Tribunal Criminal Tribunal for the Former Yugoslavia

Page 191

1 Thursday, 15 September 2005

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.18 p.m.

6 JUDGE CANIVELL: Good afternoon, ladies and gentlemen. Could the

7 registrar please call the case.

8 THE REGISTRAR: Good afternoon, Your Honours. This is case number

9 IT-95-11-PT, the Prosecutor versus Milan Martic. Thank you.

10 JUDGE CANIVELL: May we have the appearances, for the Prosecution

11 first.

12 MR. WHITING: Good afternoon, Your Honour. Alex Whiting for the

13 Prosecution, along with Ms. Nisha Valabhji on my right, and Ms. Lakshmie

14 Walpita on my left.

15 JUDGE CANIVELL: Thank you. And from the Defence, please.

16 MR. MILOVANCEVIC: [Interpretation] Good afternoon, Your Honour.

17 I'm attorney-at-law Predrag Milovancevic, defence counsel for the accused

18 Milan Martic. Together with me is the defence assistant, Mr. Vuk Sekulic.

19 JUDGE CANIVELL: Thank you very much.

20 Mr. Martic, can you understand the proceedings in a language that

21 you can understand?

22 THE ACCUSED: [Interpretation] Yes.

23 JUDGE CANIVELL: Thank you. You may sit down.

24 I am going to begin this Status Conference today referring myself

25 to a very important item, which is the motions that are presented by the

Page 192

1 Prosecution for joinder of the cases of the Prosecutor versus Mr. Martic

2 and the Prosecutor versus Jovica Stanisic and Franko Simatovic and the

3 Prosecutor versus Vojislav Seselj. This joinder motion, as you may know,

4 have been assigned to a specially appointed Bench of this Tribunal. Due

5 to the pending status of the joinder motion in this case, the Chamber has

6 not rendered so far the decisions for motions under 92 bis and 94 bis

7 presented. However, the Chamber understands the concerns of the party in

8 this regard and will issue, try to issue the decision as an early as

9 possible moment. I know that for you, Mr. Martic, the situation may

10 change a lot, depending on your case being joined with another case or if

11 you remain to be in your case yourself alone. So we know very much the

12 implication of that, the problem that that means, because if you are

13 remaining alone with your case, it may start, hopefully, perhaps at the

14 end of this year, December; at the most, January. And if it is joined

15 with the other cases I had mentioned, it may last still for a longer time.

16 I know you are in a situation of detention which is not agreeable for

17 you, it's not a pleasure for you to be there, I suppose, I know. And then

18 we know the importance of deciding as soon as possible.

19 So it's not for me to decide, but I want you to know what is the

20 situation on the matter.

21 Another point that has been mentioned yesterday, and it has been

22 pointed out to me, is the situation of the translation into B/C/S of the

23 report of the military analyst, Mr. Theunens. Could you please,

24 representative of the Prosecution, Mr. Whiting, tell me what is the

25 situation of this translation that has been already asked for and granted

Page 193

1 and not so far completed.

2 MR. WHITING: Actually, in fact, Your Honour, after the 65 ter

3 conference yesterday, where the issue came up for the first time, we

4 checked, and in fact the translation was completed, and it was disclosed

5 to the Defence in mid-August, but it was placed on the EDS system. And a

6 letter dated 11 August 2005 was sent to Defence counsel in this case, with

7 a list of disclosure, including the B/C/S version of that expert report.

8 So it was -- the bottom line is that this report was in fact disclosed in

9 B/C/S more than a month ago.

10 If I might, Your Honour, and I don't want to trouble the Court,

11 but it's in the interest of perhaps saving Court time in the future, I

12 would suggest that if these -- if there are questions about disclosure in

13 the future, perhaps Defence counsel could make contact directly with the

14 Prosecution and ask first before taking Court time with the matter, either

15 in a 65 ter conference or in a Status Conference. Because often times,

16 the matter can be resolved very expeditiously if we are contacted

17 directly.

