1 Tuesday, 21 September 2004
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.50 p.m.
6 JUDGE CANIVELL: Good afternoon, ladies and gentlemen. Can you
7 call the case, Madam.
8 THE REGISTRAR: Case Number IT-95-11-PT, the Prosecutor versus
9 Milan Martic.
10 JUDGE CANIVELL: Thank you, Madam Registrar.
11 May I have the appearances, please, for the Prosecution.
12 MS. UERTZ-RETZLAFF: Good afternoon, Your Honour. For the
13 Prosecution Hildegard Uertz-Retzlaff accompanied by Case Manager
14 Lakshmie Walpita.
15 JUDGE CANIVELL: Thank you.
16 And for the Defence, please. Didn't you get the translation?
17 MR. MILOVANCEVIC: We have some problems. [Interpretation]
18 Everything is fine. Thank you. Good afternoon, Your Honour. I am
19 Defence counsel for the accused Martic. I am Predrag Milovancevic from
20 Belgrade. Together with me is attorney Vuk Sekulic, also from Belgrade,
21 my assistant.
22 JUDGE CANIVELL: [Previous translation continues]... the right
23 channel. 4 would be all right? Okay. I hope 4 is the right one. I
24 wasn't on the right one. Excuse me for that.
25 Mr. Martic, please, can you hear me in a language that you
2 THE ACCUSED: [Interpretation] Yes. Yes, I can.
3 JUDGE CANIVELL: Thank you very much.
4 Well, we are here now for the -- another occasion of the Status
5 Conference. I had heard about how is the situation of the case. I'm glad
6 that the disclosure is working, not without some problems but with a good
7 pace. I am very glad of all that the Defence now can go through the
8 materials that have been passed over by the Prosecution. It seems that
9 you have some problems with indexes but I am confident and I believe that
10 you will be on the way to make a resolution for this problem.
11 Another aspect that has been very, let's say, rejoicing for me
12 even is that on the agreement of the facts if I have well understood, I
13 have seen that the Defence has made known to the Prosecution that there
14 are quite a lot of agreement on some of the facts but very few exceptions.
15 So I am very glad about that and I hope that that will be some aspect that
16 could -- that remains more expeditious and a fair solution of the case.
17 I have heard about some problems about the pre-trial brief of the
18 Defence, especially on the aspects of the translation of these for the use
19 of the accused. Above all, I have to remark just for the information of
20 the counsels for the Defence that the translation of the -- in the
21 pre-trial stage of the Prosecutor brief is not considered like a normal
22 course of action. Let me remind you what has been said not so much time
23 ago and is still valid nowadays in the case of Prosecutor versus
24 Pasko Ljubicic. It has been said in the decision adopted on the 20th of
25 November, 2002, that:
1 "Pursuant to the Statute and the Rules, and based on the
2 mainstream of the existing judicial practice as referred to above," and
3 they had made a reference before, "the current general standard regarding
4 translation of documents during the pre-trial stage of the proceedings
5 requires that the following material be submitted to the Accused in a
6 language he understands:
7 "a copy of the indictment according to Article 21, paragraph 1 and
8 paragraph 4(a) of the Statute and Rule 53 bis (B) in combination with Rule
9 47 (G) of the Rules;
10 "a copy of the supporting material which accompanied the
11 indictment against the Accused and all prior statements obtained by the
12 Prosecutor from the Accused, irrespective of whether these items will be
13 offered at trial, in accordance with Rule 66(A)i of the Rules."
14 Thirdly, "statements of all witnesses (either in hard copy or in
15 audio format) whom the Prosecutor intends to call to testify at trial
16 along with all written statements taken in accordance with Rule 92 bis,
17 and statements of additional Prosecution witnesses when a decision is made
18 to call those witnesses --
19 THE INTERPRETER: Could you please slow down, Your Honour, when
20 reading. Thank you.
21 JUDGE CANIVELL: Yes, yes, I apologise. Excuse me. Should I
22 repeat or -- no, it's okay.
23 Fourthly, "discovery material which appeared in a language
24 understood by the Accused at the time it came under the Prosecution's
25 custody or control, pursuant to Rule 66(B) of the Rules."
1 Fifthly, "exculpatory material disclosed by the Prosecutor
2 according to Article 68 of the Rules; and..."
