Tribunal Criminal Tribunal for the Former Yugoslavia

Page 38

1 Wednesday, 27 November 2002

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.05 a.m.

6 JUDGE SCHOMBURG: Good morning. Please be seated. May we, as

7 usual, first have the case.

8 THE REGISTRAR: Good morning, Your Honours. This is the case

9 number IT-02-60-PT, the Prosecutor versus Vidoje Blagojevic, Dragan

10 Obrenovic, Dragan Jokic, Momir Nikolic.

11 JUDGE SCHOMBURG: Thank you. And the appearances for the

12 Prosecution, please.

13 MR. McCLOSKEY: Good morning, Mr. President. Peter McCloskey for

14 the Prosecution, and my colleagues Stefan Waespi and Anne Davis, and case

15 manager Janet Stewart.

16 JUDGE SCHOMBURG: And for the Defence. First for Mr. Blagojevic.

17 MR. KARNAVAS: Good morning, Your Honour. Michael Karnavas,

18 counsel, with Suzana Tomanovic, co-counsel.

19 JUDGE SCHOMBURG: Thank you. For Mr. Obrenovic.

20 MR. WILSON: Good morning, Your Honour. David Wilson, counsel for

21 Mr. Obrenovic, with my co-counsel, Dusan Slijepcevic.

22 JUDGE SCHOMBURG: Good morning. For Mr. Jokic.

23 MR. STOJANOVIC: [Interpretation] Good morning, Your Honour, my

24 learned friends. My name is Miodrag Stojanovic. I appear for the accused

25 Jokic. My co-counsel is Ms. Cynthia Sinatra and Professor Murphy --

Page 39

1 JUDGE SCHOMBURG: Thank you. And --

2 MR. STOJANOVIC: [Interpretation] -- legal advisor.

3 JUDGE SCHOMBURG: -- finally, on behalf of Mr. Nikolic.

4 MR. LONDROVIC: [Interpretation] Good morning, Your Honour. I'm

5 attorney Veselin Londrovic, appearing for the accused Momir Nikolic, and

6 members of my team are Mr. Kirsch and Ana Bursac.

7 JUDGE SCHOMBURG: Good morning. Thank you. And then, as you may

8 see from the Scheduling Order, in addition may I ask who appears for the

9 Registry.

10 MR. ROHDE: Good morning, Your Honours. Christian Rohde.

11 JUDGE SCHOMBURG: And for the government of the Netherlands in the

12 capacity of amici curiae.

13 MR. LAMMERS: My name is Johan Lammers, the legal advisor of the

14 Ministry of Foreign Affairs, and I am accompanied by Dr. Blokker and

15 Dr. Bevers.

16 JUDGE SCHOMBURG: Thank you very much. As you may see, the Trial

17 Chamber in its permanent composition is not complete today. We apply in

18 analogy Rule 15 bis (i) because the Honourable Judge Agius is unable to

19 sit with us this morning. I think it is a compelling and justifying

20 reason; he has to sit in another case at the same time.

21 May I ask now at the same time all the accused whether they can

22 follow the proceedings in a language they can understand, and what about

23 your health condition, and finally, are there any complaints regarding the

24 conditions in the Detention Unit?

25 May I start with Mr. Blagojevic, please.

Page 40

1 THE ACCUSED BLAGOJEVIC: [Interpretation] Your Honours, as for my

2 health, it is not too good, but I don't think I have any special

3 problems. My blood pressure is being kept under control, that is. Your

4 next question was about the conditions in the Detention Unit. They might

5 be improved, but they are bearable such as they are, and I have no special

6 complaints in this respect.

7 I don't know whether I will be given leave to speak again, but

8 there is another issue I would like to raise. You have mentioned only

9 these two issues.

10 JUDGE SCHOMBURG: You will have, of course, the possibility to

11 address other issues during this Status Conference no doubt. Thank you.

12 Please be seated.

13 THE ACCUSED OBRENOVIC: [Interpretation] Thank you, Your Honour.

14 JUDGE SCHOMBURG: Mr. Obrenovic.

15 THE ACCUSED OBRENOVIC: [Interpretation] Your Honour, I understand

16 everything that is said in the courtroom, I am well, and I have no

17 complaints.

18 JUDGE SCHOMBURG: Thank you. Please be seated.

19 Mr. Jokic.

20 THE ACCUSED JOKIC: [Interpretation] Your Honour, my health is

21 excellent. Thank you for the confidence you have shown in granting me

22 provisional release, and I have absolutely no complaints against the

23 conditions in the Detention Unit.

24 JUDGE SCHOMBURG: Thank you.

25 And finally, Mr. Nikolic, please.

Page 41

1 THE ACCUSED NIKOLIC: [Interpretation] Your Honour, I understand

2 what is being said in the courtroom.

3 THE INTERPRETER: Microphone, please, for the accused.

4 THE ACCUSED NIKOLIC: [Interpretation] I understand what is being

5 said in the courtroom. I have no complaints and no health problems. I

6 have no complaints against the conditions in the Detention Unit either.


8 THE ACCUSED NIKOLIC: [Interpretation] Thank you, Your Honour.

9 JUDGE SCHOMBURG: We have a long agenda today. Just to have the

10 overview for you, the first issue to be addressed is the one of the

11 conditions of provisional release; second, a number of questions related

12 to disclosure; possibilities to proceed more expeditiously by use of 94

13 bis statements, by use of depositions under Rule 71; and other

14 possibilities; first of all, the possibility to come to agreed facts.

15 Before I start with the first point on the agenda, why all this

16 speeding up at this point in time? The reason is that in all

17 likelihood -- one never knows what happens in this Tribunal, but in all

18 likelihood, the case we have before us will be heard as of May 6, 2003.

19 Then a Trial Chamber will be ready, and the two necessary ad litem Judges

20 will be assigned as soon as possible for this case.

21 In the meantime, no doubt we will have either another Status

22 Conference, as foreseen in the Rules, or a Pre-Trial Conference. And in

23 preparation of today's Status Conference, we faced some problems that

24 should be resolved before we are starting the case and before we are

25 conferring another Status Conference or Pre-Trial Conference.

Page 42

1 That the issue before us can also be understood by the public,

2 I'll just recall the events. On 28 March 2002, this Trial Chamber denied

3 the request of the accused Jokic regarding his provisional release. This

4 decision was invalidated by Appeals Chamber decision of 28 May 2002.

5 Provisional release was granted. As far as we can see, the accused Jokic

6 lived up to all the expectations and the obligations under this order.

7 When we conferred this Status Conference, it was our intention to

8 discuss the issue what shall happen when a case starts for trial and a

9 person is provisionally released, and it was foreseen to discuss this

10 issue under the headline "Proportionality, necessity," because in some

11 jurisdictions it is the rule - I don't want to discuss human rights at

12 this point in time - it is the rule that once provisionally released, it

13 is not mandatory that, when starting a trial, the accused has to come back

14 to the Detention Unit. This would be settled today.

15 When inviting for the Status Conference and asking Mr. Jokic to

16 appear in the Detention Unit, we were confronted with a motion to modify

17 the conditions of appearance for the Status Conference, filed on 15

18 November 2002. Taking into account the principle of proportionality,

19 first of all, this means that a measure in criminal law and in

20 international law is proportional only when, first, suitable; second,

21 necessary; and three, its degree and scope remain in reasonable

22 relationship to the envisaged target. That's proportionality in its

23 narrowest sense. And taking into account that procedural measures should

24 be never capricious or excessive and it is sufficient to use a more

25 lenient measure, when this is the case, this measure must be applied.

Page 43

1 Therefore, we granted leave and allowed the accused Jokic not to go to the

2 Detention Unit but to take care himself on his own accommodation during

3 this Status Conference.

4 In response, the Government of the Netherlands disagreed, and they

5 made reference to an earlier statement of - let me see. Where is it? -

6 January 28. There it reads: "It is the understanding of the Netherlands

7 that upon his provisional release, Mr. Jokic will leave Dutch territory."

8 And consequently, on November 22, 2002, we got the information that:

9 "In the view of the Netherlands authorities, Mr. Jokic staying

10 outside of the United Nations Detention Unit would be contrary to this

11 condition. The Netherlands therefore cannot agree to Mr. Jokic's stay in

12 a hotel during his stay in the Netherlands, but is of course prepared to

13 provide its usual assistance in transferring ICTY accused to the United

14 Nations Detention Unit."

15 We want to express the gratitude in the direction of Defence

16 counsel and Mr. Jokic that he voluntarily decided under these

17 circumstances to go to the Detention Unit, which in fact made it

18 unnecessary to come to a ruling balancing the interests of the Netherlands

19 on the one side and human rights on the other side.

20 Knowing that there is this problem and there will be this problem

21 in the future as well, it is necessary to discuss this issue. And may I

22 first invite Defence counsel to discuss and submit their point of view in

23 a two-fold approach. I think it's a different question whether an accused

24 when returning for the purposes of a Status Conference or Pre-Trial

25 Conference or when he's reappearing for trial. So may I please hear your

Page 44

1 submissions. What is your point of view to this first factual and,

2 second, legal issue? Please.

3 MR. STOJANOVIC: [Interpretation] Your Honour, when preparing for

4 today's Status Conference, and after we received the Scheduling Order for

5 today's Status Conference, as the Defence team, we had several talks among

6 ourselves and with our defendant, Mr. Jokic.

7 On this occasion, I wish to state that, first of all, we would

8 like to thank the Chamber for its understanding in respect of the status

9 of Dragan Jokic under Rule 65 of the Rules of Procedure and Evidence. We

10 have not had any doubts for a single moment as to whether we would fulfil

11 all the obligations stemming from the Scheduling Order for today's

12 conference. Dragan Jokic is fulfilling in every detail all the decisions

13 passed by the Trial Chamber, both in respect of his own behaviour, the

14 safety of others, and as regards his personal security. We assure you

15 that throughout his provisional release, he will continue to fulfil all

16 the obligations stemming from the Trial Chamber's decision. We also

17 assure you that he will respect all decisions of the Trial Chamber

18 regarding his return to the Detention Unit when the Chamber deems it

19 necessary.

20 When preparing for the Status Conference, yesterday we were

21 informed that in late March or early April another Status Conference is

22 expected which may be joined to a Pre-Trial Conference, bearing in mind

23 the date that has been set for the beginning of this trial. We wish to

24 take this opportunity to ask the Trial Chamber, if there is no special

25 need for the arrival of the accused Dragan Jokic to the next Status

Page 45

1 Conference or Pre-Trial Conference, that we not bring him here again on

2 that occasion because this leads to great expenses, a lot of work, and the

3 recruitment of seven to eight people who took part in the execution of

4 this obligation.

5 We also wish to ask, respecting, of course, the views of the Trial

6 Chamber should they be opposed to this, that before his -- that the period

7 of the accused's arrival before the start of the trial be less than

8 60 days, taking into account all the reasons and all the elements required

9 when determining his detention. So we apply that he be allowed to come to

10 the Detention Unit a brief period before the beginning of his trial.

