Tribunal Criminal Tribunal for the Former Yugoslavia

Page 709

 1                           Thursday, 28 January 2010

 2                           [Open session]

 3                           [Status Conference]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.34 p.m.

 6             JUDGE KWON:  Good afternoon, everyone.

 7             Today, we are holding a status conference to address a number of

 8     matters and ensure that we are on track for the resumption of the trial

 9     hearings on 1st of March.

10             First, can I please have the appearances for the Prosecution.

11             MR. TIEGER:  Good afternoon, Mr. President, Your Honours.

12             Alan Tieger, Hildegard Uertz-Retzlaff, and Iain Reid for the

13     Prosecution.

14             JUDGE KWON:  Thank you, Mr. Tieger.

15             Mr. Karadzic, I see that you again are here alone, and I take it

16     that you are continuing to represent yourself.

17             THE ACCUSED: [Interpretation] I'm not totally on my own.  There's

18     always someone with me in spirit.  But I shall defend myself, by myself,

19     until the end of these proceedings.

20             JUDGE KWON:  Very well.

21             On 19th November, 2009, the Registrar appointed

22     Mr. Richard Harvey to prepare for the resumption of the trial on 1st of

23     March, 2010, in case it should become necessary for him to represent the

24     interests of the accused at that time, following our decision of 5th of

25     November, 2009.  The Registrar's appointment of Mr. Harvey is currently

Page 710

 1     the subject of an appeal by Mr. Karadzic.  In light of this fact,

 2     Mr. Harvey was reluctant to be present in the courtroom at today's status

 3     conference without the consent of Mr. Karadzic.  As Mr. Karadzic has

 4     objected to his presence, it is my understanding then Mr. Harvey is

 5     following these proceedings from the public gallery.

 6             While Mr. Harvey's role in the trial proceedings, if any, remains

 7     to be determined, the Chamber trusts that he is continuing his vigorous

 8     preparations for the trial in case it should become necessary for him to

 9     represent the interests of the accused.  Should he be experiencing any

10     difficulties with his preparations which he considers it necessary to

11     bring to our attention, the Chamber will accept any written submissions

12     on this matter that he wishes to make.

13             I would like now to go through the items on today's agenda.

14             The first item relates to the pending several binding-order

15     motions filed by Mr. Karadzic.  As you are aware, Mr. Karadzic, there

16     have been a number of steps taken by the Chamber to encourage the states

17     from which you have requested material to provide that material to you on

18     a voluntary basis.  Some progress has thus been made, and you have

19     withdrawn several of your motions.  However, there remain a number of

20     them still pending.  In order to move things along on this, the Chamber

21     will hold a motions hearing on Monday, 15th of February, to which

22     representatives of the relevant states will be invited.  We therefore

23     need to compile a list of states to be invited to attend this hearing,

24     and to this end I would like to go through some of your remaining pending

25     motions and ask some further questions.

Page 711

 1             The first motion relates to your motion for binding order against

 2     the Government of Germany, filed on 13th August 2009.

 3             In a written submission filed on 25th of September last year,

 4     Germany disputed the relevance of most of the categories of documents

 5     sought by the accused, and agreed to search for one category of

 6     documents.  I would simply note that this motion remains pending, and the

 7     resolution of the matter is not expected through the parties' negotiation

 8     on a voluntary basis, except for the resolution by the Chamber.

 9     Therefore, the Chamber will hold a hearing on this, after which the

10     decision on the motion will be issued.  The motion hearings on this will

11     take place at 9.00 on 15th of February, 2010, to which, of course, the

12     representative of Germany will, of course, be invited.

13             I turn to your next motion for binding order, i.e., against

14     Italy, which was filed on 4th of August, 2009.

15             Very recently, the day before yesterday, i.e., that is, on 26th

16     of January, Italy filed correspondence on a confidential basis, attaching

17     a number of documents.  The Chamber notes Italy's indication that the

18     documents have been provided on a confidential basis and may not be

19     disclosed without its permission, which would include any public

20     disclosure, though used at trial.

21             So, Mr. Karadzic, I take it that you understand and recognise

22     these conditions.

23             THE ACCUSED: [Interpretation] Yes, absolutely.  I am grateful for

24     all the government co-operation received so far.  Italy provided quite a

25     few articles from different publications.  So far, this is the first time

Page 712

 1     we are getting something substantial.  So from that point of view, I wish

 2     to assure you that the Defence is not going to violate Rule 70 in any

 3     way.  We hope, of course, that other documents will be received from

 4     Italy, too.  We believe that this is not all.  This has been submitted

 5     for a translation, and I'm afraid that at one point in time translation

 6     is going to become a bottleneck in these proceedings.  So we have to be

 7     aware of that, that there is going to be a great deal of material to be

 8     translated, and perhaps it won't be done in time.

 9             JUDGE KWON:  So that triggers my second question to you, which is

10     whether, as a result of reviewing the documents, whether you are in a

11     position to state whether you will withdraw your motion or whether you

12     think it is necessary to hear from Italy at the binding-order motions

13     hearing, following which of course the Chamber can issue its decision on

14     the motion.

15             THE ACCUSED: [Interpretation] I received that in the Italian

16     language, which unfortunately I do not speak.  I do not know any Italian,

17     so I have to wait for the translation to see whether that is everything

18     that we had expected.  If you allow me to do so, I will respond within a

19     week's time, or, rather, as soon as I receive the translation I will say

20     whether we can withdraw that or whether we should kindly ask the

21     representative of Italy to be present here on the 15th of February.

22             JUDGE KWON:  If you could let us know your position as soon as

23     possible.

24             Next item relates to your motion against France, filed on 24th of

25     August last year.

Page 713

 1             On 7th December last year, a confidential letter from France was

 2     filed, attaching a document in response to the accused's request.  We

 3     note that you have indicated that, in principle, you do not oppose the

 4     protective measures requested by France.  Therefore, likewise, the

 5     Chamber wishes to clarify whether it is your position that the provisions

 6     of Rule 70 apply to the document you have received from France.