3 Sixth and finally, "written decisions and orders tendered by the
5 I have read that exactly as it was pronounced in this decision in
6 the Ljubicic case because I want to emphasise and to make sure that you
7 understand that the Prosecution brief is not included among the documents
8 that has to be translated for the accused. If any problem could be
9 determined by this, not habit or not custom or not translated in that, I
10 would say that it would be clearly taken out of the picture because I know
11 that not only is that given in English but also that Mr. Sekulic is
12 absolutely proficient in the knowledge of English, so that he can conduct
13 to the accused the content of the brief presented by the Prosecution.
14 On the other side I have to remind you that this Chamber has
15 allowed to the Defence extra time to give an answer to present its brief
16 that was supposed to be handed in in September. And now has time extended
17 until, I believe, the 1st of November. I would also insist on the case of
18 this brief that it's not a document in which it has to be very much
19 involved as a contributor the accused himself, because he's weighted more
20 with legal problems that -- legal issues more than with the factual
21 aspects of the case. So it's more for the counsel of the accused than for
22 the accused himself to take care of the content of this brief.
23 If you may allow me, I'm going to refer to Rule 65 ter F in which
24 it is said what should be the content of this Defence brief. It would
25 refer as is said first to, "in general terms, the nature of the accused's
2 Secondly, "the matters with which the accused takes issue in the
3 Prosecutor's pre-trial brief." That means that is also a legal aspect
4 which is being made reference to here.
5 And thirdly, "in the case of each such matter," and referring
6 to the previous requirement, "the reason why the accused takes issues with
8 So as you see, and of course you know, but I wanted to emphasis
9 this aspect. It's more legal aspects that are involved in the production
10 of this Defence brief than a reference to the facts that of course had
11 been gathered before in the case and are going to be presented as a matter
12 of proof during the hearing of the case. So as far as I know the matters
13 in which I can, well, communicate with the parties so as to increase and
14 to impose your communication so as to -- make quick events in dealing
15 with the case.
16 Now I have to refer especially to Mr. Martic. Please, Mr. Martic,
17 would you tell me your situation, your medical and health situation is in
18 good condition or do you have any trouble or any problem that you would
19 like to inform me about?
20 THE ACCUSED: [Interpretation] Thank you. I naturally have some
21 problems but not concerning my stay here. Everything is fine concerning
22 my detention. However, I have problems with my defence and let me be
23 clear about it. I am happy with my Defence counsel, but I'm not happy
24 with the treatment because this looks like a discrimination. I don't know
25 what other term I could use except for discrimination. Let me clarify
1 this. The Prosecution alleges that I held the highest positions in the
2 country, prime minister and so on, and when it comes to registry's
3 position to my defence then they treat me as a reserve policeman. Even
4 had I been a reserve policeman, the allegations in the indictment are much
5 broader. I am a lawyer myself and I have to tell you that this boils down
6 to discrimination. I'm denied all my human rights and all other rights.
7 On the other hand, Your Honour, those who expelled my people from
8 Croatia are still in highest public offices. Thousands of civilians were
9 killed under the protection of the United Nations and no investigations
10 have been launched until this day against those people. It seems as
11 though no indictments will ever be raised against them. The chief
12 Prosecutor meets with those people, sees them here as the most honourable
13 guests, all the way up to ministers in the government, vice-presidents of
14 the government, and so on. So those are the people who were involved in
15 these crimes before the international protection forces came and
16 afterwards. And how did they protect my people? We all know because my
17 people were ethnically cleansed.
18 In addition to that there are all these problems about my defence
19 rights being denied to me. And when we take all of that into account,
20 what is happening here and what is happening back there, then we can see
21 very clearly that this is a case of pure discrimination. So this is what
22 troubles me. Other than that, my health and detention conditions are
23 satisfactory, as I've stated in the beginning.
24 JUDGE CANIVELL: You may sit down but I'm going to answer you in a
25 different way. First, I'm going to answer you about your second problem
1 you initiated. It's not for me to take a decision about what cases and
2 what facts to be prosecuted. You may get in relation with the Prosecution
3 office, and then perhaps take or accept what you have to say about these
4 facts. You believe under the command of the United Nations -- believe
5 have been committed as delinquency acts.
