Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 10 November 2011

 2                           [Status Conference]

 3                           [Open session]

 4                           [The Accused not present]

 5                           --- Upon commencing at 4.01 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone in and around this

 7     courtroom.

 8             Madam Registrar, would you please call the case.

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

10     number IT-09-92-PT, the Prosecutor verse Ratko Mladic.

11             JUDGE ORIE:  Thank you, Madam Registrar.

12             I would like to have the appearances, let's do it in a different

13     order.

14             Defence first.

15             MR. LUKIC:  This is a surprise, Your Honour.  Branko Lukic and

16     Milos Saljic for the Defence.

17             JUDGE ORIE:  Thank you, Mr. Lukic.

18             MR. GROOME:  Good afternoon, Your Honour, I am Dermot Groome and

19     with me today are Peter McCloskey, Roeland Bos, and Janet Stewart.

20             JUDGE ORIE:  Thank you, Mr. Groome.

21             I established that Mr. Mladic is not present.  I will deal with

22     that in a second.

23             This is the third Status Conference in this case and as with the

24     two first Status Conferences, I informed the parties that, although I am

25     sitting alone today, that any guidance or any decisions that will be

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 1     announced have been deliberated and adopted by the Chamber as a whole.

 2             The purpose of this Status Conference is to monitor the progress

 3     made with regard to the pre-trial work and the preparations for trial.

 4     Earlier this week at the 65 ter meeting, the Chamber and the parties

 5     reviewed and discussed several pre-trial reports filed by the parties.

 6             At today's Status Conference, the Chamber was scheduled to hear a

 7     further appearance -- to hold a further appearance for the accused to

 8     enter a plea on the new charge contained in the now operative

 9     Third Amended Indictment.  However, the Chamber has been informed through

10     the registry that Mr. Mladic is unable to attend today's proceedings due

11     to illness.  The Chamber has received a medical report from

12     Dr. van Aken [phoen] and a waiver from Mr. Mladic, according to which he

13     waives his right to attend today's Status Conference.

14             Therefore, the Chamber will postpone the Further Appearance

15     portion of these proceedings until a later date, a courtroom and exact

16     time to be communicated by the registry at a later stage.

17             Mr. Lukic, whether we will choose the next Status Conference for

18     these purposes or, if possible, at any earlier stage, the Chamber will

19     consider that in view of the circumstances.

20             I will revisit, by the way, the issue of the health of Mr. Mladic

21     also later today during this Status Conference.

22             I then now move on to other topics of this Status Conference.

23     The progress in pre-trial work and the preparations for trial.

24             First, the pre-trial planning.  The Chamber would like to again

25     remind the parties that the dead-line for the Prosecution's 73 bis(D)

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 1     submission is set for the 18th of November with a response date due from

 2     the Defence by the 25th of November.  Additionally, the Chamber now sets

 3     the dead-line for the parties adjudicated facts motions as seven days

 4     from the filing of the Chamber's decision on the Rule 73 bis(D)

 5     submissions.  This was already announced at the Rule 65 ter meeting that

 6     took place earlier this week on Tuesday, the 8th of November.

 7             At the 65 ter meeting, the parties discussed numerous pre-trial

 8     issues including procedures for witness testimony pursuant to Rules

 9     92 bis and 92 ter, disclosure of expert reports, progress on any agreed

10     facts, and the ongoing disclosure of materials to the Defence.  In

11     general, the Chamber is pleased with the good faith efforts exhibited by

12     both parties in their preparations for trial.

13             As the filing dead-lines of the monthly pre-trial reports and

14     joint agreed facts reports, as for that, the Chamber has determined that

15     it would benefit from having more time to review the submissions and

16     therefore the Chamber instructs the parties to file these submissions ten

17     days before the following 65 ter meeting as opposed to the current

18     dead-line of one week in advance of the following 65 ter meeting.

19             The parties also discussed the notification dead-line for any

20     alibi or special defence intended to be offered at trial by the Defence

21     pursuant to Rule 67(B).  As announced at the 65 ter meeting, the

22     dead-line for the Defence to notify the Prosecution of any alibi or

23     special defence it plans to offer at trial is set to the 16th of January

24     2012.

