Tribunal Criminal Tribunal for the Former Yugoslavia

Page 100

1 Tuesday, 13 December 2005

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 8.03 a.m.

5 [The accused entered court]

6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the

7 case.

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

9 IT-98-29/1-PT, the Prosecutor versus Dragomir Milosevic.

10 JUDGE ANTONETTI: [Interpretation] Thank you very much.

11 We'd like to have the appearances, starting with the Prosecution.

12 MR. STAMP: Thank you very much, Your Honour. Good morning. For

13 the Prosecution, I'm Chester Stamp. Appearing with me is Mr. Manoj

14 Sachdeva, and our case manager is Ms. Biljana Blazevic.

15 JUDGE ANTONETTI: [Interpretation] Thank you very much.

16 May I have the appearances on the side of the Defence.

17 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour. Good

18 morning. I am Branislav Tapuskovic, attorney-at-law from Belgrade, and I

19 represent the Defence of the accused, Dragomir Milosevic. Thank you.

20 JUDGE ANTONETTI: [Interpretation] I would like to greet all those

21 present here, the representatives of the Prosecution, the Defence counsel.

22 I would like also to greet General Dragomir Milosevic, who is here in this

23 courtroom.

24 According to the Rules, this Status Conference has to take place

25 every 120 days. As you know, the last Status Conference took place in

Page 101

1 October this year, on the 12th of October, 2005. Therefore, I thought

2 that it was necessary to have another Status Conference in order to see

3 what was the status of exchanges of documents and to raise a number of

4 issues.

5 First of all, the reason why we have this hearing this morning

6 at 8.00 a.m. is that we currently have at the Tribunal only two courtrooms

7 available, Courtroom I and Courtroom III, because Courtroom II is

8 currently being renovated. As a result, we have to hold hearings at a

9 very early time in the day in order to be able to deal with a number of

10 cases at the pre-trial stage.

11 The other issue I would like to stress is the following. As you

12 know, through an order I issued, I asked the Prosecution to send me, at

13 the latest, on the 20th of January, 2006, the final version of its

14 pre-trial brief as well as the list of witnesses and exhibits, in order to

15 allow me - and I will do that later on - in order to allow me to ask the

16 Defence to file their pre-trial brief in accordance with the

17 Rules 65 ter (F), to file their brief. And once this has been done, I

18 will draw up a report for the Chamber, for the President of Trial

19 Chamber II to refer the matter to the President of the Tribunal in order

20 for the President to assign Judges to try this case.

21 At this point in time, I am completely unable to tell you when the

22 trial will start because it will all depend on what courtrooms will be

23 available. It will also depend on what Judges will be available. And at

24 this point in time, I do not have any information that would allow me to

25 tell you when the trial will start in this case. This is unfortunate.

Page 102

1 This is also contrary to the interest of the accused, who's been waiting

2 for his trial to start for about a year. It would of course be better if

3 the parties could have information about when the trial will start. As a

4 Judge, I'm completely -- I do not -- I cannot -- I do not have any control

5 over this because I cannot, myself, set the date of the beginning of the

6 trial, contrary to what happens in other jurisdictions.

7 Now let me move on to the issues of disclosure. During the last

8 Status Conference, if I remember correctly, there were still a number of

9 issues unresolved regarding disclosure under Rule 68 -- 66(A)(ii)

10 regarding witness statements.

11 I hope this has been resolved. I'm now going to turn to Mr.

12 Stamp. Could you please tell me regarding disclosure under Rules 68

13 to 66 -- 68 and 66, if disclosure is taking place as it should.

14 MR. STAMP: Disclosure is taking place within the confines that

15 our resources permit in respect of Rule 68. We have disclosed as the

16 Rules provide all material which we know to fall under Rule 68; that is

17 material tending to be potentially exculpatory. And in addition to that,

18 we are conducting searches for material which may also be potentially

19 exculpatory on Rule 68.

20 We have received recently from the Defence counsel additional

21 criteria, that is additional search terms or guidance, as to the areas

22 that we should search in our -- in the evidence collections that we have

23 for material which might assist the Defence and we are doing so. The

24 department of the OTP that is responsible for that has taken on the

25 matter; they are conducting the searches. And when the results are in, we

Page 103

1 will have to review them and disclose the material relevant.