6 That's one point. But, on the other, I am very surprised because
7 if I had well understood you, you mean that all your human rights have
8 been de-negated to you. That seems to me very peculiar and besides when
9 you say you have been treated in a discriminatory way, I am wondering by
10 whom. You say that you are not happy with your defence, does that mean
11 that you are not -- I mean that that you are discriminated against by your
12 own defence? I don't think so. No? Please speak up. It's -- my being
13 here is exactly -- one of the reasons of my being here is to hear you
14 about whatever complaints you may have and try to right up the situation.
15 Your own defence against you, is discriminating you. I couldn't believe
16 that in principle. But tell me if you have any special complaint.
17 I see that you laugh and I see that Mr. Milovancevic also was
18 laughing at that possibility, so it makes me believe that nothing of the
19 kind exists. Tell me, please. Don't laugh and tell me -- it's a very
20 serious issue.
21 THE ACCUSED: [Interpretation] I'm laughing because this is the
22 third time you've put the same question to me. You asked me whether I'm
23 content and happy. I'm more than happy and content because these people
24 are defending me properly. But I wanted to point out to you this
25 disproportion between the Prosecution on the one hand who has piled up a
1 lot of allegations in the indictment as to the positions I had. So that's
2 one hand, and then on the other hand we have the registry who is denying
3 me my full right to defend myself. They are not providing me everything I
4 am entitled to. I want to put out a proper defence but I am unable to.
5 And on the other hand you keep asking me whether I'm happy with how things
6 are going.
7 JUDGE CANIVELL: What you say is a very tremendous way of
8 informing me about the situation. First of all, the Prosecution is doing
9 its work in a normal conduct; I mean in a normal way, if I way say so. So
10 I don't understand why because you are accused by the Prosecution, you are
11 mistreated or discriminated against; that's not the case. I could expect
12 that in the way you are treated in the Detention Unit or by other persons
13 in this Tribunal, you may complain. But exactly the fact that I am asking
14 you and trying to know about what's the situation from you is clear proof
15 that you are treated like everybody else. You haven't been postponed to
16 have this Status Conference, to be heard whenever it has been necessary.
17 So I don't understand exactly. If you can be more precise about what
18 rights you have been attacked and has been damaged by whenever -- whoever
19 has been the author of that, I may begin to think about that. So please
20 tell me.
21 THE ACCUSED: [Interpretation] Let me clarify once again. The
22 rights that have been denied to me, the funds, the funds to finance the
23 work. So far my Defence has worked pro bono. They have not been paid for
24 months now. As for the Prosecution, now that you've raised that issue,
25 let me say that I served as president of the republic that doesn't exist
1 anymore. That was the greatest example of ethnic cleansing in the 20th
2 century, what happened to my people there. And to this day, nobody has
3 complained about that. Carla Del Ponte's delighted with the cooperation
4 she has established with Stipan Mesic and others who were involved and who
5 issued orders for crimes to be committed against civilians while the UN
6 was there. And of course I'm not happy with that. Nobody else has raised
7 the issue but me. Those people are gone. They were either killed or they
8 immigrated to other continents. So how can I be happy. There have been
9 no indictments concerning Miljevac Plateau, concerning Malenica
10 [phoen], Operation Flesh, where hundreds and hundreds of civilians were
11 killed mercilessly, and nobody seems to care. And the more dead Serbs,
12 the better. That seems to be the position they've taken. So what does
13 that amount to if not discrimination? And here I am standing trial here
14 for command responsibility, but I'll let the Prosecution prove their
15 charges. I will have to prove my innocence, but so far I have been denied
16 the resources to do so.
17 JUDGE CANIVELL: I have let you speak but I have to oppose very
18 much what you have said. I'm not going into a contradiction with you, but
19 just realise that what you have said about being discriminated by the
20 Prosecution has really nothing to do with the behaviour of the
21 Prosecution. The Prosecution is treating you like everybody else that has
22 been brought under the jurisdiction of this court. Your ideas or your
23 beliefs about who has to be subjected to the jurisdiction of this Tribunal
24 is something very, very different and very separated on whatever -- and I
25 would say that I wouldn't tolerate that the Prosecution could be accused
1 of discrimination because of this kind of view of the situation. You are
2 not treated, as far as I know, unless you give me other special reason
3 that you are treated in a different or worse way that other accused in --
4 under this Tribunal. So unless you offer to me some case of
5 discrimination the views that you maintain about who has to be accused or
6 not, they have nothing to do with the behaviour of the Prosecution to be
7 considered as a form of discrimination. So, perhaps you have different
8 views but I am to be neutral and I try to be neutral and I hope I'm going
9 to be neutral so as not to upset some particular views which I understand
10 that you may maintain in your situation but I -- cannot be accepted by the
12 Well, unless the parties have another question to raise and
13 perhaps Mr. Milovancevic intended to speak, I could finish the -- so you
14 want to speak. Please tell me -- tell us, Mr. Milovancevic.
