Tribunal Criminal Tribunal for the Former Yugoslavia

Page 180

1 Tuesday, 3 April 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.00 a.m.

5 JUDGE MOLOTO: Good morning, everybody. [French on English

6 channel].

7 Is French now on the fourth channel?

8 MR. TIEGER: I also received a French translation on channel

9 number 4, Your Honour.

10 JUDGE MOLOTO: Okay. Anyway, let's start all over again.

11 Hopefully English will come back.

12 Good morning once again, and welcome to everybody. May we please

13 have the appearances.

14 Mr. Tieger.

15 MR. TIEGER: Good morning, Your Honour. Alan Tieger, Laurie

16 Sartorio, and case manager, Donnica Henry Frijlink for the OTP.

17 JUDGE MOLOTO: Thank you very much.

18 Microphone, Mr. Kehoe.

19 MR. KEHOE: Sorry, Judge. Good morning, Your Honour. Gregory

20 Kehoe and Luka Misetic for General Gotovina.

21 JUDGE MOLOTO: Thank you very much.

22 MR. PRODANOVIC: [Interpretation] Good morning, Your Honour. Cedo

23 Prodanovic, Jadranka Slokovic, and Tihomir Mak, our case manager.

24 JUDGE MOLOTO: Thank you very much.

25 MR. SEPAROVIC: [Interpretation] Good morning, Your Honour.

Page 181

1 Miroslav Separovic representing for Mr. Markac.

2 JUDGE MOLOTO: Thank you, Mr. Separovic. You are alone today.

3 The last Status Conference was held on the 9th of February, 2007.

4 Pursuant to Rule 65 bis of the Rules of Procedure and Evidence, a Status

5 Conference shall be convened within 120 days of the last in order to

6 organise exchanges between the parties to ensure the expeditious

7 preparation for trial and to allow the accused to raise issues in relation

8 to the case. On the 2nd of April a 65 ter Conference was held in

9 preparation for the present conference.

10 Before we carry on, may I just find out, I notice that we've got

11 only General Gotovina in the courtroom. I gather the other accused are

12 excused. There is no videolink.

13 MR. TIEGER: That's correct, Your Honour.

14 JUDGE MOLOTO: Thank you very much.

15 General Gotovina, do you have any -- can you hear me, first of

16 all, and understand me in a language you understand?

17 THE ACCUSED GOTOVINA: [Interpretation] Thank you, Your Honour, I

18 can hear you.

19 JUDGE MOLOTO: Thank you very much. And how are you? How is your

20 health, General Gotovina?

21 THE ACCUSED GOTOVINA: [Interpretation] Your Honour, thank you for

22 asking. I'm fine.

23 JUDGE MOLOTO: Any issue you would like to raise in relation to

24 the Detention Unit?

25 THE ACCUSED GOTOVINA: [Interpretation] No, thank you, Your Honour.

Page 182

1 JUDGE MOLOTO: Thank you very much.

2 THE ACCUSED GOTOVINA: [Interpretation] My Defence will represent

3 me.

4 JUDGE MOLOTO: Thank you very much. You may be seated.

5 The next issue that I would like us to deal with is -- relates to

6 conflict of interest and trial scheduling. A decision of the conflict of

7 interest, if not already issued by the time of this Status Conference will

8 be rendered shortly. That is relating to Mr. Prodanovic and Ms. Slokovic.

9 And of course resulting from that decision and the decision on the

10 position of Mr. Separovic, scheduling would have to be addressed in due

11 course.

12 I guess it is -- must be clear this time to everybody that it is

13 almost impossible to start by the 7th of May. That being so, however, we

14 should not think that the scheduling should be -- will be pushed back for

15 far too long. I think we need to go over the problems of representation

16 and the questions of appeal. I know that an appeal has been lodged by the

17 by -- Mr. Markac's counsel. And make sure that all those things are done

18 as soon as possible so that we can reschedule the case.

19 Are there any comments that any of counsel would like to make on

20 this issue?

21 MR. TIEGER: Your Honour, I'm sure there will be more substantive

22 and detailed comments in due course as we grapple with this issue. On

23 behalf of the Prosecution we appreciate the fact that the Court has raised

24 it so forthrightly. We think it does need to be addressed substantively

25 so we can make appropriate arrangements and as we begin to discuss that we

Page 183

1 will be happy to contribute accordingly, but in the abstract I have no

2 further comments.

3 JUDGE MOLOTO: Thank you very much. Indeed it is still in the

4 abstract at this stage that I don't expect much comment, but just in case

5 anybody has got anything to say.

6 Mr. Misetic, Mr. Kehoe.

7 MR. KEHOE: Thank you, Your Honour. Not at this time.

8 JUDGE MOLOTO: Thank you very much.

9 MR. PRODANOVIC: [Interpretation] The same, Your Honour.

10 MR. SEPAROVIC: [Interpretation] No comment, Your Honour.

11 JUDGE MOLOTO: Thank you very much.

12 That being the case, maybe we can then pass on to the next point.

13 Agreed facts. At the last conference the parties stated that while they

14 had met to discuss agreed facts little progress had been made due to their

15 perception that the schedule was accelerated. And in the Prosecution's

16 submission pursuant to Rule 65 ter it stated at paragraph 6, "Given the

17 scheduled start of trial in early May, 2007, the Prosecution notes that no

18 admission has yet been made by the Defence nor any agreement been reached

19 with respect to non-contested facts or law. As a result, the Prosecution

20 assumes for now that all issues of fact and law are contested at this

21 time. This being said, the Prosecution will continue to attempt to reach

22 agreement with the various Defence teams with respect to agreed facts or

23 law to the extent possible, and notes that efforts to reach agreement on

24 issues such as exhumations and prosecutions of crimes are underway."