18 JUDGE CANIVELL: You heard, Mr. Milovancevic. I suppose you have

19 already got to know the translation that has been mentioned of this part,

20 Mr. Theunens. You have got it or you haven't?

21 MR. MILOVANCEVIC: [Interpretation] At this time, Your Honour, I'm

22 unable to give you a definite answer. It is true that we received a large

23 amount of material from the Prosecution. This involves thousands and

24 thousands of pages of written material. Occasionally, delivery of such

25 large amount of material to us can present a problem, because it is sent

Page 194

1 via express mail to our office, and occasionally, the same material is

2 sent electronically. We will verify this fact and we will get back to the

3 Prosecution immediately after that. We certainly don't want to raise

4 issues if there's no need to do that. We brought this to the attention of

5 the Prosecution because we could not find the translation, and I'm very

6 happy to hear now that the translation has been provided. We will verify

7 this and inform all parties. Thank you.

8 JUDGE CANIVELL: I expect you to revise those documents that had

9 been sent to you and disclosed to you, and in case you didn't find easily

10 these translations to which we are referring now, you have heard that the

11 Prosecution -- the representative of the Prosecution has said and you can

12 address himself directly so as to help you to find out.

13 Another point which I would like to address is the agreed facts.

14 In the previous Status Conference, I said to the parties that it would be

15 interesting to work on those agreed facts in this case. However, I have

16 been informed that there has been very little progress on this subject.

17 And after the Status Conference we had in May, may I ask the parties to

18 address me in this regard.

19 MR. WHITING: Yes, Your Honour. There are some facts that have

20 been agreed, and they were attached to the Defence pre-trial brief, and

21 the Prosecution acknowledged in its 2 November 2004 submission that these

22 were -- these agreed facts in fact represented the facts that have been

23 agreed upon. But of course Your Honour is asking about progress that has

24 been made since that date. I regret to say that there has been no

25 progress, and from the perspective of the Prosecution, while we would like

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Page 196

1 to have more agreed facts and have more progress on this issue, we're not

2 very hopeful, given the positions of the parties, that that in fact can be

3 accomplished. A lot of work went into reaching the facts that have

4 already been agreed, which, to be frank, are not very substantial. And it

5 is simply a reflection of the differences in the parties and the fact that

6 the Defence has taken a certain approach on challenging this case that we

7 do not believe it's likely that we will achieve further agreement.

8 The Defence yesterday also indicated at the Status Conference that

9 they have been unable, for various reasons, to do much additional work on

10 the case, and indicated, as I understood, that they were not in a position

11 to pursue agreed facts any further because they had been unable to work on

12 the case. Perhaps that's something that can be addressed by Defence

13 counsel.

14 Having said that we are not very hopeful about achieving further

15 agreement, we're always happy to sit down one more time with the Defence

16 to see if there are areas perhaps where there's been change or there's

17 been movement, modification in positions which would allow for agreement

18 between the parties. But we may have reached the point where simply

19 hoping for further agreement between the parties is not going to achieve,

20 in fact, that agreement.

21 JUDGE CANIVELL: Even if the Defence takes an extra effort to try

22 to reach some agreed facts?

23 MR. WHITING: I would welcome, I really would welcome any extra

24 effort from the Defence, and we would be receptive and we would take the

25 first opportunity to meet. And we have continuously in this case - and I

Page 197

1 think the record will reflect this - we have urged the Defence counsel in

2 this case to make contact with us when they are in The Hague, to come and

3 meet with us to discuss these matters. That invitation has not generally

4 been accepted. So if the Defence is prepared now to take a fresh look at

5 these issues and to consider further agreed facts, we would be happy to do

6 that. It's in our interest and everybody's interest to reach agreement on

7 everything that we can. And we're certainly willing to try to do that.

8 JUDGE CANIVELL: I thank you, Mr. Whiting.

9 I am sure that agreeing on facts could be helpful and a good

10 result for both parties. So please, Mr. Milovancevic, can you explain to

11 the Court what is the matter with this point in concrete? Are you ready

12 to restart to gain the question relating with the Prosecutor about finding

13 facts on which you could agree?