25             What then remains at this stage of the proceedings include the

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 1     65 ter and pre-trial brief filings.  While no dead-line for these is yet

 2     set, the parties should be preparing these filings now as the dead-line

 3     is likely to be set for sometime in the beginning of next year.

 4             I move on to the next item, which is disclosure.  The dead-line

 5     for disclosure to the Defence of materials under Rule 68(i), that is

 6     exculpatory materials, had been set at the 15th of November.  On the

 7     1st of November, the Prosecution filed a motion seeking an extension of

 8     the dead-line to 30th of April, 2012.  And at the 65 ter meeting, the

 9     Defence orally informed the Chamber that it had no objection to the

10     motion.

11             The Chamber hereby grants the Prosecution's motion to extend the

12     Rule 68(i) dead-line to the 30th of April 2012 and orders the Prosecution

13     to submit monthly major disclosures to the Mladic Defence and regularly

14     report to the Chamber on each such disclosure in its monthly pre-trial

15     reports.

16             On the 1st of November, the Chamber received the Prosecution's

17     second pre-trial report which included an update on the disclosure of

18     materials to the Defence.

19             Mr. Groome, at the 3rd of October 65 ter meeting, we discussed

20     the Prosecution's pre-trial report.  It's not necessary, if I use your

21     name, always to stand, but we discussed the Prosecution's pre-trial

22     report of the 19th of September in which the Prosecution presented its

23     system for disclosure of exculpatory materials to the Defence under

24     Rule 68(i) of the rules.  And in that discussion, you referred the

25     Chamber to two Appeals Chamber decisions for support of your disclosure

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 1     system; specifically as to the question of the Prosecution's duty to

 2     review and disclose materials to the Defence when those materials are

 3     already accessible within the EDS collection.  The Chamber has carefully

 4     reviewed those decisions.

 5             And for those in the gallery and others following the

 6     proceedings, I will briefly explain that EDS refers to the

 7     Electric Disclosure System and allows the Prosecution to provide

 8     materials already in the Prosecution's possession to the Defence in

 9     electronic form, and allows the Defence to electronically search through

10     these collections of material.

11             Further, if its second pre-trial report of the 1st of November,

12     the Prosecution provided additional information on how it intended -- how

13     its intended Rule 68(i) disclosure system complies with the

14     Appeals Chamber's decision.  In the already -- in the cases already

15     referred to, that is Prosecutor versus Karemera and Prosecutor versus

16     Bralo, and more in particular, paragraph 35 of the Bralo decision.  The

17     Chamber hereby requests that the Defence file a submission, if it deems

18     it necessary, with any objections to the Prosecution's proposed

19     Rule 68(i) disclosure system within seven days.

20             If a Defence submission is made, the Prosecution will have the

21     opportunity to respond, and I think one week would be a reasonable time

22     for such a response, Mr. Groome.

23             Has either party any questions or concerns with regards to what I

24     just said in relation to disclosure?

25             MR. GROOME:  No, Your Honour.

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 1             JUDGE ORIE:  Mr. Lukic.

 2             MR. LUKIC:  We have nothing now, Your Honour.

 3             JUDGE ORIE:  Then I move on to my next agenda item, which is

 4     agreed facts.  On the 1st of November, the parties jointly submitted a

 5     progress report on their negotiations on agreed facts.  This progress

 6     report was discussed at the 65 ter meeting this past Tuesday.  And as

 7     stated at the 65 ter meeting, the Chamber found this report to be helpful

 8     and encourages the parties to continue in the same vein moving forward.

 9             At the 65 ter meeting, Mr. Groome, you stated that at the

10     conclusion of the agreed facts negotiations, the parties are planning to

11     make a joint submission seeking judicial notice of those facts the

12     parties have agreed upon.  After discussion, the Chamber would be

13     satisfied if the Prosecution and Defence submit a joint filing putting on

14     the record those facts upon which you have agreed without applying for

15     judicial notice.  And this can be done at the conclusion of your

16     negotiations.

17             This slightly deviates from what you proposed, and therefore,

18     first of all, has either party any questions or comments specifically on

19     what I just said?  Or would either party like to inform the Chamber of

20     any additional information related to agreed facts at this very moment?