25 Is that still the position?

Page 184

1 MR. TIEGER: That's correct, Your Honour. Probably important to

2 note that that recitation of the state of affairs was not intended in any

3 way, and I hope was not interpreted as any kind of finger pointing at my

4 learned friends, simply that -- and a summary of what the parties agreed

5 was the -- the situation at the time.

6 JUDGE MOLOTO: Okay. Anyway, decisions have now been issued on

7 the question of jurisdiction, form of indictment, and under Rule 73 bis

8 (D), and the outer limits of the case ought to be clear at least, and the

9 parties ought to be able to discuss agreed facts in a more conclusive

10 manner, I would imagine.

11 MR. TIEGER: Your Honour, this matter was discussed to some extent

12 at the 65 ter Conference yesterday. We certainly agree with the Court

13 that the evolving circumstances surrounding some aspects of the indictment

14 have produced a situation which renders the possibility of identifying the

15 areas of potential agreement more likely. That -- now, setting aside, for

16 the moment, the -- the question of the outstanding interlocutory appeal on

17 jurisdiction, which is another matter, the problem raised by the parties

18 was not so much the uncertainties surrounding the issues that might be

19 discussed, but simply the opportunity to do so. And I think that was a

20 matter raised before the Bench on earlier occasions. It was reiterated

21 yesterday. The focus was on the logistics of the process, which do

22 require a dedicated period of time to reach fruition.

23 I think all the parties attempted yesterday to explain in somewhat

24 greater detail the stages involved in that process and therefore the

25 requirements of time. That has been the issue. As the Court just noted

Page 185

1 we may face a situation now or may find ourselves in a situation now that

2 is more propitious for dedicating certain periods of time for this

3 specific purpose. And if so, the parties have indicated their willingness

4 to engage in the process and we will certainly do so.

5 JUDGE MOLOTO: Thank you, Mr. Tieger.

6 Any view on that point in.

7 MR. KEHOE: Yes, Your Honour. I have to echo some of the

8 responses that -- comments that Mr. Tieger made with regard to time. Now

9 that we do have some period of time, we will of course dedicate our

10 efforts to coming to some agreed facts or a large portion of those facts,

11 I do believe. Keeping in mind, Judge, that by Thursday, I do believe it's

12 Thursday we are scheduled to file our pre-trial brief as well, so we will

13 have the pre-trial brief of the Prosecution and, of course, the Defence

14 will have theirs.

15 And I think that we will be able to use both of those documents as

16 a starting point for many of these agreed facts moving, of course, from

17 the larger facts to the smaller. But I do believe that with this period

18 of time we can dedicate ourselves to that.

19 I do once again want to footnote what Mr. Tieger noted with regard

20 to the indictment itself, there has been an appeal filed on the Rule 72

21 decisions on jurisdiction that the Trial Chamber has made, just so

22 Your Honour knows that has, in fact, been filed yesterday.

23 JUDGE MOLOTO: I haven't seen that.

24 MR. KEHOE: No, no, I understand Judge, but I was just talking

25 about from the standpoint Your Honour said there have been decisions on

Page 186

1 that, that is outstanding. But that is not going to prevent discussions

2 on agreed facts. There are a significant number of agreed facts that we

3 can come to a concrete resolution on with a period of time. And I think

4 counsel will all agree would that.

5 JUDGE MOLOTO: Thank you.

6 Mr. Prodanovic.

7 MR. PRODANOVIC: [Interpretation] Prodanovic. I don't want to

8 repeat what has already been said. I simply want to say that when the

9 trial was scheduled for the 7th of May, it was not possible to expect that

10 we would have any time to talk about the agreed facts.

11 Now that the trial has been delayed for a certain period of time,

12 I think we will be able to start this process and we are eager to part in

13 it. Of course we expect initiative on the part of the Prosecution.

14 JUDGE MOLOTO: Thank you very much, Mr. Prodanovic.

15 Any comments, Mr. Separovic?

16 MR. SEPAROVIC: [Interpretation] No, Your Honour. I agree fully

17 with my colleague, Mr. Prodanovic.

18 JUDGE MOLOTO: Thank you very much.

19 May I make a proposal perhaps, also that there are efforts on

20 reaching agreement on facts, should try to also cover, amongst others,

21 facts and crime-base evidence, including evidence on the accuseds' various

22 positions, victims, lists, and identity of victims and the exhumation

23 evidence, as indeed you are already trying to do and also the applicable

24 law.

25 If there isn't anything else, I would like us to then deal with

Page 187

1 the next item on the agenda, which is the comprehensive motions under

2 Rules 92 bis, 92 ter, and for protective measures. At the last 65 ter

3 Conference and Status Conference, the Prosecution was asked when it would

4 be in a position to submit comprehensive motions under these rules. The

5 Prosecution replied that it would submit such motions between the

6 submission of its 65 ter submission and the 65 ter submission of the

7 Defence. If this has not been done before this Status Conference, in

8 light of the dead-line of the 5th of April for the 65 ter Defence

9 submission, the Prosecution is being reminded to submit such motions.

10 MR. TIEGER: Your Honour, the Prosecution did submit a motion on

11 March 27th, as requested, or ordered. I understand from the legal officer

12 that the Court was interested -- let me step back for a moment. And that

13 motion outlined a number of protective measures of -- a broader form of

14 protective measures was requested with respect to 92 bis and 92 quater and

15 92 ter, it outlined some of the steps that the Prosecution anticipated

16 taking with respect to certain witnesses. I understand from the senior

17 legal officer that the Bench would like formal motions upon which the

18 Court would rule as soon as possible. And we discussed that at the

19 conference yesterday.