15 MR. MILOVANCEVIC: [Interpretation] With your permission,
16 Your Honour, yes. I would just like to clarify a certain point. The
17 complaints made by Mr. Martic today, his objections, relate to a problem
18 that is not directly concerned with the work of the Prosecution. And
19 perhaps Mr. Martic drew a parallel there which seemed to him to be
20 logical. What he referred to was the fact that the Defence at the last
21 Status Conference and before you, too, raised a problem and that was the
22 absence of funds, the absence of resources, which has led to a
23 situation -- and I think that that's what Mr. Martic had in mind when he
24 raised the question --
25 JUDGE CANIVELL: Excuse me, Mr. Milovancevic, before you go on on
1 this subject, I have to tell you and to remind you that the position that
2 may be taken by this Chamber and by myself on this matter is not at the
3 time possible. You know that you have placed an appeal and the decision
4 is now at the level of the Appeals Chamber who are going to give you the
5 answer that you are looking for. Besides, I know that you have repeatedly
6 complained about the lack of funds, but I have some date of my own and I
7 had found that all in all and so far until perhaps March or until the last
8 few weeks you have received $277.000 plus. To go with that I wondered if
9 with this which is a tremendous amount of money you haven't been able to
10 go too far away, but I think it's really very important amount of money.
11 On the other aspect, you I think had said -- brought about in the
12 previous 65 ter meeting you had had this morning the possibility of
13 getting some people to help you. And I think that even the Prosecution
14 has told you that perhaps you may engage somebody, a student, that would
15 be capable enough to go through the huge amount of documents that you have
16 to deal with now and perhaps that is a good suggestion. But I am sorry.
17 I would have heard you if I could give you an explanation or a solution to
18 your problem. Unfortunately it's not the case for me. You have to apply
19 and you have already applied and you have to wait for the decision of the
20 Appeals Chamber.
21 Do you think there is something else I can help you, please tell
22 me, but not about this. Please.
23 MR. MILOVANCEVIC: [Interpretation] The facts and figures as to the
24 money spent has provided -- later on that has been provided by the
25 registry and it is for two Defence teams dating from the time that
1 Mr. Martic is in detention. The first Defence team -- as I say there are
2 two Defence teams. We inherited the first Defence team and the first team
3 spent most of the money so that we have had 50 per cent of the resources
4 allotted to us. Now it is the secretariat which decides how the work of
5 the Defence counsel will be paid and the level of the case. And depending
6 on the complexity of the case, all the other matters are decided. So I
7 don't think that the conduct on the part of the registry is correct and
8 proper because it draws attention from the real problems.
9 If I may be allowed to say one more thing, Your Honour, I am not
10 dealing with my complaints but you were informed that we received a new
11 deadline by the 1st of November and you have told us what it says in the
12 rules. The Defence did not ask a deferral of the deadline because from
13 May to September it didn't have enough time to work, to get through its
14 work. Now the extended deadline by the Trial Chamber, given the
15 explanation that the Prosecution brief is so long that the Defence will
16 have to have to have enough time to study it, and the Defence is now faced
17 with the question of resources. Because since March it has had no funds
18 for work. So the situation is quite a drastic one in view of all these
19 problems, but I won't dwell on that anymore. The report provided by the
20 registry is -- could be said to be a proper one, if the -- but it is not
21 in keeping with the rules. And we should look at how much each Defence
22 team costs and then we can go into the figures. But this is for two and a
23 half years, 30 months which means 30 months makes it $9000 a month for
24 four Defence counsels, four attorneys working on a case of this caliber.