21             MR. GROOME:  No, Your Honour.

22             MR. LUKIC:  No, Your Honour.

23             JUDGE ORIE:  Then, Mr. Groome, at that same 3rd of October 65 ter

24     meeting, you raised the issue of the parties potentially reaching an

25     agreement on the authenticity of certain documents and requested the

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 1     Chamber's guidance as to how to submit such an agreement should it occur.

 2     The Chamber has considered the matter and informs the parties that any

 3     agreement reached on the authenticity of documents should be included in

 4     the parties' joint agreed facts submission.

 5             Any questions in relation to this?  If not, I move on to the next

 6     item which is adjudicated facts.

 7             On the 20th of October, the Chamber received a proposed template

 8     for adjudicated facts motions that was agreed to by both the Prosecution

 9     and the Defence.  The Chamber has reviewed the template.  It accepts the

10     structure of the table, with some modifications that will be explained

11     further.

12             The Chamber emphasizes the importance of indicating the exact

13     source of the proposed adjudicated facts; that is, the name of the

14     judgement and the relevant paragraph.  This is done in the third column

15     of the table.  In addition, the Chamber would also request that the

16     parties indicate the extent to which, if at all, this fact has been

17     addressed in the relevant appeal judgement or, if an appeal is still

18     pending, confirm that the fact is not challenged in either party's appeal

19     brief in that relevant case.

20             The Chamber further would like to remind the parties that each

21     proposed fact should be a single fact and not to submit combined or

22     multiple facts within one proposed fact.  This means that the Chamber

23     anticipates receiving proposed facts comprising single sentences, not

24     paragraphs.

25             The Chamber instructs the parties to add subheadings to the table

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 1     that divide groupings or categories of facts.  As an example, if facts

 2     1-30 relate to the VRS structure, these facts should be listed under a

 3     subheading indicating that it is about the VRS structure or the language

 4     you choose.

 5             The Chamber reiterates that the parties must limit their motions

 6     on adjudicated facts to those facts that are of most relevance and

 7     importance for the indictment and for their cases.  In this respect the

 8     Chamber instructs the parties to add a column to the table in which they

 9     should clearly indicate to which paragraph and if possible which sentence

10     in the indictment each fact is relevant.

11             As a general guidance, the Chamber also instructs the parties not

12     to request that the Chamber take judicial notice of those facts for which

13     they intend to present other evidence, for example, witness testimony, or

14     on which they have agreed or will be able to agree.  The Chamber is not

15     interested in having the same matter entered into the evidentiary record

16     twice.  In so stating, the Chamber recognises that there will be

17     situations where witness testimony may overlap with one or several

18     adjudicated facts and in such a situation, the Chamber expects the

19     parties to demonstrate in advance why they are seeking to introduce

20     testimony on an already adjudicated fact of which the Chamber takes

21     judicial notice.

22             The Chamber also expects the parties to limit themselves to one

23     adjudicated facts motion each.  Should a fact become adjudicated after

24     the motion is filed, the parties will be allowed to supplement their

25     motion at this later point in time.

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 1             Any questions in relation to the adjudicated facts?

 2             MR. GROOME:  Your Honour, if I could just inquire about the

 3     anticipated timing of the decision.  Does the Chamber anticipate that it

 4     will enter its decision on any adjudicated facts most prior to the filing

 5     of the prosecutors's 65 ter witness list and exhibit list?

 6             JUDGE ORIE:  Mr. Groome, much depends on how extensive these

 7     motions will be and it also depends on when we set the dead-line for the

 8     filing of the witness list and exhibit list.  So the only thing I can

 9     commit myself, and my colleagues would be committed to that as well, is

10     that we try to organise it in such a way that we can deliver a decision

11     at its earliest possibility.  But not knowing yet the extension of the

12     motion to start with the Prosecution's motion, I can't give you a

13     definitive answer.  You may have noticed that the Chamber tries to

14     organise the pre-trial stage and the trial preparations so as to move

15     forward as quickly as we can.

16             I do see your point that if you do not know what adjudicated

17     facts the Chamber will take judicial notice of, that you are in some

18     uncertainty in filing your witness list because you do not know what

19     facts you still have to present evidence.  I see that problem clearly and

20     will find a solution for it, either by delivering the decision one at a

21     time or by other means.  But the Chamber is aware at least, if I

22     understood you well, that that's your problem.

