Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Friday, 15 September 2006

 2                          [Status Conference]

 3                          [Open session]

 4                          [The accused entered court]

 5                          --- Upon commencing at 8.00 a.m.

 6            JUDGE AGIUS:  Good morning, Madam Registrar.  Could you kindly

 7    call the case, please.

 8            THE REGISTRAR:  Good morning, Your Honour.  This is case number

 9    IT-05-88/1-PT, the Prosecutor versus Milorad Trbic.

10            JUDGE AGIUS:  I thank you, ma'am.

11            Mr. Trbic, can you follow the proceedings in your own language?

12            THE ACCUSED: [Interpretation] [No interpretation]

13            JUDGE AGIUS:  I think we have the first problem of the day.

14            THE ACCUSED:  My English.

15            JUDGE AGIUS:  He should have it in, I don't know what channel,

16    Serbo-Croat channel.  I'll repeat what I said again.  Can you follow the

17    proceedings in your own language?

18            THE ACCUSED: [Interpretation] [No interpretation]

19            JUDGE AGIUS:  I thank you so much Mr. Trbic.  And good morning to

20    you.  Appearances for the Prosecution.

21            MR. McCLOSKEY:  Good morning, Mr. President.  Peter McCloskey with

22    Lada Soljan and Janet Stewart.

23            JUDGE AGIUS:  I thank you.  And good morning to you and your team.

24    Appearances for the Defence.

25            MR. PILETTA-ZANIN: [Interpretation] Good morning, Your Honour.

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 1    Stephane Piletta-Zanin for the Defence.

 2            JUDGE AGIUS:  Now, the second problem.  I am hearing

 3    interpretation in English but also in Serbo-Croat, one after the other.

 4    That would double the length of the proceedings.

 5            So this is the first time we come face to face, Mr. Piletta-Zanin.

 6    Please allow me to extend to you a very warm, warm welcome.

 7            MR. PILETTA-ZANIN: [Interpretation] Your Honour, I can only thank

 8    you for your greetings, all the more so since it is very likely that it's

 9    going to be for a very short time.  I thank you nevertheless.

10            JUDGE AGIUS:  I thank you, Mr. Piletta-Zanin.  Perhaps you can

11    explain that in due course.

12            Not simply for formalities' sake but also for the record, may I

13    just point out that this is the first status conference that is being held

14    following the decision on severance.  It is within the 120-day limit

15    prescribed by Rule 65 bis.  The purpose of status conferences is twofold.

16    Basically, even more than that, namely to organise exchanges between the

17    parties with a view to ensuring an expeditious preparation for trial, and

18    secondly, to allow the accused to raise issues in relation to his mental

19    and physical condition.

20            Some days ago, or a couple of weeks ago, I gave instructions to

21    Senior Legal Officer of Trial Chamber II to convene a 65 ter meeting

22    between the parties with a view to preparing the agenda for this status

23    conference.  I will go straight to the first item on the agenda and that

24    is outstanding motions.  There are as such no outstanding motions pending

25    before this Tribunal -- sorry, before this Trial Chamber, but there is a

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 1    major motion pending before the 11 bis Referral Bench.  This was filed on

 2    the 4th of May 2006 by the Prosecution.  And on the 10th of May, it was

 3    referred to the Referral Bench, the motion is still pending before that

 4    Bench for reasons that I suppose are -- not I suppose, I'm sure you're

 5    both aware of.

 6            There is also of course pending before the Appeals Chamber the

 7    appeal that was filed by the accused following our decision on severance.

 8    That -- those proceedings, he's contesting the decision of Trial Chamber

 9    II, and I will -- unless I hear any comments arising of that, but I don't

10    imagine there would be any, I move to the second item on the agenda, which

11    deals with disclosure matters, and as you know, usually deal under this

12    heading or deal with this subject under two separate headings, one

13    disclosure under Rule 66(A)(i) and (A)(ii) and the other under Rule 68.

14    I'll go straight to the point.  I know this was discussed thoroughly

15    yesterday during the 65 ter meeting and the report I got back from the

16    Senior Legal Officer is clear but not clear enough.  In other words, there

17    seems to be something that needed more or something that would require

18    more information.

19            I'm informed that yesterday, he was not really put in a position

20    where he could report to me that disclosure under Rule 66(A)(i) and Rule

21    66(A)(ii) had been completed.  It's not that it has not been completed but

22    we still require to know whether it has been completed.  Neither you nor

23    the Defence could provide Mr. Cubbon with a straightforward, 100 per cent

24    correct answer.  So if you can -- I'll go back on this subject and I will

25    ask Prosecution first to maybe enlighten us on the position now.  Mr.

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 1    McCloskey?

 2            MR. McCLOSKEY:  It's my understanding, Mr. President, that

 3    66(A)(i) was completed 29 June, 2005 and 66(A)(ii) is practically

 4    completed but it's a bit of an ongoing process as well.

