Tribunal Criminal Tribunal for the Former Yugoslavia

Page 212

1 Friday, 6th July 2007

2 [Status conference]

3 [The accused entered court]

4 --- Upon commencing at 3.12 p.m.

5 JUDGE MOLOTO: I'm sorry about the delay.

6 Good afternoon, everybody. I'm sorry about the delay. It's just

7 matters beyond my control that kept me away.

8 May the Registrar please call the case.

9 THE REGISTRAR: Good afternoon, Your Honour.

10 Case IT-06-90-PT, the Prosecutor v. Ante Gotovina, Ivan Cermak and

11 Mladen Markac.

12 JUDGE MOLOTO: Thank you very much. And let me welcome everybody

13 to this session of the court.

14 May we have the appearances, please, for the Prosecution.

15 MR. TIEGER: Good afternoon, Your Honour. Alan Tieger and

16 Marks Moore with the OTP with case manager, Donnica Henry-Frijlink.

17 JUDGE MOLOTO: Thank you very much. For the Defence.

18 MR. MISETIC: Good afternoon, Your Honour. Greg Kehoe and

19 Luka Misetic for General Gotovina, along with case manager Ana Katalinic

20 [phoen].

21 JUDGE MOLOTO: Thank you very much.

22 MR. PRODANOVIC: [Interpretation] Your Honour, Cedo Prodanovic and

23 Jadranka Slokovic for General Cermak. Your Honour, Goran Mikulicic, to my

24 left, David Gold, legal assistant, and Mr. Vlada Randunic, case manager.

25 JUDGE MOLOTO: Can we just confirm that the parties who are on

Page 213

1 videolink can hear us?

2 THE REGISTRAR: Good afternoon, Your Honours

3 [Inaudible].

4 JUDGE MOLOTO: I can hear somebody talking, but I don't hear

5 anything here.

6 THE REGISTRAR: Good afternoon, Your Honour. Can you hear me now?

7 Good afternoon. Can you hear me, Your Honour?

8 JUDGE MOLOTO: Can you talk again, please?

9 THE REGISTRAR: Good afternoon, Your Honour. This is Ram

10 Doraiswamy from Zagreb.

11 JUDGE MOLOTO: Thank you very much, Mr. Ram Doraiswamy, but I

12 can't hear you very well. I don't know whether other members in court do

13 hear him.

14 Can we just talk again? Let's see if we can hear you.

15 THE REGISTRAR: [Indiscernible] ... Court Officer in Zagreb.

16 JUDGE MOLOTO: I still don't hear anything. I see Mr. Misetic is

17 shaking his head. He's not hearing, too.

18 MR. TIEGER: The same, Your Honour.

19 JUDGE MOLOTO: The same over there. What shall we do?

20 [Trial Chamber and Registrar confer]

21 JUDGE MOLOTO: I'm advised that technical people are coming just

22 now. Shall we give them a few minutes? I don't know how long they will

23 be.

24 Could you please try again? Let's see if we can hear you.

25 THE REGISTRAR: Yes, Your Honour, can you hear me now?

Page 214

1 JUDGE MOLOTO: I can hear you now. I don't know whether everybody

2 else can hear you.

3 THE REGISTRAR: This is Ram Doraiswamy from Zagreb.

4 JUDGE MOLOTO: Good, I can hear you. Can you just give us time

5 and let everybody else switch on to the right button.

6 Can everybody hear him now? Okay, thank you very much.

7 That being sorted out, may we just find out the condition of the

8 accused?

9 Mr. Gotovina, will you please stand up? Do you have anything to

10 say about your health, your state of health?

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

12 asking me. I'm fine.

13 JUDGE MOLOTO: I didn't hear that.

14 THE ACCUSED GOTOVINA: [Interpretation] Your Honour, Your Honour,

15 thank you for asking me. I am fine.

16 JUDGE MOLOTO: You are fine. Thank you very much. And before you

17 sit down, let me just find out if you can hear me in a language that you

18 understand. I should have asked you that before I asked you about your

19 health.

20 THE ACCUSED GOTOVINA: [Interpretation] I can hear you.

21 JUDGE MOLOTO: And do you have any comments about your conditions

22 of detention?

23 THE ACCUSED GOTOVINA: [Interpretation] No, thank you.

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

25 I do know that Mr. Markac and Mr. Cermak are out on provisional

Page 215

1 release, but nevertheless I don't think there's anything wrong in finding

2 out about their health conditions, too.

3 Can they hear me in a language they understand? Can I be heard?

4 THE ACCUSED CERMAK: [Interpretation] I can hear you, thank you.

5 JUDGE MOLOTO: Thank you very much, Mr. Cermak. And Mr. Markac,

6 can you hear me?

7 THE ACCUSED MARKAC: [Interpretation] I can hear you.

8 JUDGE MOLOTO: Thank you very much.

9 Can I start with you, Mr. Cermak. Do you have anything to tell us

10 about your state of health?

11 THE ACCUSED CERMAK: [Interpretation] Well, I can say that I don't

12 feel very well, as a matter of fact, I feel very bad. It was the decision

13 of the Trial Chamber to leave my without my Defence team that I've been

14 cooperating with for the past nine years. At any rate, I am duty-bound to

15 abide by the decision of the Trial Chamber and find new lawyers.

16 JUDGE MOLOTO: May I interrupt you on that one, Mr. Cermak? The

17 question related to your state of health and not to your representation in

18 court. Do you have anything to --

19 THE ACCUSED CERMAK: [Interpretation] Right.

20 JUDGE MOLOTO: -- say about your state of health? Did I get an

21 answer to that?

22 THE ACCUSED CERMAK: [Interpretation] I don't feel well.

23 JUDGE MOLOTO: In health, sir, or in emotions?

24 THE ACCUSED CERMAK: [Interpretation] As regards my emotions and

25 the state that I'm in right now.

Page 216

1 JUDGE MOLOTO: Thank you very much. I'm sorry about that, and

2 let's hope that your emotions will resolve in time.

3 Mr. Markac, anything about your health?

4 THE ACCUSED MARKAC: [Interpretation] Thank you very much.

5 Your Honours, you know that my health has been impaired. However,

6 my medical team together with me is taking all measures to keep the state

7 of my health at the given level and to improve it, if at all possible.

8 Thank you for asking.

9 JUDGE MOLOTO: Thank you very much, Mr. Markac. We're sorry that

10 your health is not that good, but we are also happy to hear that your

11 doctors are doing something good about it. Thank you so much.

12 Can we deal with the question of the last status conference?

13 The last status conference in this case was held on the 3rd of

14 April, 2007. Pursuant to Rule 65 bis of the Rules of Procedure and

15 Evidence, a status conference shall be convened within 120 days of the

16 last in order to organise exchanges between the parties to ensure the

17 expeditious preparation for trial and to allow the accused to raise issues

18 in relation to their case.

19 I believe this morning a 65 ter meeting was held in preparation

20 for this conference.

21 Let me just say, then, that the issues that are on the agenda deal

22 with, first of all, the conflict of interest matters. I'll start with Mr.

23 Separovic's conflict of interest.

24 The Trial Chamber's decision on conflict of 27th of February,

25 2007, and the subsequent decision on finding of misconduct of 6th of

Page 217

1 March, 2007, were upheld by the Appeals Chamber on the 4th of May, 2007.

2 Mr. Markac has been aware of this conflict of interest issue for over four

3 months now.

4 I would like to hear from Mr. Markac what progress he has made on

5 finding another counsel to replace Mr. Separovic and when he expects new

6 counsel to take over this case.

7 Mr. Mikulicic, are you able to answer that question on behalf of

8 Mr. Markac?

9 MR. MIKULICIC: [Interpretation] Very gladly, Your Honour.

10 The Defence of General Markac is taking all steps in order to find

11 another colleague who would, together with me, represent our client, Mr.

12 Markac. We are negotiating with a few candidates. However, regrettably

13 these negotiations have not really advanced. The reason is that every one

14 of the attorneys we have contacted puts two questions, and I have no

15 answer to those questions; namely, when the trial will start and for how

16 long it will go on. Those questions are understandable because any

17 colleague who would take over the Defence of General Markac would have to

18 organise himself or herself in his domicile law office, and he cannot do

19 that without knowing these basic parameters.

20 However, in spite of that, we seem to be on the right track, and

21 it seems possible for us to retain yet another person for the Markac

22 Defence.

23 It would be very helpful if we could get answers to those two

24 questions from the Honourable Trial Chamber.

25 JUDGE MOLOTO: Mr. Mikulicic, the first question is a

Page 218

1 chicken-and-egg question. You want to know when the trial will start.

2 The Chamber wants to know when counsel will be available and ready to

3 start the case, to be able to schedule the case. So I'm not quite sure

4 which must come first. Must we first get counsel on board and be sure

5 they are on board, they've studied the papers, they're ready to start,

6 before we can schedule, or should we schedule a date and then counsel

7 calls and says, "Sorry, that's too soon for me, I'm not ready to start"?

8 I'm not quite sure how you -- how to answer that question.

9 This matter was postponed indefinitely precisely to enable the

10 parties to find replacement counsel, and once replacement counsel is

11 found, then this case will start, and provided that new counsel are ready

12 to proceed.

13 You understand the difficulty. So if you ask the Trial Chamber,

14 "When is the trial going to start," so that new counsel can know, I just

15 don't know how to answer that question.

16 As for the second question, I guess you know as much as I do, that

17 the length of the trial is anybody's guess at this stage until a 73 bis(C)

18 decision has been made, there's no way of guesstimating the length of the

19 trial, unless you can help me on that one.

20 MR. MIKULICIC: [Interpretation] Your Honour, I'm fully aware of

21 the questions that you have put just now. Of course, at this point in

22 time, I do not think that I can tell a future colleague exactly what the

23 situation would be. However, what would be helpful would be a tentative

24 agreement on when the trial would start. Will it be this autumn, will it

25 be a bit later, will it perhaps be next year? I think that this kind of

Page 219

1 information is very important.