20 My suggestions would be, and noting that the March 27th motion

21 indicated that the Prosecution anticipating filing approximately 14

22 motions under 92 bis and/or 92 quater, that we identify a date now by

23 which I'll propose a date, the Prosecution would submit at least a certain

24 number of motions for the court to rule on. Specifically with respect to

25 these measures, I think the legal officer referred to them as bundled

Page 188

1 submissions and I understood that to mean the concrete motions upon which

2 the Court could rule, upon which my learned colleagues could respond.

3 Now, part of the reason that those weren't submitted is that for

4 the reasons described in the motion the Prosecution needed additional time

5 to actually directly contact witnesses, and that's -- we're in the process

6 of doing that. But I would say irrespective of the -- of whether or not

7 that process has been completed, we would suggest filing these -- or at

8 least a number of these concrete motions for 92 bis or 92 quater but I

9 think, if I understood the senior legal officer correctly and if I gauge

10 the Court's intention to move the process forward, at least incrementally

11 insofar as possible, that that would be the step the Court would be

12 looking for, and we can do that with respect to the particular witnesses,

13 particular testimonies, that have been identified even in light of the

14 particular logistical difficulties.

15 So we can file X number of motions by the week of April 16th, and

16 indicate to the Court at the same time whether we anticipate additional

17 motions to follow.

18 Now, with respect to 92 bis, that will involve liaising with the

19 Registry because additional missions will be necessary, both in Serbia and

20 in Croatia, to obtain the statements via the Registry upon which certain

21 of motions will be based. But to the extent possible, we can get other

22 motions that have been brought to a stage where they can be submitted to

23 the Court, before the Court, during that week.

24 JUDGE MOLOTO: Are you able to guesstimate what percentage of the

25 14 motions that are anticipated X amount will be? The majority of them or

Page 189

1 just a few?

2 MR. TIEGER: Well, I would say -- and I misspoke slightly, I think

3 there are about 20 motions anticipated under Rule 92 bis and Rule 92

4 quater and I think we could have more than half submitted by that date.

5 JUDGE MOLOTO: By the 16th.

6 MR. TIEGER: Yeah.

7 JUDGE MOLOTO: Okay. I don't think any of the counsel would like

8 to comment on that.

9 MR. KEHOE: No, Your Honour, just to the extent that, and this did

10 come up yesterday at the 65 ter Conference, and to the extent that some of

11 these witnesses who have given statements have said they would like some

12 protective measures. I just would inform the Court we will resist some of

13 those and we will respond. Some of them we will not, of course, but there

14 will be some discussion, but we're also waiting to see what the list is of

15 who these witnesses are. If it is any indication of some of the more

16 professional witnesses who have asked for protective measures, we would of

17 course resist that, but we will wait until the appropriate time to

18 respond.

19 JUDGE MOLOTO: Indeed, Mr. Kehoe, we agree. We understand that it

20 is in the interests of the proper administration of justice for trials to

21 be in public, and to that extent we understand that you always have that

22 right to resist. Okay. Thank you very much.

23 Mr. Prodanovic, do you have anything to add to that?

24 MR. PRODANOVIC: [Interpretation] If this is the appropriate moment

25 to touch upon the way that the witnesses are going to be examined as part

Page 190

1 of the protective measures, then I would have something to say. I am

2 working according to yesterday's agenda, for yesterday's conference, and

3 it's on it.

4 JUDGE MOLOTO: Let's hear what you have to say on the point then,

5 Mr. Prodanovic.

6 MR. PRODANOVIC: [Interpretation] The request of the Prosecution to

7 limit the disclosure of the identity of three witnesses to the Defence, I

8 have to say the following: As far as Witness P-15 is concerned, we have

9 completely contrary position. We think that there are no factors that

10 could allow the withdrawal of the -- his identity to the Defence. P-16,

11 not P-15.

12 It's a witness to the events, member of Croatian army. And if we

13 are to cross-examine him and his credibility, we absolutely have to know

14 his identity. You have to bear in mind that there are no extraordinary

15 circumstances which would normally warrant the procedure in which the

16 Defence would not be allowed to know his identity.

17 I would like to reference you to the Tadic decision in this

18 relation, and the extraordinary situation which would be required here

19 does not exist anymore in Republic of Croatia. And since the situation

20 has been changed for better, I also have to say that it's precisely the

21 reason why Ademi and Norac case has been referred to Croatia. I don't

22 think that it is possible to just generally talk about danger for this

23 witness, and especially not the situation in which this danger would be

24 produced simply by Defence knowing his identity.

25 Therefore we are certainly going to submit a separate motion and

Page 191

1 are going to resist this request and require his identity to be divulged

2 to us.

3 JUDGE MOLOTO: Thank you. It is always your right to do so. I'm

4 not quite sure whether you are really on the Prosecution witness list or

5 are you still on the 92 bis and 92 ter things. Or am I behind?

6 MR. PRODANOVIC: [Interpretation] Maybe the problem is that we

7 don't have an agenda for today, so I'm referring to yesterday's agenda.

8 Agenda for 65 ter Conference. There we also spoke about the Prosecution

9 witnesses and their list, and some of them were supposed to have their

10 identities protected.

11 JUDGE MOLOTO: May I just then apologise for the fact that you

12 don't have an agenda. I thought you do.

13 MR. PRODANOVIC: [Interpretation] Your Honour, if I may be then

14 slightly ahead of the agenda, then maybe we should simply leave it for the

15 next point.