 7             THE ACCUSED: [Interpretation] Of course, that applies to France

 8     as well.  I do appreciate the fact that this one document came in, but I

 9     believe that France has a great many more documents, since the French

10     military and political presence in the Balkans, especially in Bosnia, was

11     massive.  I'm convinced that France can help us a great deal.

12             As for Rule 70, of course, it applies to each and every country,

13     France included.  The Defence is not going to reveal any confidential

14     documents to anyone.

15             If we do not receive anything else by the 15th, and I am

16     convinced that France has significant documents and knowledge about

17     developments and the essence of the crisis in Bosnia-Herzegovina, then we

18     would be pleased to see here the representatives of France on the 15th of

19     February as well.

20             JUDGE KWON:  So in order to clarify this matter, I wonder whether

21     you have received any other responses from France to your follow-up

22     request.

23             THE ACCUSED: [Interpretation] No.  I received that one document,

24     along with the letter, and I wrote again on the 7th of January, and I

25     provided them with some specific information concerning the documents

Page 714

 1     that we need, that the Defence needs.  However, so far I have not

 2     received a response to that letter.  We are expecting that.  I did that

 3     because I thought it would be right to try to reach an agreement before a

 4     decision is made by the Trial Chamber.  So the letter went on the 7th of

 5     January, and we hope that we will get a response and it does provide

 6     localities and other specific information concerning documents that we're

 7     interested in.

 8             JUDGE KWON:  To wrap it up, when do you think you are in the

 9     position to tell us whether, in your opinion, it is necessary to hear

10     from France at the binding-order motions hearing?

11             THE ACCUSED: [Interpretation] At the moment when I receive yet

12     another reply from them.  If it is an exhaustive reply and if we receive

13     all the documents that we believe and know the French government has, at

14     that moment I can state my views.  The Defence will promptly state its

15     views to the Trial Chamber.  However, if we do not receive that, and if

16     there is a significant amount of documents that are not being sent in,

17     then we would like to see a representative of France here.  Believe me,

18     France is one of the most important countries in this crisis.  They gave

19     a major contribution to peace, and their representatives in the civilian

20     sector and their military officers rendered a major contribution.

21             JUDGE KWON:  Do you, by any chance, know by when the French

22     government will respond to your request?

23             THE ACCUSED: [Interpretation] I have no indication whatsoever.  I

24     know that I sent my letter on the 7th of January.  I do not have any

25     response.  I haven't had one over these past three weeks.  I have no

Page 715

 1     indication as to when they're going to reply.  Perhaps, in a way, this

 2     could be an encouragement.  A public appeal to the French government to

 3     act in that direction, that would be a good thing.

 4             JUDGE KWON:  Then I will turn to the next motion against Bosnia,

 5     which was filed on 1st of September, 2009.

 6             Again, my question for you, Mr. Karadzic, is whether you have

 7     received a response from Bosnia to your follow-up request, and what your

 8     position is with regard to the documentation that you have received from

 9     Bosnia.  Is there any change from the information you provided in your

10     memorandum of 8th of January?

11             THE ACCUSED: [Interpretation] Before the 7th of January, I

12     received six documents that are rather useful.  However, they are just a

13     tiny part of what we need from Bosnia-Herzegovina, from the government

14     documents there.  I repeated my request of the 7th of January, as I did

15     in the case of France.  There are going to be a few more significant

16     requests addressed to the Bosnian government.  They had investigations

17     carried out in respect of their own units and their own criminals, and

18     that caused certain behaviour on our part in Sarajevo.  So without that,

19     the proceedings would not be fair.  Therefore, we are expecting to hear

20     from them so that we could submit new requests to Bosnia.

21             What is encourage is a statement made by Samo Siketic, the

22     minister of defence of Bosnia-Herzegovina, that I will receive everything

23     I'm asking for from Bosnia-Herzegovina.  However, things are moving

24     rather slowly.  If we do not receive anything by the 7th of February, for

25     instance, it would be a good thing if not only a representative of

Page 716

 1     Bosnia-Herzegovina would be here on the 15th of February, but also a

 2     representative of the OHR, the Office of the High Representative in

 3     Bosnia-Herzegovina, who has the power and authority to persuade each and

 4     every institution in Bosnia-Herzegovina to co-operate with this Tribunal.

 5     We will, indeed, have to wait for quite a few documents coming in from

 6     them.

 7             JUDGE KWON:  My next question is about Croatia, the motion about

 8     which was filed on the 11th of September, 2009.

 9             Once again, I would like to know whether you have received a

10     response from the Croatian government to your follow-up letter of 7th of

11     January, and what your position is with regard to the documentation you

12     have received from Croatia.

13             THE ACCUSED: [Interpretation] As for these 15 documents that I

14     received from Croatia, they are, indeed, useful.  However, they only

15     represent a tiny part of what Croatia can provide us with.  I haven't

16     received any response from Croatia yet, either, to my letter of the 7th

17     of January.  However, they had elections held in their country, there is

18     a new president, and I understand that this was not a priority of theirs.

19     At any rate, it would be a good thing if a representative of the Croatian

20     government would be here on the 15th of February as well.

21             JUDGE KWON:  My next question is regarding the Government of

22     Netherlands.  The motion was filed on the 11th of September, 2009, and it

23     seems to me that there are two remaining documents which the Netherlands

24     has indicated it is trying to locate.

25             Do you have any update on this, and do you wish to withdraw your

Page 717

 1     motion in light of the material that you have received, as you did in

 2     relation to the United States?

 3             THE ACCUSED: [Interpretation] I'm very grateful to the Dutch

 4     government for these nine documents and for the efforts made to find

 5     these additional two documents.  If this does happen and if they can be

 6     encouraged to that effect, namely, that we receive these documents, it

 7     would not be indispensable to have them present here on the 15th of

 8     February.  At the moment I would receive these two additional documents,

 9     I would withdraw my motion.

10             JUDGE KWON:  I have to correct myself, that you didn't withdraw

11     your motion with respect to the United States; instead, that your motion

12     was denied without prejudice.