11 Further, in our talks with our defendant, Mr. Jokic, last night,

12 we discussed the possibility of raising our submissions as to whether it

13 is necessary for Jokic to be in the Detention Unit during the time of the

14 trial. We agreed that we should inform Your Honours that, respecting all

15 our obligations, we shall organise ourselves in such a manner that Dragan

16 Jokic will stay at the Detention Unit during the trial.

17 Dragan Jokic and we as our Defence team have reached this decision

18 in view of the fact the conditions exist for him to continue communicating

19 with his Defence team in the Detention Unit to prepare for his defence,

20 that his personal security will be better if he is in the Detention Unit,

21 and bearing in mind that, according to the Trial Chamber's decision, he

22 must bear the expenses of his arrival and departure and any stay outside

23 the Detention Unit, and since these expenses are quite onerous for the

24 accused Dragan Jokic, and also bearing in mind what Your Honours have

25 stated in item 2, bearing all this in mind, we wish to say that during the

Page 46

1 trial, Dragan Jokic will stay in the Detention Unit and not outside the

2 Detention Unit. And objectively, we realise that it may not even be

3 possible for him not to be in the Detention Unit. Thank you.

4 JUDGE SCHOMBURG: I thank you very much for your submission which

5 makes more clear what is the issue before us. It seems to be limited now

6 to the question whether or not an accused has, when reappearing for the

7 purposes of a Status Conference or Pre-Trial Conference or another initial

8 hearing or whatever may -- whenever it may be necessary, that an accused

9 appears for, say, one or two days in the Netherlands, being provisionally

10 released, whether in these cases it is mandatory de facto, whereas it

11 seems to be de jure not necessary and it might be even an infringement of

12 the principle of proportionality. Therefore, we only have to discuss this

13 latter question, because in the case before us, apparently we do not have

14 the problem of a request for modifying the order as to the fact as it was

15 done by the Defence in this case to allow the accused to stay in another

16 accommodation.

17 So may I ask the Prosecution, what is your opinion on this point?

18 MR. McCLOSKEY: Mr. President and Your Honours, as you're aware,

19 the Prosecution took no position on the issue of the day or two stay

20 during this particular Status Conference. As for a future Status

21 Conference, the position of the Prosecution is largely -- would largely be

22 the same, though I would like to hear from the Dutch government and from

23 the Registry on their point of view.

24 From the practical point of view and from the position of

25 proportionality, a day or two of freedom during a Status Conference does

Page 47

1 not present any problem for the Prosecution, though I would like to retain

2 the right to change that position after hearing from the Registry and from

3 the Dutch government.

4 JUDGE SCHOMBURG: May the Dutch government not regard this as an

5 act of non-courtesy when I first ask the Registry to comment on this

6 issue.

7 MR. ROHDE: Your Honours, my comments will be very brief only. As

8 the Trial Chamber is aware, we are providing accommodation for accused at

9 a very high standard. This is always available. The conditions are

10 excellent. This pertains particularly to safety for the accused, medical

11 attention, psychiatric attention if needed, other professional care, and

12 things like that. So from that viewpoint, the Registry is offering, we

13 believe, excellent conditions and has, I think, no further comments on

14 another arrangement as proposed. Thank you.

15 JUDGE SCHOMBURG: Thank you. Then finally, in fact, it seems

16 limited to an exchange of different views, especially taken by the

17 government of the Netherlands, and I know that it was more or less by

18 surprise that they were asked to decide on this critical question. I'm

19 aware of this, but as it is always in the -- in criminal procedure, you

20 can't foresee what will happen. We tried to foresee and do the necessary

21 in relation to the trial and to avoid the discussion immediately before we

22 start the trial, but now we have the same problem in a nutshell related to

23 this one or two days stay in the Netherlands.

24 So may I ask you, Mr. Lammers, or one of your colleagues, in order

25 for a better understanding. It may be more appropriate for you to come

Page 48












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Page 49

1 here and to give us your submission, please.

2 And I want to emphasise that the representatives of the Dutch

3 government appear today in their capacity as friends of the Court, amici

4 curiae.

5 MR. LAMMERS: Your Honours, thank you for the invitation to attend

6 this Status Conference concerning for Mr. Jokic. We agree that the

7 invitation came rather late. Actually, we had only one day to prepare

8 ourselves for this meeting, and so it was not very easy, and actually,

9 very principal questions are involved.

10 We have been asked to present our opinion as host country in the

11 capacity of an amicus curiae on the question whether it is necessary or

12 even mandatory for the accused to be detained in the UN Detention Unit

13 during pre-trial or during the trial phase. I now understand that the

14 issue is no longer whether the accused should stay or not within the UN

15 Detention Unit in the Netherlands during the trial period. So as you

16 said, we should limit ourselves to the question of whether he should stay

17 in the UN Detention Unit during pre-trial session or during a conference,

18 a Status Conference.

19 You may recall that the Netherlands has sent the Court a -- the

20 Tribunal a letter, actually, the day after the decision was taken by the

21 Trial Chamber that Mr. Jokic should be allowed to stay in a hotel in The

22 Hague under certain conditions. Actually, we deplore that this decision

23 has been taken by the Trial Chamber without first consulting the

24 Netherlands government on this matter. As we understand Rule 65(B) of the

25 Rules of the Tribunal, the Netherlands should be consulted before, not

Page 50

1 only on the question whether provisional release should be granted, but

2 also on the conditions under which this provisional release should be

3 granted, and it is our understanding that if conditions are to be changed

4 on this point, that the Netherlands should be consulted first.

5 Anyway, the Netherlands has expressed its objections against the

6 stay of Mr. Jokic outside the UN Detention Unit also in respect of a

7 Status Conference, on the occasion of a Status Conference or on the

8 occasion of a pre-trial meeting, because the Netherlands has special

9 obligations concerning protecting Mr. Jokic, safeguarding his safety, and

10 so on, and this is a considerable burden on the Netherlands authorities.

11 This would, of course, be a major case when the accused should stay

12 outside -- should stay in the Netherlands, outside the UN Detention Unit,

13 during the trial period. But fortunately, this situation is not to be

14 discussed at this moment.

15 It still remains so that we maintain, actually, our objections

16 against the stay of Mr. Jokic outside the UN Detention Unit in the

17 Netherlands, also for the shorter periods. In exceptional cases, we have

18 allowed an accused in the past to stay in a hotel, but that was only

19 because the time period between the release from the Detention Unit and

20 the flight was such that the accused should stay in a hotel. But that was

21 only in an exceptional situation, and we would not consider that to be the

22 normal case.

23 So we should also consider this from the point of view of the

24 safety of Mr. Jokic. As already said by the Registrar, the safety of

25 Mr. Jokic is better assured when he is in the UN Detention Unit than when

Page 51

1 he is outside the UN Detention Unit in the Netherlands; and this is a very

2 important reason, I think, to keep in mind.

3 We also understand that from the part of Mr. Jokic himself,

4 practical and financial reasons, he actually prefers to stay in the UN

5 Detention Unit, and it seems that when we take all these aspects

6 together - the point of view of the Public Prosecutor, the point of view

7 expressed by the Registrar, the point of view expressed by the counsel for

8 Mr. Jokic, and the objections raised by the Netherlands, and taking into

9 account also the fact that, according to my information, human rights

10 convention would not be opposed against a person who has been

11 provisionally released to be detained during his trial or during other

12 meetings with the Tribunal in a detention unit - so for all these reasons,

13 I think the Netherlands should maintain its objections.

14 Well, that's it, Your Honour.

15 JUDGE SCHOMBURG: Thank you. May I first clarify two issues.

16 First, Rule 65(B) provides, no doubt, that the host country, given an

17 opportunity to provide its opinion when the question of provisional

18 release, as such, granting provisional release, is at stake, and no doubt

19 in this case this opportunity was given and the Netherlands agreed that

20 there would be provisional release but, as mentioned, under the condition

21 an accused leaves immediately the country when on provisional release.

22 We have to make a differentiation between two kinds of deprivation

23 of liberty. There's, on the one hand, the deprivation of liberty for the

24 purpose of safeguarding the procedure against a person presumed innocent;

25 and on the other hand, a deprivation of liberty for purposes of his or her

Page 52

1 own safety. These two issues should never be confused.

2 So finally, the point is that under the current circumstances --

3 and I discuss this issue in detail, for the reason that it's not the only

4 case where we will face this problem in the future. It might be that

5 also, among others, one may be provisionally released by an Appeals

6 Chamber, we could have the same problem. And we heard by the Defence

7 counsel no doubt that he would ask that Mr. Jokic should be requested to

8 come to the Netherlands for the purposes of such short conferences only

9 when it's mandatory and absolutely necessary. But under the Rules, in

10 certain occasions, it's mandatory and it is necessary that an accused

11 appears. So we can't foresee this. And I think we have to -- not to

12 resolve it today, but we have to hear exhaustive submissions by the

13 parties and, also in this case, by the Netherlands, being involved and no

14 doubt part of these proceedings.

15 The question comes down to the core question: Under the host

16 country agreement, we have the provision allowing for bringing a person to

17 and from the Detention Unit, Schiphol airport, and another airport in the

18 Netherlands. But apparently the mothers and fathers of our Statute and

19 our Rules did not foresee at that time that there would be any provisional

20 release, and now we are facing the situation that we have only two

21 possibilities: either a person being in the Detention Unit or in his or

22 her home country. It would not be possible to have this person for one or

23 two days in the Netherlands without being in the Detention Unit.

24 I may recall that nearly all European laws on criminal procedure

25 provide for provisional release, and as far as I know, in the Netherlands

Page 53

1 it's the case that, when once decided that it is not necessary to have a

2 person in detention in the Detention Unit, then he or she may appear as an

3 ordinary citizen, presumed innocent, to trial; and only when there are new

4 facts, there is a possibility for the Chamber to reconsider their previous

5 decision and to come to other conclusions. But de facto, in the moment,

6 it would not be possible for accused in this Tribunal and, I add, also

7 other tribunals in the future, criminal tribunals in the future, to grant

8 provisional release and allowing these persons to stay in the Netherlands,

9 which no doubt in some circumstances - and this broadens a little bit the

10 scope of the issue before us - which no doubt allows the Trial Chambers

11 more easily to come to the conclusion that provisional release may be

12 granted.

13 So may I ask you once again, taking into account these other legal

14 systems and principles, predominantly applied in Europe, whether or not it

15 is the position of the Dutch government not to allow provisional release

16 for the purpose of one or two days, or even in general.

17 MR. LAMMERS: Your Honour, indeed, I think we should make a

18 distinction between a situation where there is a request for a provisional

19 release of a person, and then the question will arise whether he will or

20 will not pose a danger to any victim witness or other person, so for a

21 third person, so to say, on the one hand; and the situation that a person

22 may not pose such a danger to third persons but that he himself may be the

23 object of danger.