25 Now, if we deal in arithmetic, and of course that is not the
1 crucial point on which the Defence relies, the Defence is nonetheless in a
2 very difficult position now, Your Honour, because we have to respond to
3 the pre-trial brief in the best possible way, top quality --
4 JUDGE CANIVELL: Mr. Milovancevic, excuse me again, I have to
5 interrupt you. I am really sorry for you but I cannot give you any relief
6 on this matter. I know you have been working only since December of 2002,
7 which makes less than 2 years. And perhaps you received a limited amount
8 of the money that was attributed for the case. But also remember that the
9 registry gives you an extra money for the level of the case. On the other
10 side I have to commend the way in which you are behaving with the case and
11 you are working, and that is something to be recognised and I feel very
12 happy about that. But I'm sorry I cannot give you a solution for the
13 other problem. So please let's stop here about that. Even it doesn't
14 mean that I don't appreciate the effort that you and your team are doing
15 for the expeditiousness and the fairness of the case.
16 Some other aspect?
17 MR. MILOVANCEVIC: [Interpretation] Your Honour, I'm grateful to
18 you for those words. The Defence merely wished to inform the
19 Trial Chamber of the fact that we are in a situation in which we have been
20 left without funds since March. And in June we had two highly productive
21 meetings, one with Madam Prosecutor, that is to say Ms. Uertz-Retzlaff,
22 where we dealt with key questions so that the Defence is working in the
23 best possible way, in the only way possible for it to organise itself to
24 help the Trial Chamber and the Prosecution and first and foremost the
25 accused, of course. But what is troubling the Defence at this point in
1 time, Your Honour, is the fact that we now have a lot of talk about money
2 of the Defence. It is money that the accused should have for the purposes
3 of his Defence counsel. So once again, this is a drastic situation. We
4 have not received funds for six months. We are going to inform the
5 embassy of Yugoslav and the UN Secretary-General as well as the lawyers or
6 the bar association of Europe and the government of the country whose
7 citizen Mr. Martic is. Because it is a question of paramount importance,
8 the kind which merits this move. It is of great interest to the accused
9 and it involves the registry, of course, as well. It is a violation of
10 the rights and so the Defence counsel cannot bypass the ethics of lawyers
11 at the bar. So we do wish to write the best quality response to the
12 pre-trial brief. But as I say, we have been left out resources to carry
13 out investigations. It is a very lengthy pre-trial brief to which we have
14 to respond, whereas our funds have been cut off. The Prosecution is
15 continuing its work and in a case of this complexity, that is quite
16 normal, the fact that they are continuing their work. We are not asking
17 for a decision from you but we'd like you to understand the difficult we
18 find ourselves in. We merely wish to inform you of them and there are
19 matters that the Defence cannot consciously undertake and have it be at
20 the detriment of the client whom we represent. Thank you, Your Honour.
21 JUDGE CANIVELL: I do understand what you have conveyed to me and
22 I realise there are problems you have to go through, of course. But I
23 commend you to take these views you have expressed so far to me to the
24 Appeals Chamber so in a way to find a solution that would be in your
1 May I ask the Prosecution if they have any special matter that it
2 wants to be raise here, now?
3 MS. UERTZ-RETZLAFF: Your Honour, as Mr. Harhoff obviously has
4 informed you about what was said in the 65 ter Conference, I do not need
5 to repeat anything. The only additional thing that I could say is in
6 relation to the agreed facts.
7 The Defence had actually today handed us their proposals. And as
8 I looked through them we have actually already reached agreement on 29
9 important facts and three more are forthcoming. Actually we are only
10 discussing at the moment one more fact. And otherwise we have actually
11 found a very good agreement and I think in the very near future we will
12 pass a joint motion to you with these agreed facts.
13 JUDGE CANIVELL: Thank you very much to the representative of the
14 Prosecution because it's a great advancement for the position of the case
15 that you announced to the Chamber. So I am very grateful and very glad
16 that that has been achieved by both parties in the way of the solution for
17 the case.
18 Would you have any other suggestions to make now before we end
19 this Status Conference? If it is not the case, I have to announce that a
20 new Status Conference would be held in 120 days' time which makes us to
21 think about January of the next year. I hope that in the meantime the
22 Defence would be able to present the brief that it is required to present
23 in due time, and that perhaps we'll be -- I mean the case in the pre-trial
24 stage could be finished by January, but if not you know that in this
25 moment we will meet again. So the meeting is adjourned. I thank you all
1 for your presence and above all to the interpreters also as well. Thank
3 ---Whereupon the Status Conference adjourned at
4 4.26 p.m.