13             Yes.  Next question is about Iran, the motion about which was

14     filed on 26th of August, 2009.

15             The Chamber has granted an extension of the dead-line for Iran to

16     respond to the motion, and that dead-line expires tomorrow.  So unless

17     you have anything further to say on this, Mr. Karadzic, I think we will

18     have to wait for Iran's response before deciding what further action to

19     take on this one.

20             Do you have anything to say, Mr. Karadzic?

21             THE ACCUSED: [Interpretation] Well, I do expect Iran to provide

22     this to us.  So far, we have established that the USA encouraged Iran to

23     violate the UN resolution on the arms embargo.  Now Iran is being

24     threatened by sanctions from the United States, in view of the nuclear

25     programme of Iran's, so I don't see why Iran would not show us documents

Page 718

 1     that we know do exist.  So I think we should go on insisting that Iran

 2     submits these documents.  If we do not receive them by the 15th of

 3     February, it would be desirable to have a representative of the

 4     Government of Iran present here.  I believe that it is also in the

 5     interest of Iran to provide these documents to us, because this is,

 6     indeed, a drastic violation of Security Council resolutions, and this did

 7     affect our situation in Bosnia-Herzegovina.  It kept the war going, and

 8     it put off a political solution in the country, et cetera.

 9             JUDGE KWON:  My last question regarding the binding-order motions

10     is related to Pakistan, the motion of which was filed on 10th of August,

11     2009.

12             Mr. Karadzic, yesterday we received your submission notifying us

13     of your withdrawal of this motion.  The Chamber, therefore, does not

14     consider that there is any further action it needs to take in relation to

15     Pakistan at this time.

16             THE ACCUSED: [Interpretation] Yes, I do agree, although it would

17     be very useful to have interviews with their general who was head of

18     their secret services.  Obviously, we have a problem in that regard, so I

19     decided to withdraw that motion.

20             JUDGE KWON:  Thank you.  That exhaust my list of pending

21     binding-order motions, and we will take into account what you have said

22     today, and, indeed, hold the hearing on 15th of February, 2010,

23     commencing at 9.00 a.m., to which the representatives of several states,

24     which will, no doubt, include the Government of Germany, will be invited.

25     We will notify you as soon as possible which states will be invited to

Page 719

 1     this hearing.

 2             Mr. Tieger, should the Prosecution wish to participate in the

 3     hearing, I believe that would be helpful.

 4             The only final question I wish to ask, in connection with the

 5     binding-order motions, is whether you anticipate filing any further

 6     binding-order motions in the coming weeks, Mr. Karadzic.

 7             THE ACCUSED: [Interpretation] I beg your pardon.  Are you asking

 8     me?

 9             JUDGE KWON:  Yes, Mr. Karadzic, whether you are planning to file

10     any further binding-order motions.

11             THE ACCUSED: [Interpretation] Well, that depends on whether we

12     are going to receive additional material from Bosnia-Herzegovina, because

13     they have a vast amount of material pertaining to investigations of the

14     members of their own military police, and we have objections to their

15     conduct, and we believe that it is of relevance in respect of the conduct

16     of our armed forces, our police, and our civilians.  So that is to be

17     expected.

18             As for this letter to the United Nations, perhaps -- I beg your

19     pardon.  The United States of America.  Perhaps we should write to the

20     United States of America again.  At first, they showed goodwill, they

21     really wanted to help us, but then they provided us with material that we

22     didn't actually need, that we weren't really asking for.

23             Turkey, to the best our knowledge, has some important material as

24     well that would be of major significance for these proceedings.

25             We'll see.  I believe that we are going to file a binding-order

Page 720

 1     motion as well that EU and the UN should also disclose some documents to

 2     us, and I believe that we are going to make certain requests in this

 3     respect.  As you know, on the 8th of January we filed a 54 bis motion,

 4     and we'll see what its fate will be.

 5             JUDGE KWON:  Very well.

 6             Given that the binding motions hearing will be mainly of a legal

 7     nature, I would strongly recommend that your legal adviser be present at

 8     the hearing on 15th of February.

 9             Is there anything else that you wish to raise on this general

10     topic before we move to the next item of the agenda for today, i.e., the

11     binding-order motions?

12             THE ACCUSED: [Interpretation] I think not, Your Excellency.  At

13     this point in time, no.

14             JUDGE KWON:  I come to, then, the other pending motions.

15             In addition to the binding-order motions, there remain a few

16     other motions pending before the Trial Chamber.  There's no need to get

17     into the detail of any of these today, unless either party has specific

18     questions to raise.

19             The Chamber is considering each of these motions carefully, and

20     it is our hope that decisions on some of them will be issued prior to the

21     resumption of the trial proceedings on 1st of March.  In particular, the

22     decisions on the two remaining Rule 92 bis motions filed by the

23     Prosecution should be issued prior to the resumption of the trial,

24     possibly also the decisions on the two remaining Rule 92 quater motions

25     filed by the Prosecution.

Page 721

 1             I would hope also the decision on the Prosecution's motion for

 2     leave to file a supplemental Rule 65 ter exhibit list.  However, much

 3     depends on other developments between now and the 1st of March, but I

 4     simply wish to inform you that the Chamber is making progress on these

 5     and the other pending decisions, and we will do our best to issue them in

 6     the coming few weeks.

 7             Does either of the parties have any comments to make on this

 8     matter?

 9             Yes, Madam Uertz-Retzlaff.

10             MS. UERTZ-RETZLAFF:  Your Honour, just one point.

11             You have not mentioned the motion for additional notice of

12     adjudicated facts, Sarajevo, Dragomir Milosevic.  It would be definitely

13     helpful to get a decision on this motion as well, because that may lead

14     to the fact that we can withdraw further witnesses from the Sarajevo

15     component of the case.  It would be very helpful.  I'm aware that it was

16     filed late, and the response is due also on the 15th of February, but

17     perhaps it is still possible.  It would be helpful, definitely.