24 It is in respect of the latter situation that I would like to say

25 the following: It may be so that also according to Netherlands criminal

Page 54

1 procedural law, a person may not be detained in a detention unit when he

2 has been provisionally released, but I think that here we have a different

3 situation in the sense that the question arises: Who is to be responsible

4 for the safety and the guarantee of the safety of Mr. Jokic when he is

5 outside the -- when he is in the Netherlands and outside the UN Detention

6 Unit? And this is a special burden on the Netherlands government, and we

7 still believe that this burden should be limited as much as possible. And

8 so that is the reason that, in principle, we feel ourselves obliged, of

9 course, to provide this service of safeguarding a person when he comes

10 from abroad and goes to the Tribunal or the UN Detention Unit, or from

11 there back to his country. But the burden on the Netherlands outside that

12 should remain as limited as possible.

13 And I think the situation is different here in the sense that this

14 is a procedure before an international tribunal; and in the case of the

15 Netherlands, when a person is prosecuted before a Dutch court and the

16 court decides that he may be provisionally released, then it's a matter

17 entirely within the legal -- the Dutch legal system. So for that reason,

18 I think that the situation is not entirely comparable with the situation

19 before a national judicial instance.

20 JUDGE SCHOMBURG: I understand that you have to represent the

21 interest, also taking into account security aspects, but nevertheless, is

22 it really true that a distinction can be made between, on the one hand

23 side, an accused prosecuted in a Dutch court and, on the other hand, a

24 person, a human being presumed innocent - this has to be emphasised - and

25 prosecuted by an international criminal tribunal? Isn't it something a

Page 55

1 host country has to take into account when inviting an international

2 tribunal to the country?

3 MR. LAMMERS: Well, as I said, the situation is not, to my belief,

4 with all due respect, entirely identical with a case entirely before a

5 Dutch court, and I think that a balance in this case has to be made

6 between the interests of the accused, the interests of the Tribunal, and

7 the interests of the Dutch government. And when I take into consideration

8 the fact that there is a special responsibility on the Netherlands in

9 respect of this type of accused persons, to safeguard their safety, to

10 protect their person, and I don't have the figures of the cost involved

11 apart from the political and administrative burden of the cost involved

12 for one day in a hotel, but we computed the costs of an annual safety

13 provision on around-the-clock basis for one person, and we came to the

14 conclusion that this would cost somewhere between 600.000 euro and

15 1 million euro on an annual basis. So maybe this gives an indication of

16 what the costs, apart from the political and administrative and the

17 technical problems, would be -- would be in the case of the special

18 precautionary measures which the Netherlands government would have to

19 take. If we set this in respect, on the one hand, and take into

20 consideration, on the other hand, the good accommodation in the UN

21 Detention Unit and also the fact that his safety may be more -- may be

22 more protected in the UN Detention Unit, it does not seem to me

23 self-evident that the accused should be in a Dutch hotel.

24 I would also like to emphasise that in spite of -- to indicate the

25 burden which is on the host state, not only on the host state but also on

Page 56

1 the state where the accused goes to, that I only have to refer to the

2 guarantees which the Republika Srpska government was asked to give in the

3 case of the provisional release of Mr. Jokic. The government of -- the

4 Republika Srpska government had to guarantee that it would organise

5 security for Mr. Jokic and ensure that he does not leave his place of

6 residence without approval and that if he is not complying with the

7 conditions of his provisional release, that they should arrest him, et

8 cetera, et cetera, et cetera. So it indicates that there is a rather

9 special burden on the part of the government in the Netherlands when the

10 person is not within the UN Detention Unit.

11 JUDGE SCHOMBURG: It is not our intention to decide immediately on

12 this issue, and it is to be discussed in the framework of a Bureau

13 meeting, without any doubt, because it's a matter of principle and a

14 harmonised approach by our Trial Chamber is needed. But may I ask the

15 parties: Are there any additional remaining questions related to this

16 issue and this, as a matter of principle, this can be the case and can be

17 the problem in the future for other accused in this case? Does anybody

18 want to raise a question or to submit an opinion?

19 MS. SINATRA: Your Honour, if I might also just remind the Court

20 that the Pre-Trial Conference that is coming up, we will be requesting the

21 same modification of conditions as set by the Court. So the issue dealing

22 with temporary provisional release of the accused is still very much

23 alive, although we have stated that he will submit to the UN Detention

24 Unit during trial. If he's ordered back during the Pre-Trial Conference,

25 then we would request the same conditions of modification.

Page 57

1 We also apologise to the Dutch government and to the Trial Chamber

2 for the untimeliness of the motion that we filed, and I'm hoping that if

3 this other motion and request is filed in a more timely manner, that the

4 Dutch government will have more time to consider this, and once they see

5 that there are no security issues concerning Mr. Jokic and that the Court

6 ordered that the Defence be responsible for his safety and security, that

7 possibly they would take a different position on this. But there's still

8 the issue now of weighing the interest -- human rights interest, and the

9 presumption of innocence with Mr. Jokic, who, I'm not sure what the Dutch

10 government meant when they said "this type of accused person" versus

11 another type of accused person with the interest of the Dutch government.

12 And we still submit that this issue is alive, and we will be submitting

13 another request during the Pre-Trial Conference. Thank you.

14 JUDGE SCHOMBURG: Thank you. Any other Defence counsel wanting to

15 take the floor? I can't see.

16 The Prosecution, please.

17 MR. McCLOSKEY: Your Honour, we have nothing to say at this time.

18 JUDGE SCHOMBURG: Thank you. It remains for me to thank you very

19 much for coming today. I think it's worthwhile reconsidering this

20 question, especially related to the issue we have before us, the upcoming

21 Pre-Trial Conference, where it may be necessary for one or other reasons

22 to address the accused in person and to grant him the possibility to be.

23 We also have to take this into account. The accused is not the object.

24 He's a subject, the main person of such a case, and no doubt he has the

25 right to attend a hearing when his future is discussed and the charges

Page 58

1 against him and how to proceed, especially during a Pre-Trial Conference.

2 Then he has the right to be here.

3 So taking into account that it was indeed on a very short notice,

4 I would invite the Dutch government to present their final opinion in

5 writing, if it's possible. I don't want to impose any time limit on the

6 government, but hopefully before the winter court recess of this

7 Tribunal. This is the 13th of December. If this would be possible, we

8 would be extremely grateful that we can know what is the basis on what we

9 have to decide in future.

10 Thank you very much for coming. And when closing this point on

11 the agenda, we take the opportunity of having a break now until 10.20.

12 MR. LAMMERS: Thank you very much.

13 --- Recess taken at 10.00 a.m.

14 --- On resuming at 10.22 a.m.

15 JUDGE SCHOMBURG: For the transcript, it should be mentioned that

16 we continue now in the absence of the representative of the Dutch

17 government and the representative of the Registry, and we continue with

18 the Pre-Trial Judge only, we having before us now ordinary, practical

19 issues. And let us start immediately media in res, and let's discuss

20 issues of disclosure.

21 As regards 66(A)(i), I think there is no longer any problem. The

22 disclosure under this paragraph is complete. What about 66(A)(ii)? Are

23 there any complaints we cannot find in the motions? I'm aware that we

24 have a number of motions before us still pending, but I would appreciate

25 if we could resolve these problems during the Status Conference.

Page 59












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Page 60

1 Who wants to take the floor first from the Defence? Mr. Karnavas,

2 please.

3 MR. KARNAVAS: I take it this is an invitation, Your Honour --

4 thank you, first of all. I take it this is an invitation to discuss, in

5 general, the issue of disclosure.

6 JUDGE SCHOMBURG: I think it's -- it would be appropriate first to

7 limit it to 66 issues, and then later on to 68.

8 MR. KARNAVAS: Great. Because I think, in my opinion, Your

9 Honour, perhaps the crux of the problem, at least from our position, is

10 that everything emanates from Rule 66.

11 As I've indicated in the past, it's my firm belief, given that the

12 Prosecution has drafted a very broad indictment, given that they have

13 charged Mr. Blagojevic, in essence, from the beginning, in this joint

14 criminal enterprise, that we should be entitled to have the entire file on

15 Srebrenica from the Prosecution, with the exception of any material which

16 they may feel comes under work product. And of course, they do have the

17 opportunity, if they feel that certain material should not be revealed to

18 the Defence, they can seek guidance from the Court to see whether that

19 material should not be revealed to the Defence.

20 So we do have a motion. The motion is still pending. I

21 understand the Prosecution's position. Yesterday they indicated - and I'm

22 sure Mr. McCloskey will correct me if I misstate anything - that they will

23 comply with their obligations to provide material which they believe is

24 material to the Defence. And I think that's the critical aspect of this,

25 because, I dare say, I certainly do not want the Prosecutor telling me

Page 61

1 what he believes is material to the Defence, because I believe the entire

2 file is material.

3 The real issue is: Do statements come under the ambit of

4 disclosed material as far as documents are concerned? And we suggest, and

5 we urge the Court, that the answer to that is yes. And why is that?

6 In the past, this Rule, as I understand it, has somewhat narrowly

7 been viewed, perhaps not challenged as well. I know they have challenged

8 it in Arusha. But a statement on its face may not appear to be material,

9 but given to the Defence, and with investigation - because this is an

10 adversarial process - it may lead to other material evidence, other

11 material witnesses. And therefore, we contend, because of the nature of

12 the indictment, which the Prosecution drafted and which the Court has

13 indicated should stand as is, and upon which we must defend, that we

14 should be entitled to everything.

15 The Prosecution indicated that they would provide us with

16 all -- they said they will provide statements. I didn't hear "all

17 statements contained in all of their files." That's what I would like to

18 hear. I don't know if Mr. McCloskey is in a position to make that sort of

19 announcement here today. Perhaps he has to run it up the ladder. Perhaps

20 he doesn't wish to set a precedent in this particular case. And that's

21 why we may need your assistance in ruling on the motion. But that is our

22 position as far as disclosure material.

23 Aside from that particular issue, we are getting statements from

24 the Prosecution that were obtained back in 2000 or 2001. We're just

25 getting them now because they haven't been translated. Mr. Blagojevic

Page 62

1 indicated to me that I should have my translator, or translators, working

2 on translating all of these statements because he needs to see them.

3 Well, obviously, one, that's impossible because we don't have those

4 resources; secondly, it's not our obligation; and thirdly, the question

5 must be asked: Why is it taking so long? Especially when the Prosecution

6 has come in and said, "Well, the indictment was outstanding since 1998."

7 Obviously they were waiting to pick him up. So now here we are 2002,

8 getting close to 2003, and we're just getting these statements.