2 However, what I can say to you with certainty is that the

3 colleagues I spoke to, and to whom General Markac spoke or, rather, he

4 agrees that these persons can act as co-counsel, after we made them aware

5 of the volume of material that we have available at this point in time,

6 they all said that they would need about three months of preparation

7 before a trial starts. However, I don't want to repeat myself.

8 Nevertheless, it would be quite important, so that people could organise

9 the work in their offices, because taking over a defence before The Hague

10 Tribunal means that you stop working in your own office for at least a

11 year. That is a rather long period, and therefore my colleagues would be

12 more ready to agree if these basic parameters would be predictable, if not

13 quite exact.

14 JUDGE MOLOTO: Okay. I'm going to try and accommodate you, Mr.

15 Mikulicic. Can we then suspend the discussion on conflict just for a

16 moment and talk about when we think this trial might start? I'm inviting

17 everybody to now join in on this one.

18 It would seem to me as if the trial were said to be trial ready,

19 it wouldn't be less than, you just said, three months, that the new

20 counsel would need three months to prepare themselves. I would imagine

21 that the trial would start in a period of five months from the time that

22 people say they are ready. When that time when people say they are ready

23 will come I am not able to say for the following reasons, and I would like

24 us to think together around this.

25 One, there is the possibility that this case may wait until I am

Page 220

1 ready to hear it. I'm currently starting a new case on Monday which is

2 set to be -- which is expected to last just about a year. This case could

3 also be taken out of our Chamber and be given to another Chamber, to be

4 tried as soon as any other case within the Tribunal comes to an end. So

5 those are the two possibilities that I see.

6 I don't know when the first of the other cases will end. Now, I

7 invite you to tell us, or to tell me also, how you think we should go

8 around this question of determining how soon we think this case might

9 begin.

10 All I can say is if it's going to be heard by my Chamber, it's

11 probably going to have to wait another year, starting tomorrow -- starting

12 Monday.

13 Yes, Mr. Tieger.

14 MR. TIEGER: Thank you, Your Honour.

15 I only raise not an original idea but one that was broached at the

16 65 ter conference, and that seemed to meet with some favourable response

17 from the parties, and that was the possibility that instead of identifying

18 a date certain for the commencement of trial, that the Trial Chamber

19 indicated a date -- a sort of a minimum date, that the trial will not

20 commence before a certain date. That tends to incorporate both of the

21 elements the Court indicated, both the uncertainty of the actual starting

22 date and the advisability of assisting the search for counsel by telling

23 them, "You can be confident that you have the time to prepare and to

24 arrange your personal and professional affairs."

25 JUDGE MOLOTO: I hear that, and that report was given to me, Mr.

Page 221

1 Tieger.

2 Now, I can only answer that question in relation to the

3 possibility that this case will be heard by my Chamber. If it is taken

4 out of this Chamber, then my answer would not be worth the paper it's

5 written on. I am not able -- because any other case could collapse

6 tomorrow and the President might say, "Gotovina case must start

7 immediately."

8 But if it is going to be heard by this Chamber, I say, in answer

9 to your question, my Chamber is starting a new case on Monday, that case

10 is expected to last a year, so -- and you know that that's also an

11 estimation. It could be 10 months. From the developments of -- from

12 yesterday in that case, it may also not begin on Monday. You know, it is

13 just touch and go, everything. I don't know what's going to happen until

14 Monday.

15 MR. TIEGER: I appreciate that.

16 JUDGE MOLOTO: You appreciate my problem.

17 MR. TIEGER: Yes, of course.

18 The only thing I would add, and I know the Court has considered

19 this also, is that in any event any other Trial Chamber would still face

20 the reality that the Court mentioned earlier, and that is that counsel --

21 newly-appointed counsel would have to familiarise themselves with the

22 case, and that imposes its own minimum, in any event, and it becomes

23 almost paradoxical that the difficulty of imposing a minimum commencement

24 date has any adverse impact on the ability to retain counsel when, in

25 fact, it's that issue that, by itself, imposes a pragmatic minimum

Page 222

1 starting time.

2 JUDGE MOLOTO: Yes, Mr. Misetic.

3 MR. MISETIC: Thank you, Your Honour. I just want to point out,

4 as a technical matter, that the Appeals Chamber ruled on the Cermak

5 conflict last Friday, and our interpretation of one portion of that

6 decision is that the Appeals Chamber weighed the impact of the

7 disqualification on the rights of General Cermak, and in that portion said

8 that the trial is not likely to start for the next six months. So it may

9 be that we already have some indication from the Appeals Chamber there

10 about what the minimum period would be, and if we were to do it faster

11 than that, there would of course be the question of how would that impact

12 the Appeals Chamber's reasoning if, in fact, that turned out not to be

13 true.

14 So I guess it's -- I just throw that out there to remind the Trial

15 Chamber that the Appeals Chamber has spoken on this point last Friday.

16 JUDGE MOLOTO: Thank you very much, Mr. Misetic, and the six-month

17 timeline is approximate -- is close to the five-month timeline that I gave

18 a little earlier to say were we to decide now that we were going to try,

19 it would take perhaps five months to begin the case, assuming that new

20 counsel would need three months to acquaint themselves and whatever is

21 outstanding in the pre-trial stage can be done, most probably five months,

22 so it's the same thing as six months. Again, therefore, there are

23 variables in answer to that question that was raised by Mr. Tieger. It

24 could be five months, assuming we start now, or we can say it will be five

25 months or six months from the time it is pronounced that the case is trial

Page 223

1 ready. So at least we can say it is not likely to start in the next six

2 months.

3 Now, the next question by Mr. Mikulicic is how long the trial will

4 last. We tried to answer this problem -- this question so that he may be

5 in a position to answer how soon they can get replacement counsel.

6 I invite contributions on that. Mr. Tieger, Mr. Misetic.

7 MR. TIEGER: I respond because of the Court's invitation, but not

8 because, and I hasten to be candid with the Court on this point, that I

9 gave specific consideration to that issue before we stepped into court.

10 I do recall that previously when the Court inquired, the

11 Prosecution made a 12- to 14-month estimation, to the best of my

12 recollection, assessing at that time the likelihood or at least the

13 optimism at that point about the effort to reach agreed facts, streamline

14 the case insofar as possible, and reach a point at which the

15 genuinely-disputed issues in the case would be the focus of the trial.

16 Nothing that has happened since that time has caused me to

17 appreciably vary that estimate. I don't know what kind of precision the

18 Trial Chamber may be looking for. I will say that at the time that

19 estimate was given, it was given in the context of some of the

20 institution's longer cases, that is, basically is this a two-year case, a

21 three-year case and so on. So I wouldn't want it misinterpreted as

22 imposing a level of precision either way. It may indeed be possible to --

23 and we would certainly strive to do so, to reduce the time. On the other

24 hand, that may be an over-optimistic assessment.

25 One of the issues raised at the 65 ter conference, as the Court is

Page 224

1 aware, was the efforts made by the parties to really identify what the

2 facts in dispute are, and that effort is ongoing; but as an example of how

3 potentially fruitful it is, is the fact that during a discussion about a

4 related point that followed the 65 ter conference with my colleagues from

5 the Gotovina Defence, we identified an issue that we all clearly thought

6 could be the subject of a fruitful discussion that could eliminate a point

7 that appeared to be in dispute but that, in reality, was not going to be

8 in contention in a manner that would require much of the Court's time in

9 trial. Sorry to be lengthy about that, but I just wanted it understood

10 that was the previous estimate.

11 I haven't looked at the case with an eye toward recalibrating

12 that, but that's exactly what we've been trying to do.

13 JUDGE MOLOTO: Before you sit down, can I just ask you one or two

14 questions.

15 The 14-month estimate was based on the level of agreement on

16 agreed facts at the time?

17 MR. TIEGER: To the best of my recollection, Your Honour, there

18 was -- that occurred long ago when the Court had received or -- either had

19 directly received or was under the impression that the trial was a 22- to

20 24-month case. That was still at a time when I was relatively new to the

21 case. My assessment at that time was that the case was amenable to a

22 productive effort to streamline it, and through agreed facts and other

23 means, and that a more realistic estimate, rather than the 22- to 24-month

24 estimate was the 12- to 14-month estimate that I provided, so it assumed

25 that agreed facts were to come, not based on any agreed facts that had

Page 225

1 been reached to date.

2 Saying that, that doesn't mean that it was -- that I had in mind a

3 specific list of agreed facts linked to specific witnesses who were to be

4 called in the absence of those agreed facts. It was the best estimate

5 based on my experience and the experience of my colleagues, so -- which is

6 also part of why I built into this response some of the factors that led

7 to that estimate.

8 So I hope that's a helpful estimate, at least for Mr. Mikulicic,

9 to the extent that my colleagues agree with it, and I think we all know

10 that there's a plus-or-minus factor on that. But it seems to me that in

11 this institution, when there are trials of extremely varying lengths, that

12 that should be of some assistance in identifying where the Prosecution

13 and/or the parties, as you'll hear from them, expect the case to be at the

14 commencement of trial.

15 JUDGE MOLOTO: Thank you very much.

16 Let's just get confirmation from the rest of your colleagues. Is

17 that a realistic estimate still?

18 MR. KEHOE: Your Honour, if I could just have one clarification

19 from the Prosecutor: Is the estimate of 12 to 14 months simply for the

20 Prosecution case or is that idea encompassing the Defence as well?

21 MR. TIEGER: Well, I'm going to -- no, no, that was, again, and I

22 can understand the question -- no, that was the case -- that was an

23 estimate for the entirety of the case, assuming the best, in terms of the

24 use of the mechanisms of efficiency provided by the Rules and agreed facts

25 paring the case down to where the issues genuinely in dispute were the

Page 226

1 subject and focus of the trial.