2 In respect to Rule 66(A)(ii), that is the statement of witnesses,

3 we had in our first disclosure, that is a disclosure of the confirmation

4 material, disclosed -- I cannot recall the precise number, but a quantity

5 of witness statements, both in English, the language that they were taken

6 in, and the language of the accused. There has been further disclosure of

7 witness statements in English.

8 When we comply, as we intend to, with the court orders in respect

9 to the witness list, that is when we have determined, having contacted,

10 witnesses having settled issues of protective measures, and a variety of

11 issues we will have to settle in determining our witness list under

12 Rule 65, we will deliver all the additional witness statements along with

13 copies in B/C/S, that is along with copies in a language of the accused.

14 So we are up-to-date with all the disclosure in accordance with

15 the Rules and in accordance with orders hat the Court has issued. And we

16 intend to and we are trying to go a little bit further in that, in that we

17 are also trying to disclose to the Defence translations of material that

18 we disclose under Rule 66(B) and Rule 68, which is not really required by

19 the Rules, but we are attempting to do so nonetheless.

20 Unless there are any further questions, I think I will close with

21 that for the moment, Your Honour. Thank you very much.

22 JUDGE ANTONETTI: [Interpretation] Very well. Before I give the

23 floor to the Defence on that matter, let me say that as far as I'm

24 concerned, following what I've heard, I understand that you've said that

25 it's not required by the Rules. But as a Judge, it seems to me that the

Page 104

1 Statute of the International Tribunal, when relating to the rights of the

2 accused, makes it an obligation for the Prosecution to provide to the

3 accused in a language that he understands all documents against him and

4 also all documents of an exculpatory nature. That's stated and provided

5 for by the Statute of the Tribunal.

6 Let me now give the floor to the Defence for any comments they

7 would like to make.

8 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour.

9 What you said at the end is precisely an important issue

10 outstanding for the Defence. According to your decision and the deadline

11 you set by which the Prosecutor should fulfil what is provided for in

12 Rule 65 ter (E), among other things, under Rule 65 ter it provides for

13 what is contained under point (ii) of that Rule, 65 ter (E)(ii), where it

14 is stated, first of all, that the name and pseudonym of each witness must

15 be provided and a summary of the facts on which each witness will testify.

16 Now, if we link that up with what Rule 66 provides, that is to say

17 before the summaries are provided of the witness statements within the

18 deadline Your Honour has set, the Prosecutor should present to the Defence

19 all the statements in their entirety of possible witnesses to be called in

20 the trial against Dragomir Milosevic. And now this is where we come

21 across a problem which makes our work in preparation of the Defence case

22 more difficult. Pursuant to Rule 66(A), as you know full well, the

23 Prosecutor is duty-bound to place everything he has at the disposal of the

24 Defence team in a language the accused understands. And in the spirit of

25 Rule 66(A)(i), we have a list of witnesses that could come under

Page 105

1 Rule 66(A)(ii).

2 However, we received a list of 64 witnesses. However, it was

3 stated that they are possible witnesses pursuant to Rule 66(B) or Rule 68.

4 So they can be used either as evidence for the Prosecution pursuant to

5 Rule 66(B) or pursuant to Rule 68. So they did not state whether -- which

6 rule they would come under. And the most important point which Mr. Stamp

7 raised: It has not been provided in a language that the accused

8 understands.

9 So strictly speaking, pursuant to Rule 66(A)(ii), as provided by

10 that provision, we have not received up to the present date what we should

11 have received for us to be able to function properly. And for me to

12 receive instructions from the accused that he has read the material

13 because it is not sufficient if I tell him what I noted on the basis of

14 reading the documents, but that I should be given instructions from him on

15 the spirit of his Defence case.

16 Therefore, at this point in time this is a very significant

17 problem and makes life for the Defence team much more difficult, and I

18 fear that that might be one of the reasons for I will have to ask for a

19 postponement, a time given to me to respond to the Prosecution pre-trial

20 brief to file my own brief and response.