9 I'm not saying that Mr. McCloskey is holding back on the

10 translations. They have some technical problems. But it is affecting our

11 ability to, one, prepare our case, because without these statements we

12 cannot do a proper investigation. Obviously, the accused are entitled to

13 see them. And that is holding up -- that's holding up the process, as far

14 as I'm concerned. And I know that Mr. McCloskey is doing everything he

15 possibly can, but I think we may need some reassurances from you, Your

16 Honour, that something can be done to expedite this process. Because it

17 does cause tension within the Defence teams, between the lawyer and the

18 client, because the client wants the material. You know, I can't consult

19 with the client on statements if he doesn't have it.

20 Now, we've gone through the -- we've asked the Prosecutor, and

21 they have been helpful in providing us tapes of interviews. Of course,

22 it's very time-consuming for the accused to listen to all of the tapes and

23 then prepare to go over statements in that fashion, but we're going to

24 need those anyway for the trial.

25 So basically, those are my opening remarks.

Page 63

1 JUDGE SCHOMBURG: Thank you. Before giving the floor to other

2 Defence counsel, I want to emphasise that no doubt we have 66 before us,

3 but as to the incredible amount of documents available, in principle,

4 which might tend to have a connection to the case before us, it seems to

5 be impossible to request all statements. From the point of view of the

6 Chamber, the test should be: Might a document be relevant for the case?

7 Relevance should be the appropriate test. And I understand fully your

8 concern, coming from a civil law system where we have all the documents in

9 one file and all the documents are accessible to all the parties and,

10 first of all, also the Judges. It's also the Judges' concern that

11 sometimes we really cannot decide on the relevance, for example, of a

12 question put to a witness whether or not to admit evidence when we don't

13 know the entire -- all the, I emphasise, relevant statements.

14 I think when we discuss this issue, we should bear in mind that no

15 doubt our Rules are primarily those ones emanating from a common law

16 system. But nevertheless, common law and civil law, they have both one

17 root, and to a certain extent this is the Roman rule and the Roman

18 principle da mihi factum, dabo tibi jus; "Give me the facts, and I give

19 you the law." This is for the Judges. And we also feel sometimes

20 uncomfortable, but we have to understand that we have to work under

21 Rule 66 in this case, and these Rules -- this Rule provides only for the

22 mandatory disclosure of relevant material. And I hope that we can agree

23 that relevance could be or should be the test applicable.

24 As regards 66, 68, there, I think, another approach is necessary.

25 But let us hear, in the order, the Defence of Mr. Obrenovic, please.

Page 64

1 MR. WILSON: May it please the Court. Your Honour, I endorse

2 Mr. Karnavas's arguments this morning. I also endorse his concern which

3 has nothing personally to do with Mr. McCloskey. We do not distrust

4 Mr. McCloskey. If Mr. McCloskey and I suddenly changed seats, I believe

5 that you would probably hear the same argument from him.

6 There is a difficulty with the opposing party determining what is

7 relevant for your case. This is an issue, and I do not know how it goes

8 away. I also believe, based on the history of the litigation on this

9 point, that Your Honour should rule on the outstanding motions and should

10 announce some guidelines and some standards from which we will all be

11 operating. Otherwise, I see this as something that will continue to

12 plague us and continue to cause issues to be raised in Status Conferences

13 and at 65 ter conferences.

14 So the question was raised yesterday as to whether this is

15 something that the parties can sit down and come to agreement to without

16 your interference. Respectfully, I would think that it is not, and I

17 believe that it is something that Your Honour should address and should

18 provide us with the guidance and rule from the Court, and we will live by

19 that.

20 JUDGE SCHOMBURG: Thank you. On behalf of Mr. Jokic, please. I

21 think there we have a huge number of open issues in your motions.

22 MS. SINATRA: Yes, Your Honour. If I may address the Court.

23 There have been several motions for disclosure filed on behalf of

24 Mr. Jokic, starting from April 15th and the most recent one filed this

25 last week dealing with Rule 68, but the Court has asked that we address

Page 65

1 Rule 66 first, I believe.

2 Under 66, our main concern is Rule 66(B). In our last motion we

3 filed, we stand 100 per cent behind the ruling in Rutaganda, which holds

4 that everything, all statements, fit under the ambit of discoverable

5 material in -- under Rule 66(B). And the Court clarified that by stating

6 that written statements by the accused should be considered as being

7 included within the scope of documents to be disclosed by the Prosecutor

8 to the Defence, as provided under Rule 66(B).

9 Of course, the decision on -- the Court has mentioned "relevant,"

10 what is relevant evidence for the defence at this time. But Rule 66(B)

11 states: "... evidence that is material to the preparation of the

12 defence." So whether it is considered relevant by the Prosecutor as far

13 as their theory of the case is something different than what we consider

14 might be material evidence leading to relevant evidence in the Defence

15 case. So it is a much broader scope under Rutaganda and a much broader

16 scope under Rule 66(B). Instead of relevance, it's material, whether it's

17 material to the preparation of the defence.

18 I would also like to say that the Defence of Dragan Jokic joins in

19 Mr. -- the arguments by Mr. Karnavas on behalf of Mr. Blagojevic that we

20 don't have the funds, the wherewithal, or the staff to have all these

21 translations done. We talked to the Prosecution yesterday and

22 Mr. von Hebel about how we're going to solve these problems, and until we

23 get full disclosure in the languages that we can communicate with our

24 client with and we can all discuss the issues of the case, we can't really

25 be prepared for a pre-trial brief until all of this is completed first.

Page 66

1 The motion filed on July 18th regarding disclosure by Mr. Jokic

2 was withdrawn, so I'm putting it aside. And at this point, Dragan Jokic

3 only asks that you rule on the April 15th motion and the September -- yes,

4 the September 15th motion which are pending on disclosure regarding

5 Rule 66, 66(A), 66(B), and 67, and we'll address Rule 68 after the Court

6 decides on whether it will rule on these issues.

7 JUDGE SCHOMBURG: Thank you. Can we agree that the question

8 whether a document is material does not exclude to apply also the second

9 attribute that is relevant, knowing very well that it is extremely

10 difficult for both parties to label the documents 66 material, relevant;

11 68, exculpatory. And I, having served myself as Defence counsel for five

12 years, I would be hesitant to leave it for the Prosecution to decide, for

13 example, on the Rule 68, to label the document as exculpatory. It is for

14 the Defence to decide whether they regard it as exculpatory.

15 But let's stay with 66. I thank you for this clarification on the

16 outstanding motions, and no doubt the Trial Chamber has to rule on this,

17 but let us finally hear the observations by the Defence counsel for

18 Mr. Nikolic, please.

19 MR. LONDROVIC: [Interpretation] Your Honour, on behalf of

20 Mr. Nikolic, it is our position that the Defence also has to have all the

21 essential and relevant statements and all the materials which may be

22 necessary to prepare for the defence.

23 According to our opinion, the disclosure under 66(ii) -- (A)(i)

24 has not been completed with regard to the accused Nikolic. We have not

25 received all the witness statements, either in English or in B/C/S, that

Page 67

1 is, of all the witnesses which the Prosecution intends to call. We have

2 got the list of witnesses. I have compared it with the statements, and I

3 have established that we still lack a number of statements. We sincerely

4 hope that this problem will soon be resolved with the OTP.

5 And as far as the 66(B) is concerned, I believe that the Trial

6 Chamber should decide. And I support my learned colleagues, and I don't

7 want to waste any more time on that. I also support the position that the

8 statements have to be relevant.

9 I would like to give you an example. We have received a statement

10 from the Prosecution which may not be relevant in this case. I am not

11 going to say the full name of the witness because that witness may be

12 protected, but her statement is relative to the year 1992, has nothing

13 whatsoever to do with the year 1995, and I believe that this statement is

14 not relevant for this case in which we are dealing with July through

15 December 1995, as per the indictment. And I don't see the reason why the

16 Prosecution has sent us this statement except to prejudice our client.

17 JUDGE SCHOMBURG: Thank you for this intervention. It shows in a

18 nutshell the problem we all have to face here with this incredible number

19 of documents. There are always complaints, being overwhelmed with a

20 deluge of documents on one hand side, and on the other side the request

21 for full compliance and giving access to all the documents available.

22 But may we hear the submission and the view taken by the

23 Prosecution to this question. And it's principally touching upon the

24 question of translation, because here I believe it's a priority for the

25 Trial Chamber to rule as soon as possible and to order that the -- I

Page 68

1 hesitate to say "the documents," but the important documents that the

2 Defence needs, no doubt, for the preparation of their brief and their own

3 investigations, that these parts are translated within due time. And what

4 would be from your point of view a reasonable time for translation?

5 MR. McCLOSKEY: Mr. President, I'm a little surprised that --

6 about this argument. My records show that I have three witnesses who we

7 interviewed in the last few weeks that we haven't been able to get full

8 statements and translations of, but the indications I have is that almost

9 all, if not all, the other witnesses that we intend to call under 66(ii)

10 have been provided in both languages, and this is the first I've heard

11 from counsel on this point, and we have a good working relationship.

12 Mr. Veselin Londrovic is very good at pointing things out to us when we've

13 missed it, and I'm sure he will continue to do that. And if there are

14 items that he hasn't received, we will get them to him and the others as

15 soon as possible.

16 But I don't believe for -- in the purposes of the witnesses, that

17 we have a problem with translations. We made huge efforts to get special

18 translation services and special transcription services in place outside

19 this country so that we would be able to have this material ready for the

20 filing of the trial brief, and I believe we have met that in almost all

21 cases. And if we have not, we will certainly make efforts to do so.

22 And we shouldn't, you know, need much time at all to clear this

23 problem up because I don't believe it exists in terms of 66(ii). And I'm

24 always willing to hear their -- to speak with them and find out why they

25 haven't received things, but they've been getting stuff, a lot of stuff.

Page 69

1 And it's not always easy to figure out everything you have, and I think

2 that may be the problem more than lack of translations at this time, but

3 I'll work with them to identify if there is truly a problem.

4 JUDGE SCHOMBURG: And let's stay for a moment with the problem of

5 translation. I heard that the pre-trial brief has not yet been translated

6 into B/C/S. No doubt the accused has a right to have access to this

7 pre-trial brief in a language he understands, and therefore my question

8 is: Do you know anything about the development related to the translation

9 of the pre-trial brief?

10 MR. McCLOSKEY: Most counsel and I have spoken about this, and we

11 all agree as a practical reality that you're correct, the Defence should

12 have this. The Rules, unfortunately, do not require it, so that faces --

13 we face a difficult problem. And I think you could assist us on that, and

14 if we all jointly ask translations to do that, I would expect that it

15 would be done in a relatively short time. But it's not something that's

16 always done, and -- but counsel has indicated a great interest in this

17 product and we would support them in that it should be translated.

18 JUDGE SCHOMBURG: To conclude this, I think it is necessary and it

19 will be done right now.