14 MR. MILOVANCEVIC: [Interpretation] Your Honour, I'm pleased that

15 Mr. Whiting said that as far as the agreed facts are concerned, we covered

16 quite a lot. Out of 45 proposed facts, we agreed on over 30 facts. This

17 work on agreed facts is an ongoing process, and it depends on the efforts

18 invested by both sides. Occasionally, the sides fail to understand the

19 position of the other side, which leads to a delay in the process. It is

20 in the interest of the Defence to reduce the length of the proceedings,

21 not to lengthen them.

22 In order for you, Your Honour, to understand the position of the

23 Defence, I need to tell you that the OTP motions of the 19th of July and

24 17th of August, 2005 are the motions where the OTP wanted to vary the list

25 of witnesses under Rule 65 ter, as well as the list of exhibits. Based on

Page 198

1 the work of their investigators conducted in 2004 and in 2005, there is a

2 list of over 900 exhibits that ought to be admitted, and also a proposed

3 number of new witnesses that should also be taken into account under Rule

4 65 ter.

5 In order for the Defence to analyse this material, and this is an

6 entirely new material, this material that came with the pre-trial brief of

7 the OTP. After we analyse this material, we will be able to go over all

8 outstanding issues with the Prosecution and perhaps we will be able to get

9 something else done, to have some progress in that matter.

10 In addition to the two motions of the OTP that I mentioned, there

11 is also a motion of Defence, dated the 18th of March, 2005. In June of

12 last year, the Defence applied to the Registry, asking for new funds in

13 order to study the material submitted with the pre-trial brief. As I told

14 you, this includes thousands and thousands of pages.

15 JUDGE CANIVELL: Mr. Milovancevic, not to confound subjects. So

16 now we are dealing with the possibility of finding more facts on which

17 parties can agree. May I understand that when you say that you go through

18 the 900 new exhibits, you'll be in a position, and you are offering to the

19 Prosecution the possibility of meeting again for trying to find new agreed

20 facts? I have to remind you that it's not only from the Prosecution to

21 suggest and to point out what facts could be agreed on, but also you can

22 have the initiative in some matter, because it's beneficial for both

23 parties.

24 So should I understand when you say that you haven't been able to

25 go through the 900 new exhibits, that afterwards you would be ready to

Page 199

1 start again having communications with the Prosecution for trying to find

2 new facts on which to agree?

3 MR. MILOVANCEVIC: [Interpretation] Your Honour, we will definitely

4 get in touch with the Prosecution again. It is in our interest. We can

5 contact them once we have studied the material. I would like to remind

6 you once again that the list of witnesses given in the motion of the 19th

7 of July, 2005, we received that two months ago. And this list of exhibits

8 was something that we received just a month ago, on the 17th of August.

9 And this involves 719 exhibits, not 900 exhibits.

10 We received this electronically. We need to print this out and to

11 go over this material. Once we do that, we will contact the Prosecution,

12 especially since we already have some ready proposals concerning agreed

13 facts. But we would like to put it all together and then have one

14 position regarding the agreed facts.

15 JUDGE CANIVELL: So I understand you haven't yet started having

16 that structured in the form which you have received it. How long do you

17 think it's going to take you to get knowledge of these 719 new exhibits?

18 Because of the witnesses, I am not sure but I believe there are only five

19 more new witnesses. So I understand that for the exhibits it may be a

20 problem for you to get to know well about them. Please, can you tell me

21 when you think you'll be through this work?

22 MR. MILOVANCEVIC: [Interpretation] You've asked me something that

23 is very difficult to answer, Your Honour. After we received this motion

24 of the Prosecution dated the 17th of August -- or rather, we received it

25 on the 25th of August, and we're about to print it now, because we

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1 received it electronically and our technical capabilities are such that we

2 were unable to print this earlier. We should be able to do this soon.