16 JUDGE MOLOTO: Let's do that. Maybe we can deal with it under

17 that heading.

18 Mr. Separovic, any comments on the point at issue?

19 MR. SEPAROVIC: [Interpretation] No, Your Honour. I also wanted to

20 say something about protective measures, but nothing for the moment.

21 JUDGE MOLOTO: Okay. Thank you very much, Mr. Separovic.

22 That then disposes of that item on comprehensive motions under

23 Rules 92 bis and 92 ter.

24 And the next item now then becomes the Prosecution's witness list,

25 and I think this is where Mr. Prodanovic was trying to lead us, but before

Page 192

1 we ask him to talk again, anything from the Prosecution? I notice that

2 the -- yes, in -- the Prosecution noted in its motion of the 27th of March

3 that witnesses number 64 and 158 through to 162 should be removed from the

4 Prosecution witness list for the reasons stated in the motion for

5 temporary protective measures. Am I correct in that?

6 MR. TIEGER: I don't have the numbers in front of me, but I

7 believe that's right, Your Honour.

8 JUDGE MOLOTO: That's right. And that number 64 has decided not

9 to testify as a result of threats. The other five are the same as

10 Witnesses P-1 to P-5 and are inadvertently mentioned twice in the list as

11 numbers 158 to 162.

12 MR. TIEGER: I'm not aware that there's any confusion among the

13 parties with respect to those submissions and the witnesses who are now --

14 who remain on the witness list. If -- if the Court or my learned friends

15 have any questions, we will be, of course, happy to clarify. But as far

16 as I'm aware, the submissions were clear enough to them, and I think

17 the -- my recollection is that the adjustments were fairly

18 straightforward.

19 JUDGE MOLOTO: Can you confirm that, Mr. Kehoe?

20 MR. KEHOE: Yes, I believe so, Judge. And to the extent there has

21 been really any confusion on this, I think we have been working together

22 to try and resolve it.

23 JUDGE MOLOTO: Thank you very much.

24 Now, Mr. Prodanovic could also confirm it.

25 MR. PRODANOVIC: [Interpretation] That's correct, Your Honour.

Page 193

1 JUDGE MOLOTO: Thank you, Mr. Prodanovic.

2 Can we then deal with disclosure between the parties. At the last

3 Status Conference the Prosecution stated that it would inform the SLO

4 on -- by which date it would be able to conclude disclosure. As far as I

5 know, no such information has been given or received from the Prosecution,

6 and are there any outstanding issues that need to be dealt with under

7 disclosure?

8 MR. TIEGER: Your Honour, let me indicate to the Court part of the

9 discussion that took place at the 65 ter yesterday, and part of the

10 follow-up that resulted. With under disclosure?

11 MR. TIEGER: Your Honour, let me indicate to the Court part of the

12 discussion that took place at the 65 ter yesterday, and part of the

13 follow-up that resulted.

14 First of all by way of back-drop, it may be helpful because I may

15 be alluding to some of these factors in the course of explaining to the

16 Bench where we now stand. Some of the measures that were taken by the

17 Prosecution during the course of disclosure of the 65 ter materials. In

18 discussions with the Defence, it would helpful for them to disclose in a

19 fairly unusual way, but one that was deemed quite helpful by the parties.

20 That included providing the disclosures on a hard drive to -- three

21 separate hard drives to each Defence teams and also creating a

22 hyper-linked exhibit list which would facilitate the process of

23 identifying the particular exhibits. And the hard drives were provided,

24 the hyper-linked exhibit list is being completed.

25 I should also mention that throughout the course of this process,

Page 194

1 and something that Mr. Kehoe alluded to a few moments ago, the exchange of

2 information and level of cooperation between the Prosecution and the

3 Defence, I think, has been extremely high and extremely gratifying to all

4 parties.

5 Yesterday we received, just before the 65 ter Conference, a list

6 from Mr. Misetic from Mr. Gotovina's Defence, and then at the 65 ter

7 Conference a list from Mr. Separovic on behalf of General Markac of

8 documents and or/statements that they had been unable to locate and needed

9 some help in finding.

10 If I remember correctly, Mr. Separovic indicated that he was

11 missing some 40 statements or so and approximately 150 documents.

12 Mr. Misetic's list, I think, encompassed about 150 documents or so. The

13 particular numbers aren't so important in light of what I'm going to say,

14 but that's the general situation that prevailed yesterday.

15 Thanks to some extraordinary efforts by Ms. Henry-Frijlink between

16 the course of yesterday and late last night, we went over those materials.

17 What I can tell the Court is the following: First of all with respect to

18 the statements that Mr. Separovic alluded to, we determined that those had

19 been previously sent to him in March via e-mail. And I'll provide him

20 with the exact times of those e-mails and so that he can readily identify

21 those.

22 In addition, and perhaps more importantly, we went over

23 systematically, or I should say Ms. Henry Frijlink link went over

24 systematically, the list. And we are providing to the Defence today,

25 virtually every document contained on the list. For the most part those

Page 195

1 were, it turned out to be, in fact, documents that we are confident had

2 been disclosed and were contained on the hard drive, but for matters of

3 convenience we decided it was easier simply to reburn them on a CD and

4 provide them to the Defence today and that's what we intend to do. That

5 CD has been burned and we can provide it after the Status Conference.

6 In addition, there were a small fraction of documents that we

7 believe were not on the hard drive because they were inadvertently omitted

8 from the exhibit list, although referenced in the pre-trial brief. And we

9 provide those today by way of supplementing the exhibit list. They will

10 also be contained on the CD.