21 So at this point in time that is a problem. And I was told by

22 Mr. Stamp yesterday at the meeting we had, and his associates, that I

23 could count on a promise to let me have the statements in translation,

24 that is to say in a language understood by the accused, very soon. But,

25 as I say, this is an impediment in my communication with the accused and

Page 106

1 the instruction of feedback from the accused that I could receive in order

2 to prepare his defence trial as efficaciously as possible. So at this

3 point in time, that is the outstanding problem that we face for my job.

4 JUDGE ANTONETTI: [Interpretation] Very well. Thank you very much.

5 So I take note of the fact that several months later -- because we

6 raised that issue for the first time on the 12th of October. We raised

7 the issue of Rule 66(A)(ii) at that time already. I do not understand why

8 the Prosecution, who is considering calling a number of witnesses, I do

9 not understand why the Prosecution has not disclosed these documents to

10 the Defence. And I understand it even less, because as the Defence

11 counsel has underlined it, the accused is entitled to know what charges

12 have been brought against him, he is entitled to study these documents in

13 his cell and to give instructions to his counsel. That's the way things

14 go in every jurisdiction in the world.

15 Therefore, I've come -- I come to the conclusion that the

16 Prosecution has not disclosed a number of documents translated in the

17 language of the accused.

18 Let me remind you, Mr. Stamp, that penalties are provided for in

19 the Rules if the Prosecution does not fulfil its obligations. Because

20 when a party wastes time, this time can never be recuperated, made up for.

21 And let me remind you that the accused is presumed innocent. He's been in

22 detention for a year. And the least he can expect, the least he's

23 entitled to, is to know what sort of material will be used at trial

24 against him.

25 What can you tell us about this, Mr. Stamp?

Page 107

1 MR. STAMP: May I repeat with emphasis and with respect, Your

2 Honour. The Prosecution is in compliance with all our disclosure

3 obligations under the Rules and pursuant to the orders of the Court.

4 The issue in respect to a variety of statements and material that

5 we have disclosed pursuant to Rule 66(B) and Rule 66(A) is whether or not

6 some of the material has been translated into the language of the accused.

7 The -- the -- this Tribunal and the jurisprudence of this Tribunal in many

8 cases has made it absolutely clear that there is no obligation on the

9 Prosecution to translate documents or statements disclosed under those

10 Rules, and there are many cases in which -- in which that decision has

11 been made. And I speak about disclosure under Rule 66(B) and Rule 68.

12 We, however, have only taken and will insofar as translations are

13 available disclose to the Defence translations of those documents.

14 The second area is the area of Rule 66(A)(ii), disclosure, that is

15 disclosure of witness statements. As I indicated, many, if not most, of

16 the witness statements have been disclosed to the Defence when the

17 confirmation material was served on the Defence. However, the Rules

18 provide for the Prosecution to disclose all of those statements at a time

19 to be set by the Pre-Trial Judge. The Court has set that time, and that

20 time is the 20th of January. In the interim, the Prosecution is on an

21 obligation to do a variety of things, some of which are indicated to this

22 Court, in preparation of its witness list. Witnesses -- documents need to

23 be reviewed, and without going into the details of it, there are a huge

24 amount of work the Prosecution must overcome to prepare and present a

25 witness list.

Page 108

1 The Rule provides, Rule 66(A)(ii), that the Prosecution shall make

2 available to the Defence in a language which the accused understands,

3 (ii), within the time-limit prescribed by the Trial Chamber or the

4 Pre-Trial Judge the statements of all witnesses who the Prosecution

5 intends to call.

6 That time-limit has been set at the 20th of January. We, subject

7 to an application I intend to make shortly, intend to do so and to comply

8 with that order.

9 In respect to all the other areas of disclosure, we have disclosed

10 all the material, numerous documents, as early as they were available. We

11 insist, with respect, Your Honour, that we are not obligated under the

12 jurisprudence of this Tribunal, as decided in many cases, to translate all

13 of the numerous, countless, documents that will come up in these various

14 searches and which are to be disclosed to the Defence. However, we will

15 do so when translations are available. And having regard to our amicable

16 discussions so far with the Defence, those 64 documents in which they've

17 expressed an interest, where translations are available, we will give them

18 to the Defence. And we intend to continue to comply with all our

19 obligations under the Rules and as ordered by the Court.