2 JUDGE MOLOTO: Indeed, that had been my understanding also.

3 MR. KEHOE: I just wanted that minor clarification of it, Your

4 Honour.

5 But I do believe that that's an actual estimate, given the factual

6 agreements that we'll engaged in, I think that's approximately correct, 12

7 to 14 months. Give or take a little bit, as the Prosecutor noted.


9 [Trial Chamber and registrar confer]

10 JUDGE MOLOTO: Sorry about that. Mr. Prodanovic.

11 MR. PRODANOVIC: [Interpretation] If the Defence of General Cermak

12 is asked to state its views about the date the trial goes ahead and how

13 long it lasts, then I'd like to remind you of the notorious fact, and that

14 is for logical conclusions to be made, you need the premises on the basis

15 of which you're able to make those conclusions, and they should be

16 certainly known.

17 Now, with respect to the start of trial and the duration of trial,

18 we don't have the necessary pre-conditions and premises which are

19 certainly known. The Defence of General Cermak, or rather General Cermak

20 who is left without a Defence team, does not know when he will be able to

21 secure counsel for his defence, and we also do not know how long those new

22 counsel will need to prepare the defence case.

23 And another thing we don't know at this point in time is that we

24 don't know which facts will be agreed upon.

25 So all these questions remain open, and they will affect the

Page 227

1 duration of the trial and when the trial goes ahead. Of course, we will

2 also respect the Court's ruling, because it is always up to the Court to

3 decide when a trial goes to court and all other questions, and of course

4 the dynamics of the trial would depend on all these other conditions. So

5 I don't think that we can discuss this issue properly if we don't have all

6 the facts, and therefore we cannot make a relevant conclusion.

7 JUDGE MOLOTO: Mr. Prodanovic, you're now making us dance in

8 circles.

9 Mr. Mikulicic suggested that we try to determine the start time

10 and duration of the trial for him to be able to determine -- to answer his

11 prospective colleagues who are likely to take over. Now you say now, for

12 you to be able to determine the length of -- the duration of the trial and

13 the start time, you must get replacement counsel. We're going backwards

14 and forwards now.

15 I understand that, and we will come to you and ask you when you

16 think you can get replacement counsel, and we can deal with that at that

17 stage. At this point in time, we're trying to deal with what is our best

18 estimate of the duration of this trial, given that everybody is ready to

19 go to trial, so that we can give an answer to Mr. Mikulicic in trying to

20 help him to answer lawyers who are in Croatia.

21 So can we deal with it on that basis, sir?

22 MR. PRODANOVIC: [Interpretation] With all due respect,

23 Your Honour, that's precisely what I'm talking about. You asked me about

24 my opinion, so I am contributing to this discussion, not with a view to

25 obstructing the proceedings, but what I'm doing, quite simply, is giving

Page 228

1 you some very realistic indices which it seems to me are making it

2 impossible for us now to decide all these issues.

3 As far as General Cermak's Defence is concerned, he received the

4 ruling on the 29th of June, so of course he hasn't had sufficient time to

5 seek new counsel. Now, how long he's going to need for that, if we look

6 at how long he will take for that, if we look at General Markac's example,

7 we can see it's not a very fast process; it might last a while.

8 JUDGE MOLOTO: Mr. Prodanovic, what the Chamber was asking you to

9 comment on was to confirm or deny what the Prosecution was giving as its

10 best estimate of the duration of the trial, as in when it starts,

11 irrespective of when it starts, do you agree that a 12- to 14-month

12 duration is a best estimate of this trial, whenever it will start? That's

13 the question being put to you.

14 MR. PRODANOVIC: [Interpretation] If that solves the problem, then

15 let me say I agree straightaway, but I'm not quite sure that it will

16 contribute to any of these issues.

17 JUDGE MOLOTO: Thank you very much.

18 And, Mr. Mikulicic, do you also confirm the 14-month estimate?

19 MR. MIKULICIC: [Interpretation] Well, viewing it from today's

20 perspective and the evidence that has been disclosed thus far, I feel that

21 that is a realistic estimate and that 14 months would be realistic for

22 completion of trial. Thank you.

23 JUDGE MOLOTO: Thank you very much.

24 Now, obviously that estimate takes into account the actual hearing

25 of the case, and then thereafter there's judgement in writing, you can add

Page 229

1 another four months maybe, and that takes you to 18 months.

2 Now, if we give you, as an answer to the questions that you asked

3 initially, Mr. Mikulicic, that the trial is not likely to start at least

4 within the next six months, and that when it does start, it might go for

5 some 18 months, does that help you now to give answers to the prospective

6 co-counsel that you are looking for? Does it?

7 MR. MIKULICIC: [Interpretation] Of course, Your Honour. Those are

8 facts which are fairly exact and, on the basis of which, one can draw

9 conclusions and talk to a potential candidate for Defence counsel.

10 JUDGE MOLOTO: All right. Now, having been given those answers,

11 are you able to answer the question that was put to you earlier as to how

12 soon you think you are likely to get replacement counsel? We are going

13 back now to conflict of interest.

14 MR. MIKULICIC: [Interpretation] With these parameters, that is to

15 say, that the trial will start, counting from today's date, in six months'

16 time, brings us to the beginning of next year, and along with the fact

17 that the trial could last for about 18 months, as Your Honour has just

18 stated, I feel that we could inform the Court about the selection of

19 counsel right after the summer recess.

20 JUDGE MOLOTO: Thank you very much, Mr. Mikulicic. That's quite

21 helpful.

22 Let me just make one little clarification. We didn't say the

23 trial will start in six months. We said at least for the next six months,

24 it will not start. That seems to be fairly certain. It could be longer.

25 MR. MIKULICIC: [Interpretation] Yes, I understand that fully. But

Page 230

1 in view of the circumstances, we don't know, as you say, exactly when it

2 will start, but we can say when it will not start. So within the

3 frameworks of those parameters, I said what I said with respect to the new

4 replacement counsel.

5 JUDGE MOLOTO: Thank you very much.

6 Okay, we will then try to find out from you, by the end of the

7 summer recess, what progress you have made in that regard.

8 May we then move on, unless somebody has any comments to make on

9 Mr. Separovic's position. Any comments? Nothing. Okay.

10 Can we move on to Prodanovic and Ms. Slokovic's conflict of

11 interest.

12 The Appeal Chamber again decided on the 29th of June to uphold the

13 Trial Chamber's decision on conflict of interest on the 15th of April.

14 The Trial Chamber's decision set forth in paragraph 25 that Mr. Prodanovic

15 and Mrs. Slokovic are required to stay on until new counsel can satisfy

16 that he, she, or they can take over the case. Even though it has only

17 been one week since the appeals decision is out, I trust that Mr. Cermak

18 is already working on finding new counsel and that Mr. Prodanovic and

19 Mrs. Slokovic will inform the Trial Chamber in due course when new counsel

20 has been found.

21 But having said that, if you do have anything that you can tell us

22 at this stage, Mr. Prodanovic, we would appreciate it.

23 MR. PRODANOVIC: [Interpretation] Apart what I've already said, no,

24 Your Honour, I have nothing to add. We will inform you in due course as

25 soon as we have concrete results.

Page 231

1 JUDGE MOLOTO: Thank you very much.

2 Anybody else got anything to say on that? Mr. Tieger, Mr. Kehoe?

3 Nothing? Okay.

4 Thank you very much. Can we then move on to the position of

5 Mr. Kehoe's alleged conflict of interest.

6 Now, this issue was raised on the 13th of April, 2007, in

7 Mr. Cermak and Mr. Markac's joint motion which resulted in the

8 Trial Chamber's order to the Registrar regarding Gregory Kehoe's

9 appointment as Defence counsel for Ante Gotovina on the 25th of June,

10 2007.

11 The Registrar's response is due to be filed by Monday, the 10th of

12 July of 2007. On the basis of that response and any replies the parties

13 may wish to file further, the Trial Chamber will issue a decision in due

14 course.

15 Do the parties have anything to add on this at this point?

16 Yes, Mr. Kehoe.

17 MR. KEHOE: Nothing, Your Honour.

18 JUDGE MOLOTO: Prosecution.

19 MR. TIEGER: No, Your Honour.

20 JUDGE MOLOTO: Mr. Prodanovic.

21 MR. PRODANOVIC: [Interpretation] No.

22 JUDGE MOLOTO: Mr. Mikulicic?

23 MR. MIKULICIC: [Interpretation] No, Your Honour.

24 JUDGE MOLOTO: Thank you very much. Then a decision will be

25 rendered fairly soon.

Page 232

1 The question of agreed facts. I know we've touched on them a

2 little bit this afternoon, but in the last status conference the parties

3 agreed that there was a framework within which they could discuss agreed

4 facts and that they needed to focus on the logistics so that this process

5 could begin to materialise. It was proposed that the agreed facts make

6 efforts to cover, amongst others, facts and crime-based evidence including

7 evidence on the accused's various positions, victims' lists

8 and the identity of victims, exhumation evidence and applicable law.

9 Is there any progress report that we can get on this? We'll start

10 with the Prosecution.

11 MR. TIEGER: Your Honour, I'll try to summarise what the Court may

12 already be familiar with as a result of the briefing related to the 65

13 ter. But in respect of logistics and focus, first of all, I think the

14 factors the Court identified or the areas of focus the Court identified

15 were shared by the parties. We began in particular with one of those in

16 terms of logistics. The Prosecution prepared materials in hard copy for

17 the parties so that it wouldn't be a question of gathering the materials

18 or a risk that the parties weren't talking about the same matters, based

19 on the same documents, and disseminated them. These are materials related

20 to the scheduled killings, forensic materials, and pertinent witness

21 statements; and it is these materials that have been the subject of

22 discussions, the most recent of which focused on the notion of a schedule

23 or matrix, kind of a checklist, if you will, of the sub-issues arising

24 from that so that, one at a time, the parties could say, "With respect to

25 this issue arising from the forensic materials, there's no dispute,"

Page 233

1 or,"there is a dispute," let's focus on that, see what the nature of the

2 dispute is and so on.