23             MR. GROOME:  Yes, Your Honour, that is the problem that concerns

24     the Prosecution, and in recognising that problem, the Prosecution wonders

25     whether it would assist the Chamber that should the Prosecution be filing

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 1     witness lists and possible motions for witness testimony to be adduced

 2     under 92 bis and ter, whether it would assist the Chamber to have in

 3     those motions references to which facts in the adjudicated facts motion

 4     that evidence relates to so the Chamber will have the full picture before

 5     it of the Prosecution's case.

 6             JUDGE ORIE:  Yes.  That's certainly a suggestion, but then the --

 7     then the witness list may obtain a bit of a different character as well.

 8     It's not only what witnesses the Prosecution intends to call, either viva

 9     voce or 92 bis, but also what witnesses might not need to be called

10     anymore if the adjudicated facts they would testify about will be taken

11     judicial notice of.

12             MR. GROOME:  Exactly, Your Honour.

13             JUDGE ORIE:  Yes.  That's clear.  I'll discuss your suggestion

14     with my colleagues.  Thank you for it.

15             Any further matter in relation to adjudicated facts?  Any further

16     comments?  If not, we'll move on to the next item, which is presentation

17     and tendering of evidence.

18             On the 5th of October, in an informal communication, the Chamber

19     has sent to the parties a list of possible questions related to the

20     presentation and the tendering of evidence, specifically on under

21     Rule 92 bis and 92 ter and bar table submissions, and invited the parties

22     to respond to those questions.

23             The Chamber received the Prosecution and Defence submissions on

24     the 1st of November.  The Defence submissions were provided through an

25     informal communication and you are hereby instructed, Mr. Lukic, to

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 1     formally file them for full transparency and the completeness of the

 2     record in this case.  The Chamber again found that the parties'

 3     submissions with you helpful in preparing its guidance on these matters.

 4     The Chamber has considered the scope of the indictment and the

 5     exceptional amount of material that potentially is relevant and of

 6     probative value and therefore could be tendered in this case.

 7             The Chamber's guidance is, to some extent, motivated by case

 8     management concerns.  Of course, case management is never the only

 9     consideration but it is among a totality of considerations.  And

10     therefore more importantly the Chamber emphasizes that each party is

11     responsible for presenting its case in a clear and comprehensible manner.

12     The Chamber will not accept a flood of evidentiary material through

13     various avenues, only to find itself sorting through that material to

14     determine if and how it is relevant to a party's case.  It is for the

15     parties to go through and carefully select the most relevant evidence and

16     then present it to the Chamber in a clear and comprehensible manner.

17             This guidance is particularly important to consider when it comes

18     to the number of documents a party seeks to tender.  It is primarily for

19     the parties to ensure that there is no unnecessary overlap in the

20     presentation of evidence.  And it's also important to consider when it

21     comes to the size of the individual exhibits.  If a party seeks to rely

22     on a specific paragraph or page of a lengthy report or book, the Chamber

23     expects the party to tender only that paragraph or page, in addition to

24     whatever is needed to identify the source, for example, the front page of

25     the report or the book, or to provide the necessary context.

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 1             With regard to 92 ter motions, the Chamber provides the following

 2     guidance to the parties:

 3             As a rule, a party presenting testimony pursuant to Rule 92 ter

 4     will be limited to an examination-in-chief of 30 minutes.  These 30

 5     minutes do not include the time needed to complete the Rule 92 ter

 6     procedure and to read a summary of the witness's statement for the

 7     public.  Should the party, in exceptional circumstances, require more

 8     time, it should indicate this in its witness list and make a specific

 9     request why this would be necessary.

10             Any Rule 92 ter motion should be filed as early as possible and,

11     in any case, no later than one month before the anticipated beginning of

12     the witness's testimony.

13             Rule 92 ter motions should be limited to one witness statement

14     per witness, clearly summarising the witness's evidence.  A party may

15     choose to tender a statement already in its possession or it may take a

16     new and updated statement from the witness and tender that.  The witness

17     statement should be in the traditional form of an ICTY witness statement.