20 May it please you, Your Honour.

21 JUDGE ANTONETTI: [Interpretation] Thank you very much.

22 Let me give the floor to the Defence.

23 MR. TAPUSKOVIC: [Interpretation] An additional explanation;

24 perhaps I omitted to say that a moment ago. As Defence counsel for the

25 accused, Dragomir Milosevic, I did not insist on the fact that the

Page 109

1 Prosecution should disclose all the materials they have at their disposal,

2 and, among other things, evidence pursuant to Rule 68 in translation. In

3 a letter and yesterday in talking to the Prosecutors, I set forward my

4 views, my position, that there is no reason why what the Prosecution has

5 in translation should be supplied to us. However, the problem that we're

6 facing now -- if we look at Rule 65 ter (E)(ii)(a) and (b) provides, and

7 it says here that the time-limit for filing is the 20th of January, as it

8 says in that Rule (E)(ii)(b), a succinct summary of the facts that a

9 witness is to testify about, whereas Rule 66 says that a copy of the

10 statements of all witnesses in complete form, that is the fundamental

11 difference. What this Court has been ordered should be done by the 20th

12 of January does not include what Rule 66(A)(ii) states. We have to have

13 those complete statements. Now, whether they're all going to be used or

14 not is another matter, but that is the fundamental difference.

15 So it is not the Prosecution that is duty-bound pursuant to a

16 ruling by you to provide us with statements but a summary of statements

17 with respect to the material facts. And Rule 66(A)(ii) speaks about

18 something quite different. We already have had to have those statements,

19 and there a deadline should also be set which relates to a time before

20 the 20th, by which time we should be provided with those statements

21 definitively.

22 Thank you.

23 JUDGE ANTONETTI: [Interpretation] I take note of this issue, and I

24 will very soon release an order about this.

25 But let me say already that it is certain that when the Prosecutor

Page 110

1 considers calling a witness at trial, the statement of that particular

2 witness has to be disclosed to the Defence in the language of the accused.

3 This is a cardinal rule, a fundamental rule.

4 In order to dispel any confusion, any doubt, let me tell you that

5 tomorrow I will issue a new order related to the issue of material and

6 witness lists that you will have to provide me. You will receive a very

7 detailed order tomorrow about that issue, and the time-limit is the

8 20th of January.

9 I find this a very important issue, because when I -- I'd like to

10 refer you to the Galic case. In the Galic case, 171 witnesses were

11 called, 16 expert witnesses testified, 1600 exhibits for the Defence, and

12 650 for the Prosecution, plus a number of exhibits from the Chamber, 14.

13 And since these -- the facts dealt here are included in the Galic case, we

14 can logically deduct that a number of witnesses called in the Galic case

15 will be called in this case or referred to in this case.

16 Let me remind you that the Galic case lasted 223 days. The

17 Prosecution submitted its case over 127 days and the Defence 96 days.

18 That was the duration of Defence case. Therefore, this case is going to

19 be a very lengthy one, and we have to have a proper preparation for this

20 case. And that's the reason why I'm going to send you that order. I find

21 it totally unacceptable that one year on we still have discussions on

22 whether or not the accused has received in a language that he understands

23 a number of materials -- material or documents. That's totally

24 unacceptable. I'm going to issue an order in order to specify and stress

25 all these points.

Page 111

1 Let me also say the following to the Prosecution. I see that

2 there are two of you here today. In the Galic case there were five

3 members in the Prosecution team. I do not know what the Prosecution

4 intends in terms of the number of trial attorneys in this particular

5 case.

6 But let me point out the following legal issue. In the Galic

7 case, the Articles 7(1) and 7(3) of the Statute were referred to. In the

8 Galic judgement, the issue of Article 7(1) was not considered or was

9 rejected by the Chamber because Galic was found guilty under Article 7(3)

10 of the Statute --

11 THE INTERPRETER: Correction of the interpreters.

12 JUDGE ANTONETTI: [Interpretation] 7(1) of the Statute and

13 Article 7(3) was not dealt with.

14 Therefore, if you want to invoke Articles 7(1) and 7(3) of the

15 Statute in this particular case, in your pre-trial brief you will have to

16 outline very clearly what elements are relevant to Article 7.3. And in

17 the list of witnesses, in the list of materials - but I will specify that

18 in the order tomorrow - you will have to specify very clearly what sort of

19 exhibits are related to Article 7(3) and what witnesses will be called in

20 relation to Article 7(3) in order to avoid any type of confusion in the

21 trial later on.