20 Having discussed this issue with my colleagues, the -- we order

21 that the pre-trial brief be translated in full no later than 10 December

22 2002. And from this it follows that we can't expect the Defence to

23 prepare their pre-trial brief as scheduled - it was also the 10th of

24 December - and anticipating all that what I heard from the 65 ter

25 conference of yesterday, I think it's appropriate that we can expect the

Page 70












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Page 71

1 Defence pre-trial brief 10 January 2003.

2 Is this an adequate point in time? Mr. Morrison, please.

3 MR. WILSON: Your Honour, Mr. Wilson.


5 MR. WILSON: Your Honour, this is a great help to us, and this is

6 what we were all hoping we would hear this morning.

7 There is another aspect which bears very definitely on our ability

8 to prepare our pre-trial brief, and that is the translation of the Butler

9 report. It's a similar situation to the Prosecution's trial brief.

10 This is a very technical document that Mr. Butler has prepared.

11 It's again about the same size as the trial brief, many footnotes,

12 et cetera. It is in many senses a very technical manual. It's very

13 similar to that. Mr. McCloskey yesterday indicated that their own

14 witness, who is a British general, who has been identified, has to have an

15 opportunity to review Mr. Butler's report, and after he's had a chance to,

16 as I recall the words, review and digest it, then he himself will be able

17 to prepare a report. And as I understood Mr. McCloskey, he can't do that

18 for a couple of months.

19 I am not a professional soldier. I find it a very complex

20 document. I do my best to understand it, but I need the help of

21 Mr. Obrenovic, my client, to do that. All of these gentlemen are

22 soldiers. It has great meaning to them, and for them to understand

23 exactly what the nature of the case against them is, they really need to

24 have an opportunity to review that, study it, tell us what they believe is

25 correct and incorrect about it, and we can then go forward.

Page 72

1 So our request this morning would be also that the Court order

2 that that be translated in a very expeditious manner, so that we can get

3 on with preparing our trial brief. Thank you.

4 MS. SINATRA: Your Honour, Mr. Jokic is also a soldier, and we do

5 need his assistance in preparing the pre-trial brief. But I just wanted

6 to bring to the Court's attention that under Rule 65 ter (F), there is no

7 need to have the Defence pre-trial brief filed that early. If we have our

8 Pre-Trial Conference the first week in April, then we may -- if we set a

9 date for the first week in March, I think that would be sufficient under

10 the Rule 65 ter (F), and just to ensure the rights of the accused that all

11 these documents are translated, that there has been sufficient ability to

12 communicate and confer with your client. I think pushing it to January

13 10th may be stretching the translation department, who -- I'm still not

14 clear if it's the responsibility of the Prosecution or if it's the

15 Registry's responsibility, under your order, to do the translations, but I

16 ask that the Court give us a little extra time so that, once it's

17 translated, we have time to discuss it and confer with our clients. Thank

18 you.

19 JUDGE SCHOMBURG: Any other contributions to this point, related

20 to the Butler report? Mr. Karnavas?

21 MR. KARNAVAS: Yes. With respect to the Butler report, I concur

22 with Mr. Wilson's position. I think that it is very complex, it's very

23 necessary. Again, I want to draw the Court's attention that, under the

24 Prosecutor, the outstanding indictment for Mr. Blagojevic was back in

25 1998. They made a big deal about it, him somehow not being available to

Page 73

1 be arrested for some several years because they had to uncover his

2 whereabouts. But it would seem to me that if they had an indictment, they

3 should have been actively pursuing, through their military expert,

4 preparing a report that would also cover the brigade level.

5 Now, Mr. Blagojevic was arrested and we -- over a year ago. He's

6 been in detention. We've had to wait for a very long time for Mr. Butler

7 to prepare his report. And in my opinion, and I say this regrettably,

8 it's totally inexcusable that we don't have it at this point in both

9 languages, and it's inexcusable that it took so long for Mr. Butler to

10 prepare his report, albeit he's very busy.

11 My other concern is that we do -- we have noticed that there's a

12 British general that is also going to be preparing some sort of a report.

13 And I don't want to sound like Cassandra, but I dare say, I'm going to be

14 back here arguing that I need that report as well translated. So perhaps

15 the Court could factor that in as well.

16 I don't know whether the Butler report can be prepared by December

17 10th, whether it can be translated, keeping in mind that there are also

18 footnotes to these documents. Some of the documents may or may not

19 be -- they may need to be translated, because they may be in English,

20 although I think the majority of the documents that are referenced are in

21 B/C/S, so that's not a problem. But nonetheless, we need it because also

22 we need to cross-reference to make sure that the documents jibe in some

23 way, that they're consistent, or where there are inconsistencies, so we

24 can go through that.

25 I don't particularly have a problem with the January 10th

Page 74

1 deadline. It does -- you know, puts us under the gun a little bit,

2 because you also have the holiday season and what have you, and some may

3 or may not have plans, especially if they have families. But if we were

4 to get the report by December 10th, I'm willing to make a commitment that

5 I'll have my pre-trial brief by January 10th. Barring that, it would be

6 very difficult, Your Honour. I don't want to get it five days before. So

7 I urge you, please, you know, put some heat on the Prosecution to get it

8 done.

9 JUDGE SCHOMBURG: I think it's not necessary, because I have the

10 impression all the parties do whatever they can in preparation of the

11 case.

12 May I ask Mr. McCloskey: Do you believe it's realistic to have

13 the Butler report also translated until the 10th of December?

14 MR. McCLOSKEY: I asked for an estimate on when Butler's report

15 can be fully translated, and the response I have is the end of January.

16 Now, I say that -- I think we should also point out Mr. Butler's

17 report -- the vast majority of it has already been written and is in

18 B/C/S, from the Krstic trial. We're flattered that the Defence is so

19 concerned about the rest of it, and we agree that they should see it and

20 that it is important. It's largely due to incorporating new material in

21 the report that is important and that the Defence should see. The new

22 material is a result of material we believe hidden by the RS government

23 that we had to get from a search warrant to the MUP. So it's not by any

24 fault of the Prosecution that this report and the materials in it have

25 come at the time they did, which we did meet your deadline of the report

Page 75

1 filing.

2 Now, what Mr. Butler has done, he has taken several days, I

3 believe, at this point, to help the Translation identify the new parts of

4 the report so that they would not go through what happens, unfortunately,

5 so many times here, repeating the same translation over again. So they

6 are translating the key parts of it. And also, we have a particular

7 translator that is familiar with the terminology, familiar with the

8 situation, and she -- it is her responsibility to work on it, with others,

9 and with her supervisors. It's not only her product, but we get a better

10 product if we rely on that one expert translator for the bulk of the work,

11 and that's where the end of January comes in. Now, if it gets divided up

12 to others, perhaps Translations can get it sooner. But Translation, as

13 you're well aware, as I'm sure counsel is, are working full out on many

14 cases, and there are cases where translations and documents are a real

15 problem. This is not one of them.

16 But I would only -- to get it sooner than January, we would need

17 to talk to the supervisors at Translations to see what they say about it.

18 I would like to get this report to the Defence as soon as possible, for

19 the reason they have stated, and we have been working full out to do that.

20 JUDGE SCHOMBURG: Thank you.

21 It was also my understanding that, to a great extent, the Butler

22 report contains material already used in the Krstic case and was already

23 translated. We face this problem nearly in each and every case, and

24 normally we try to come to the conclusion that it might be possible that

25 when Defence counsel and accused meet, they assist each other - I'm making

Page 76

1 reference to the fact that some parts are referenced in B/C/S - that they

2 assist each other when discussing this report.

3 On the other hand, knowing that when the Translation Unit is under

4 inhuman stress, there might be some flaws in the interpretation, and this

5 should be avoided, because especially this report, also I myself don't

6 have any, as you must all know, experience in this area, I have to rely on

7 the accurateness of the translation, and therefore there shouldn't be any

8 undue time pressure imposed on the Translation Unit. And therefore, I

9 would ask the Defence -- all Defence counsel to be prepared with a

10 pre-trial brief, in general, the 10th of January, 2003, notwithstanding

11 that when receiving the final Butler report, there may be an amendment to

12 this pre-trial brief. I think this is a reasonable solution.

13 Can you all agree with this?

14 MS. SINATRA: Your Honour, I think that we're trying very hard to

15 negotiate and come up with a compromise on all this, but the fact is the

16 new Butler report is the one that contains 90 per cent of the evidence

17 relevant to this case, because they have now included the Zvornik

18 Brigade. So it's very difficult for us to prepare a Defence pre-trial

19 brief without having access to the translation of the new Butler report

20 and the new evidence prior to that time. I think it might be duplicious

21 [sic] if we file one brief and then have to file another, but I just want

22 to bring it to your attention that the new Butler report is the one that's

23 most relevant to the Defence in this case.

24 JUDGE SCHOMBURG: No doubt I'm aware of this, and you may know

25 that we ask the Prosecution to provide us with the same material that the

Page 77

1 Defence receives - no more, of course, but also no less - because we want

2 to know the facts, we want to be prepared, and we are aware of the

3 importance of the Butler report. But nevertheless, I think it is

4 worthwhile, and it's possible to discuss, in part, the Butler report, due

5 to the fact that the Defence teams are composed of counsel speaking both

6 languages together and therefore can discuss the Butler report already

7 now, in the general outlines, with their clients.

8 I don't regard this as would be an impediment, to have the

9 pre-trial brief prepared 10 January. And then, when receiving the

10 translation in full, I would ask the Prosecution to tell us the exact date

11 when this translation was sent to Defence counsel. And from this point in

12 time, we would grant leave to amend, if need may be, one other month for

13 such an amendment of the pre-trial brief.

14 I think this is necessary, because we can't wait until the

15 beginning of April with a Pre-Trial Conference. I want to avoid two

16 extremely expensive and, in part, overlapping conferences. Under the

17 Rules, we have to have the next Status Conference no later than 26 March

18 2003, and this should serve already as the Pre-Trial Conference in order

19 to prepare. Maybe at that time we need even more than one day.

20 I hope that it will be possible for the parties to proceed this

21 way. And as stated, first of all, the pre-trial brief has to be

22 translated, and this should be, and as ordered, no later than 10 December.

23 But may I ask now the Prosecution once more, in relation to

24 the -- I wouldn't call it complaints, but the observations by the Defence

25 related to 66(A): What about your point of view regarding witness

Page 78

1 statements to be treated as documents or not documents? The reference to

2 the Rutaganda, in all politeness, a rather fast decision taken at that

3 point in time. Do you believe that at least some of the points raised by

4 the Defence can be solved by the Prosecution and between the parties?