3 The matter was raised by Mr. Pitman at the 65 ter, and the

4 responses from counsel appeared to be heartening, in the sense that having

5 looked at those materials specifically, as the parties have had a chance

6 to do, there were indications that for at least a good part of the

7 material, agreement was expected.

8 Now, having said that, everyone acknowledged the problem, that we

9 don't have all counsel in the case to agree on the facts, and that,

10 unmistakably, is a bit of a problem. Nevertheless, we clearly didn't want

11 to defer any effort to begin the process until such time as counsel came

12 on. First of all, we can make progress in terms of the process, if

13 nothing else, and there's reason to believe that any tentative agreements

14 arrived at by the parties in this context will hopefully be shared by the

15 subsequent counsel, or at least they'll have a head start when we make the

16 effort to finalise the areas of agreement.

17 So that's the logistical process and how it's gone forward. That's

18 the -- a summary, anyway, encapsuled summary, of what's happened on that.

19 One more factor is that that's not the -- those are not the only

20 issues we've been discussing, but they are the issues we've been

21 discussing in the most concrete terms in the manner I mentioned.

22 JUDGE MOLOTO: Thank you very much for that explanation, Mr.

23 Tieger.

24 Just before I go to other counsel, what's your answer, in a word?

25 Are the parties making good progress in finalising agreed facts or are

Page 234

1 there problems? Just in a sentence.

2 MR. TIEGER: I wouldn't call the progress good at this point.

3 There's a lot of -- there seems to be a lot of goodwill. I can't identify

4 a particular sticking point. The materials were disseminated some time

5 ago, and the progress on those specific points has not been remarkably

6 impressive since then, but they are voluminous and they do raise various

7 issues, and maybe there's a point of critical mass and we're just now

8 about to hit it. The parties have had a chance to -- the Defence has had

9 a chance to absorb materials, read them carefully, and maybe that's an

10 inevitable period that doesn't reflect any serious problem but just the

11 need to review those materials. But indeed I wish I was in a position to

12 say to the Court, "Here are the concrete results from that discussion."

13 That's part of the reason this schedule was suggested, so that we can say,

14 "Look, here are the specific points arising from this. What's the answer

15 to whether or not there's agreement on this particular point with respect

16 to these particular materials and these particular incidents?"

17 So I don't want to mislead the Court into thinking that the

18 efforts I described by themselves are enough to result in an expedited

19 case, but it has seriously begun. And I hope that because the materials

20 have been in these concrete and hard copy materials -- have been in the

21 hands of the Defence for some time, that now we're in a position to really

22 finalise this checklist and move on to the next issues.

23 JUDGE MOLOTO: Thank you, Mr. Tieger.

24 Anything further? Yes, Mr. Kehoe.

25 MR. KEHOE: Yes, Your Honour.

Page 235

1 I think that the whole idea of the schedule, with talking about

2 the homicides, is very important to shaving or reducing time at

3 trial. Many of these homicide counts, and just for the ones that are

4 listed in the indictment, which there are 37 of them or 36 of them,

5 require analysis on a case-by-case basis to go into things like

6 identification, location, manner of death, manner of -- where the burial

7 was, ethnicity, who if anyone is identified as possible. And if we put

8 this out on a schedule, a matrix, whatever you want to call it, we can

9 identify, okay, in Homicide 4 we, hypothetically speaking, we have this

10 particular issue that we need to address. And there are many of those

11 issues that we need not address.

12 Now, as we continue on on this process, which takes a little time

13 at the beginning because of the critical mass, it will move more quickly

14 as time goes on, because not only are we addressing the homicides that are

15 in the actual indictment, there is also another list that was given on the

16 clarification document sent by counsel which now I believe it adds up to

17 approximately 237 or 238 murders or homicides that need to be addressed.

18 That being said --

19 THE INTERPRETER: Counsel is asked to slow down, please. Thank

20 you.

21 MR. KEHOE: Sorry.

22 JUDGE MOLOTO: You are asked to slow down.

23 MR. KEHOE: I'm sorry.

24 That being said, it is a very, very, very beneficial use of time,

25 because what we can do is highlight what specific point on what particular

Page 236

1 murder charge needs to be litigated and brought before the Court. And

2 that is going to be an enormous time-saver when we don't have to get into

3 all the other details that a normal homicide case might have to address.

4 JUDGE MOLOTO: Let me just say at this point to both you and Mr.

5 Tieger, thank you very much, and I do appreciate that as tedious as this

6 process may be, it is eventually going to be time-saving at trial. But

7 the question for now is whether this tedious process, is it making

8 progress. Are you making progress in that direction, in coming to

9 agreement on agreed facts?

10 MR. KEHOE: The answer to that question is "yes."

11 JUDGE MOLOTO: Thank you so much, thank you.

12 MR. KEHOE: Yes.

13 JUDGE MOLOTO: Mr. Prodanovic, any contribution?

14 MR. PRODANOVIC: [Interpretation] Well, I really have nothing

15 special to add to what my colleagues have already said.

16 JUDGE MOLOTO: Thank you.

17 Mr. Mikulicic.

18 MR. MIKULICIC: [Interpretation] Actually, this has to do with

19 forensic information that is rather accurate and precise, but voluminous,

20 too. I think that once we've had a look at this, we will be able to agree

21 on most of the forensics, if I can put it that way, and in this way we

22 will contribute to expediting the trial.

23 I have nothing else to add.

24 JUDGE MOLOTO: Thank you very much.

25 MR. KEHOE: Your Honour, may I add one other factor which may be

Page 237

1 encouraging?

2 And I take it it came from a rather brief discussion with

3 Mr. Tieger, and of course some of the evidence going to be presented by

4 the Defence had to do with evidence that Your Honour heard in the Martic

5 case, without going into the specifics of that, but some of that evidence

6 is going to be presented again here. And after a brief discussion with

7 Mr. Tieger, we essentially have come to agreement on much of that, and

8 that will cut out a tremendous amount of time.

9 So merely getting into this discussion and we didn't set out to

10 address that particular issue, it just happened during the course of

11 discussions after the 65 ter conference this morning. So I am encouraged

12 when we are together and we do begin to move down this path together, that

13 we will make significant progress and more so as time goes on.

14 JUDGE MOLOTO: Thank you very much, Mr. Kehoe. And while you're

15 on that point of a chance meeting after the 65 ter meeting which has made

16 you so hopeful, may I just remind the parties that at the last status

17 conference there had been mention of drawing up a schedule of regular

18 meetings between the parties precisely to promote this process.

19 May I suggest that rather than these chance meetings after 65 ter

20 meetings, we have these scheduled meetings specifically to address these

21 issues, particularly now that we have an idea that at least in the next

22 six months we're not likely to start.

23 MR. KEHOE: Judge, I think that's a very good idea. To the extent

24 that we have not done that, I bear as much negligence as anybody else in

25 that regard. We have talked about this and there are e-mails going back

Page 238

1 and forth.

2 I hasten to add that having specific meetings on that score might

3 not be productive until new counsel comes in so they can participate as

4 well, but --

5 JUDGE MOLOTO: May I differ on that point?

6 MR. KEHOE: Yes, you may.

7 JUDGE MOLOTO: I want to suggest that if you can carry on, it's

8 much easier for incoming counsel to review what you've agreed on and just

9 to say,"I agree with this one," "I disagree with that one," "I agree with

10 this one," "I disagree with that one," rather than to start the whole

11 process. I would urge the parties to please not postpone this process

12 until you get counsel on both. I would urge the parties to please carry

13 on.

14 MR. KEHOE: I mean, we will be guided by that wisdom, Judge, and

15 if I can turn to my colleague, he would like to mention an item.

16 MR. MISETIC: Your Honour, I did want to point out that the

17 Gotovina Defence, in addition to the homicide issues, we are preparing a

18 long schedule of the entire case in terms of what facts can be agreed

19 upon. But we would like to do is, as soon as new counsel is on board,

20 first distribute among members of our colleagues on the Defence side, get

21 agreement on what facts the defendants will all agree on, because I think

22 a precondition is that all of the defendants agree to stipulate the

23 certain facts before we tender it to the Prosecution, and then jointly

24 tender that document and see what we exactly can agree upon. But we are

25 working intensively on all facts in this entire case. I don't want the

Page 239

1 Court to think that we're working on just homicides, and in addition to

2 that, as Mr. Kehoe said, we believe that the Martic stipulations will cut

3 out a lot of the background facts so that we can save some time there.

4 Thank you, Your Honour.

5 JUDGE MOLOTO: Thank you very much, Mr. Misetic. For that

6 contribution, it's appreciated.

7 I underline once again the need for scheduled meetings between the

8 parties to promote the process. And I urge the parties to please not wait

9 until counsel -- new counsel is on board before those meetings are

10 undertaken.

11 Are there any further contributions on this topic? Mr.

12 Prodanovic, Mr. Mikulicic?

13 MR. PRODANOVIC: [Interpretation] No, thank you, Your Honour.

14 MR. MIKULICIC: [Interpretation] No, thank you, Your Honour.

15 JUDGE MOLOTO: Thank you very much.

16 Can we move on to the next item, which is motions under Rules 92

17 bis and 92 ter.

18 After the last status conference and the Prosecution's motion for

19 extension of time to file these motions under these Rules, the Trial

20 Chamber granted the request for the Prosecution and invited it to indicate

21 when the Trial Chamber should expect such motions.

22 On the 10th of May, the Prosecution informed the Trial Chamber

23 that it intended to file these motions once a trial date is set.

24 The Trial Chamber believes that the Prosecution should start to

25 file these motions now, before a trial date is set. It will have the

Page 240

1 opportunity -- I mean, the Prosecution will have the opportunity

2 to amend the motions if the circumstances of these witnesses should change

3 in the meantime, and I would like to urge you, the Prosecution, to start

4 filing these motions. And I don't know whether you have any comments to

5 make, Mr. Tieger.