 5            JUDGE AGIUS:  All right.  And do you have a date in sight when you

 6    would think that you would complete disclosure under this second

 7    provision?

 8            MR. McCLOSKEY:  As the case that we -- that we are aware of now, I

 9    can't think of any more witnesses but there may be witnesses of a health

10    nature or things like that that may come up, but as far as I know, we've

11    finished it for the time being until we get perhaps a little more clarity

12    on where we are going with the case.

13            JUDGE AGIUS:  I thank you, Mr. McCloskey.

14            Mr. Piletta-Zanin?

15            MR. PILETTA-ZANIN: [Interpretation] Thank you, Your Honour.  In

16    this respect I'd like to make two observations.  Firstly, as I pointed out

17    yesterday, in the light of the urgency as I was assigned counsel in this

18    case, I was not able to check point by point whether the case file I was

19    given in a very excellent way by the previous counsel of Mr. Trbic matches

20    in all points the disclosure made by the Prosecution.  I think it would

21    have been useless for me to do that.  My premise was that the dossier, the

22    file was okay.

23            Secondly there is a more fundamental problem.  There are for

24    instance some medical expert reports, the latest one being of the 28th of

25    August 2006, and initially, they had been done in Croatian, I believe,

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 1    apparently these expert reports were only conveyed to my client yesterday,

 2    so that -- and I saw him yesterday.  I was not able to discuss this

 3    thoroughly with him and the purpose of disclosure is, after all, in my

 4    view, to enable the accused to know what it is all about.  So there is a

 5    basic problem here on the merits because it is in my view inadmissible

 6    that the administration, which at a stage of it is concerned, discloses

 7    such evidence only a few minutes before a client meets his lawyer and a

 8    few hours before such a hearing as this.  This is in my view inadmissible.

 9            JUDGE AGIUS:  One point that I want to follow up from what you've

10    just stated, Mr. Piletta-Zanin.  You said there are for instance some

11    medical expert reports, the latest one being of the 28th of August of this

12    year, and initially they had been done in Croatian.  Did I have the

13    correct interpretation or is there something wrong?

14            MR. PILETTA-ZANIN: [Interpretation] [Microphone not activated]

15            JUDGE AGIUS:  Microphone.

16            MR. PILETTA-ZANIN: [Interpretation] Yes indeed.  Your

17    interpretation was right because these reports were drafted initially in

18    Croatian, in the Croatian language.  What I mean by this, Your Honour, is

19    that we don't even have the excuse of translation from English into B/C/S,

20    because initially -- originally, the reports were written in B/C/S or,

21    rather, in Croatian to be more exact.  So I fail to understand why this

22    would be such a delay.  Was I clear enough this time?  I know -- I used

23    not to be, you know.  I never am clear.

24            JUDGE AGIUS:  I think I know what you're saying.  These are

25    probably the reports, medical reports, that have not yet been handed over

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 1    by the detention unit authorities and then they were handed over.  Are

 2    these the reports?  Or are you referring to the report of the psychiatrist

 3    appointed by the Prosecutor?

 4            MR. PILETTA-ZANIN: [Interpretation] Precisely I have in mind those

 5    two reports which are basically only one.  I think they are dated the 28th

 6    of August 2006.  I'm not quite sure but I believe it is the date and they

 7    were originally drafted in B/C/S and they were physically handed over to

 8    my client only on the 14th.

 9            JUDGE AGIUS:  Do you have any comments on that, Mr. McCloskey?

10    What was the nationality of the psychiatrist?

11            MR. McCLOSKEY:  Croatian.

12            JUDGE AGIUS:  Croatian.

13            MR. McCLOSKEY:  Yes, Mr. President, we received her report in a

14    very expedited fashion on the 31st of August.  We filed it with the

15    Registry September 1st.  They should have sent it as they normally do

16    electronically to Defence counsel.  It's shortly thereafter.  We don't, as

17    you know, provide material such as this directly to the accused.  That

18    would be inappropriate.  We have asked for it to be translated into

19    English.  This is the situation where we have the language of the accused

20    so --

21            JUDGE AGIUS:  I know because to my knowledge there isn't much

22    difference between Serbian and Croat, I've had a full two hour explanation

23    about the difference between the two languages in the past so I know a

24    little bit about it, but any way, let's cut this short.  This is

25    fundamental.  It's a right that the accused has.  What I'm going to do is

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 1    I am going to establish time limit, fix a time limit, of two weeks from

 2    now during which you do a little bit your homework to find out whether

 3    there are any further -- there is any further material that needs to be

 4    disclosed under 65(A)(ii).  You will by the end of this two-week period

 5    file a declaration stating what your conclusion is or what your findings

 6    are, and then I'll establish a further date by which you will be needed to

 7    complete your disclosure.  Is two weeks sufficient for you, Mr. McCloskey?

 8            MR. McCLOSKEY:  Mr. President, as I've been able to focus a little

 9    more on this situation in the last night and this morning, I can tell you

10    now, as far as we know, we have -- I don't have at this point any more

11    witnesses.