18             JUDGE KWON:  We are aware of that situation, and the Judges, as

19     well as all the staff, are working very hard on it.  But we're looking

20     forward to the accused's response, which is due on 15th of February, as

21     you indicated.  Thank you, Madam Uertz-Retzlaff.

22             Mr. Karadzic, do you have anything to add to this as regards

23     pending motions?

24             THE ACCUSED: [Interpretation] In principle, I notice and I'm

25     afraid that either due to the haste for the closing strategy, I note a

Page 722

 1     tendency for this trial to be transformed into a paper trial.  Every

 2     effort is being made to reduce to a minimum the appearance of witnesses

 3     here.  A large number of them are under 92 bis - unfortunately, there are

 4     some 20 - and 92 quater, a large number of adjudicated facts, and I

 5     wonder how we're going to establish the truth here, not only about my

 6     involvement in the events but the events themselves, because I claim that

 7     that truth has not been established in any trial so far.

 8             It is my duty to inform the trial that for us in the Balkans, and

 9     from our own legal system, the differences in legal systems has a

10     terrible effect.  We have an investigating judge who co-operates with

11     both parties and who establishes a large number of facts even before an

12     indictment is issued.  Here, we have only the one-sided investigation of

13     the Prosecution, and our people simply cannot find their way because of

14     the absence of an investigation.  Therefore, my appeal would be to have

15     as few paper documents as possible and to have as many live witnesses so

16     that we can really judge the facts on the basis of investigation that I

17     will undertake if I am given the time and the funds to do it, because

18     otherwise we wouldn't have to appear at all.  We could mathematically

19     look through the documents, add up the facts, and pass judgement.  And

20     I think this is the last chance for us to make an improvement in that

21     sense.

22             As you know, I'm, in principle, opposed to a paper-ish trial, but

23     the members of my team will do everything in their power to interview as

24     many of the 92 bis witnesses as possible.  And as you have seen, we have

25     already done so with some and have provided some additional information.

Page 723

 1     And we will -- for each witness that we interview, we will seek that that

 2     witness appears.

 3             You will see that there are witnesses who did not appear

 4     anywhere.  No one examined them, and their statements were built into

 5     other trials and now they are to be built into this one, but no one has

 6     tested such statements through a cross-examination.  And you will see how

 7     many witnesses of this kind we have.  So this is a completely paper

 8     trial.

 9             JUDGE KWON:  Mr. Karadzic, as you'll see in the future, we'll be

10     hearing evidence of witnesses coming to The Hague for more than at least

11     two years from now, and this is far from being a paper trial.  In any

12     event, the Chamber will do its utmost to ensure that your trial be a fair

13     one and your rights -- your fundamental rights not be infringed by any

14     means.

15             The next item relates to logistical problems raised by the

16     accused's letter of 15th of January, 2010.  In this regard, I'd like to

17     note for the record that Ms. Anna Osure, the acting head of the Office

18     for Legal Aid and Detention Matters in the Registry of the Tribunal, is

19     in the courtroom to answer any questions that the Chamber may have.

20     Thank you, Ms. Osure for coming by.

21             Mr. Karadzic, you raised three issues with the Chamber in a

22     letter sent on 15th January which you say are impeding your ability to

23     continue your trial preparations.  Upon receipt of that letter, the

24     Chamber asked the Registry to provide it with a report on the issues

25     raised.  That report was sent to you by the Chamber's legal officer on

Page 724

 1     22nd January, and you were invited to make any further comments you

 2     wished in advance of the status conference.  You chose not to do so.

 3             So can I address the last of these three issues set out in your

 4     letter; first, which relates to your ability to access your electronic

 5     files when you are in the courtroom.

 6             The Registry has informed us that the arrangements have been made

 7     for you to access your own files on a network either from the UNDU or

 8     from here in the courtroom, and this will be operational by 1st of March.

 9     This seems to have resolved that particular issue.

10             Do you have any say on this matter, Mr. Karadzic?

11             THE ACCUSED: [Interpretation] Your Excellency, this hasn't been

12     settled, because I was promised in June last year that I would have

13     access to a server, and the memory has already been extended twice

14     because the memory is insufficient.  And Lord Bonomy instructed orally

15     that I should receive an external hard drive with a sufficient amount of

16     memory, because otherwise something is always lost or upset when the hard

17     drive is being changed, and it is very difficult to work with it after

18     that.  So in June last year, I was promised to have access to a server in

19     my room, and a line has been attached, and a nice gentleman has come to

20     see what the signal is like.  And since then, nothing has happened.

21             I was also promised access to the phone because I'm bothering the

22     other people in the cells by my calls.

23             Very well, I limit myself to this issue.  We'll come back to the

24     telephone.

25             For me, all this is coming late.  I should have had this last

Page 725

 1     year to be able to get insight into this vast amount of material.

 2     There's more than two million, and the pages disclosed by the Prosecution

 3     consist of two and a half million pages, so you can imagine how difficult

 4     it is.  I don't have a proper team.  I only have two team members that

 5     are being paid for.  So I think this is a very serious impediment to my

 6     working properly and on time.

 7             JUDGE KWON:  Mr. Karadzic, let us deal with matters one by one.

 8             I wonder whether you have before you the memorandum conveyed to

 9     you through the Registrar.  It enumerates three issues:  First, access to

10     telephone; second, computer storage space; and, third, use of files in

11     the courtroom.

12             The issue I raised initially was the third issue, use of files in

13     the courtroom, but my understanding that the matter you raised is related

14     to the second one; i.e., the computer storage space or the size of the

15     memory.

16             So what is your observation in relation to the third matter,

17     which I understand will be resolved by 1st of March.