6 MR. TIEGER: No, Your Honour. That was raised by Mr. Pitman at

7 the 65 ter and discussed, and I believe we understand.

8 JUDGE MOLOTO: Okay, thank you.

9 Are you able to give yourselves a timeline?

10 MR. TIEGER: That was one of the issues raised. I would be

11 disinclined to do so at the moment. What we understand from the

12 discussions at the 65 ter, and I'll express my understanding of that and

13 the Court can indicate whether that's correct, the Court was clear that it

14 wanted those motions filed -- wanted the Prosecution not to wait until the

15 trial date was set, but at the same time it was disinclined to impose a

16 specific date. I indicated that at this point shortly before the recess,

17 with various -- and we have a number of things scheduled, for example, 92

18 bis missions, or missions for that purpose, it would be -- and then we

19 have various people who are significant to that process leaving in

20 connection with the court recess, that I would be -- I would ask the Court

21 not to impose a specific and immediate deadline. We'll look at the matter

22 as quickly as possible, try to get back to the Court before the recess

23 with some indication of the time, and in full appreciation of the fact

24 that the Court would obviously like the Prosecution to start filing 92 bis

25 motions well in advance of the scheduling of the trial date.

Page 241

1 So we understand that the Court doesn't want a delay. We'd like

2 to get this out of the way, and furthermore would like to have some

3 indication of when those are going to be filed, and I'm just asking for

4 some tolerance in how quickly we let the Court know what that rough sketch

5 that will be.

6 JUDGE MOLOTO: Thank you very much, Mr. Tieger.

7 I think there isn't any substantial difference between what you've

8 just said and my understanding of the report of the 65 ter meeting. My

9 understanding was that the Prosecution had asked for a timeline, but

10 suggested that it not be earlier than before the summer recess.

11 Now, certainly you can be assured we are not imposing any timeline

12 before the summer recess, but now our question really to you was that you

13 impose a timeline on yourself rather than it being imposed by us. In

14 other words, give us an estimate by when you think you can begin to file

15 these motions. I want you to tie yourself, I don't want you to be tied by

16 the Court.

17 MR. TIEGER: Well, I appreciate that, Your Honour, and if the

18 Court will give me an opportunity to meet with the members of my team and

19 get back to the Court, we'll certainly do so before the summer recess and

20 then start filing those motions accordingly.

21 JUDGE MOLOTO: Thank you very much.

22 Just as a reminder from the last status conference, it had been

23 suggested to the Prosecution that these motions will be sub-filed in

24 bundles, in other words, not a motion per person but a motion for a group

25 of people, each one motivated in the motion, but so that we don't have

Page 242

1 many motions to deal with but we can deal with one motion dealing with a

2 number of people at a time.

3 Okay, thank you very much.

4 Any comments from other members of the court?

5 MR. KEHOE: No, Your Honour.

6 JUDGE MOLOTO: Mr. Prodanovic? Nothing. Thank you very much,

7 Mr. Mikulicic.

8 Do we then move on to the questions of disclosure. May I say that

9 the question of disclosure should also not be impeded by issues relating

10 to counsel or the pending motion regarding Mr. Kehoe's alleged conflict.

11 I would suggest this question of disclosure carries on.

12 In the last status conference, the Prosecution had indicated that

13 the hyper-linked exhibit list was being completed and that it was able to

14 provide to the Defence every document mentioned on the exhibit list on a

15 disc. Some documents omitted from the exhibit list but referenced in the

16 Pre-Trial Brief were also on this disc. These were to be considered

17 supplemental to the exhibit list.

18 I just want to find out whether the Defence can confirm that they

19 are in receipt of all this information.

20 MR. KEHOE: Frankly, Judge, there are some ministerial issues

21 going back and forth and --

22 JUDGE MOLOTO: Ministerial?

23 MR. KEHOE: Ministerial on numbering and things of that nature,

24 but, Your Honour, the disclosure has been going pretty well, and with

25 these many documents there are going to be a few misses along the way.

Page 243

1 And we've been talking to the Office of the Prosecutor and taking care of

2 those issues, so the bottom line is we don't have any complaints at this

3 point.

4 JUDGE MOLOTO: Thank you, Mr. Kehoe.

5 Mr. Prodanovic.

6 MR. PRODANOVIC: [Interpretation] We have received the documents,

7 and we have nothing special to add.

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

9 Mr. Mikulicic.

10 MR. MIKULICIC: [Interpretation] Our position is the same. We have

11 nothing special to add.

12 JUDGE MOLOTO: Thank you very much.

13 Well, the Prosecution had also said that a small number of

14 statements were still pending translation and their translation should

15 have been completely shortly after the last status conference. Is that

16 the case now?

17 MR. TIEGER: Yes, Your Honour.

18 JUDGE MOLOTO: Thank you very much. And they've been disclosed?

19 MR. TIEGER: Yes.

20 JUDGE MOLOTO: Thank you. Thank you very much.

21 Can we then focus specifically on the Rule 70 disclosure. At the

22 last conference, again, the Prosecution stated that one of the principal

23 providers had cleared a significant number of documents and that within a

24 week all this information would be disclosed to the Defence. Was this

25 done?

Page 244

1 MR. TIEGER: Yes, to the best of my knowledge. I mean, I believe

2 that referred -- I'm trying to reconstruct that. I think that referred to

3 a particular provider, and if I'm correct about that, yes, that was done,

4 as anticipated.

5 JUDGE MOLOTO: That was -- what had to be done was within a week

6 of the last status conference, all this information would be disclosed to

7 the Defence. My question is: Has that disclosure been made to the

8 Defence?

9 MR. TIEGER: I wanted to double-check that. There may be one

10 document among many that I haven't -- that I'm not certain about. But

11 with that exception -- another document hasn't been disclosed, but another

12 document that hasn't been cleared, but all the cleared documents which, as

13 I indicate, are the vast majority if not all of the documents that have

14 been cleared, have of course been disclosed.

15 JUDGE MOLOTO: Let me make sure I understand you. One document

16 has not been cleared?

17 MR. TIEGER: I think that's the case. I'm double-checking that.

18 JUDGE MOLOTO: You're waiting for it to be cleared before you can

19 disclose it. But otherwise everything else has been cleared that --

20 MR. TIEGER: Of those documents that were the subject of the

21 Court's inquiry at the last status conference, correct.

22 JUDGE MOLOTO: May I ask, are there any other outstanding

23 documents that have not yet been cleared?

24 MR. TIEGER: Yes.

25 JUDGE MOLOTO: Are you able to give an indication of how soon you

Page 245

1 think they will be cleared?

2 MR. TIEGER: Some indication. There are -- we received clearance

3 on approximately 250 of those documents, and those are in the process of

4 being disclosed, that is, the mechanics of disclosing them are happening,

5 and they will be disclosed --

6 JUDGE MOLOTO: Can I interrupt you? My question is: Of the

7 uncleared documents, how soon do you hope to receive clearance?

8 MR. TIEGER: The only way I can be certain of that, Your Honour,

9 is to double-check with the providers. I am -- that is, and we do that

10 periodically, is to re-contact the providers, indicate that we're waiting

11 and the Court is waiting, and urge them to expedite the process insofar as

12 possible. Beyond that, I don't have any specific indications by the

13 providers of when they will be cleared. But based on the Court's inquiry,

14 we'll undertake efforts to motivate the providers insofar as possible.

15 JUDGE MOLOTO: The Chamber will appreciate that very much. Thank

16 you so much.

17 Are you able to confirm receipt of those documents?

18 MR. KEHOE: Your Honour, I mean, obviously this is -- I take -- we

19 have received some Rule 70 and we just take it on faith from the

20 Prosecution that they're going through the process of taking it. We don't

21 know what's there, obviously, so I just rely on their good faith, which

22 they have demonstrated throughout, so we'll just move on from there.

23 JUDGE MOLOTO: What I'm asking is what they interpret to have

24 delivered to you, they have delivered to you?

25 MR. KEHOE: Of course.

Page 246

1 JUDGE MOLOTO: And you confirm that, Mr. Prodanovic?

2 MR. PRODANOVIC: [Interpretation] I can.

3 JUDGE MOLOTO: And Mr. Mikulicic?

4 MR. MIKULICIC: [Interpretation] Yes.

5 JUDGE MOLOTO: Thank you very much.

6 Apparently at the 65 ter conference this morning, there was

7 mention of 13 witnesses and some -- statements of 13 witnesses and expert

8 reports that are outstanding. Yes, thank you very much, Mr. Misetic.

9 MR. MISETIC: Yes, Your Honour. We have a list of 13 witnesses

10 which we have discussed with the Prosecution. Some of them, I believe,

11 are fact witnesses that we don't have the statements for and I will follow

12 up with Mr. Tieger afterwards on them. Some of them, one of them is a --

13 is the Rule 70 witness I think we were talking about just prior to this.


15 MR. MISETIC: Some of it deals with -- the rest of it deals with

16 expert witnesses, and the issue there is some of them have prepared

17 reports but have no statements, and so I think at this point Mr. Tieger

18 indicated that if they have given us just the statement -- just the

19 report, then there is no statement. However, some of the experts that

20 they have identified have not yet prepared reports, is my understanding.

21 And so having thought about it after the 65 ter conference, the only thing

22 we wish to avoid is a situation where we don't have -- we get expert

23 reports on the eve of trial, and obviously from the Defence perspective,

24 the sooner those reports can be prepared and tendered to us, the faster we

25 can move on the process of maybe perhaps agreeing to the facts in that

Page 247

1 report, hiring our own experts on those matters, et cetera, so that does

2 seem to be an open issue that we didn't discuss at the 65 ter, quite

3 frankly, because I didn't have time to think it through then, but that

4 would be the only issue right now that I guess is still open, and that's

5 with respect to expert reports -- experts that have been identified but

6 have not yet prepared reports.

