9th of

13     January for the Pre-Defence Conference in Courtroom III at 2.15 p.m.  We

14     adjourn.

15                           --- Whereupon the Status Conference adjourned at

16                           9.47 a.m., to be reconvened on Monday, the

17                           9th day of January, 2012, at 2.15 p.m.