5 MR. McCLOSKEY: I believe that I have -- and that we have solved

6 them together. I don't see the problem that counsel have seen, and I'll

7 explain why. The issue whether or not statements amount to documents

8 under reciprocal discovery has been briefed by both sides. There's a

9 policy of the OTP that they do not -- statements are not documents. And

10 that material, as Mr. Karnavas said, is awaiting your decision, if need

11 be, and we would welcome a decision, as would the Defence. But what we

12 have done together, in order to avoid any problem, is we've agreed to

13 provide the Defence with statements. And it's rather interesting --

14 Mr. Karnavas wants all these statements. We have endeavoured to give all

15 parties all statements that we felt may be material, and Mr. Londrovic

16 feels prejudiced by that very fact.

17 What we're doing in order to meet our obligation under our

18 agreement is providing the Defence, wherever possible, with searchable CDs

19 of our basic collections, and the collection that has offended

20 Mr. Londrovic is the collection of Muslim witness statements, that some of

21 them may deal mostly with 1992, though I would suggest the bulk of them

22 involve Srebrenica, but 1992 is, of course, also part of this indictment.

23 So in order to err on the side of caution, we have provided, in CD

24 electronic searchable format, all our Muslim witness statements that we

25 felt we could provide under confidentiality agreement and -- to them, that

Page 79

1 -- aside from any statements that were not material or not relevant and

2 that would get someone hurt if they were turned over. And that's what

3 we've been doing. And we have been providing the vast majority of our

4 file in order to avoid Rule 68 problems, in order to avoid discovery

5 issues of this sort.

6 Now, I personally in my own discretion have gone outside the Rules

7 in order to deal with this problem head on so we wouldn't have such a

8 problem. I view, I believe, the correct standard under reciprocal

9 discovery is material what is material to the preparation of the defence.

10 That is even broader than the term "relevant" as a legal term, and that is

11 what I am viewing. Personally, I'm viewing this matter as something that

12 may be material to the preparation of events.

13 I view that broadly. I've also agreed to provide Serb witness

14 statements, which is something the Defence have indicated a great interest

15 in, for obvious reasons, and we are endeavouring and have provided them

16 with almost all the Serb witness statements that we've had. And as I've

17 told counsel, there are certain confidential material that we do not

18 intend to use as evidence, and the turning over of that material may

19 endanger the people that provided it, and the Rules make protection for

20 those folks.

21 But I don't know what other pockets Mr. Karnavas wants to reach

22 into, but most of my pockets are open, and he's welcome to reach. But I

23 don't really think we have a problem. I think naturally there's some

24 concern that since he can't look in the closet, he's not sure, you know,

25 what's there, but I think at some point we have to rely on the

Page 80

1 professionalism of other folks.

2 And I'm not saying there won't be mistakes. This is a huge

3 problem and there may be things that we miss or that trickle in. We're

4 trying our best every day that that doesn't happen, but I don't know what

5 else I can say on this. We've gone beyond the law, and we're doing our

6 best.

7 JUDGE SCHOMBURG: So I understand that you leave the question open

8 whether these witness statements have to be regarded as documents or not

9 and under which Rule they fall, but taking the pragmatic approach and

10 disclosing all the statements you regard as material.

11 May I then ask the Defence whether, having heard this, they see a

12 problem, because we are not here to resolve theoretical problems when

13 already, from a practical point of view, solved.

14 MR. KARNAVAS: Thank you, Your Honour. Well, as you indicated,

15 all material the Prosecution regards. Now, the Prosecutor, unless he has

16 a mole in my Defence team or listening device, doesn't know what my

17 defence is, doesn't know where I'm going, may not necessarily know what is

18 or is not material.

19 Now, as a professional Prosecutor, he has a pretty good

20 understanding, but -- and that may be with respect to 95 per cent of my

21 case. It is the 5 per cent that may -- that may not make the difference,

22 however. In this case or some of the other cases, it is that 5 per cent

23 difference that often, in this particular Tribunal, grows to be 10, 15,

24 and 20 per cent.

25 I think we have -- after so many years, we have a body of law and

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Page 82

1 a body of cases that suggests that more often than not, under Rule 115,

2 cases are coming back because, lo and behold, the parties have learned

3 that material existed in the possession of the Prosecution that should

4 have been provided. Maybe at the time they didn't think so because they

5 looked at it, they didn't think it to be material.

6 We know that in the Krstic case, for example, that happens to be

7 the case. They have admitted in fact that they haven't turned over

8 certain material which they believed to fall under Rule 68. And material

9 does fall, you know, between the cracks, you know, that may be turned

10 over, but if you look at case after case after case, you see that there is

11 a problem with disclosure.

12 Now, each of us -- each of the Defence teams in this particular

13 case has signed a confidentiality agreement with the Prosecution. We are

14 all abiding by that. I haven't heard any complaints. Therefore, we are

15 mandated not only by our agreement but also by, I think, our oath as

16 officers of the court to abide by all of the Rules and to ensure that

17 nobody's safety is compromised.

18 I, frankly, cannot see the problem, you know, in the Prosecution

19 not allowing us to see his entire file barring that which he feels is work

20 product. And I would say, for the record, that notes that are generated

21 in the field by investigators do not fall under that, you know, area of

22 work product, because they may contain material which is material to my

23 defence. And at least in adversarial proceedings, work notes, notes that

24 are generated during an investigation, are discoverable. I'm not

25 suggesting that those exist, but I'm just saying those are the sort of

Page 83

1 materials that I would like to see if it's available.

2 And also with respect to statements. The Prosecutor says he

3 turned over statements which he believes are material. Not "the

4 statements" that he has. And that's my concern. And he's right, and he's

5 absolutely right, and I think if he was here, he would be making the same

6 argument. Since I'm not able to peek in the closet and actually roam

7 around the closet and go through everything in it, I don't know what

8 exists. And I don't want to be here three years or four years from now,

9 making a Rule 115 argument because of material that was available.

10 And he has and the Rules provide a safety mechanism and a safety

11 valve, and that's you, Your Honour, and your colleagues. You can look at

12 it in your private setting and then make the decision whether it is

13 relevant, relevant in the sense that -- you know, also is it admissible at

14 trial.

15 And I agree with Mr. McCloskey that the term "material" is

16 slightly broader, but again I want to re-emphasise that, given that we

17 have a history of repeated failures and human failures. I'm not

18 suggesting anything sinister, but failures nonetheless in case after case

19 after case.

20 There's absolutely no reason why we cannot have the entire file.

21 If he feels that certain material should only be viewed by the Bench, I

22 don't have a problem with that. At least we have a record of what is

23 there. And I think coming back to your legal tradition, Your Honour, and

24 in the continental system, you would be entitled to the entire file, all

25 of it. You would look at it. And why is that? You certainly don't rely

Page 84

1 on the Prosecutor to tell you what is material for you to find the truth

2 in the case. Well, the same thing here. I certainly don't want the

3 Prosecutor telling me what he thinks is material in my preparation of my

4 defence, because I may prepare my case slightly differently than he or his

5 colleagues believe that to be.

6 And I brief this issue I think quite well in my reply. I'm more

7 than happy to expand on that. I went over the page limitation. I can

8 produce a Law Review article on that, and I think it would come back to

9 the same conclusion, and that is I need it all because all of it is

10 material. And with all due deference to my colleague who represents

11 Mr. Nikolic, even that material may at some point become relevant in this

12 case, even though it dates back to 1992 versus 1995, if we're going to be

13 hearing from the Prosecution, and I dare say it's likely that he's going

14 to try to bring in incidents relating to 1992 and using that as part of --

15 because you see that in the indictment, and using that as part of the

16 chain of events leading up to 1995, and therefore, that material obviously

17 may become material. We don't know. Whether it becomes relevant at

18 trial, that's for the trial Bench to decide, whether it's relevant,

19 whether it's probative versus prejudicial. Thank you.

20 JUDGE SCHOMBURG: Thank you. Before giving the floor to other

21 Defence counsel, I have the impression that in fact we don't have before

22 us the legal question whether these witness statements should be

23 categorised as documents or not, but coming down to the ordinary question

24 whether or not the material or relevant documents were disclosed in full

25 as expected under Rule 66.

Page 85

1 And you made reference, as I did before, to the continental law

2 system, but we have to obey to the Rules of this Tribunal, and there

3 Rule 66, as well as Rule 68, to be disclosed later, they both rely on the

4 professionalism of the Prosecution and that they do what they can, and no

5 doubt it's extremely hard to find out among this I think what is 2 million

6 or 3 million documents you have available in your database, to find out

7 documents, and there might be a flaw. But I think when we work together,

8 and this is not only true for this Status Conference but also for the

9 trial in future, it's absolutely necessary that we can rely, vice versa,

10 on each other's professionalism and working conscientiously. And I think

11 none of the Defence counsel until now has disputed that in this case the

12 Prosecution did whatever possible, even leaving aside this legal question

13 whether witness statements have to be treated as documents or not.

14 So may I ask, is there a feeling by any other Defence counsel that

15 one of you would be prejudiced by the disclosure as it happened until now

16 under Rule 66?

17 MS. SINATRA: Your Honour, if I might. In light of the memorandum

18 by the Prosecutor's office, which basically has a ruling contrary to the

19 Rutaganda ruling in which statements are considered documents under 66(B),

20 since the Prosecution has taken the opposite position, although we have a

21 very good working relationship with the Prosecution, I do believe that

22 they try their best to comply with discovery requests, I think that it's

23 time that we have a ruling from this Court on whether this Court considers

24 66(B) to include witness statements or not just for the future, because in

25 order for us to have a ruling, we can negotiate between the parties, we

Page 86

1 can work between the parties, but we have to know exactly the legal

2 framework that we're working under.

3 Therefore, I just re-urge this Court to issue a ruling on the

4 September 15th motion that we filed with regard to the issue do witness

5 statements fit under material that should be given to the Defence under

6 Rule 66(B).

7 JUDGE SCHOMBURG: Thank you. Mr. Kirsch.

8 MR. KIRSCH: Your Honour, if I may. Just to clear up maybe a

9 misunderstanding we had with what my learned counsel Mr. Londrovic said

10 before. It is not that we don't want all the things. It was only

11 irritating to us that we think that there must be more material we don't

12 have. So we are just looking where we get this, and we are irritated

13 because we think there is material in it which might prejudice our

14 client.

15 We have -- I have full trust that Mr. McCloskey does everything

16 what's possible, and I don't think that he is doing intentionally

17 something to prejudice our client, but it would be very much more -- it

18 would be much more easier for us if we could say we have the entire file.

19 Then we wouldn't have the feeling that maybe something, because we know

20 that you, Your Honour, like to see the material given to the Defence, we

21 would be much more comfortable if we could say you and we got all the

22 materials. Then we don't have the differentiation between what is

23 material in the eyes of Mr. McCloskey or in our eyes.

24 So I would strongly support what Mr. Karnavas said before, and

25 Ms. Sinatra. I think we are entitled to the whole file, given the

Page 87

1 structure of the indictment based on the joint criminal enterprise

2 theory. This is another strong argument to be entitled to the whole

3 file. So I would strongly ask you for this ruling. Thank you.