3 Some exhibits have several pages, so this amount of exhibits could

4 amount to thousands and thousands of pages. However, this is nothing new

5 for the Defence. We are flooded with new material continuously, and we

6 will try to study this as quickly as possible, and we'll contact the

7 Prosecution immediately after that.

8 JUDGE CANIVELL: What means "as quickly as possible"? One more

9 month? Five weeks?

10 MR. MILOVANCEVIC: [Interpretation] Your Honour, when we received

11 the OTP motion, with it came only the names of -- or the titles of the

12 decisions and exhibits, with a summary, but not the documents in their

13 entirety. Therefore, it is very difficult for me to give you an

14 assessment, and I do not wish to mislead you. At any rate, we will

15 proceed as quickly as possible.

16 JUDGE CANIVELL: So you cannot give us a concrete date at which

17 you'll be through with that? Well, I hope -- more than hope, I expect you

18 to be as quick as possible, and I will ask about that even before the next

19 Status Conference, if ever we have one.

20 I have to refer now to a matter which you had started to mention

21 also, which is your allegation about the financial difficulties you find,

22 that you believe is the most important issue in the preparation of this

23 case. There is a motion for additional legal aid funds that you had filed

24 lately in March 2005. But in the meantime of the resolution for that -- I

25 hope the Chamber will render the decision as soon as possible. But in the

Page 202

1 meantime, I have to remind you the number of funds you had already

2 received from the Registry. Perhaps it may help your memory if I tell you

3 that, excluding the payment that was made for the previous Defence team,

4 you had already been granted $271.209.43. May I remind you also that your

5 case is ranked as level two, and those cases receive -- they are supposed

6 to receive 2.100 counsel hours to prepare and 3.000 support staff hours.

7 In level three, the case are supposed to receive 2.800 hours for

8 the chief defence, and 4.000 hours for support staff. Then your case,

9 which has been qualified level two, nevertheless had received more money

10 than the level two, as average, receive. So far, you had been paid for

11 2.620 hours of prime time, if I may say, and 3.560 hours for staff

12 support, for support staff.

13 So I have to remind you that this Tribunal is not in a position

14 that could allow it to allot unlimited resource to any Defence team. So

15 please remember that and have that into your consideration, because it's

16 not likely that you are going to get more money.

17 Do you have anything to say around this matter, Mr. Milovancevic,

18 please?

19 MR. MILOVANCEVIC: [Interpretation] By your leave, Your Honour, I

20 would like to explain only the following: It is evident that the Martic

21 case is a level two case. He has been provided with these funds because

22 he is indigent. Every bill that was sent to the Registry was checked

23 beforehand by the Registry. What is being held against us is the fact

24 that we use these funds to study Prosecution material. That is the only

25 purpose for which we use the funds so far, and this is in accordance with

Page 203

1 the discovery rules.

2 On the other hand, the Defence team has not had any funds since

3 March 2004, and the two motions that I mentioned before show that the

4 Prosecution has continued its investigation since May last year, and that

5 is what they stated two times last year and two times this year, all the

6 way up to June 2005.

7 So this is the Prosecution case. It's not defined by the Defence.

8 If the Registry concluded that the accused Martic is indigent, I don't

9 know how the Defence team can be expected to work without any funds for 17

10 months and to prepare the case successfully.

11 At the 65 ter meeting yesterday, we were told that on the 12th of

12 September, the request for provisional release was refused because the

13 proper terms and conditions were not met. On the 14th of September, two

14 days after that, we received the information that you repeated today, that

15 this Chamber believes that this is a level two case. That means that the

16 Prosecution continued its investigation for 16 months. Our hands are

17 tied. We do not have funds. And at this point in time, the Prosecution

18 wants to have trial joinder with level three cases. Martic has command

19 responsibility involved, 19 counts, at that. And the other accused have

20 only five counts. So obviously the decisions of different Trial Chambers

21 are different when deciding on what level a case will be.

22 What I've been saying, time and again, is that for 17 months we

23 have been without any funds, and this drastically thwarts the interests of

24 the accused and also the interests of justice, because this is very bad

25 for the Tribunal too. And this is a problem that I face, and this is the

Page 204

1 fifth time and the fifth Status Conference when I appeal to have this

2 redressed.