18             THE ACCUSED: [Interpretation] I apologise, Your Excellency.

19     Which is the third question; access?

20             JUDGE KWON:  Use of files in courtrooms.  So I can repeat my

21     question.

22             THE ACCUSED: [Interpretation] Oh, yes, I understand now.  I

23     understand, Your Excellency.

24             If we are talking about use of files in the courtroom, I don't

25     need that before the actual beginning, whenever that beginning is.  But

Page 726

 1     regarding the beginning, it would be useful to have it at the beginning,

 2     though, of course, I would need a little time to practise.  And if I

 3     receive payment, I hope I will have someone in the courtroom to assist me

 4     in the use of these files in the courtroom.

 5             JUDGE KWON:  Okay.  I will come to the second issue raised by you

 6     in your letter.  I think it is somewhat connected, in that it relates to

 7     your ability to store your files electronically, as you indicated.

 8             Am I correct in understanding the problem is simply one of memory

 9     or the size of memory, and what you are seeking is a way to increase the

10     memory that you have on your computer so that all of your files can be

11     stored and easily accessed?  Am I correct in so understanding?

12             THE ACCUSED: [Interpretation] In the meantime, I have had two

13     expansions of memory.  At this point in time, there may be some reserve

14     memory.  What I gathered from OLAD last June was that I would get a

15     server that I would be able to access both from the courtroom and from my

16     room, and that my three confidential advisers would be able to have

17     access to that server while in the Tribunal building, so that we would be

18     able to exchange information.

19             Let me just tell you what kind of problems I am confronting.

20     I can have an adviser here for three days a month.  He is paid to stay

21     for only three days.  So if no one is present here, for instance, the

22     ICMP material, there were 973 pages, I wanted to send them by e-mail or

23     in some other way.  I would have to print it for this to be sent by fax.

24     And for this, it would take three days.  And in view of the progress made

25     in technology, I should be able to communicate with my team both by

Page 727

 1     telephone and through the server, but I have learnt that they would not

 2     have access to this material.  Why not, if they are my advisers and have

 3     a confidential status?

 4             There's some rules that I simply do not understand.  They are

 5     highly limiting.  We are in a worse position now than in November, when

 6     we were discussing the beginning of trial.

 7             JUDGE KWON:  I don't think Judges are that computer literate, so

 8     we may need the assistance of Ms. Osure.  So could you let us know what

 9     the situation is?

10             MS. OSURE:  Thank you, Your Honour.  I would like to first

11     clarify the information the accused has just informed the Court about,

12     that he was apparently informed by OLAD that he would be -- his legal

13     associates would be able to access the server.

14             Now, unfortunately, this cannot be done, and the reason why we

15     cannot do this is because there are controls in place in the

16     Detention Unit particularly with regard to exchange of digital

17     information, and it's only counsel who represent an accused who can

18     exchange digital information, and they do this by providing the digital

19     information, for example, CDRs, DVDRs, to the management of the

20     Detention Unit, who then pass it on to the accused and back to them

21     again.  These controls are in place for a purpose and the security and

22     good order of the Detention Unit, as well as the computer regulations

23     they have to be controlled.

24             Now, we have extended this to legal associates to

25     self-represented accused who are not counsel but are support staff to the

Page 728

 1     self-represented accused, and it's a position of trust and immense

 2     responsibility, indeed, but they have been -- I'd say the Registry has

 3     granted them this privilege to enable them to be able to conduct the very

 4     limited role of consultation with the accused.

 5             But now to go to the extent of also allowing them to exchange

 6     electronic files with the accused really is beyond anything that we can

 7     allow.  This means that we will not be able to control any of the

 8     movement of digital material between him, meaning the accused, and his

 9     Defence support staff.  And in addition, we've also -- this is even

10     ground-breaking.  We've even provided or are working towards providing

11     him a server in the Detention Unit, of course, which he can access here,

12     which we've gone through all over the world, we've checked examples and

13     seen how this is done, and found that there's no detention facility where

14     this is done.

15             So we've really just reached the limit.  This is the most we can

16     do, and, unfortunately, we cannot allow his support staff, just as we

17     cannot allow counsel, to share electronic files in this manner.

18             Thank you, Your Honour.

19             JUDGE KWON:  Sharing the information in this manner, meaning

20     using a server system; is it correct?

21             MS. OSURE:  Yes, Your Honour, it's correct.

22             JUDGE KWON:  Mr. Karadzic, would you like to make any observation

23     to this?

24             THE ACCUSED: [Interpretation] Yes, Your Excellency.

25             Let me say this:  First of all, I am surprised that the

Page 729

 1     confidential relationship between the accused and his associates, even if

 2     he's defending himself, I'm surprised that such a confidential

 3     relationship has to be controlled.  These are three legal advisers who

 4     have been nominated here, and they enjoy privileged status.  But I am not

 5     opposed to the Detention Unit having the password for this server and for

 6     them to supervise the information we are exchanging.  Of course, I would

 7     be opposed if the Prosecution would have insight.  But for everyone else,

 8     I don't mind whether they have access or not.

 9             It is impossible for me to receive 1.500.000 electronic pages

10     without having the electronic ability to exchange this with my

11     associates.  We can't be half fish, half maiden.  We can't use

12     technological advances only up to a point.  Either all million and a half

13     pages will be printed, which is a terrible undertaking and expense, or my

14     advisers with a privileged status should be able to have access to what I

15     have on the server, and vice versa.  But I'm not opposed to the

16     Detention Unit or whoever, except for the OTP, whoever wishes to have

17     insight or to control these files, though I believe that between the

18     accused and the privileged members of his Defence team, there shouldn't

19     be any control, because these are professionals and they have obligations

20     towards this Tribunal and towards their profession.

21             So I feel that my hands are tied.  I have rights, but not the

22     ability to make use of those rights.  So I simply do not understand.  Or

23     let us then go back to printing everything, because this kind of

24     limitation due to a lack of confidence -- but as I am saying, I allow

25     everyone to have access to what I am exchanging with my legal associates,

Page 730

 1     except for the OTP, the opposing party.