4 JUDGE SCHOMBURG: Any other submissions, please?

5 MR. WILSON: Your Honour, we have nothing to add to our earlier

6 comments. Thank you.


8 No doubt the Trial Chamber has then to rule on the remaining

9 points, but I wonder what are the remaining points. First, to request all

10 material. That's easy said but difficult done. The Judges themselves, we

11 don't have access to the entire database of the Prosecution. Therefore,

12 "all the material" de facto would mean access to all the documents

13 available for the Prosecution because each document may have to a certain

14 extent a context with our case, and it might touch upon -- I want to

15 avoid in this context word "material" and "relevant", but there might be

16 the same names or the same locations but in a totally different context.

17 So I wonder how under the Rules the Trial Chamber should order to disclose

18 all material.

19 I think in case the Defence has the impression that concrete

20 documents or witness statements were not provided, were not disclosed,

21 then this would have been to demonstrate it in concreto.

22 The second problem, it's extremely difficult to rule on an issue

23 what, from a legal perspective, seems to be moot when the Prosecution

24 already has decided to leave the question open whether this has to be

25 disclosed as a document or as a statement, but leaving the question aside,

Page 88

1 disclosing all the statements they regard as material or relevant, and as

2 I understood, notwithstanding that there might come in two or three other

3 to be finally translated witness statements, they fulfilled their

4 obligation, because we can't decide a legal question in a vacuum.

5 So therefore, I wonder, what can be the outcome of such a decision

6 in this concrete point in time. But I don't expect that there will be any

7 other submissions by the parties at the moment. I only alerted the

8 parties what might be the outcome of such a decision.

9 I understand that there are no other problems related to 66.

10 Let's now turn to Rule 68. May I once again first ask Mr. Karnavas. Rule

11 68. Do you have any problems related to this?

12 MR. KARNAVAS: None that I'm aware of at this moment.

13 JUDGE SCHOMBURG: Thank you.

14 MR. KARNAVAS: But I would just want to say if you would rule in

15 my favour on my 66, we would definitely never have any problems on the

16 68.

17 JUDGE SCHOMBURG: Thank you. Mr. Wilson, please.

18 MR. WILSON: No problems at this time, Your Honour.

19 JUDGE SCHOMBURG: Mr. Stojanovic?

20 MS. SINATRA: Your Honour, of course we still believe that under

21 Rule 68 that the best person to determine what is exculpatory evidence is

22 the Defence, not the Prosecution. But also I have another motion on

23 file - and I don't have a copy of it before me - having to do with the

24 fact that it's very difficult to determine what is exculpatory and --

25 exculpatory evidence under Rule 68 when we only get a witness summary from

Page 89

1 the Prosecution.

2 And there was a ruling recently in the Brdjanin case which states

3 that we have a right to have the entire statement instead of just a

4 witness summary to best -- to put the Defence in the best position to

5 determine what is exculpatory and what isn't.

6 I have the case in front of me, but I'm sure Your Honour is

7 familiar with it, and I'd like to ask the Court to rule, number one, that

8 we be given complete statements instead of witness summaries, in order to

9 determine what is exculpatory. But number two, just recently I received a

10 piece of exculpatory evidence, and it's only because I asked for this

11 witness statement. And if I had not known about it, then I would not have

12 been privy to this exculpatory evidence. I still believe that pursuant to

13 Rule 66, if we get all the evidence, then we're the best ones to determine

14 what is exculpatory and what isn't, and the only way to do that is by

15 seeing the whole statement, not a summary that has been protracted by

16 the -- protracted from the original statement by the Prosecution.

17 JUDGE SCHOMBURG: Thank you. Mr. Veselin Londrovic.

18 MR. LONDROVIC: [Interpretation] Your Honour, the Defence of the

19 accused Nikolic believes that the Prosecutor is fulfilling his obligations

20 under Rule 68 fully and professionally, and at present, we have no

21 complaints and no comments on the work of the Prosecution.

22 JUDGE SCHOMBURG: Thank you. Then may I ask the Prosecution what

23 about this problem mentioned by Ms. Sinatra, providing summaries instead

24 of entire statements.

25 MR. McCLOSKEY: Yes, Mr. President. I do have a problem with Rule

Page 90

1 68, and that's one of the reasons why I've personally taken the discretion

2 to provide almost all of my file, because I think they are in the best

3 position to figure out what that Statute means.

4 And I'm not sure exactly what she's referring to. If it is a

5 statement of Vinko Pandurevic, it may be that that's all we have. We

6 don't always do question/answer statements. Sometimes we have third-party

7 summaries of what someone said. And if that's the case, you have what we

8 have.

9 Other times, when Rule 68 may come from a protected witness or

10 perhaps a Rule 70 source, we provide summaries in order not to identify

11 that source, and I believe that's the best way to do it. And I don't

12 believe we've had to do that yet in this case, or at least often, and I

13 will try to explore our record to see if we have. But I do, in terms of

14 protecting confidential witnesses, do need to have their best security in

15 mind, and the rules under 66(C) and Rule 70 provide that -- me that

16 right. And so in those cases, I would prefer to provide summaries. And

17 again, I do that on my own discretion.

18 There are -- there is still an issue whether or not Rule 68 trumps

19 Rule 70 or Rule 70 trumps Rule 68. And again, that is not an issue I wish

20 to litigate here at the trial level. And I will, as I see material that

21 may be Rule 68, I will provide it to the Defence counsel. And in order to

22 protect the identity of a witness or person, I would like to have the

23 ability to summarise it in such a way as to protect that person.

24 JUDGE SCHOMBURG: I have the impression that here we come at the

25 first time in this case to really agreed facts amongst the parties and the

Page 91

1 Judges as well, because no doubt it's for the Defence to decide which

2 document or statement they regard as exculpatory in the sense of Rule 68.

3 And it's extremely difficult for the Prosecution to label documents as

4 tending to be exculpatory, and the same would be true if the Chamber would

5 have to rule on documents, because what we want to avoid, and I take it

6 from the discussion yesterday in 65 ter, is that ever the Trial Chamber

7 has more evidence available and to decide on evidence which is not

8 available for the Defence, we have to obey the Rules, that this is a

9 party-driven procedure, and it should be for the parties, for us, to try

10 to come to an agreement. But unfortunately, from my point of view, if I

11 may give this comment, the Judges should never have more access to

12 documents than the parties have.

13 So the remaining point, apparently, is that the Defence of

14 Mr. Jokic feels that there are -- there would be a statement missing, and

15 they request the entire -- an entire statement. I think this can be

16 resolved on a bilateral basis. And only based on unfortunate experience

17 in another case, and I have no doubt this -- that this will happen in this

18 case as well, when a statement is disclosed, the entire statement has to

19 be disclosed, and there is no discretion for the Prosecution to present

20 only parts of the statements which they believe are of exculpatory

21 nature.

22 So I expect and I have no doubt that this will happen, that the

23 entire statements are disclosed, and I would ask in this case both Defence

24 counsel of Mr. Jokic and the Prosecution to try to come to a solution

25 under Rule 68 and to point out what are the concrete statements they

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Page 93

1 believe that are missing. And only then later, if you can't come to an

2 agreement, the Trial Chamber will rule on this.

3 When preparing now for the trial, we should all try to do the very

4 best to prepare whatever possible in order that it not need to be heard or

5 introduced in live testimony, for example, during trial. The use of

6 depositions, pursuant to Rule 71, is no doubt an ambiguous question, and

7 sometimes from this there are emanating new questions, and the risk is

8 extremely high that the one or other side wants a person to come back

9 because the one or other question was not put to this question [sic]. But

10 no doubt that the Defence would have the right to be present during taking

11 such a deposition.

12 Is it the intention of the Prosecution to prepare those

13 depositions pursuant to Rule 71 in the eve of May 2003?

14 MR. McCLOSKEY: Your Honour, we are still trying to sort that

15 issue out, because there's several logistic problems related to the size

16 of this case in trying -- if it was done in Bosnia or outside the

17 Netherlands, as you say, each defendant would have a right to have counsel

18 present, and as you know, counsel lives all over the world. And if it

19 occurred in the Netherlands, these courtrooms are pretty filled up. So

20 we're still exploring the logistics of being able to do this. I would

21 like to try to look into anything that would save time, and so we continue

22 to do that. But we have not made a final decision on that point yet, and

23 I would like to talk to my colleagues in the Defence. I believe

24 Mr. Karnavas has indicated that he would like his clients to be present,

25 or his client to be present, during any such deposition, and so we may

Page 94

1 need to go to litigation on the matter, and that may defeat the very

2 purpose that was designed to try to alleviate. So first I think I need to

3 talk fully more to Defence counsel, and also to yourself and Mr. von

4 Hebel, to get an indication of where the Court may be leaning on that.

5 JUDGE SCHOMBURG: Thank you. I think this question is not ripe

6 for a final discussion.

7 Any additional remarks by the Defence?

8 MR. KARNAVAS: Just one very quick one. I do believe that the

9 client should be present at a deposition, especially the nature of why

10 we're holding the deposition. I don't have any objections to having

11 depositions, especially if they're here. It's convenient. They should be

12 videotaped, of course. I don't know how that helps in shortening the

13 time, because the Trial Bench is still going to have to watch, not just

14 read, because you need also look at the demeanour of the witnesses. I

15 think that's very important in assessing their credibility. I'm not

16 opposed to it, but, as I indicated to Mr. McCloskey and I indicated to the

17 other folks yesterday, that I will insist: I do think he has a right to

18 be present. And of course, his presence is also necessary to assist his

19 Defence counsel in any follow-up questions that they may have missed. So

20 at least I'm on record as to why -- what our position is with respect to

21 depositions. And I'm not trying to be an obstructionist, but I think it's

22 necessary for the client to be there.

23 JUDGE SCHOMBURG: To be honest, I'm really hesitant whether or not

24 depositions pursuant to Rule 71 really can save time. As mentioned, we

25 would have to review not only the transcripts, but also see the video.

Page 95

1 And in addition, counsel, at least counsel - I don't want to rule on the

2 question of the presence of a client - but counsel has a right to be

3 present, and it's not only time-consuming but extremely expensive. But

4 what indeed can assist in speeding up the trial, without infringing the

5 right to due process or fair trial, would be the attempt - and I have to

6 invite the parties to proceed with this attempt with all priority - to

7 come to agreed facts.

8 We have, during trial and after trial, to decide on the individual

9 criminal responsibility of the four accused sitting in this courtroom

10 today, the individual criminal responsibility. And from experience of

11 other cases, we all know that the most problematic issue is to present,

12 during the Prosecution's case, the evidence related to the chapeau

13 elements of crime. This is, for example, the existence of an armed

14 conflict, of a widespread, systematic attack, and so on.