3 Your Honour, it is impossible for us to file a motion for

4 additional funds, which can be well-founded or not, I'm not pre-judging

5 anything, but the accused is in detention for nine months and then the

6 Registry keeps this and then they do not deal with it for nine months.

7 Then again we submit a motion. It can be founded or unfounded, but

8 realistically speaking it has to be founded, because we do not have any

9 funds. So another six months were used. We do not have anything to do

10 with defining the billing hours of lawyers or the amounts that will be

11 charged for that. I engage in proper defence work and I'm indicating to

12 the Trial Chamber that the situation we face now is an untenable one.

13 That is the problem that we face.

14 JUDGE CANIVELL: Not to mix the question of funding with the

15 possibility of the joinder of the case with other cases in this Tribunal,

16 what I had told you is that you had received these amounts of money and

17 you had to review if these amounts of money exactly means the payment for

18 the hours that you had been granted. If this is the case, you have to

19 manage to do whatever is expected from you with the money you have

20 received. So check about the money you have received and how many hours

21 mean this amount of money of the work. And in case you haven't received

22 as much money as the hours which have been granted to your case, even

23 considering that your case has been granted more hours than the average

24 time granted to level two cases, and then try to limit yourself to this.

25 Because it's no use to tell me or to tell -- that you haven't got money

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Page 206

1 since a concrete date in the past. What you have to do is to calculate if

2 the money you have received accounts for the amount of hours that you have

3 been granted in this case.

4 So please be serious about that. And in case this amount of money

5 you haven't got completely paid, to be paid to you, you may ask for that

6 to the Registrar. But otherwise, you have to know what you have done with

7 your money according to the time that has been granted to you.

8 Well, is there anything else the parties would like to tell me

9 just now?

10 Yes, Mr. Milovancevic.

11 MR. MILOVANCEVIC: [Interpretation] With all due respect, Your

12 Honour, this is a situation that is outside the powers of the Defence.

13 Assigning cases a particular level is something that develops. First it

14 was a level one case, then it turned into a level two case. The

15 indictment against Martic was changed twice. Then there was a joinder of

16 cases proposed. The fact that we did have funds assigned to us

17 additionally shows that this is not a run-of-the-mill, level two case.

18 But it also goes above level three.

19 As Defence counsel, I cannot understand the situation in which the

20 Trial Chamber bears in mind what the Defence counsel earn and do not pay

21 attention to the fact that the accused is indigent. I see it the other

22 way around. As Defence attorney, I supported every one of my bills with a

23 list of the documents submitted by the Prosecution that were studied, and

24 I gave the actual hours and minutes used for that, quite literally. The

25 Registry approved each and every one of these bills. So for me, there is

Page 207

1 nothing controversial there. Quite simply, the Prosecution submits

2 material to us. What is the Trial Chamber telling us now? This is the

3 way I understand it, but please correct me if I'm wrong, Your Honour. We

4 are told: You should have reallocated the funds you got. You should not

5 have studied some of the materials that you did study, but you should have

6 kept the money in order to study these additional materials that you

7 received.

8 That's not the way we can operate, Your Honour. With the approval

9 of the Trial Chamber, we were given certain material through discovery,

10 and each and every hour and minute was justified and approved by the

11 Registry. But that was a long time ago, five Status Conferences ago, on

12 the 17th of March, we remained without funds. I understand the need to

13 economise and to be careful with the allocation of funds, but if the

14 Registry does not have the funds to pay for the Defence of an accused

15 person, we are not talking about five lawyers in Belgrade working free of

16 charge now in order to keep this case alive. Now you have been presenting

17 figures in a public session as to the funds that were used in total.

18 I'm not hurt by that, although this is not the most decent thing

19 to do. But the accused is in detention. The investigators do not have

20 proper funds for their work, and what we are being told is: We don't care

21 about this. You are there as Defence. And with this situation, this is

22 only a semblance of trial readiness. Because the Defence is already

23 greatly delayed. Please bear that in mind. We're not talking about the

24 earnings of Defence attorneys.