 2             JUDGE KWON:  However, in any event, this is not a proper place to

 3     resolve the issue, and we have to leave the matter at that now.  So it is

 4     mainly for the Registrar to regulate the practice, and only to the extent

 5     it affects your right to the fair trial the Chamber will look into the

 6     matter.  So we advise you to raise, in writing, if you find it necessary,

 7     to bring it to the attention of the Chamber.

 8             Let me turn to the first issue, i.e., the telephone lines.  And I

 9     would like to understand how the system currently works and wonder if

10     Ms. Osure again can help us on the number of phones -- the number of

11     phone lines available to Mr. Karadzic, how many other detainees those

12     phone lines are shared with, and what the real assessment of the

13     telephone infrastructure of the UNDU entails.

14             Ms. Osure.

15             MS. OSURE:  Thank you, Your Honour.  The accused has access to

16     two telephone lines in his wing in the Detention Unit.  There's a

17     privileged line and a monitored line.

18             Now, in addition to this, there is also a privileged line in the

19     office used by self-represented accused, which we continue to encourage

20     him to use, but unfortunately he has not made use of it.  Now, if he

21     could make use of the telephone in the office for self-represented

22     accused, that would certainly alleviate some of his concerns.

23             At the moment, I wish to highlight that we are working towards

24     changing the infrastructure of telephone access by detainees, and

25     although we will maintain the same access for the monitored line, this is

Page 731

 1     a much bigger project that will take a lot more time than we anticipated

 2     in the beginning.  But as an interim measure, we have already contacted

 3     the relevant authorities so that we put in place a monitored line in the

 4     office used by self-represented accused.  And if the accused does use

 5     this line, which we hope shall be put in request, as we've requested it

 6     as a matter of urgency, so we hope it should be put in place hopefully as

 7     soon as the technicians from the relevant company are able to do so, he

 8     will certainly be able to have access to this line and share it with the

 9     other self-represented accused.  Currently, the total number is three.

10             So once again I mention that we encourage him to make use of the

11     facilities in this office, as opposed to using the telephones in the wing

12     shared by all the other accused.

13             Thank you very much.

14             JUDGE KWON:  Mr. Karadzic, would you like to make any observation

15     on this?

16             THE ACCUSED: [Interpretation] That would be nice if it were as

17     Ms. Osure has described it, but it is not.  I can provide three numbers

18     of my associates, and they are rarely in the office.  So I can call on

19     the privileged line only when they're in the office, not on their mobile.

20             Furthermore, I do not have a phone in the office that I should

21     use as a self-represented accused.  There is an attachment, but there's

22     no telephone.  I don't mind if it were to be monitored, but let me

23     explain how it is in the Detention Unit.

24             There are many breaks when I cannot telephone.  There are two

25     walks, one or two sports activities, two breaks for lunch and for dinner,

Page 732

 1     so that during that time I cannot use the phone.  For the rest of the

 2     time, I share this public telephone with the other detainees.  Of course,

 3     my needs are greater, because they call their family and lawyers, whereas

 4     I call my associates and investigators.  So I spend an enormous amount of

 5     time on the phone.  And luckily we still haven't quarrelled, but this

 6     leads to tensions, and it is unnecessary to have such tensions.

 7             The privileged line, I can only use the privileged line rarely,

 8     because as I have said, my associates are not always in the office.  If I

 9     were to receive tomorrow a monitored line in the office, as Madam Osure

10     has said, this would solve the problem to a high degree.  It's not

11     difficult for me to go to the office and to call from there, and even pay

12     if it is necessary, and there's no problem if it is monitored, but I need

13     to spend an enormous amount of time on the phone.  And this would solve

14     it if it were to be in the way Ms. Osure has said, but it is not, if you

15     take into account the breaks, the fact that I cannot reach my associates

16     in their office because they're not there.  So I don't have much use of

17     the privileged line.

18             But, Your Excellency, with your permission, I don't need this on

19     the 1st of March or whenever the proceedings begin.  I needed this

20     yesterday, the day before, last year, because I am unable to contact my

21     associates.  They need instructions from me, and I do not have the

22     ethical power to give them instructions when they were not paid for it.

23     There's some amateurs that are helping me in the preparation of this

24     trial, so I have to communicate with them.  And amateurs are, of course,

25     nonprofessionals.

Page 733

 1             JUDGE KWON:  I wonder whether Ms. Osure wishes to reply to

 2     Mr. Karadzic's comment.

 3             MS. OSURE:  Your Honour, I do not have anything further to add,

 4     but I would like to, once again, inform Mr. Karadzic that indeed we're

 5     working towards making sure that a monitored line is placed in the office

 6     for self-represented accused, and you will be able to share this with the

 7     other self-represented accused.  But unfortunately we cannot provide you

 8     with a telephone to use on your own, as you have requested not just now,

 9     but you have frequently requested, because we did undertake a policy

10     decision that this would not be done again after the Parker report in

11     which Judge Parker informed -- or, rather, stated -- concluded that the

12     fact that the former president, Slobodan Milosevic, had a phone of his

13     own, could have compromised security.  And on this I refer you to

14     paragraphs 129 of this report and the first lines of paragraph 130.

15             So as a result of a policy decision, we will not be providing

16     telephone lines to any detainee to use on their own in the same fashion.

17     But if you can bear with us, you will be provided -- all self-represented

18     accused will be able to use a monitored line that will be placed in the

19     shared office.

20             Thank you very much.

21             JUDGE KWON:  So we'll leave the matter there, and I hope this

22     opportunity -- has served as a good opportunity to understand each other.

23     And I advise you to work with the Registry or discuss with them further

24     for the further improvement, if any.  And if you find there's an issue

25     that relates to your right to a fair trial, then raise it to the Chamber

Page 734

 1     in writing later on.

 2             THE ACCUSED: [Interpretation] May I, Excellency?  I'd like to add

 3     something.

