Tribunal Criminal Tribunal for the Former Yugoslavia

Page 54

1 Monday, 23 September 2002

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 12.51 a.m.

6 JUDGE LIU: Call the case, please, Madam Registrar.

7 THE REGISTRAR: Case number IT-95-11-PT, the Prosecutor versus

8 Milan Martic.

9 JUDGE LIU: For the sake of the record, may I have the appearance,

10 please, for the Prosecution.

11 MS. UERTZ-RETZLAFF: Your Honour, for the Prosecution is

12 Alex Whiting, and my name is Hildegard Uertz-Retzlaff.

13 JUDGE LIU: Thank you. For the Defence.

14 MR. S. KASTRATOVIC: [Interpretation] Strahinja Kastratovic,

15 representing the accused Martic, and my assistance Marko Kastratovic.

16 JUDGE LIU: Yes. Mr. Martic. Can you hear the proceed

17 information a language that you understand?

18 THE ACCUSED: [Interpretation] Yes, I can hear and understand

19 well.

20 JUDGE LIU: This is a Status Conference according to Rule 95 bis.

21 There are two main purposes for this Status Conference. One is to

22 organise the exchanges between the parties as to ensure the expeditious

23 preparation of the trial; two, is to review the status of this case.

24 Frankly speaking, I'm not quite satisfied with the preparation of

25 this case the accused has been in the defence unit for four months

Page 55

1 already, and there must be some problems besides the changing of the

2 counsel. There must be some problems of communication between the two

3 parties. We will try to solve this problem during this Status Conference.

4 Could I ask Madam Prosecutor to brief us about the status of this

5 case, please.

6 MS. UERTZ-RETZLAFF: Your Honour, the discussion about the Defence

7 counsels and which persons would be the Defence counsel did not impact on

8 the preparation of the case at all, because the Prosecution wasn't really

9 involved in this. What we did all the time is we prepared -- we continued

10 to prepare our case, and we fulfilled our obligations, in particular

11 disclosure obligations, and we had meetings with both Defence counsels.

12 First we started out with Mr. Kastratovic, and then we met -- we met him

13 actually already in May, on the 22nd of May, and we continued to have a

14 meeting with the new Defence counsel assigned then in June 2002, and we in

15 the future will cooperate further with Defence counsel Kastratovic.

16 So we do not see any problem, actually, in the communication

17 between the party, despite the fact that for a while it wasn't clear who

18 would finally be the Defence counsel. We look forward to cooperation with

19 Mr. Kastratovic, and we were pleased to hear that there is now a prospect

20 of having an interview with Mr. Martic.

21 In relation to Rule 68 searches, we will do that continuously

22 while we are preparing for the case. And we have in particular a lot of

23 overlap with the Milosevic case as so far. So all the results in the

24 Milosevic case will also be immediately turned over to the Defence counsel

25 in this case here. So I think we are proceeding, in particular in

Page 56

1 relation to Rule 68 searches, quite fast .

2 We have amended -- we have filed leave to amend the indictment,

3 and we hope that this situation will soon be solved so that all of us know

4 the scope of this case. And I think as soon as we know that, the

5 cooperation will be better because everybody knows how to prepare and what

6 to do. So I think this is something that has to be solved first and then

7 the cooperation will, of course, be much wider than now.

8 JUDGE LIU: Thank you. Did you disclose all the supporting

9 material concerning the new indictment to Defence counsel, and are they

10 translated into the language that the accused could understand?

11 MS. UERTZ-RETZLAFF: Yes, Your Honour. The Defence counsel

12 received the same materials as this Trial Chamber did. And as it was

13 actually materials from the Milosevic case, we had it in the B/C/S

14 language already.

15 JUDGE LIU: Thank you very much.

16 Mr. Kastratovic.

17 MR. S. KASTRATOVIC: [Interpretation] The Defence would not agree

18 with the Prosecutor anywhere, because practically there isn't a single --

19 one single true claim made by the Prosecutor today.

20 THE INTERPRETER: Could the counsel please speak into the

21 microphone.

22 JUDGE LIU: Would you please speak to the microphone, because the

23 interpreters have some difficulties.

24 MR. S. KASTRATOVIC: [Interpretation] Nothing has happened over the

25 past four months which would help us to speed up these criminal

Page 57

1 proceedings. No effort by the public Prosecution was done in such a

2 direction with the desire of expeditiously obtaining and technically

3 supplying us with the supporting material.