11 Finally, we noted that a certain number, and again a relatively

12 small number of statements were still pending translation. I

13 double-checked on that. I am advised that the translation authorities

14 believe that can be completed by the end of this week, and I reconfirmed

15 that this morning. So even if there's some slippage in that projected

16 dead-line, those statements will be available, translations of those

17 statements will be available in very short order.

18 So that essentially is the state of play at the moment. And it

19 was, of course, helpful that we were all face to face and were provided

20 with specific references that we could double-check and respond to in this

21 manner.

22 JUDGE MOLOTO: While you are on your feet, before you sit down,

23 can you address the Rule 70 disclosures?

24 MR. TIEGER: Yes, Your Honour. Thank you. I've neglected to

25 mention that and I'm glad you've raised that. The -- we are running

Page 196

1 through that once more, particularly in light of the fact that one of the

2 principal providers on Friday cleared a significant number of documents.

3 So we want to run through the entire Rule 70 pending matters to ensure

4 insofar as possible, that first of all, all of those that have been

5 cleared are now made available to the Defence to determine which have not

6 been cleared and recontact the providers forthwith to urge them to

7 accelerate the process of responding to our request for clearances. But

8 my current understanding is that in the wake of the recent clearance the

9 -- the bulk of those pending Rule 70 matters will have been cleared.

10 JUDGE MOLOTO: Let me understand you quite clearly. When you say

11 they have been cleared and the bulk of those pending matters will have

12 been cleared, are you able to give us a time-line by which a disclosure

13 might take place?

14 MR. TIEGER: Of the documents that are cleared? Within one week.

15 JUDGE MOLOTO: Thank you.

16 Any comments from -- yes, Mr. Misetic.

17 MR. MISETIC: Thank you, Your Honour. I would just like to

18 confirm what Mr. Tieger had said; however, I wanted to point out for the

19 Trial Chamber the circumstances from the view of the Defence in light of

20 the fact that a pre-trial brief is due Thursday. At the time of the

21 filing of the Prosecution's pre-trial brief, there were anywhere between

22 35 and 50 witness statements cited in the brief that we did not have

23 possession of. We have been working with the Prosecution to resolve that

24 issue. There was an e-mail sent shortly thereafter, I think maybe the

25 Monday after the brief was filed Friday, where we did receive those

Page 197

1 statements.

2 With respect to the documents cited in the pre-trial brief, there

3 were around 150 documents cited in the brief; it's probably half of them.

4 The documents are the B/C/S and English translations of the same document,

5 so we're talking roughly the neighbourhood of 50 to 75 documents cited in

6 the brief that we did not have access to until either last week when I

7 received a copy of the hard drive or today when we received a copy of the

8 CD. In light of the fact our pre-trial brief is due Thursday and we're

9 still receiving material from the Prosecution in terms of documents that

10 are actually cited in their brief, I wanted to alert the Court that we are

11 working feverishly to meet the Court's dead-line of filing the pre-trial

12 brief; however, I wanted to advise you that to the extent there are any

13 issues that we need to address that are cited in documents that we are now

14 receiving from the Prosecution, it may be that we'll have to alert the

15 Court to a problem and ask for a short extension, but that is not our plan

16 right now, and we intend to file the brief on time on Thursday, but I

17 wanted to inform the Court of our situation right now. Thank you, Your

18 Honour.

19 JUDGE MOLOTO: Thank you very much, Mr. Misetic. If that

20 eventuality does arise, is it not possible to file your brief to the

21 extent that you have information and reserve the right to supplement it

22 later?

23 MR. MISETIC: Certainly, Your Honour; if that is the Court's

24 preferred manner of proceeding, that's fine. I do want to indicate that

25 it is our intention, even though we're here in The Hague right now, to

Page 198

1 meet the dead-line on Thursday, and if for some reason, we feel that there

2 is an issue raised in one of the documents we have just received, with the

3 Court's indulgence we may just file the brief with a note that says we

4 would like to address the issue at a later date or invite the Court to

5 invite us to file a written submission on that issue, should the Court

6 want us to address it.

7 JUDGE MOLOTO: If you did ask for a postponement, how long -- if

8 you wanted to file a --

9 MR. MISETIC: Over the weekend so we could file it on Monday or

10 Tuesday.

11 JUDGE MOLOTO: In that event, then, yeah. Thank you.

12 Mr. Prodanovic. Mr. Prodanovic.

13 MR. PRODANOVIC: [Interpretation] We basically join the proposal

14 put forward by the Defence of General Gotovina. We would also like to see

15 these additional witness statements that have not been disclosed to us

16 until now.

17 JUDGE MOLOTO: That's understandable, Mr. Prodanovic. Thank you

18 very much.

19 Mr. Separovic.

20 MR. SEPAROVIC: [Interpretation] Your Honour, I also agree. I gave

21 a list to my learned friends from the Prosecution yesterday with the

22 documents that are missing. I was glad to hear that Mr. Tieger was able

23 to find some of them, but I have to tell you that there are 45 witness

24 statements, interviews, that are missing. I am not saying that we did not

25 receive summaries. We received the summaries. But we cannot find 45

Page 199

1 witness statements. They are still outstanding. We are unable to access

2 documents. We simply do not have them. I hope that this problem has been

3 resolved and if it is case, I am very grateful to Mr. Tieger and we will

4 not be raising these issues in the future if this has been resolved.

5 Thank you.

6 JUDGE MOLOTO: Thank you, Mr. Separovic. Mr. Tieger's very eager

7 to answer to that. He stands up while you are still talking.