7 JUDGE MOLOTO: Thank you very much, Mr. Misetic.

8 Do you have any comments to make on that, Mr. Tieger, particularly

9 on the expert reports?

10 MR. TIEGER: No, Your Honour. I understand Mr. Misetic's concern

11 about receiving reports on the eve of trial. I indicated to him that to

12 some extent there's a small chicken-and-egg problem, but we'll resolve

13 that through discussions and through efforts. That involves the extent to

14 which agreed facts may implicate the need for particular issues to be

15 addressed by an expert, and also the issue of ongoing efforts by the

16 Prosecution to obtain documents that it has been seeking for some time

17 that bear on the expert reports.

18 Having said that, we do keep in mind the timing and the need for

19 sufficient -- submissions in sufficient time before trial to not impede

20 the trial process, but we have been and will continue to be in good

21 communication with the Defence so that I don't think that issue is likely

22 to arise. We'll keep this issue on the agenda and keep discussing it.

23 JUDGE MOLOTO: You'll have noticed by now that this Chamber would

24 like timelines. You know, the promise to continue to do things in good

25 faith, welcome as it may be, is really just a little something -- it's

Page 248

1 some fairy-airy kind of promise and it doesn't give a sense of by when

2 things will be done and how ready can this case be ready for trial. And I

3 understand your difficulty, having said that, that this is maybe an area

4 where -- first of all, you said it's a chicken-and-egg situation.

5 Secondly, it's partly out of your control, in the sense that you referring

6 to also these Rule 70 disclosures which still have to be cleared.

7 But be that as it may, let me do what was done to the Chamber this

8 afternoon and just ask for a rough estimate about how soon we think these

9 things can be done.

10 MR. TIEGER: Your Honour, first of all for clarification purposes,

11 it's not a matter of the Rule 70 documents, which is a matter outside our

12 control, as you noted, but it's also a matter of documents which we have

13 been requesting from archival sources for a long time that have not been

14 made available, and we have doubled and redoubled our efforts to obtain

15 them.

16 JUDGE MOLOTO: Let me ask you a question on that one.

17 Having asked for this information from archival sources for a long

18 time, and redoubled your efforts, do you still have any hope of getting

19 those materials?

20 MR. TIEGER: The documents are significant enough, Your Honour,

21 and our determination to get them is substantial enough that I do retain

22 that hope and I won't abandon those efforts.

23 Now, the only -- I realise that there is an ultimate deadline for

24 that that is exclusive to that effort and has nothing to do with the

25 effort to obtain the documents or the likelihood to obtain the documents,

Page 249

1 and that's the trial date, and so I have to back it up from then.

2 Now, when we come to a point that begins to implicate the

3 commencement of trial, the Defences' ability to prepare and deal with the

4 documents that we'll be submitting, then we have to impose a deadline,

5 irrespective of the success of those efforts. And I should say we may be

6 asking the Court at some point to assist with those efforts if they're not

7 successful. At this point, we're pursuing them as vigorously as we can.

8 JUDGE MOLOTO: When you talk of imposing a deadline, imposing it

9 on who, on the archival sources or on --

10 MR. TIEGER: On ourselves for the preparation and submission of

11 those -- calling it a deadline for the submission of those reports. I

12 realise they're not linked forever exclusively to the issues I've just

13 identified, they're ultimately linked to the commencement of trial, and I

14 appreciate that. I think at the moment we need to continue making those

15 efforts so the reports are as focused and useful as possible. And I would

16 be in a position to give the Court a more definitive date for the

17 submission of the report if those issues were resolved, and they're not.

18 Having said that, I appreciate the fact that the Court wants to be

19 assured that the commencement of trial is not jeopardised, wants to be

20 assured that the Defence's opportunity to prepare is not undermined and

21 therefore has some concern about those submission dates, but I don't think

22 we're in that area of risk yet. That's one reason I mentioned discussions

23 with the Defence. They want to be apprised of the relative progress and

24 the dates by which they'll be receiving reports of expert witnesses, but

25 at this moment I don't think those considerations militate in favour of a

Page 250

1 specific submission date in the immediate future. And I know there will

2 come a point when that happens, and maybe by the next status conference

3 we'll need to set a certain date, I think it is three or four months

4 hence, it may be before then and the Defence will say that, and if

5 necessary we will raise it with the Court before the status conference.

6 But at the moment, I can't put a particular date on it, and I don't see

7 any external factors which necessitate it for now.

8 JUDGE MOLOTO: Just one little point.

9 You alluded to, at some point, maybe approaching the Court for

10 assistance. Don't you think maybe this is about time?

11 MR. TIEGER: It's close, Your Honour, but I think there are still

12 one or two steps that -- well, I'll revisit the issue with the Court's

13 suggestion in mind. We anticipated there's still a few more steps that we

14 anticipated undertaking in pursuit of that effort, and again I'll revisit

15 that to see if it's more appropriate to take it before the Court or more

16 effective to complete those steps first.

17 JUDGE MOLOTO: Okay. Thank you very much.

18 May I just say that try to bear in mind approaching the Court as

19 soon as you possibly can if there is anything that the Court can do.

20 Thank you very much.

21 Mr. Misetic, you indicated --

22 MR. KEHOE: Just one matter on this score. To some degree with

23 regard to this, and if it's going to impact the indictment and, you know,

24 there's another motion pending to alter the indictment in several

25 fashions, and if it goes to expert testimony, I don't know how long it's

Page 251

1 going to take to come up with any expert to counter the expert that the

2 Prosecution might put up once they get these documents in hand. We're

3 talking about a lot of chickens and eggs here, but of course that's an

4 issue that comes to mind, I mean, and that's going to be somewhat

5 protracted. So I would urge the Office of the Prosecutor to bring any

6 issues concerning -- now, keeping in mind that this case has been going on

7 for 12 years, urge any issue concerning the getting of documents be

8 brought before the Court now, and let's get on with it, for lack of a

9 better terminology.

10 I understand their efforts, et cetera, but any effort to move this

11 along should be sooner as opposed to later, especially if the Court has

12 got to intercede and there is some timeline before this archival entity

13 has got to respond. I mean, how long does that take? I don't know either,

14 Judge, and it's purely hypothetical at this point, but I would urge this

15 to move more quickly before the Court and bring it before the Court more

16 quickly as opposed to waiting.

17 JUDGE MOLOTO: Thank you.

18 Mr. Misetic.

19 MR. MISETIC: Yes, Your Honour.

20 I wanted to point out that this topic could be quite problematic.

21 If the expert reports are tied to their archival problems and if the issue

22 -- I'm sorry for having to be cryptic because I can't speak to what their

23 subject is, but if their subject is what I think it is, it's a very

24 material matter to this case which, from the Defence perspective, will

25 involve more than just hiring an expert. It will involve a lot of

Page 252

1 fieldwork on that problem, and it's a subject of dispute between the

2 Prosecution and the Defence to this point.

3 I wanted to point out to the Court that for that reason, it really

4 could have a long-term impact on our ability to say we're ready for trial,

5 if we get these reports in January, February or March of next year.

6 The one other thing was I think the Court is aware from the 65 ter

7 conference that I raised a matter concerning precisely archives, and I

8 don't know if the Court wants me to address that now or wait until we get

9 to other matters. I think it's probably related, though.

10 JUDGE MOLOTO: I've got it to deal with it later, if you don't

11 mind.

12 MR. MISETIC: That's fine.

13 JUDGE MOLOTO: Unless you say it's inextricably intertwined with

14 these issues we're talking about right now.

15 MR. MISETIC: I think we raised the matter of the archive, and it

16 is related to Croatian State Archives, so they're linked issues.

17 JUDGE MOLOTO: But that's a question of access. Can we deal with

18 it a little later?

19 MR. MISETIC: Yes, we can, Your Honour.

20 JUDGE MOLOTO: Thank you very much.

21 All I can say to you, Mr. Tieger, is as I urged you to approach

22 the Court as soon as you possibly can, you hear what your colleagues are

23 saying, they're endorsing what I said, and I can't say it in more stronger

24 words than I've said.

25 Mr. Prodanovic.

Page 253

1 MR. PRODANOVIC: [Interpretation] I have nothing to add to that.

2 We agree with the position of General Gotovina's Defence.

3 JUDGE MOLOTO: Mr. Mikulicic.

4 MR. MIKULICIC: [Interpretation] Likewise, Your Honour. However, I

5 wish to add that today, with our colleagues from the Prosecution, we

6 exchanged views and we told them what some of our objections were in

7 relation to 65 ter disclosures until now, and we are trying to deal with

8 these minor technical problems and we hope that we will succeed soon.

9 JUDGE MOLOTO: Thank you very much, Mr. Mikulicic.

10 Can we then deal with the question of pending motions?

11 On the 26th of March, 2007, the Gotovina Defence filed the motion

12 pursuant to Rule 73, requesting the Pre-trial Chamber to strike part of

13 the Prosecution's Pre-Trial Brief, constituting effective amendment of the

14 joinder indictment. The Prosecution's response was filed on the 10th of

15 April, 2007, and the Gotovina motions for leave to file a reply and the

16 reply were filed on the 17th of April.

17 A decision will be handed down fairly shortly in that respect.

18 I don't know whether the parties have anything to say. Nothing.

19 Nothing. Mr. Prodanovic. Nothing. Thank you very much.

20 Now, on the 17th of May, 2007, the Prosecution filed the motion to

21 amend the indictment, and on the 31st of May, 2007, Gotovina's response

22 was filed. The Prosecution's motion for leave to reply and reply was

23 filed on the 7th of June, and Mr. Gotovina's response was filed on the

24 11th of June.

25 The decision in this issue will be handed down before the summer

Page 254

1 recess.