4 I need to remind you, at the preliminary proceedings provided by

5 Rule 62, the Trial Chamber gave the Prosecutor six weeks to hand over the

6 supporting material in B/C/S, which would go with the indictment, so the

7 24th of July, 1995. And in the same deadline, six months, provide the

8 announced amended, expanded indictment.

9 Up until today, the accused has not received a single written

10 piece of evidence translated into the language that he understands. The

11 accused, about a day or three days ago, received the proposal for the

12 expanded indictment. I received it about ten days back. I have the exact

13 date written down somewhere in my documents, so I will not -- so where did

14 we waste all this time? Instead of working on this case, the Prosecutor,

15 through the Registry, is trying to have me replaced from this case and is

16 trying to provoke me. So I will not deal -- dwell on that.

17 In that time, Milan Martic did not have a counsel to defend him

18 from the 14th of July, 2002, until the 16th of August, 2002, so for a full

19 two months. The fact that my learned colleague Knoops was appointed is

20 just a formal legal matter because there was no cooperation that was

21 established between the accused, Martic, and Knoops for the above-stated

22 reasons. And that is the question relating to trust and confidence in the

23 Defence or the doctor [As interpreted].

24 So over the past two months, we have lost all this time without

25 achieving any cooperation between myself and him. And had this

Page 58

1 cooperation been established, I must say, that we did not receive any of

2 the documents -- or if some documents that have been delivered, this has

3 not been regularly, and in a chaotic manner, so that simply it was

4 impossible, I would say, to systematise that into some kind of whole

5 order.

6 As far as expanding the indictment, I have to admit that in the

7 procedural sphere, I do not understand certain things. I don't understand

8 how is it possible to seek and suggest to the Trial Chamber that it

9 permits the amended to be expanded and that in the expansion of that

10 indictment are those acts which are described in the amendment -- in the

11 indictment from 1995. So the Prosecutor expands the indictment and is

12 joining the new indictment with the indictment that is already in legal

13 force.

14 So with -- in accordance with my experience and methodology, the

15 expanded indictment first must be approved by the Trial Chamber and then

16 that amended indictment can be joined to the indictment which is already

17 in legal force and which was the basis for the arrest or the detention of

18 the accused, Milan Martic. The expanded amendment and the motion to grant

19 this amendment was just handed over but without any supporting material,

20 and there was no translation. I received this indictment in English about

21 ten days ago without receiving any supporting material.

22 So in this period of time, I think that this expansion of the

23 indictment was done intentionally in order to provide additional reasons

24 regarding this whole matter of calculations which would perhaps have an

25 effect on the Trial Chamber's decision regarding the provisional release.

Page 59

1 We have already lost some time prior to this session. There was the

2 motion to grant leave to amend the indictment. We have received prior to

3 this session some documents and tapes also. So I simply think that this

4 is a procedure which cannot be justified by anything.

5 I do not wish to speak about this expanded amendment because I

6 expect that we will discuss this indictment the moment that you allow this

7 question to be placed on the agenda. This is a new topic. But what I

8 don't understand and what I don't know is how is it that the Prosecutor

9 already is joining this amended or expanded indictment to the indictment

10 which has -- is legally in force over the past four months.

11 So we are not satisfied with our cooperation with the Prosecution,

12 because it seems to us that the public Prosecution has gotten involved in

13 many unnecessary, I would even say, incidental circumstances which do not

14 have much bearing in the judgement in this matter.

15 I wanted to say something else also which is symptomatic, that the

16 Prosecution first accuses and then obtains evidence. What does that

17 serve? After that, it can withdraw those counts if they do not obtain

18 proof. And why link this case to the case of Mr. Milosevic or anybody

19 else? Mr. Martic was active in the Krajina. He has nothing to do with

20 Serbia or Bosnia or Croatia or Kosovo.

21 So this should have nothing to do with those charges against

22 Mr. Milosevic or anybody else.

23 So for these reasons, the public Prosecutor, the attitude of the

24 public Prosecutor regarding the evidence is placing a lot obstacles. Not

25 only in the path of the Defence but also in the path of the Trial

Page 60

1 Chamber. First of all, I wanted to say that they do not respect any of

2 the deadlines set by the Chamber, and that way they do not respect the

3 Defence or the accused himself, Mr. Milan Martic. If the deadline was six

4 months -- no, excuse me six weeks, then undoubtedly they are allowing

5 themselves to act in a way by exceeds their power.