8 MR. TIEGER: I apologise for that.

9 JUDGE MOLOTO: No problem.

10 MR. TIEGER: First of all, I don't want to make a problem where

11 one doesn't exist. I think it is largely resolved. However, it is

12 important not to confuse two things. Number one, documents that were

13 disclosed but that the Defence was unable to locate for whatever reason,

14 that -- those do represent the bulk of the documents we're talking about.

15 And secondly, not to confuse pending translations of statements that were

16 disclosed for the absence of any disclosure of statements. But with that

17 clarification, I think we now find ourselves in a situation where everyone

18 can proceed apace.

19 JUDGE MOLOTO: Mr. Tieger, if I might just ask a question. Is the

20 Prosecution in a position to produce proof to the Defence, whenever they

21 are queried, of delivery of certain documents?

22 MR. TIEGER: Well, in the -- we have generally engaged in the

23 practice of responding to their notification of difficulties, and as I

24 say, it has been helpful in particular that they have noted certain

25 documents. We do so by specifically noting when those documents were

Page 200

1 disclosed and where they can be found. Having said that, it's struck us

2 as much more expeditious to simply provide those documents again, so that

3 we don't have to engage in the entire process.

4 JUDGE MOLOTO: I understand that.

5 MR. TIEGER: But we have attempted to do that at each juncture.

6 JUDGE MOLOTO: I understand the question of difficulties. But

7 then side by side that question, there is also the question of

8 obligations. You are obliged to give certain disclosures, at times

9 certain disclosures are supposed to be made within a certain time line,

10 and, yes, you may have given them, they may have misplaced then, and they

11 may then run into the difficulty they are not able to be access them, and

12 they come back to you, and fine, I will give you another set.

13 However, I want to know, for purposes of the Chamber, whether you

14 are able to give proof when you have delivered because I would not want

15 the time of the Court to be squandered because I have lost my papers and

16 for three months I have not done anything, and in three months' time

17 Mr. Tieger, out of the goodness of his heart gives me second copies, but

18 he really is not obliged and I'm the one who is supposed to be on terms

19 because I've lost my papers.

20 MR. TIEGER: Two things, Your Honour. Number one, yes, we not

21 only can demonstrate that those documents have been disclosed, but we

22 attempt to do so when advised of the problem and have attempted to do so

23 in various spread sheets.

24 Number two, in fairness to my learned friends, I don't think --

25 I'm not sure it's a matter of misplacing the papers or the documents.

Page 201

1 There are -- there are access difficulties with some of the -- I'm advised

2 by them, with some of the disclosure - what shall I call them? - machinery

3 that they've brought our attention to. That's one of the reasons we

4 provided the hard drive and the hyper-linked exhibit list, to try to

5 obviate any such problems. But at the same time, I don't want it

6 misunderstood that the Prosecution hasn't attempted each time it has

7 redisclosed, to also indicate when and how the previous disclosure was

8 made.

9 So there is no -- certainly no finger pointing on anyone's part,

10 but I don't want the Court to understand that we --

11 JUDGE MOLOTO: No, I understand -- I understand that there's there

12 no finger-pointing. However, when I came on this case from the 5th of

13 December last year, particularly on this question of disclosure, there has

14 not been any modicum of agreement, there has always been -- no, no, the

15 Prosecution claims very few documents are outstanding. The Defence claims

16 lots and lots of documents are outstanding. And we've got to come to a

17 time when we should be able to say: Prosecution, show that you have

18 disclosed you have that you had to disclose. Defence, do you have that,

19 and if you don't have it, you can't blame the Prosecution. You can ask

20 the Prosecution to redisclose because -- for whatever reason you are not

21 accessing your information. But you can't blame them. You can ask for

22 indulgence. We've got to get to a time when we are able to put the blame

23 where it belongs. At this -- for now, we have not done so. And I'm not

24 intending to do so in the very near future, but there is going to come a

25 time when the buck must stop.

Page 202

1 MR. TIEGER: I think everyone understands that, Your Honour, and I

2 appreciate the Court's comments. I believe that's what the parties have

3 been attempting to do and especially in the face of the size of a case

4 like this, so we make disclosures of a large volume of material. The

5 Defence has gone through those disclosures. I think Mr. Misetic in

6 particular has attempted to go through them for the most part as

7 comprehensively as he could. He has then identified for us problems that

8 exist. In fairness to both sides, I think, the percentage of problems,

9 given the volume of material are relatively small and relatively

10 predictable. Our response to the identification of any problems has been

11 as proactive, and I think constructive as possible, that is to address

12 them directly.

13 So I think the parties have been attempting to proceed in

14 precisely the spirit encouraged by the Court so that as quickly as

15 possible everyone can be satisfied that that, what was intended to be

16 disclosed, was received and is available, and to any extent it is not, it

17 is immediately addressed so that we can narrow any gaps that exist. Today

18 should be one example. The Defence specifically identified a number of

19 documents that they could not locate from the recent 65 ter disclosures.

20 We believe we've now responded comprehensively, I should say, except for

21 as I understand it two documents which we we're still exporting from the

22 system, but that it will be provided. Again, if there is any problem in

23 that, I'm confident that we will be advised, but clearly the problems

24 within that much narrower range of identified documents will be even

25 smaller and we can quickly move to resolves that as well.