25 JUDGE CANIVELL: Well, I insist that you have to take care in how

Page 208

1 you allocate the money you had received for the purposes that it was

2 received. So you had received more than the average, and perhaps it

3 accounts for the difficulty that has been found, especially in your case.

4 So I can't add anything else. Only I keep my reminder to you.

5 Is there any other matter that you would like to put forward to

6 the Chamber now?

7 MR. WHITING: No, Your Honour, not from the Prosecution.

8 JUDGE CANIVELL: Well, in this case, I'll go and -- Mr. Martic,

9 please, I believe that you don't have any trouble with your health.

10 THE ACCUSED: [Interpretation] Even if I did have problems, I

11 wouldn't discuss it. Thank God, I'm fine. But I would like to ask you

12 something, as a human being, with your permission, of course.

13 JUDGE CANIVELL: Yes, go ahead.

14 THE ACCUSED: [Interpretation] Yes. Today is exactly three years

15 and four months, or rather, 1.220 days that I've been here. I hear the

16 same story all the time; when the trial will start, nobody knows. As for

17 funds for my Defence, you are dealing with this in a wondrous way. No

18 funds, no funds. And indeed, I'm going to set a record in waiting in

19 prison, in detention. Today it is exactly three years and four months.

20 Will I definitely get the right kind of Defence? My rights to a

21 Defence are being denied in this way. There is no need to remind you that

22 many of these witnesses are not accessible, and they are kilometres and

23 kilometres away from my lawyers, and all of this means that there are

24 expenses involved. But obviously no one has any understanding here. They

25 only have understanding if it works to my detriment. As far as I can see

Page 209

1 here, there is constant pressure in terms of agreed facts or agreed

2 positions, or whatever. This is an inversion of logic. I am innocent.

3 That is what I assert, 100 per cent. But I'm still in detention.

4 There is no trial, obviously, and no one knows when it will start.

5 But if things continue this way, I will truly set a record.

6 JUDGE CANIVELL: First of all, the subject of -- you may sit

7 down. The subject of your health is something that you don't hide to the

8 Tribunal, because it's something we have to care for. So that is the

9 first explanation I have to give to your words.

10 Secondly, I agree with you, it's extremely unhappy that your case

11 hasn't yet been started. And you may be sure that this Court is very

12 preoccupied and concerned about how soon it could be started. It's

13 unfortunately not for this Chamber, this particular Chamber, to resolve

14 the situation, because it has to be solved previously the case about the

15 possible joinder with the other two cases I had mentioned before. But you

16 may be completely sure that you are not denied any possibility to express

17 yourself and to take care of your Defence. So even if we realise that

18 it's not perfect, the fact that you've had to wait for such a long time

19 for your case to be heard, nevertheless it's something that we are caring,

20 and caring to much. Be sure of that.

21 Do you have any special complaints about the condition in which

22 your detention is being done?

23 THE ACCUSED: [Interpretation] The conditions? No. No.

24 JUDGE CANIVELL: You don't have problems, either to communicate

25 with your lawyers or to have any -- what you need for this preparation of

Page 210

1 your Defence?

2 THE ACCUSED: [Interpretation] For the umpteenth time, let me

3 repeat that I don't have any problem with the lawyers. They have a

4 problem because they haven't got funds for their defence, and that's the

5 problem. But this way -- yes, yes.

6 JUDGE CANIVELL: It is understood. And we take care of that, that

7 you may know.

8 Well, I hope that would be the last Status Conference for this

9 case. It's not in my power to decide that. I think the next Status

10 Conference, there hasn't been any special change for that, it will be held

11 around mid-January, around mid-January.

12 And if there is no other subject to be brought about, I have to

13 conclude this meeting, not without expressing my thanks to the parties and

14 to the Registry and to the interpreters. This Status Conference is

15 closed, and we are adjourned.

16 --- Whereupon the Status Conference adjourned

17 at 3.00 p.m.