6 JUDGE LIU: Well, it seems to me there are some problems. Yes,

7 Madam Prosecutor.

8 MS. UERTZ-RETZLAFF: Your Honour, I checked our receipts and

9 disclosure submissions, and we disclosed not only the supporting material

10 for the original Martic indictment, but also we disclosed the Rule 62

11 hearing materials on that same subject in May 2002, and we disclosed it

12 actually to this Defence counsel. So I don't understand why we are here

13 accused of not having fulfilled our obligations.

14 And secondly, there was never a deadline for filing the amendment

15 to the Martic indictment from this Trial Chamber. We actually spoke about

16 six weeks with the Defence in a meeting with Defence counsel. We

17 estimated that we could do it within six weeks, and we -- it took us

18 somewhat longer. But there was never ever any deadline from this Trial

19 Chamber. And given the scope of the amendment, we did it in a very fast

20 fashion.

21 When we filed the amendment and the supporting material with this

22 Trial Chamber, I mean, we can -- we are not in a position to speed up the

23 translation of our motions that we file with the Registrar. So if he

24 received -- if Defence counsel received the translation of this document

25 only recently, I mean, we cannot influence this from the Prosecution side.

Page 61












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 62

1 JUDGE LIU: Well, it seems to me there are some problems that we

2 have to deal with. First of all, Mr. Kastratovic, I have to say that this

3 Trial Chamber could not agree with your allegation that your client has

4 got no legal representation during the two months. We believe that this

5 Trial Chamber assigned Mr. Knoops to be his legal counsel for that

6 two-month period. And we also believe that that counsel assigned duly

7 performed his duty; he filed the motion for provisional release. So we

8 cannot accept your client has not been represented by legal counsel.

9 Secondly, we received the -- what should I call it -- a letter

10 filed by you on the 10th of September, 2002, in which you said that this

11 Trial Chamber granted six weeks for the filing of the extended indictment,

12 on the 21st of May, 2002. We checked the transcript of the initial

13 appearance on that day and we found no basis for those allegations.

14 Thirdly, Mr. Kastratovic, I have to remind you that in China we

15 have a saying. It somehow goes, Like once you are in Rome, you have to do

16 like the Romans do. I think all of the cultures have the same saying.

17 Now you are the legal counsel for your client before this Trial

18 Chamber, and we have no doubt that you are a very experienced professional

19 lawyer in your country. But in this Trial Chamber, you have to do

20 everything according to the Rules. For instance, I really don't know how

21 to regard your communication. Should we regard it as a motion? As a

22 letter? It's not just in the formality of the filings before this

23 Tribunal.

24 We also have to remind you that the Prosecution filed their

25 amendment of the indictment according to Rule 50. You have to read those

Page 63

1 Rules.

2 There are at least three Articles in the Rules of Procedure

3 concerning the filing of the motions. The first one is the general rule

4 of filing a response to a motion, that is, Rule 126 bis. It stipulates,

5 "The time applied with regard to all motions during the Pre-Trial phases

6 unless the Trial Chamber or the Pre-Trial Judge rule otherwise for the

7 Rules of Procedure and Evidence." Two is the preliminary motions. That

8 is the Rule 72(A) of the Rules. Any preliminary motions under (i) to (iv)

9 shall be brought no later than 30 days after disclosure by the Prosecutor

10 under Rule 66(A)(i). I am sorry to say that this time has passed.

11 The third Article is Rule 73(A), that is, other motions. It says:

12 "...either party may at any time move before the Chamber by way of motion,

13 not being a preliminary motion, for appropriate ruling or relief. Such

14 motions may be written or oral, at the discretion of the Trial Chamber."

15 Mr. Kastratovic, can I ask you, Have you received the motion to

16 request leave to file a corrected amended indictment on September 2, 2002,

17 whether this motion has been translated into the language you and your

18 client understand?

19 MR. S. KASTRATOVIC: [Interpretation] I would first ask you, Your

20 Honour, Mr. President, that anywhere I have committed a procedural

21 mistake, and you are warning me about some rules, I ask to be excused

22 because of my inexperience regarding procedures before this Tribunal.

23 What is true is the following: We received the proposal of the motion to

24 amend the indictment, motion to request leave to file an amended

25 indictment, about ten days ago. I do have the date somewhere, but I hope

Page 64

1 you don't expect me to find that date right at the moment.