 4             First of all, I don't think that President Milosevic did

 5     something intentionally or consciously with that telephone.

 6             Secondly, there's no reason to deny me that.  However, I will be

 7     pleased if I have a monitored line in the office for work.  Whenever I

 8     need to, I'll go down to that office and use that line.  But the

 9     important thing for me is to be able to reach my associates at any point

10     in time, no matter where they are.  I also do not mind about the

11     privileged line.

12             JUDGE KWON:  Thank you.  I hope that measure could be implemented

13     as soon as possible.

14             Then I turn to my last agenda relating to the resumption of trial

15     on 1st of March in 2010.

16             The Chamber has ordered that the trial will resume on 1st of

17     March, 2010, which is a Monday.  We will plan to sit for three days that

18     week, as we indicated earlier on.

19             And for the remainder of March, the Registry has not yet prepared

20     the March court schedule, and as you know, there will be many cases

21     sharing our three courtrooms, so I cannot yet tell you which days or

22     times we will sit.  But it remains our hope that we will be able to group

23     together sitting days so that, for example, if we sit on Wednesday,

24     Thursday, and Friday one week, we can sit on the Monday, Tuesday, and

25     Wednesday of the following week.  This may not always be possible.

Page 735

 1     However, the Registry will do its best to accommodate us.  In this

 2     regard, I would like to express our deep appreciation for the commendable

 3     efforts by the Registry, in particular the CMSS, to enable us to conduct

 4     simultaneously nine trials in three courtrooms for March.

 5             On a separate note, the Chamber's order on the procedure for the

 6     conduct of trial of 8th of October, 2009, sets out the timing of

 7     notification of witnesses on a monthly and weekly basis.  Indeed, we

 8     received notification from the Prosecution in October and November of

 9     last year indicating the witnesses it intends to call first at trial.

10     I'm sure that everyone is working on the assumption that those lists

11     remain largely unchanged.  Nonetheless, it would be helpful if the

12     Prosecution could file the necessary witness list for March and April so

13     that it is absolutely clear to everyone if there has been any change.

14             According to my reckoning, this would mean that on 1st of

15     February, the Prosecution should file its witness list for March and

16     April, and on April 1st it should file its witness list for May and June,

17     and so on.

18             Similarly, on 20th February or the next working day, the

19     Prosecution should file its monthly list for March which includes a few

20     more details pertaining to exhibits and the time to be taken for

21     examination-in-chief.

22             Mr. Karadzic, you should file by 27th February, or the next

23     working day, your notice of the time you expect to take in

24     cross-examining the Prosecution's listed witnesses for March.

25             On 25th February, the Prosecution will need to file its weekly

Page 736

 1     witness list for the week beginning 1st of March.  And on 26th February,

 2     Mr. Karadzic should file his notice of his time he expects to need for

 3     cross-examination of those witnesses.

 4             This issue of witness notification leads us to another issue,

 5     which is your opening statement, Mr. Karadzic.

 6             In order for the Prosecution to be able to schedule travel for

 7     its first witnesses and for you to be able to file the appropriate

 8     notification, it needs to know, I imagine, whether you intend to take up

 9     two days, the 1st and 2nd of March, for your opening statement.  You had

10     indicated previously that you would need the same time as the Prosecution

11     had for its opening statement, and so we are prepared to set aside those

12     two days for that purpose.  But if you have decided to defer your opening

13     statement until the start of your Defence case, or if you already know

14     that you will need less than the two days, it would be helpful if you

15     could let us know now.

16             Mr. Karadzic.

17             THE ACCUSED: [Interpretation] Thank you, Excellency.

18             I'm afraid that the beginning of the trial on the 1st of

19     May [as interpreted] is imperiled by the further deterioration in the

20     conditions that the Defence is facing, but I'll get back to that later.

21             As for the opening statement, I stand by what I have already

22     decided.  Two days, a total of six hours, like the other side had, the

23     other party.  It would be a good thing if I had more time, but I don't

24     think it will be less.  I will do my best to present, during those six

25     hours, everything that I believe is necessary so that the Chamber and the

Page 737

 1     opposing party could hear that at the very outset.  That will provide

 2     certain directions -- or, rather, a road map, as it were, in terms of the

 3     direction in which the Defence will be moving.

 4             As for notice of time for cross-examination, of course, if it's

 5     the 1st of March, then on the 26th or 27th of February I will be in a

 6     position to say so, if I receive information on the 20th of February.

 7     However, I have to say in advance that I'm afraid that the greatest

 8     problem here is going to be the time given to the Defence.  Namely, since

 9     there is such a great deal of adjudicated facts and material according to

10     Rules 92 ter and quater, the Defence will need a lot more time than what

11     the Prosecution will use, for example, for 92 quater examination of

12     witnesses.  I hope that the Trial Chamber will see how necessary this is

13     for the Defence, of course, provided that we use our time efficiently and

14     rationally.  However, it is a fact that time is going to be our greatest

15     enemy once the trial starts, the greatest enemy of the Defence, that is,

16     even more so because the Defence will have to keep investigations going

17     on all the time because of that difference in systems that I already

18     mentioned and that is so disastrous for defendants coming from the

19     Balkans.

20             JUDGE KWON:  So for clarification, then, can I take it that you

21     are, indeed, planning to present your opening statement on 1st of March

22     for two days?

23             THE ACCUSED: [Interpretation] Yes, if you decide that it is going

24     to be the 1st of March after all.  However, there is this other point

25     that I wish to speak about; namely, the preparations of the Defence.  If

Page 738

 1     you give me the opportunity to do so, I will then present my position.

 2     Namely, I will file another motion for postponing the start of trial.

 3     It's not that things haven't improved.  On the contrary, things have

 4     become worse during this break, which was no break at all for the

 5     Defence.

 6             JUDGE KWON:  Unless the Prosecution has a matter to raise at this

 7     moment, I will hear from the accused on that matter.