18             The Chamber already now indicates that only in exceptional

19     circumstances it will be inclined to admit transcripts of testimony the

20     witness has given in other cases.  If a party nevertheless seeks to

21     tender under Rule 92 bis the transcript of testimony in another case,

22     that party should present compelling reasons for the necessity of

23     receiving that evidence in the form of a 92 bis transcript.

24             As a rule, where I referred to 92 bis motions, I made a mistake

25     because I was dealing with 92 ter, but in this respect the rules for

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 1     92 bis and 92 ter statements are exactly the same.  The Chamber is

 2     reluctant to receive the evidence in the form of transcript of testimony

 3     in other cases.  It may be clear to the parties that those materials are

 4     often very voluminous and it's better presented by other means.

 5             Now, as a rule the Rule 92 ter motions should not encompass any

 6     associated exhibits.  Any exhibits that the party would like to tender

 7     with a witness should be presented as part of the examination-in-chief of

 8     that witness, and this might be a reason for a party to request more time

 9     for examination-in-chief for that particular witness.  The Chamber

10     considers that it would be beneficial that those exhibits, to be tendered

11     in court with the witness, are indicated already in the Rule 92 ter

12     motion.

13             As was proposed by the Defence, the Chamber defers any decision

14     on limitations on the time to be granted for cross-examination of

15     Rule 92 ter witnesses.

16             With regard to 92 bis motions, the Chamber provides the following

17     guidance:

18             Each Rule 92 bis motion should deal with no more than five to ten

19     witnesses each.  The motions should be filed at least two to three weeks

20     apart in order to give the other party sufficient time to respond.  So we

21     don't want to have 30 or 40 92 bis motions at one moment.  The first

22     Rule 92 bis motion of the Prosecution should be filed as early as

23     possible and no later than one week after the filing of the Prosecution's

24     witness list.

25             As with Rule 92 ter motions, I said it already before,

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 1     Rule 92 bis motions should be limited to one statement per witness,

 2     clearly summarising the witness's evidence and the witness statement

 3     should also take the normal form of an ICTY witness statement, and as far

 4     as the transcripts are concerned I already indicated what the approach of

 5     the Chamber in that respect would be, only in exceptional circumstances

 6     we would be inclined to receive the evidence through those transcripts.

 7             As a rule, 92 bis motions should not encompass any associated

 8     exhibits; however, the Chamber recognises that a particular Rule 92 bis

 9     witness might be the only individual able to provide the necessary

10     context and the meaning to a document.  Or, at least, he might be the

11     individual who is best placed to do so.  Such documents might be tendered

12     through Rule 92 bis witnesses motions, provided that the witness, in his

13     statement, clearly addresses the document and discusses its content.  The

14     Chamber expects each party to carefully assess whether a document should

15     be attached to a motion or whether it is better tendered in court with

16     other witnesses.

17             The Chamber further expects that the number of associated

18     exhibits for any Rule 92 bis witness will not exceed five documents.

19     Should a party wish to exceptionally exceed this number, it should

20     include a justification for this in the Rule 92 bis motion.

21             Finally, the Chamber will give some guidance with regard to

22     bar table submissions.  As the parties will have understood from the

23     guidance with regard to the associated exhibits, the Chamber prefers to

24     have documentary evidence tendered in court, with witnesses who can give

25     it proper contextualisation.  For this reason, bar table motions by the

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 1     parties will only be accepted exceptionally and for a very limited amount

 2     of documents.  Any bar table submission should be filed at a late stage

 3     of the party's case, when it is clear to the tendering party that the

 4     relevant documents were not and could not have been, tendered through any

 5     witness.

 6             A bar table submission should consist of a table including a

 7     short description of each document, as well as its relevance and

 8     probative value, unless that's obvious from the description itself

 9     already.  And further, the table should contain indicators of the

10     document's authenticity.  It should also include an explanation of how

11     the document fits into the tendering party's case.  In case of bulky

12     documents with particularly relevant portions, the table should include a

13     reference to those portions.