2 With this motion, I received the expanded indictment, which is an

3 expanded version of the indictment from 1995. Both of those written

4 documents, the motion to request to leave -- request leave to file an

5 amended indictment and the other one were provided to me in the English

6 language. This didn't bother me. I familiarised myself with the

7 contents. But this was submitted to the accused Milan Martic, on the 19th

8 of September 2002. So three or fours days ago.

9 On Friday, last Friday, I went to visit him, and that is when he

10 told me that the indictment has been translated and indicted -- and

11 provided to him without the motion to request leave to file an amended

12 indictment. So you will find this in the documents.

13 What I am talking about is that numerous written evidence

14 supporting the first indictment was provided to us by the Prosecution in a

15 chaotic way and not all at once. I'm not interested in who is committing

16 mistakes there. What is true is the following: That the accused, based

17 on the rules that you indicated, has the right to receive all these

18 documents in a translation, to receive a translation. So I am pointing

19 out that we did not receive those translations. And when we think about

20 all of that, Knoops, the disagreement of the accused to retain him as

21 counsel and then also contacts regarding the translation, all of these

22 things are something that I am pointing out with regarding the cooperation

23 between the public Prosecution and the Defence and that this did not bring

24 about any progress over the past four months.

25 In the meantime, about 20 days ago, we tried, and I hope the

Page 65

1 Prosecution will confirm that, we tried to contact the Prosecution. We

2 wanted to ease the burden of the trial and not have the Chamber intervene

3 in order for us to receive all those documents.

4 So we wanted to discuss this question about why the accused was

5 not receiving translated written documents. Whose fault this is is

6 something I don't know. I was just speaking about what is happening on

7 this, the other side.

8 So the indictment that you're talking about -- no, the motion that

9 you are talking about is something that I wanted to talk about which is

10 contrary to Rule 50, the one that you mentioned. The public Prosecutor is

11 submitting a motion to request leave to file a corrected amended

12 indictment. So they need to -- this need -- motion needs to be granted.

13 And once that is -- once that leave is granted, then that new indictment

14 can be joined to the previous indictment. And this is the substance of my

15 complaint. But I am very sorry if I have missed any deadlines. But I

16 would like to say that he received these documents only three or four days

17 ago.

18 So I would like to say again that we received only the partial

19 documents which go in support of the indictment from 1995. Nothing

20 regarding the documents about the expanded indictment to which the motion

21 to request leave file -- leave to file pertains to was not received in the

22 original or in the translation.

23 Sorry, yes. We did receive the originals. My assistant has just

24 warned me we did receive the original but not the translation, or it

25 wasn't completely translated.

Page 66

1 So for these very reasons and the two months that we lost

2 discussing my appointment, all of this has together resulted in the fact

3 that we have not achieved much progress over the past four months, because

4 the Defence has been denied the opportunity to prepare adequately. So

5 this is the objection that we wish to state and to argue as much as

6 possible. Thank you very much.

7 JUDGE LIU: Well, the Registrar come firmed that the translated

8 indictment was filed on September 17, 2002. I believe that the Defence

9 counsel has received those translations.

10 Well, after this hearing, in the afternoon or tomorrow, I hope

11 that both parties will sit together to discuss about this matter. I

12 believe that there are some problems of the communications, and the

13 Defence counsel are entitled to have all the supporting materials

14 concerning the new indictment in his language.

15 Yes.

16 MS. UERTZ-RETZLAFF: Your Honour, I have to object to the way

17 Mr. Kastratovic actually blames the Prosecution for having done something

18 wrong, of not having fulfilled its obligation. We did fulfil the

19 obligation. We provided the supporting material to the original

20 indictment according to the law, and we did not provide it in an chaotic

21 way as he claims. We just did it how it is done here in this Tribunal.

22 The translations are provided in certain parts because usually

23 translations are not available at the same day, at the same time. So the

24 Defence usually gets translations in subsequent submissions. But what he

25 received was the supporting material in English all together. He receives

Page 67

1 the Rule 61 material in English all together and only the B/C/S versions

2 were handed over subsequently in several submissions, and it was all done

3 in May 2002. The Prosecution does not know why he did not work on these

4 documents. He could have done so.

5 In relation to this other point that they wanted to have meetings

6 with us, whenever we were asked to meet, we did meet. But recently it was

7 announced that they would arrive and they would want to meet us and they

8 would call when that would be, and they never did. Instead, we tried to

9 find out when they would arrive and when we could meet. It never

10 happened. So I think he should blame himself, not us, for this lack of

11 cooperation and lack of meetings.