Page 203

1 JUDGE MOLOTO: Your kindness is appreciated.

2 Yes, Mr. Misetic.

3 MR. MISETIC: Your Honour, I just wanted to follow up on what

4 Mr. Tieger said and I want it to be clear from the Defence side as well.

5 First, there is not an issue here where -- of good faith. I think all the

6 parties are proceeding in good faith. The issue for us, and the reason I

7 brought it up, was simply: All we care about is getting the documents,

8 obviously. Either there has been a problem in terms of your review of the

9 last four months since you've been in this case. I think the problem has

10 been twofold. It's either been a situation where there are some documents

11 that haven't been disclosed or, from our end, we've been having trouble

12 finding documents that have been disclosed in light of the means of

13 disclosure. In other words, there is an EDS system and other means of

14 disclosure, that there have been problems in the electronic phase of

15 trying to gain access to them. I think both sides are working in a spirit

16 of, first, cooperation, and second, trying to move as expeditiously as

17 possible to resolve those issues. So this is not for the purpose of

18 laying blame, from their side and us or vice versa, but to keep the Court

19 fully informed. The reason I bring it to your attention to was,

20 regardless of those types of issues of why we don't have the documents.

21 When the pre-trial brief was filed we didn't have them and in light of

22 that, I wanted to keep you informed of what we didn't have, the scope of

23 those the documents that we didn't have, as well as the fact that we are

24 moving diligently to get our brief filed on Thursday. And in light of 50

25 witness statements and 150 or so documents, we're moving as fast as

Page 204

1 possible to get it filed but there may be a need for extension of a few

2 days.

3 I appreciate the Court's concern that there be a date where we can

4 say all disclosure has been made. I think we are moving towards that

5 date, and as long as we keep moving that way and they respond diligently

6 to my requests, which I can tell the Court that they do, I think that date

7 will probably arrive very shortly. Thank you, Your Honour.

8 JUDGE MOLOTO: Thank you, Mr. Misetic.

9 Do you have any contribution, Mr. Prodanovic? Do you have

10 anything to say?

11 MR. PRODANOVIC: [Interpretation] No, thank you.

12 JUDGE MOLOTO: Thank you very much.

13 Mr. Separovic.

14 MR. SEPAROVIC: [Interpretation] No, thank you.

15 JUDGE MOLOTO: Thank you very much, Mr. Separovic.

16 Now, I think then we can close that point on that note, and move

17 on to the next item, which is the pending motions and other pending

18 matters. Now, on the 26th of March, 2007, the Gotovina Defence filed a

19 motion pursuant to Rule 73, requesting Pre-Trial Chamber to strike parts

20 of the Prosecution's pre-trial brief, constituting affective amendment of

21 the joinder indictment.

22 On the 27th of March, 2007, the Prosecution filed the

23 Prosecution's submission regarding manner of testimony for Prosecution

24 witnesses, and on the same date the Prosecution filed a Prosecution motion

25 for temporary protective measures.

Page 205

1 Now, with respect to the 27th March motions, Mr. Tieger, what the

2 Chamber would like to confirm with you is whether those motions cover the

3 Prosecution's request for an order of non-disclosure which was included in

4 paragraph 13 of the Rule 65 ter submission of the 16th of March.

5 MR. TIEGER: The effective answer is yes, Your Honour, in the

6 sense that we're not seeking specific relief by way of paragraph 13, which

7 was more of a admonitory note out of an abundance of caution, but the 27th

8 March motion is the operative document.

9 JUDGE MOLOTO: Is the operative document. Thank you very much.

10 Then on the 28th of March the Prosecution submitted its

11 clarifications of the indictment following the decision on the form of the

12 indictment. And following the authorisation by the Trial Chamber, the

13 Prosecution will submit the clarification concerning the pleading of JCE

14 by the 5th of April. Is that correct?

15 MR. TIEGER: Yes, Your Honour, it is.

16 JUDGE MOLOTO: Okay. On the 30th of March the Markac Defence made

17 a submission pursuant to the Trial Chamber's 6th March decision on finding

18 of misconduct of Mr. Separovic, which had ordered the Defence immediately

19 to engage new counsel, and that new counsel was to inform the Trial

20 Chamber by 30th of March of how much time would be needed to fully take

21 over the case.

22 Now, the Markac Defence submits that more time is needed to find

23 replacement counsel and therefore requests an extension of time. The

24 Defence also requests that trial start be delayed until the autumn of

25 2007, and I think we've touched on that at the beginning of this Status

Page 206

1 Conference this morning. And lastly -- and lastly, let me just mention

2 that the parties -- or rather the 6th of March decision had requested the

3 parties to inform the Court on how they thought the matter could be taken

4 forward.

5 Dealing with the Markac submission, let me just indicate once

6 again, Mr. Separovic, that given the fact that your Defence team has noted

7 an appeal, the appeal is pending, the fact that a decision in the

8 Prodanovic, Slokovic matter is still outstanding, there is this

9 uncertainty about the start time, so that there is an effective extra time

10 that the Separovic defence is getting as a result of these developments.

11 The Bench is unable to say at this stage by how long this effective

12 postponement will be. It depends on how soon we get to resolve

13 difficulties that we are facing. But I would therefore encourage you, and

14 your client, to please move as expeditiously as you possibly can to

15 resolve the problems from your side so that as and when the rest of the

16 issues are resolved we are able to start the trial, or very near starting

17 the trial.

18 This may not necessarily be a reasoned-out answer to the issues

19 you raise in your motions, but for the time being this is just a thinking

20 that I am -- is going on in my mind and which I thought I should share

21 with the parties, pending a comprehensive response to all these motions.

22 Okay.

23 Is there anybody who would like to say anything on these issues

24 that I have just raised? Mr. Tieger.