22 This does cause a certain confusion because 7.1, 7.3 are sometimes

23 contradictory. The Chambers don't take into consideration the 7(3),

24 whereas it is included in the indictment.

25 Let me remind the Prosecution, the Prosecution is fully aware of

Page 112

1 this, that in the decision rendered in the Galic case, a decision was

2 rendered on a majority basis. 7(3) was discarded, whereas the dissenting

3 opinion from one of the Judges clearly mentioned 7(3). This will have to

4 be spelled out in your pre-trial brief.

5 I will now speed things up a little bit, because as you know a

6 trial is starting in this courtroom at 9.00.

7 There is another point I wish to address, i.e., the computer used

8 by General Milosevic. I had addressed the registry on this particular

9 matter. The registry responded by saying that some accused had received

10 computers from their families, but for security reasons an order had been

11 rendered whereby the accused were not entitled to use these computers.

12 One needed to check whether on the memory cards of these computers that

13 some information that could perhaps not be acceptable to the Detention

14 Unit, and which they are [as interpreted].

15 So the Registrar told me that all the accused in detention would

16 be entitled to use a personal computer. I don't know whether this has

17 been done or not.

18 Now, the Defence counsel, do you have anything to say relating to

19 this particular matter, i.e., the fact that the accused can use a personal

20 computer?

21 MR. TAPUSKOVIC: [Interpretation] As far as I know, we will not be

22 opposing that decision; he understands what is at stake. However, as far

23 as I know he still has no PC in his cell to use. A promise was made that

24 everybody there would be given one, in view of the new system that will be

25 used. However, I talked to my client yesterday, and he still doesn't have

Page 113

1 a PC.

2 JUDGE ANTONETTI: [Interpretation] Very well.

3 General, would you stand up, please. Would you like to say

4 something on any particular matter? You have the floor. If you wish to

5 address me, you may, and you can talk about any issue you would like to.

6 [The accused stands up]

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

8 Your Honour, for allowing me to say what I wish to say.

9 First of all, I would like to thank you yet again. I wish to

10 point out that had I not been the accused in question, the discussion

11 between the OTP and the Defence might have provided some significant

12 points of interest. I do understand the points raised by both sides,

13 nevertheless the circumstances that led to the filing of the indictment

14 against me were such that lots of different things were done, all sorts of

15 things. The OTP may now find themselves in a difficult situation

16 gathering all the evidence that they believe they need, but that is

17 ultimately no concern of mine. If I am to face this uncertainty, which I

18 seem to be, I cannot help but wonder why my request was thrown out to be

19 provisionally released. I do not believe that this was a just decision,

20 and I believe that I have been prejudiced by that decision. However, I am

21 here. I am prepared to follow and accept everything that goes on. There

22 are a number of things that do not depend on me, but rather on the people

23 under whose jurisdiction I now stand. That is all I have to say on the

24 subject.

25 As for the PC, everything is now clear and resolved. We can no

Page 114

1 longer use the PCs that we obtained through personal channels. We shall

2 probably be given other equipment to use. When exactly is something that

3 only the registry can decide.

4 That is all I have to say on these matters.

5 In case there are any other questions that Your Honour wishes to

6 raise with me, please do so. I have no other special issues to raise.

7 I must reiterate, though, that there is no way I can prepare for

8 my trial if I do not start receiving documents in a language I understand,

9 or documents in their entirety, so that I can have a full view of what

10 they are about.

11 JUDGE ANTONETTI: [Interpretation] Thank you for your comments.

12 Under our Rules, there are two questions I need to ask you. The

13 first one relates to your detention conditions. Are your conditions good

14 or are you -- do you have any complaints to file?

15 THE ACCUSED: [Interpretation] Thank you for asking, Your Honour.

16 It is true that this is a crucial issue to the life of all those

17 living in detention. I must say I really have no objections, although the

18 question itself seems to be addressed in a slightly official way. If I

19 were in a different environment, I could, perhaps, raise a point or two;

20 but for that I would need to talk to the people involved and not raise

21 general issues here in court.