12 However, I think we will continue in a more cooperative way, and I

13 hope this will really happen.

14 JUDGE LIU: Well, thank you very much. As for the amended

15 indictment, Mr. Kastratovic, you have the full right to challenge that

16 motion if you believe that the Prosecution is not acting according to

17 Rule 50, you may raise this issue in response to that motion.

18 Since you just got the translations of that indictment, this

19 Pre-Trial Judge will give you 30 days for you to respond to that motion

20 for leave for the amended indictment running from today. I hope you could

21 file a motion to challenge the proposal from the Prosecution in the proper

22 way. You could challenge both the procedural matters as well as the

23 substantive matters in that indictment.

24 What is more important is that we have to move on. We have

25 guarantee the expeditious trial of this case. Do you understand that?

Page 68

1 MR. S. KASTRATOVIC: [Interpretation] Yes, I understand perfectly,

2 Your Honours. I thank you for your remarks. I wish to say, however, that

3 after receiving the request to -- request for leave to file an amended

4 indictment and the amended indictment itself, and that was on the 28th of

5 August, 2002, it was the date when I received it in English. I translated

6 it myself. Milan Martic said he received it on the 19th of September.

7 And my written submission is precisely an objection to the Prosecutor's

8 motion to request leave to file an amended indictment and to the amended

9 indictment itself.

10 I laboured under the conception that I was doing precisely that I

11 was required to do. I believe I could, within 30 days, although I would

12 prefer six weeks, file another written submission outlining all the

13 grounds for our objections.

14 That is all I can say at the moment. I would appreciate it very

15 much if you would grant me six weeks for filing my response, and I also

16 kindly ask you to regard my written submission dated 10th of September as

17 an objection on the part of the Defence. Thank you.

18 JUDGE LIU: Well, I think I have made a ruling for 30 days. There

19 is no change of this ruling. The Statute states clearly that everybody is

20 equal before the law, which means that all the participants in those

21 proceedings should abide by the law or by the Rules of Procedural Evidence

22 of this Tribunal. I didn't see an extraordinary circumstances that could

23 justify your request for six weeks. I think that 30 days will be enough

24 for a substantial response to the motion filed by the Prosecution as to

25 the amended indictment.

Page 69

1 Is there anything else that the Prosecution would like to raise at

2 this Status Conference?

3 MS. UERTZ-RETZLAFF: No, Your Honour.

4 JUDGE LIU: Thank you. And how about Defence counsel? Do you

5 have anything else to raise at this stage?

6 MR. S. KASTRATOVIC: [Interpretation] Thank you, Your Honour.

7 Nothing more for the moment. Thank you for acknowledging the reasons

8 outlined by the Defence. Thank you.

9 JUDGE LIU: Well, Mr. Martic, at this stage do you have anything

10 to address the Chamber, or do you have any complaints during your stay in

11 the Detention Unit?

12 THE ACCUSED: [Interpretation] As for the Detention Unit itself, my

13 treatment is perfectly correct. It would be better with certain minor

14 adjustments. For example, the newspapers which we get with a ten or more

15 days delay. I believe regular medical check-ups would be in order for the

16 detainees to avoid situations when an illness which is already far gone is

17 suddenly discovered.

18 I am in a good state of health for the moment, but I don't think

19 it would hurt anyone if regular medical check-ups were organised once in

20 two or three months.

21 The prison administration deserves credit for its work and

22 treatment of detainees. I have no particular complaints.

23 JUDGE LIU: Thank you very much. We're very much concerned about

24 your health since this matter was brought up during the Provisional

25 Release Hearing. I think you have to take care yourself. In the

Page 70

1 meantime, we will entrust to the Registrar to make the regular medical

2 check with you. But if you don't feel well at any time, please don't be

3 hesitant to inform the authorities of the Detention Unit.

4 You may sit down, please.

5 THE ACCUSED: [Interpretation] Thank you.

6 JUDGE LIU: The next Status Conference will be scheduled pursuant

7 to Rule 65 bis within 120 days after the Status Conference of today. I'm

8 really looking forward to the meetings and the cooperation between the two

9 parties on the expeditious preparation of this case.

10 Having said that, I will rise.

11 --- Whereupon the Status Conference adjourned

12 at 1.33 p.m.