25 MR. TIEGER: Simply to note, Your Honour, that of course the

Page 207

1 concern from the Prosecution side, at least in part, is the scheduling of

2 witnesses, many of whom we've now been in touch with. The -- and I

3 appreciate the situation the Court finds itself in now, but at some point

4 we'll -- we'll benefit from a date certain, or at least some indication

5 that we can give our witnesses by way of planning, many of whom are

6 located overseas, many of whom have busy schedules and need to adjust

7 those schedules in order to make an appearance here. So that's a --

8 clearly a concern on our part.

9 For the time being, obviously, we'll have them stand down. But as

10 soon as the -- well, two things are clear. As soon as we can -- the

11 sooner we can get some kind of date certain, understanding the

12 uncertainties of the moment, the better. And in addition, we'll need

13 sufficient lead time, and that generally involves six to eight weeks at a

14 minimum to be able to go through the logistical process of going through

15 VWS and so on, to schedule witnesses appropriately.

16 In the meantime, we'll alert them to the uncertainties, try to

17 project as accurately as we can, but that clearly involves difficulties

18 for everyone. And those are among the factors we have to take into

19 account.

20 JUDGE MOLOTO: Certainly. Let me just say this to all the

21 parties, that certainly the Court will try, to its best, to accommodate

22 the parties and give them sufficient lead time when once everything is

23 certain. The only problem is that as of now everything -- nothing is

24 certain. I don't know when the appeal is going to be heard and when the

25 judgement will be handed down. A decision is still outstanding in the

Page 208

1 Prodanovic matter. I don't know how long it will take -- I don't know

2 what the decision of the Appeals Chamber is going to be, I don't know what

3 the Prodanovic team is going to do with the decision that is going to come

4 down and what effect it's going to have.

5 But let me just say that that decision will be handed down fairly

6 soon. So nothing can be planned, even from the side of the Bench, in

7 terms of thinking of dates and time lines, because we just don't know from

8 what date do we start, when we start talking of time lines. But when all

9 that information has been ascertained, the Chamber will take into account

10 the logistical problems that all the parties are faced with. Okay?

11 Having said that, is there any further comment?

12 MR. KEHOE: Nothing from General Gotovina, Your Honour.

13 JUDGE MOLOTO: Thank you very much.

14 Mr. Prodanovic.

15 MR. PRODANOVIC: [Interpretation] Nothing, Your Honours.

16 JUDGE MOLOTO: Thank you.

17 MR. SEPAROVIC: [Interpretation] Just a few words, Your Honour.

18 Regardless of the outcome of the appeal that I have instituted, in view of

19 your request we are very actively seeking new counsel. We provided

20 evidence to the effect that we haven't been able to engage one until now,

21 but that doesn't mean that we will cease our efforts in that regard.

22 Regardless of the outcome of the appeal, the decision as it stands now is

23 not good for General Markac. It's not good for me either, but it's not my

24 interests that we are concerned with right now.

25 All I can tell you is that we are working on the problem. I will

Page 209

1 continue doing my best to contribute to the resolution of this problem.

2 Thank you.

3 JUDGE MOLOTO: Thank you very much for those words, Mr. Separovic.

4 And that's also the motive of the Bench in sharing what I shared with you

5 a few minutes ago about -- when I dealt with the motions filed for the

6 Markac Chamber -- the Markac Defence team. I note that one of the things

7 that you asked for was an extension of time. As I said to you, you have

8 an effective extension of time; how long it will be, I really don't know.

9 That I said because I realised that you are finding difficulty in finding

10 replacement counsel in the region, and I just wanted to give you the

11 comfort that there is some more time for you to carry on doing that,

12 because it is also in the interests of the Chamber that you get this

13 counsel as soon as possible so that, depending on the outcome of the

14 appeal, that counsel should be -- should find sufficient time to update

15 themselves on the trial. So, yes, we share the same concerns. Thank you

16 very much.

17 That brings me to the end of agenda, as I had it. Are there any

18 issues that any of the parties would like to raise that are -- probably

19 were not an the agenda.

20 Let's start with you, Mr. Tieger.

21 MR. TIEGER: No particular issue, Your Honour. I just wonder if

22 the Court was going to specifically vacate the pre-trial date and the

23 trial date, and then maybe have a Status Conference for sometime, an

24 appropriate time thereafter.

25 JUDGE MOLOTO: Maybe you could guide us on that one. I haven't

Page 210

1 had experience of that. When you want me to vacate, do I do that by

2 order? Or can I do it right here?

3 MR. TIEGER: I think the Court can do it -- Mr. Kehoe seems to

4 have a --

5 MR. KEHOE: I think you can do anything you want, Judge. That's

6 one of the beauties of wearing a red robe, Judge. I think you can just do

7 it orally, Judge, and that would be fine. I don't think there's any need

8 for anything other than an oral statement by the Court.

9 JUDGE MOLOTO: Well, the scheduling order is then so vacated

10 without any date certain.

11 Was that all you wanted to raise, Mr. Tieger?

12 MR. TIEGER: That's all I had, Your Honour.

13 JUDGE MOLOTO: Thank you very much.

14 Mr. Misetic, Mr. Kehoe, anything from the Gotovina team?

15 MR. KEHOE: Not at this time, Your Honour, from General Gotovina.

16 JUDGE MOLOTO: Thank you.

17 Mr. Prodanovic?

18 MR. PRODANOVIC: [Interpretation] Nothing to add, Your Honour.

19 JUDGE MOLOTO: Thank you very much.

20 Mr. Separovic?

21 MR. SEPAROVIC: [Interpretation] Neither do we, Your Honour.

22 JUDGE MOLOTO: Thank you very much. Then, there being no further

23 business to do, that brings us to the end of the Status Conference, and

24 the court stands adjourned.

25 --- Whereupon the Status Conference

Page 211

1 adjourned at 10.04 a.m.