12            JUDGE AGIUS:  Statements?

13            MR. McCLOSKEY:  Or statements to provide.  As you can see, it says

14    copies of all written statements taken in accordance with 92 bis, and we

15    plan to follow up with this accused just like we will follow up in the

16    other case and we now have our marching orders on that, so we will

17    continue to follow.  So we are following the previous order.  We are

18    treating this accused as we are with the others.  So we are up to date as

19    far as we know now.

20            JUDGE AGIUS:  All right.  So I take it that except for the

21    material related to the issue, the only issue that is still pending before

22    this Trial Chamber for the time being, rest has been disclosed already.

23            MR. McCLOSKEY:  Yes, Mr. President.  I'm confident we are in good

24    shape.

25            JUDGE AGIUS:  And the rest will be an ongoing process as we

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 1    proceed along the line.

 2            MR. McCLOSKEY:  Yes.

 3            JUDGE AGIUS:  Yes, Mr. Piletta-Zanin?

 4            MR. PILETTA-ZANIN: [Interpretation] Just one thing.  Thank you,

 5    Your Honour.  You tell the Prosecution to do their homework very well.  In

 6    that respect, could they not check one thing, in the interest of Mr.

 7    Trbic, that this whole disclosure process be efficient, in other words,

 8    that they make sure that documents be disclosed in Serbian or Croatian

 9    because otherwise it's not of any use to our client.  OLAD denied me the

10    right of having a series of potential co-counsel so that I do not have any

11    full time assistant in my team, unlike the Prosecution team, my team

12    doesn't have anybody who is conversant in Serbian or Croatian so this had

13    better be checked in the interest of the accused.  Thank you.

14            JUDGE AGIUS:  All right.  Thank you.  Prosecution knows exactly

15    which documents are required by law to disclose in the language of the

16    accused.  If there are any shortcomings in that respect, you will of

17    course attract the wrath of the Trial Chamber.

18            So please do it and to that make sure that what has been disclosed

19    has been disclosed according to the law.  Not everything needs according

20    to our Rules to be disclosed in the language of the accused.

21            The other type of disclosure relates to Rule 68.  I take it from

22    what has been reported to me by Mr. Cubbon that you, Mr. Piletta-Zanin,

23    confirmed having received a CD from the Prosecution purportedly to contain

24    Rule 68 exculpatory material.  I just want to confirm whether there is

25    anything else the Prosecution would like to add in respect to this type of

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 1    disclosure.

 2            MR. McCLOSKEY:  No, Your Honour.  We are up to date, and as you

 3    said, we are being assisted in our obligations by seven other Defence

 4    counsel that are keeping us on our toes, and I could -- it would be of

 5    great assistance in meeting our Rule 68 obligation if Mr. Trbic has

 6    anything in particular that he views as exculpatory or even generally to

 7    tell us.  That way we can do the searching and we can get material like

 8    that to him as we have stated to all the other accused.

 9            JUDGE AGIUS:  Okay.  I thank you.  There is one further matter

10    that I would like to raise before we go into more delicate matters, and

11    that is following a decision that we -- when I say we, it's Trial Chamber

12    II, in sitting -- in presiding over the Popovic case.  Upon the severance,

13    we had also ordered that a new indictment be drawn up in respect to Mr.

14    Trbic.  What I want to confirm is that the indictment that I have

15    received, at least in English, has been translated and provided and

16    forwarded to the accused.  In other words, whether he has received the

17    indictment now in his own language.  Perhaps -- I don't know whether you

18    are in a position to confirm that, Mr. Piletta-Zanin.

19            MR. PILETTA-ZANIN: [Interpretation] I can confirm that I did not

20    receive it in French, Your Honour, but that's not the question you put.  I

21    will confess that we did not look into this question yesterday, Mr. Trbic

22    and I, but I believe that in the meeting, in the 65 ter meeting, it

23    appeared that either it was being served or Mr. Trbic had just received it

24    and he would say otherwise if it were the case.

25            JUDGE AGIUS:  So Mr. Trbic, I just want a statement from you in

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 1    case you have not received the indictment, the new indictment, in your own

 2    language.

 3            THE ACCUSED: [Interpretation] Yes, Your Honour.  I did receive the

 4    indictment yesterday.

 5            JUDGE AGIUS:  So I thank you for that.

 6            Let's go into private session for a while, please.

 7                          [Private session]

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16                          [Open session]

17            JUDGE AGIUS:  So we've come to the end of this status conference.

18    We had to dedicate part of it or deal part of it in private session

19    because of particular reasons that required us to be in private session.

20            There being no further issues to address, I declare this Status

21    Conference closed here.  We adjourn and I also wish to thank you, Mr.

22    McCloskey, Ms. Soljan and you, Mr. Piletta-Zanin, for your cooperation and

23    your courtesy.  Thank you.

24                          --- Whereupon the Status Conference adjourned at

25                          8.56 a.m.