2 Any comments? No comment, no comment.

3 On the 1st of June, 2007, the Trial Chamber issued an order to the

4 Prosecutor under Rule 77 to investigate whether there was sufficient bases

5 to proceed with a contempt of court case under Rule 77 under the Rules

6 following the leaking of a confidential filing to and by the Croatian

7 press. The Trial Chamber has not been informed of what the status of this

8 investigation is. I'm told that this morning the Prosecution indicated

9 that it hadn't done anything because it is awaiting a decision on the

10 motion on amicus -- amicus prosecutor. Maybe we might just get a

11 clarification from the rest of the parties.

12 You don't have any further filings you want to make on this issue;

13 is that why you want the decision to be made under amicus?

14 MR. TIEGER: We have no further filing, Your Honour.

15 JUDGE MOLOTO: On the amicus --

16 MR. TIEGER: Intended, correct.

17 MR. KEHOE: Nothing.

18 JUDGE MOLOTO: You filed the motion?

19 MR. KEHOE: Yes, sir.

20 JUDGE MOLOTO: And Mr. Mikulicic, you have no filing?

21 Mr. Prodanovic, you have no filing? In that event then, a decision will

22 be rendered before the summer recess. Again on the same day counsel for

23 General Gotovina filed a motion for the appointment of an amicus curiae

24 instead of the OTP, again we will render a decision on that as well, okay.

25 It's the same thing, okay.

Page 255

1 Things that are listed as coming under "General" which came from

2 this morning's 65 ter meeting conference were: The trial start date,

3 which we have already discussed; the question of Mr. Markac's testimony in

4 the Ademi trial on the 16th of July. Can we deal with that, please? What

5 is the issue?

6 MR. MIKULICIC: [Interpretation] Your Honour, of course you know

7 that my client is on provisional release and that he is bound to act

8 according to the rules set out in the decision made by the Trial Chamber.

9 However, there are proceedings underway in Zagreb, proceeding that were

10 referred to Zagreb according to Rule 11 bis against Generals Norac and

11 Ademi, and the Court called General Markac as a witness in these

12 proceedings. His testimony would be public, in public session.

13 This gives rise to a few questions, or rather these questions are

14 put by General Markac's Defence.

15 Question number one: What is the position of this Trial Chamber

16 with regard to such public testimony, and in terms of the constraints

17 imposed by the Trial Chamber when deciding on provisional release, as far

18 as General Markac is concerned?

19 Question number 2: If such a statement were to be made by

20 General Markac, does it previously have to be approved by this Trial

21 Chamber, since he is under the jurisdiction of the Tribunal, if I can put

22 it that way? This is what my own thinking on this is: If General Markac

23 were not provisionally released, if he were in detention of this Tribunal,

24 then the Zagreb Court would certainly have to seek permission from the

25 Tribunal for this kind of testimony. I think, by way of an analogy, that

Page 256

1 in this case, when General Markac is provisionally released, although

2 there are some constraints involved, again permission should be sought

3 from this Trial Chamber for this kind of testimony.

4 There is another group of questions that invariably appears here,

5 and that is the question of using General Markac's statement before this

6 court in Zagreb and whether it would be used in the trial before this

7 Tribunal.

8 General Markac, at least in the present-day situation, he is not

9 prepared to testify before this Trial Chamber. What would the probative

10 value be in that case of his testimony before the Zagreb Court in relation

11 to the evidence in these proceedings?

12 Question number 3: If General Markac were to testify before the

13 Zagreb Court, he may touch upon certain circumstances that could be

14 incriminating for him in relation to the material that is presented before

15 this Trial Chamber, so it seems to me -- and therefore we kindly ask this

16 Trial Chamber to take a position on this and to instruct us, in a way, as

17 to how we should react with regard to this case.

18 Obviously, the question is a very serious one. I will be glad to

19 answer any questions that you may have.

20 JUDGE MOLOTO: Thank you very much, Mr. Mikulicic.

21 You're asking very involved and difficult questions, some of which

22 I'm not sure whether belong at the door of this Trial Chamber or belong at

23 the door of counsel to give legal advice to his client. But to cut a long

24 story short, and I say this mindful of the fact that Mr. Markac is

25 expected to testify on the 16th, but I just want to say, to cut a long

Page 257

1 story short: Can I suggest that you give -- you file a short motion, just

2 short motivations on these issues, and let the Trial Chamber deal with

3 them in that manner, rather than try to get an answer here which may or

4 may not be properly thought through. Would that be helpful?

5 MR. MIKULICIC: [Interpretation] Your Honour, that would certainly

6 be helpful. However, this is what I would like to suggest: That what I

7 said today in respect of public testimony to be given by General Markac

8 and questions related thereto should be treated as an oral motion with

9 regard to this particular question. If you wish, of course, we can repeat

10 this in writing, but that is time-consuming, after all. Today is Friday,

11 so we can do that only next Monday or Tuesday, and the 16th is getting

12 closer and closer.

13 JUDGE MOLOTO: I understand, and I'm suggesting what I'm

14 suggesting mindful of that, Mr. Mikulicic. If you get it on Monday, we'll

15 try to give you a decision soon enough to be on time for the 16th.

16 Okay, thank you very much.

17 Then there was the issue raised by the Gotovina Defence relating

18 to access to Croatian State archives.

19 Yes, Mr. Misetic.

20 MR. MISETIC: Thank you, Your Honour. This relates to the matter

21 that I had raised earlier with the Court.

22 We believe there is an issue with respect to the due process

23 rights of the defendants and their rights to equality of arms.

24 By way of background, all the parties in this case use the

25 Croatian State Archives by necessity in order to prepare their cases, both

Page 258

1 Prosecution and Defence.

2 In addition to parties in this case, parties in other cases before

3 this Tribunal, including cases from Bosnian and Herzegovina, use the

4 Croatian State Archive. There are prescribed rules that the Croatian

5 State Archive imposes as to what times the parties can access the archive,

6 the means of accessing the archive, the means of photocopying and the fact

7 that we bear the cost of those copying expenses.

8 JUDGE MOLOTO: Are those rules --

9 MR. MISETIC: Apply to everyone, correct, they are unilaterally

10 applied to all equally.

11 So over the course of the past 16 months, we have diligently

12 worked in the Croatian State Archive to get our case to where it is today,

13 and have incurred perhaps tens of thousands, if not hundreds of thousands

14 of kunas in expense in photocopying, et cetera to get those documents for

15 this particular case.

16 It came to the attention of the Gotovina Defence several weeks ago

17 that there was an issue with the Prosecution gaining access to those

18 archives, and it was information, and I leave it as could be true, could

19 not be true, I don't have any firsthand knowledge of it, but that the

20 Prosecution was seeking greater access than the rules that apply to

21 everyone else. And to that end, what we find particularly objectionable

22 is that the Prosecutor referred to this problem in her address to the

23 Security Council, concerning problems in particular and by name

24 referencing the Gotovina case and that she was having difficulties

25 obtaining documents from the Croatian State Archives in the Gotovina case

Page 259

1 in particular.

2 The result of that is a potential for misuse in the sense that the

3 political pressure that is exerted on the Croatians to comply, for reasons

4 related to their -- for their own political reasons, could result in a

5 situation where the Prosecution gets favours and privileges that don't

6 apply to everyone else, and I wanted just to bring that to the attention

7 of the Trial Chamber and point out that it's our position that in

8 addressing matters involving state compliance, Rule 7 bis I think is quite

9 clear that it is this Trial Chamber that has the jurisdiction to resolve

10 matters involving state compliance, including compliance with disclosure

11 of documents.

12 I think that jurisdiction is exclusive, and that is the only way

13 to safeguard the due-process rights of the defendants, because obviously

14 we would have a right to comment on any situation where they were

15 requesting documents, and quite frankly to seek equal treatment so that if

16 the Prosecution gains - and speaking hypothetically now - 24-hour access

17 to the Croatian State Archives and we have five hours a day, we would

18 invite the Trial Chamber, to the extent that an order would be issued,

19 that we gain the same rights and access to those archives that any other

20 party to the case would have.

21 That ability to put our case forward and ask for those rights is

22 circumvented when the Prosecutor goes directly to the Security Council to

23 address her concerns rather than using Rule 7 bis to resolve those issues,

24 and so we would invite the Trial Chamber to invite the parties to use the

25 Rules of Procedure and Evidence and the Statutes of the Tribunal in

Page 260

1 resolving issues related to the disclosure of documents.

2 JUDGE MOLOTO: Is that the relief you're asking?

3 MR. MISETIC: Yes, Your Honour.

4 JUDGE MOLOTO: You're asking the Trial Chamber to tell the

5 Prosecution to desist from approaching the Security Council with respect

6 to --

7 MR. MISETIC: Specifically with respect to document disclosure

8 issues from state sources, and that those should be addressed through the

9 procedures outlined -- right, by name it was mentioned. This was not a

10 situation where she was referring to Croatians cooperation with the

11 Tribunal generally, but by name, in this case, and we believe that usurped

12 the jurisdiction of this Trial Chamber, because it is this Trial Chamber,

13 under Rule 7 bis, that resolves issues of state compliance.

14 And by the way what is significant for us is it gives us the

15 right, when Rule 7 bis is used, to file a response and to ask for relief

16 or to comment on the request. When political means are used, rather than

17 judicial means to resolve these problems, it directly implicates the

18 rights of the accused under Article 21 of the Statute, we believe.

19 JUDGE MOLOTO: Thank you, Mr. Misetic.

20 MR. MISETIC: Thank you, Your Honour.

21 JUDGE MOLOTO: Any response by the Prosecution?

22 MR. TIEGER: I'll be quick and, I hope -- well, I hope I'll be

23 quick and I hope it will be simple.

24 First of all, to the extent that the Defence has had any

25 difficulties with either access or obtaining documents, we can only

Page 261

1 sympathise, because I alluded to similar problems before.

2 With respect to the issue -- with respect to the matter of favours

3 and privileges, the Prosecution seeks no favours and privileges. It only

4 seeks the full access to archives and the full rights to which it's

5 entitled, and fully shares the view that all the parties in the case

6 should have equal and unfettered access to archival materials, to whatever

7 extent it may be bound by legitimate logistical considerations.