 8             MR. TIEGER:  No, nothing to raise at this moment, Your Honour.

 9                           [Trial Chamber confers]

10             JUDGE KWON:  Mr. Karadzic, you indicated you are minded to file a

11     further motion for further postponement, so the Chamber is of the view

12     that you should do so; that is, to file a motion in writing as soon as

13     possible, unless you have a very urgent matter to raise at this time.

14             THE ACCUSED: [Interpretation] I do, Your Excellency.  I cannot

15     file it now in writing until I see what it is that OLAD or, rather, the

16     Registry is providing for me.  There are some minor misunderstandings,

17     or, rather, there are certain things that are minor but cause a major

18     effect in terms of Defence preparations.  For one, the OLAD believes that

19     the trial has not started yet, whereas the Trial Chamber believes that

20     the trial has started.  And OLAD believes that they don't have to pay

21     anything for these three months that have been provided until the 1st of

22     March, because they believe that this is a break.  It is not a break for

23     the Defence.  It is not only that we have to deal with the previous

24     material, but during this so-called break the Defence received almost

25     300.000 new pages disclosed by the OTP.  That is to say --

Page 739

 1             JUDGE KWON:  Mr. Karadzic, if you're going to raise the issues

 2     relating to remuneration of your legal advisers and legal associates, I

 3     will say there's no point at this time to raise it at the status

 4     conference.  My understanding is that those matters are before the

 5     President, and I hope that those matters will be resolved as soon as

 6     possible.

 7             THE ACCUSED: [Interpretation] The first decision of the President

 8     of the Tribunal for the pre-trial phase was a very reasonable one, and we

 9     are satisfied with that decision.  And in that decision, the President

10     ruled that the position of OLAD was unreasonable.  So it really depends

11     on the President's decision, how much postponement I'm going to ask for.

12     Things became worse because 291.000 new pages, to be precise, were

13     disclosed by the OTP in the meantime.  I believe that it does pertain to

14     fairness of trial if the Defence has no conditions to prepare, not to go

15     into the question of equality of arms, if they have no arms at all to

16     prepare.

17             When the President's decision is clear, then I will be in a

18     position to see how much time we will need to prepare, because the number

19     of people I will have will depend on that decision.  Also, I will have to

20     increase the number of investigators out in the field.  It all depends on

21     that, too.

22             JUDGE KWON:  Okay.  We'll leave it there.  So I hope those

23     remuneration matters will be resolved as soon as possible and that --

24             THE ACCUSED: [Interpretation] Excellency, may I?

25             JUDGE KWON:  Just a second.  Yes, I will hear from you first.

Page 740

 1             THE ACCUSED: [Interpretation] I was wondering whether this was

 2     the right moment for me to file, in writing, a request for the Trial

 3     Chamber to provide instructions for translating a book.  I have been

 4     asked to mark some paragraphs in that book that are needed to be

 5     translated, but there's so many that it might as well be the entire book.

 6     It is the diary of Professor Nikola Koljevic.  From July 1993 onwards, he

 7     wrote everything down.  He is a participant and a witness.

 8     Unfortunately, he passed away.  But the book remains with us, and it is

 9     an important source of knowledge and information.

10             I was told by the relevant service that it is only the Trial

11     Chamber that can ask for the translation of the entire book.  Basically,

12     it does amount to almost the entire book, if I mark all the relevant

13     paragraphs.  If the diary of the vice-president of Republika Srpska, who

14     was such an important participant, is not eligible for translation, then

15     I really don't know what else we'd need to translate.

16             JUDGE KWON:  We cannot rule on it in a vacuum without

17     understanding what it is about, so I would like you to put into writing

18     and to file a motion, to which the Prosecution may wish to respond, and

19     the Chamber will issue its decision.

20             As to the resumption of trial, I wanted to make you sure that it

21     was the -- it is the Trial Chamber's position that this case was ready

22     for trial as of October or November of last year, and if there's a change

23     of circumstances that warrant further adjournment of the trial, that you

24     should put it into writing again and to file it in a motion.

25             Apart from those things, does either of the parties have any

Page 741

 1     other issues that they wish to raise at this time?

 2             Mr. Tieger.

 3             MR. TIEGER:  No, Your Honour.  Thank you very much.

 4             JUDGE KWON:  Thank you.  Mr. Karadzic?

 5             THE ACCUSED: [Interpretation] I would just like to raise the

 6     question of ICMP material.  There is 5.500 something DNA samples.  We are

 7     in the process of making samples, but we're asking for the entire base to

 8     be submitted to us.  And the only impediment was the question of

 9     confidentiality -- rather, the question of names.  It's the families who

10     could challenge that.

11             We are prepared to receive the material without any names, but we

12     cannot make samples until we get the entire database with all the DNA

13     information we need and all the genetic material that we should look

14     into.  It is over 300 -- over 300 variables, or, rather -- or, rather,

15     samples.  So I'm afraid that this is going to be a major problem, even

16     more so because we have received some information to the effect that this

17     institute that the Prosecution relies on does not have many things that

18     they should have.  However, the Defence is going to be very persistent in

19     this regard, that this Court should not act in a way which would not be

20     permissible in any other system.  That is to say, this institute should

21     provide genetic material -- rather, all the findings so that we could do

22     what is up to us.

23             JUDGE KWON:  So in this regard, what we are going to say is --

24     would be the same; that I would advise you to continue to work with the

25     ICMP, either directly or through the assistance of the Prosecution, to

Page 742

 1     get the material on a voluntary basis, and at the end of the day, if

 2     necessary, you file in the way of a motion.  Then the Chamber will

 3     consider the matter.

 4                           [Trial Chamber confers]

 5             JUDGE KWON:  If there is nothing further to raise at this

 6     moment --

 7             THE ACCUSED: [Interpretation] The Defence has nothing,

 8     Mr. President.

 9             JUDGE KWON:  The hearing is now adjourned until 15th of February.

10                           --- Whereupon the Status Conference adjourned

11                           at 3.51 p.m.