22 My conclusion has to be, however, that I have no serious

23 objections that have a negative bearing on my life in detention.

24 Thank you. That's as much as I have to say.

25 JUDGE ANTONETTI: [Interpretation] Another mandatory question

Page 115

1 relates to your state of health. Do you have any health problems or is

2 everything all right?

3 THE ACCUSED: [Interpretation] As people say where I come from,

4 touch wood. No problems so far, thank you. Thank you for asking.

5 JUDGE ANTONETTI: [Interpretation] Fine. You may sit down,

6 General.

7 [The accused sits down]

8 JUDGE ANTONETTI: [Interpretation] Let me turn to the Defence

9 counsel. The Prosecution will file the documents by the 20th of January,

10 a list of witnesses, pre-trial brief, as well as all the requisite

11 material pursuant to Rule 65 ter. Following the filing of this material

12 by the 20th of January, 2006, the Defence team will have one month to file

13 its comments. So the Defence will have to respond by the 20th of

14 February, 2006. If they have any comments to make.

15 Mr. Stamp, do you have any comments?

16 MR. STAMP: I move quite quickly, Your Honour. The Prosecution

17 fully agrees with the sentiments expressed about all the material to be

18 used in the case against the accused being received by him in a language

19 which he understands. He has received much of that material already, and

20 we will ensure that all of the material is delivered to the accused in

21 that manner.

22 And I am also grateful for the guidance in respect to the

23 pre-trial brief and the precision with which we must express ourselves in

24 respect of Rule 7(3).

25 There is one additional matter. I had discussed it with my

Page 116

1 friend, and he indicated he would not object. Having regard to his

2 travel, his travel schedules, I understand that he intends to be here next

3 at the end of January, and having regard to our schedules as well within

4 the Prosecution, I was wondering -- and it's a matter entirely for the

5 Court, and I don't think the Defence would be prejudiced, if the time for

6 us to deliver all of the material, that is all of the exhibits translated

7 in a language that the accused understands, all of the statements

8 translated into a language that he understands, as well as the pre-trial

9 brief, and the witness and the exhibit lists linked to the witnesses as

10 ordered by the Court, I am wondering if that time could be extended to the

11 31st of January, that is the end of the month. It will not, it is

12 submitted, do any prejudice to the Defence, as counsel would be returning

13 here on that day and we could hand everything over in one large batch and

14 give guidance as to what the material is.

15 JUDGE ANTONETTI: [Interpretation] Fine. I agree with your

16 proposal. These -- this material will be handed over by the 31st of

17 January, which means that all of this will be delayed or postponed by a

18 week, and the Defence will therefore file all of its comments before the

19 28th of February. So you will have an additional week, and the deadline

20 has now been set for the 28th of February.

21 Does the Defence counsel -- before we adjourn this hearing, would

22 the Defence counsel have any comments to make?

23 MR. TAPUSKOVIC: [Interpretation] Your Honour, I have no further

24 points to raise or comments to make. All these matters were discussed

25 yesterday at our meeting, and it was within the same framework that I

Page 117

1 understood the proposal of the OTP.

2 Also in relation to my travel, usually I'm only able to travel

3 once a month. The Registry should have some understanding for the fact

4 that I have to travel on multiple occasions over the next month. There

5 has been a strict allocation of one time a month only. In January, I will

6 have to be here twice at least, early in January, and at the time that I

7 am bound to be receiving what has been mentioned by the OTP. I think that

8 is the way it should be, and that will make my job a great deal easier.

9 JUDGE ANTONETTI: [Interpretation] Very well. So we have addressed

10 all the items on the agenda for today. I thank you all for having

11 attended this hearing. We will not have an opportunity to see each other

12 before the end of the year, so I would like to wish you a happy new year,

13 and I hope that in the year 2006 both parties will enjoy very satisfactory

14 professional relations, and we hope that this trial can unfold in the best

15 conditions possible. I'd like to thank you.

16 --- Whereupon the Status Conference

17 adjourned at 8.45 a.m.