8 The Prosecutor has an obligation, insofar as I understand it, and

9 this is not something I've recently researched, to report to the Security

10 Council on matters such as cooperation. I alluded a few -- so that's

11 something that the Prosecutor does and should do, and should be expected

12 to do.

13 And the issue of whether or not there has been full cooperation is

14 one I alluded to earlier, back in this very court, in indicating to the

15 Court that we were having trouble in obtaining documents. That is a

16 matter properly, it seems to me, brought to the attention of the Security

17 Council and is not a matter of seeking favours and privileges.

18 I'm more than happy to see my colleagues from the Defence and all

19 parties in this litigation or any other litigation have the most complete

20 access possible. To the extent the Prosecution has in the past or will in

21 the future identify any inappropriate barriers to our access, we'll raise

22 them. And if indeed that results in the elimination of unnecessary

23 bureaucratic obstacles, we trust that the Defence will be able to benefit

24 similarly from the elimination of such inappropriate obstacles.

25 So that's all I have to add. I don't see how that's implicated by

Page 262

1 the Prosecutor's ongoing, wholly appropriate and, I think, necessary

2 report to the Security Council about the cooperation among -- by member

3 states with the OTP and the ICTY.

4 MR. MISETIC: May I just comment on that point?

5 JUDGE MOLOTO: Yes, Mr. Misetic.

6 MR. MISETIC: I would respectfully disagree with my colleague.

7 Rule 7 bis(a) specifically says and establishes what the procedure

8 is, and the Security Council is only made aware after the Trial Chamber is

9 satisfied that a state has failed to comply with an obligation under

10 Article 29 which relates to any proceeding before that Chamber, the

11 Chamber or Judge may advise the President, who shall report the matter to

12 the Security Council.

13 The Rule is clear, it is not in the jurisdiction of the Prosecutor

14 to be unilaterally and ex parte, in fact, contacting the Security Council

15 for assistance in resolving the matter. It requires that you, the

16 Chamber, first be satisfied and then the President eventually to report

17 the matter to the Security Council, so I would disagree on that point.

18 As a matter of practicality and how this really applies, the fact

19 of the matter is the parties for the most part don't know and are not

20 courtesy-copied on requests to various states for documents, so there's

21 really no way of the Defence knowing generally what prerogatives or

22 privileges or, let's put it this way, removal of bureaucratic obstacles,

23 which certainly exists for the defendants as well, there's no way of us

24 knowing that those obstacles have been removed unless the Prosecution

25 would copy us every time they put in a document request and told us what

Page 263

1 had been done, which obviously not only isn't done but isn't required to

2 be done by the parties.

3 Therefore, as a general matter, I think it's important that

4 because we both don't know what each other are doing, that we respect the

5 Rule, which is if we have a problem and we believe it's of a sufficient

6 degree to require assistance from the Chamber in gaining the compliance of

7 a state to obtain information, we will certainly proceed pursuant to

8 Rule 7 bis to obtain that. We don't have the ability to contact the

9 Security Council and ask for relief. It's an imbalance in the powers, the

10 respective powers. It results in an inequality. And equality is

11 guaranteed under Article 21 under the Statute. That equality of arms can

12 only be guaranteed if Rule 7 bis is respected, and so again we would ask

13 that in the future, that matters related to a particular case -- I should

14 say in this particular case, concerning state cooperation, should be

15 brought pursuant to the explicit Rule to the attention of the Chamber, and

16 then if the matter is so significant that it requires a report to the

17 Security Council, that matter should then be addressed by the President

18 and not the Prosecutor.

19 Thank you, Your Honour.

20 JUDGE MOLOTO: Thank you.

21 You're talking of the future, Mr. Misetic. I'm not quite sure

22 whether, when you say so, you are saying you are just putting this on

23 record, you are not pursuing it unless it happens again, or are you

24 actually seeking specific redress from this Court?

25 MR. MISETIC: Well, we have heard -- again, the problem is I don't

Page 264

1 know what the Prosecution is doing.

2 JUDGE MOLOTO: Sure, I appreciate that.

3 MR. MISETIC: We have heard today that the Prosecution has

4 problems gaining access to archives and intends to use some other means

5 before resorting to moving to the Trial Chamber, so I think the matter is

6 ripe at the moment because, again, I don't know what the other means are.

7 To the extent they are political, extra-judicial means, I think it would

8 be our request that an invitation be made by the Chamber that if there is

9 a problem, that judicial means be used to resolve that and not

10 extra-judicial/political means.

11 JUDGE MOLOTO: May I suggest that you formalise this question by

12 another motion.

13 MR. MISETIC: Yes, Your Honour.

14 JUDGE MOLOTO: Thank you.

15 MR. MISETIC: Thank you.

16 JUDGE MOLOTO: I guess we can then go beyond -- past it, unless

17 you had something to add on to this motion, Mr. Prodanovic or

18 Mr. Mikulicic.

19 Yes, Mr. Prodanovic.

20 MR. PRODANOVIC: [Interpretation] Your Honour, are you asking me

21 about my position on what is being presented or what? I didn't understand

22 you.

23 The Defence of General Cermak does not see any great problem here.

24 We consider this to be an unnecessary parade, because certainly a

25 solution to the situation of whether possibly the Prosecutor, in an

Page 265

1 unauthorised manner, skipped the President of the Tribunal and contacted

2 the Security Council herself first will not be the first or last time, and

3 I think this is a problem that isn't really relevant and does not exist,

4 per se, and isn't relevant to the case. I think there are far greater

5 problems that need to be addressed.

6 Thank you.

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

8 Mr. Mikulicic, do you have anything to say?

9 MR. MIKULICIC: [Interpretation] Your Honour, I wholeheartedly join

10 in what Mr. Prodanovic has just said.

11 JUDGE MOLOTO: Thank you very much.

12 Then the matter will rest there.

13 Can we then move to the question of assistance to the new team

14 that I'm told was raised by Mrs. Slokovic this morning at the 65 ter

15 conference.

16 I'm told for the tapes we have to last five minutes, and this is

17 the last item.

18 MS. SLOKOVIC: [Interpretation] Mr. President, all I wanted was to

19 ask the Trial Chamber or rather you to explain to us which our

20 authorisations are they in during the transition, that is to say, what are

21 the authorisations of the Defence, are they complete and full? Do we

22 wholeheartedly participate in the proceedings which come prior to the

23 introduction of the new Defence counsel or are there certain restrictions,

24 limitations? So can we participate in the proceedings to harmonise and

25 dovetail matters with respect to the facts, agreement on facts? Can we

Page 266

1 take part in that in an active way instead of the Defence team coming in?

2 Can we agree on facts and on the basis of that, can we put the new Defence

3 team in front of a fate accompli, and is it possible for that -- should

4 that be a reason for them -- or rather can they deviate from any

5 conclusions or decisions made by us with respect to those facts?

6 JUDGE MOLOTO: I'm not quite sure I understand your question,

7 Mrs. Slokovic, but let me say this: I guess the decision was quite clear

8 that the current team will stay on until the new team has taken over and

9 certified that they are on board. Once that has happened, you and

10 Mr. Prodanovic will be expected to get off the team. Until then, you

11 carry on acting as full counsel for your client. That's my understanding.

12 Let me make it clear. You see, no situation --

13 THE INTERPRETER: Microphone, Your Honour, please.

14 JUDGE MOLOTO: I'm sorry.

15 Your situation is different from Mr. Separovic's situation,

16 because in your situation the entire team is being removed. So the

17 decision said you will stay on until new counsel is on, and for the time

18 that you are on, you will act with full powers of counsel, whereas in the

19 case of Mr. Separovic, it was only him and co-counsel were still there,

20 therefore that's why he was removed completely.

21 Okay?

22 MS. SLOKOVIC: [Interpretation] Very well. That clears up my

23 dilemma, especially as the Prosecution on several occasions and the

24 Gotovina Defence said that in actual fact we cannot make any meritorious

25 decisions, particularly when it comes to deciding upon agreed facts, so

Page 267

1 that does away with all the dilemmas.

2 Thank you.

3 JUDGE MOLOTO: Thank you very much.

4 MR. KEHOE: Your Honour, I mean, at this point just by way of

5 clarification, as we go through this, if counsel agrees to these facts, is

6 it binding on the subsequent counsel?

7 JUDGE MOLOTO: You're asking me a very difficult question. I think

8 this is a question that you must ask -- you must resolve amongst

9 yourselves.

10 MR. KEHOE: Well, I just get just one particular clarification. I

11 mean, is it -- I don't know the answer to that, if we agree on -- if we

12 agree on a fact and Defence agrees on a fact, and another counsel comes in

13 and says, "No, I don't agree on the fact," are we back to square one?

14 JUDGE MOLOTO: You would be back to square one, yes.

15 MR. KEHOE: Thank you.

16 JUDGE MOLOTO: Thank you very much. Any other issues?

17 MR. KEHOE: No, Your Honour.

18 JUDGE MOLOTO: Prosecution?

19 MR. TIEGER: No, Your Honour.

20 JUDGE MOLOTO: Mr. Prodanovic, any other issue?

21 MR. PRODANOVIC: [Interpretation] Everything is clear now, because

22 in the interests of the proceedings it wouldn't be a good idea if our

23 position were revised when the new Defence team takes over, so we don't

24 want to take over the competencies unless we're sure. Thank you.

25 JUDGE MOLOTO: Mr. Mikulicic, do you have anything to say as the

Page 268

1 last word?

2 MR. MIKULICIC: [Interpretation] Nothing. Thank you, Your Honour.

3 JUDGE MOLOTO: Thank you very much.

4 That then brings us to the end of this conference. Court

5 adjourns.

6 --- Whereupon the Status Conference adjourned at

7 5.07 p.m.