15 The Defence should assess whether or not they believe that there

16 might be a possibility, maybe based on new evidence, to come to other

17 conclusions than those conclusions you can find in a number of decisions

18 issued by this Trial Chamber. This does not mean, of course, that any of

19 the Judges hearing the case have made up their minds on this concrete

20 issue related to this concrete area. But it would be extremely helpful,

21 and I think it would also be extremely helpful for the accused themselves,

22 if we could concentrate the trial on the question of the individual

23 criminal liability of these individuals, of the concrete human beings

24 accused in this case, and therefore, please - and this goes to both

25 parties - try your very best to come to agreed facts, especially on these

Page 96

1 chapeau elements of crime.

2 Are there any impediments identified already now by any Defence

3 counsel related to this question of coming to agreed facts? May I ask you

4 in the order once again. Mr. Karnavas.

5 MR. KARNAVAS: Well, if the question -- if you're asking me: "Is

6 there goodwill for us to sit down and try to reach some agreed facts?" the

7 answer to that question is yes. To the extent how many facts we can agree

8 on, I don't know, but I certainly am willing, and I've also suggested that

9 we do sit together and try to agree to the facts and to -- I'm sure that

10 there are lots of witnesses, based on the Krstic trial, that may not

11 necessarily need to be here. I'm sure the Prosecution may want some of

12 those witnesses here. We may not feel that they're necessary. That's

13 their call, of course. But I don't think that it's impossible to sit down

14 and to agree to certain facts. But I can't guarantee that -- you know,

15 the volume of the facts.

16 JUDGE SCHOMBURG: Mr. Wilson, please.

17 MR. WILSON: Your Honour, the accused Obrenovic, through his

18 counsel, has announced in this case, from the moment that we entered into

19 it, that we were amenable to such agreements and that we have no intention

20 of contesting each and every line of the indictment. For us, it is a

21 matter of timing. It is not a matter of me, the lawyer, agreeing that

22 this is the easiest and best way to go. I also have to explain to

23 Mr. Obrenovic and he has to be comfortable with what I'm doing. All of

24 this revolves around getting to him, as early as possible, these key

25 documents that Your Honour has referred to earlier as needing to be

Page 97

1 translated. We remain very much agreeable to that. We have no interest

2 in being in this courtroom any longer than necessary to get this resolved,

3 and that has been our position from the beginning and it remains our

4 position.


6 Mr. Stojanovic.

7 MR. STOJANOVIC: [Interpretation] The Defence of the accused Dragan

8 Jokic also absolutely supports this initiative, this need and obligation

9 to coordinate with the Prosecution and agree on the facts which can be

10 agreed upon. I believe that the Trial Chamber is absolutely clear that at

11 this point in time, when we do not have the Butler report, it is very hard

12 for us to say to which extent we can agree on facts. But I believe that

13 there are agreed facts. There shouldn't be a problem. And our

14 communication and cooperation with the OTP will certainly lead to the

15 agreement on non-disputable facts. I also support Mr. Wilson's proposal

16 that it would be important for the coordination to be done together with

17 the OTP and that all the Defence teams attend such meetings and be present

18 at such coordination leading to agreement.

19 JUDGE SCHOMBURG: Thank you.

20 And on behalf of Mr. Nikolic, Mr. Londrovic, please.

21 MR. LONDROVIC: [Interpretation] The Defence for the accused

22 Nikolic also does not object to this manner of work. Yesterday we already

23 started talking about certain facts at the meeting with the OTP. We

24 raised some issue. But it will certainly take us much more time to agree

25 on facts. And the Defence will certainly not avoid agreeing on some

Page 98

1 facts. And I also support my colleagues who say that it would be the most

2 rational way to do it together, and only if there are specific facts which

3 apply to only one accused, then we should work with the OTP individually.

4 Already yesterday we started discussing some things with the OTP, and as

5 far as our Defence team is concerned, there will be no obstacles to the

6 extent which will not prejudice our client.

7 JUDGE SCHOMBURG: Thank you for this willingness expressed by all

8 parties for cooperation. Nevertheless, based on good experience in

9 another case, I want to emphasise that, on the request of one or more

10 parties, the Pre-Trial Judge in this case, or the Trial Chamber, is

11 prepared to discuss these issues in order to come to such agreed facts and

12 to discuss certain issues where the one or other party believes this

13 shouldn't be discussed in open court. The Rules explicitly provide, under

14 65 ter (I), to have a meeting in the office of the Presiding Judge, and

15 this should be seen as an opportunity to overcome problems, remaining

16 problems, that we can start really concentrating on the core issues of the

17 case before us. Please don't hesitate to take this opportunity. I'm

18 always prepared to confer such a 65 ter (I) meeting.

19 As mentioned before, it is already provisionally scheduled, and we

20 have already asked the President to request the Secretary-General United

21 Nations to appoint ad litem Judges for this case starting 6th of May.

22 There has to be a Pre-Trial Conference beforehand. The next Status

23 Conference would be due 26th of March. To avoid duplication, the

24 intention is to have the Pre-Trial Conference during this last week of

25 March. Maybe it can be helpful that already today the parties come

Page 99

1 together with Mr. von Hebel and discuss possible dates, envisaging already

2 now that the Pre-Trial Conference may take us two days.

3 I know that -- I think it was Mr. Obrenovic wanted to take the

4 floor, but may I first of all ask counsel: Are there any other issues to

5 be discussed during this Status Conference?

6 MR. McCLOSKEY: Mr. President, I would just like to alert you to

7 one issue as I -- that we probably can't decide now, but something that I

8 think is good for the Status Conference. As I mentioned earlier, we do

9 have some statements from witnesses that would be material to the

10 preparation of the Defence. However, those statements were taken

11 confidentially, and we don't intend to use the information at trial or use

12 those witnesses in any way. And the disclosure of those witnesses could

13 lead to the injury or death of those persons. And I believe Rule 66(C) is

14 one of the Rules that goes to this particular issue, and it says that:

15 "Where information is in the possession of the Prosecutor, the

16 disclosure of which may prejudice further or ongoing investigations, or

17 for any other reasons may be contrary to the public interest or affect the

18 security interests of any State, the Prosecutor may apply to the Trial

19 Chamber sitting in camera to be relieved from an obligation under the

20 Rules to disclose that information. When making such application, the

21 Prosecutor shall provide the Trial Chamber (but only the Trial Chamber)

22 with the information that is sought to be kept confidential."

23 Now, I have been telling trial -- Defence counsel that we were

24 gathering our -- some of our people that fit this particular security

25 concern and that I would be seeking the protection of 66(C). And the

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1 reason I raise that as a potential problem, in that some of this material

2 could be inculpatory to the clients, to their clients, and the Defence

3 counsel obviously would not be having a chance to see this material, for

4 the security concerns. And as you yourself have said, that there's a

5 potential problem when the Judge and the Prosecutor know about something

6 that the Defence counsel don't know about.

7 So we have various interests here, and predominantly I'm concerned

8 about the interests of the few people that speak to us confidentially, as

9 in any investigation, and that they not be risked. But I also, of course,

10 have all these other concerns, and it just bears some thought on all

11 parties to see how best to manage this.

12 JUDGE SCHOMBURG: Thank you. I believe your submission is an

13 extremely good example for the way of working of the Prosecution: Instead

14 of leaving this disguised, making reference in open court to these

15 documents, to vulnerable witnesses, and this difficulty to apply Rule

16 66(C).

17 Are there any comments related to this issue? Mr. Karnavas?

18 MR. KARNAVAS: Yes, Your Honour. I appreciate the Prosecution's

19 concern and I understand fully what his -- the dilemma that he's in. I do

20 have some concerns, however, that we will not even have an opportunity to

21 at least know the general gist of what it is that he's trying to protect.

22 I don't have a problem with him protecting the sources or protecting the

23 names, but I do think that if he's asking, which he is, for an in-camera

24 review, I think that at some point we may benefit if we could have, maybe

25 at the next -- at the Pre-Trial Conference, if we could have a closed

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1 session, where at least the Prosecutor could, in general, without giving

2 any detail, in general tell us what it is. Because at least, one, we have

3 a record from which -- at least I can then make a counter-proposal. But I

4 certainly would like to know, in general, what it is that these witnesses

5 may be saying, you know, the nature -- I don't want their names, I don't

6 want -- I don't need any other sensitive information, but I think that

7 would be -- I think it's appropriate, and I don't think that the

8 Prosecutor would object to that minor request that I'm making.

9 JUDGE SCHOMBURG: Please take it as guaranteed that both -- I

10 think -- I can hear it from the approach taken by the Prosecution and the

11 Judges, we will do whatever possible to overcome the difficulties

12 emanating from this Rule 66(C). We have to apply this Rule, but there

13 might be a solution, and we will do the very best to inform the parties,

14 yes, on what can be disclosed. We have to discuss this, but then in

15 concreto and not in abstracto.

16 Any other issues to be raised by the parties?

17 MS. SINATRA: Your Honour, just on that same issue: As far as the

18 Prosecutor divulging this information, I think it might be in the best

19 interests of all of us to work together if he told us, you know, what

20 these -- let us see these, because we've signed confidentiality

21 agreements, and we're officers of the Court, that we should see these

22 statements, and then once we determine whether we want to use them or

23 whether they are material to the Defence, then we would proceed under

24 66(C).

25 JUDGE SCHOMBURG: Thank you. We are aware of this problem, and I

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1 only have to emphasise that deliberately it reads: " ... but only the

2 Trial Chamber." I'm not the author of this Rule, but we have to obey this

3 Rule.

4 Any additional issues to be raised? I can't see any. So may I

5 ask finally, in conclusion of this Status Conference: There was a point

6 to be raised. I think it was Mr. Obrenovic.

7 You wanted to take the floor? Or was there one --

8 MR. WILSON: No, Your Honour. I think it was Mr. Blagojevic.

9 JUDGE SCHOMBURG: Sorry. Then Mr. Blagojevic, please.

10 THE ACCUSED BLAGOJEVIC: [Interpretation] It is the issue of my

11 defence in this case. The issue at hand is the following: The Defence

12 counsel has been appointed in my case, and I have not agreed to that. And

13 in those terms, I believe that certain problems have arisen that may

14 impair the work and may lead to certain further consequences which I may

15 not envisage. I have taken some steps, but they have been rejected, and I

16 believe that the only solution that remains for me is to address the

17 Chamber and ask you to consider the situation and make a certain

18 decision. This is what I wanted to say in my introduction.

19 JUDGE SCHOMBURG: Thank you. I think this is not an issue that

20 should be discussed in open court, and we will find a possibility to

21 discuss it with you and the Defence counsel later. Please be assured we

22 will not forget this issue. Please be seated. Thank you.

23 I can't see any other requests for the floor. This concludes

24 today's Status Conference. And please contact Mr. von Hebel as to the

25 dates foreseen for the Pre-Trial Conference. Thank you.

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1 --- Whereupon the Status Conference adjourned at

2 12.02 p.m.