14             Once a party has prepared such a bar table table, it should

15     provide it - and I think the most logical way to do that would be in

16     electronic form - to the opposing party which can then fill in empty

17     columns in which it more or less responds to the proposal to have these

18     documents admitted into evidence.  I am thinking of authenticity

19     challenged for this and this reason, so a brief position of the party,

20     and I invite the parties to agree on a template, on a format, for

21     submitting the table to be used with bar table submissions.

22             The Chamber may provide further guidance on matters related to

23     the presentation, the tendering of evidence, at future Status

24     Conferences.  So this is not necessarily, in every respect the end of the

25     story.  Not everything has been carved in stone yet, although this is the

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 1     basis on which the Chamber intends to work.

 2             There may be a few novelties compared to what has happened in

 3     other cases.  If there are any questions or any comments at this moment,

 4     I would like to hear from the parties.

 5             Mr. Groome.

 6             MR. GROOME:  Your Honour, if I could inquire with respect to

 7     92 quater.  Is the Chamber's preference for a statement over testimony

 8     hold true for 92 quater?  The Prosecution knows that some of its

 9     witnesses who are deceased, we will be making 92 quater applications for,

10     and whether the Chamber has a preference for the statement or the

11     cross-examined testimony of that witness, should it exist?

12             JUDGE ORIE:  I see your point that you say to make a -- well, to

13     say more or less, a consolidated statement is impossible if a witness is

14     unavailable.  It, of course, also depends on -- on from what moment the

15     witness is unavailable.  If a witnesses would pass away a week before his

16     testimony, then, of course, it's -- you believed introduce him as a

17     92 bis or a 92 ter, and we would expect to have that one statement.  But

18     if it's clear right from the beginning that a witness is unavailable, we

19     will provide you with further guidance once I have -- once I've discussed

20     the matter with my colleagues how to operate in such situations.  We have

21     considered the practice which was developed in the various Chambers of

22     this Tribunal and which is certainly not the same everywhere.  We will

23     consider it and we'll give you guidance.

24             MR. GROOME:  Thank you, Your Honour.

25             And one more matter.  With respect to the maximum number of ten

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 1     witnesses for any 92 bis or ter application, the Prosecution had

 2     considered that it might be of assistance for the Chamber if the

 3     Prosecution had organised these motions into the topic or component of

 4     its case; for example, that we would make our applications for all

 5     intercept operators in one.  And in this way thinking that the Chamber

 6     could make the most informed decision about the composition and mode of

 7     evidence that it would wish to receive and would be of the greatest

 8     assistance.  In some cases I anticipate that that would be more than ten

 9     witnesses, so I am inquiring from the Chamber whether that is a hard and

10     fast rule or is there some flexibility in cases in which it make sense to

11     deviate from it.

12             JUDGE ORIE:  If you convince the Chamber that it makes sense to

13     have 11 statements instead of not more than ten, if they all cover the

14     same subject, then it's my assessment - without having consulted my

15     colleagues - that that might be a successful attempt to suggest that to

16     the Chamber.  As I said before, nothing is carved in stone, but it, at

17     the same time, the basic point is -- are the points in which the Chamber

18     wants to proceed.  And, of course, when we are talking about intercepts,

19     and it may be unnecessary to draw your attention to the fact that, of

20     course, the rule on adjudicated facts specifically now refers also to

21     authenticity of documents and is still to be decided whether that would

22     be the transcript of intercepts or also the intercepts themselves.  But

23     if that has been extensively dealt with, of course, in another case, the

24     first thought would be perhaps not to see whether this can be resolved by

25     taking judicial notice of the authenticity of documents rather than to

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 1     receive a full set of evidence on the same issue again.

 2             MR. GROOME:  Thank you, Your Honour.

 3             JUDGE ORIE:  Any question as far as you're concerned, Mr. Lukic?

 4             MR. LUKIC:  We have nothing now, Your Honour.  We'll let the

 5     Prosecutor lead their case the way they think is the best according to

 6     your rulings, so we have no questions we shall ask now.

 7             JUDGE ORIE:  Then I will move on.

 8             My next item on the agenda is rather open, miscellaneous matters.

 9     I will start with an event which happened during the last

10     Status Conference because at the last Status Conference the arrival of

11     Mr. Mladic was substantially delayed.  At the time, I stated that the

12     Chamber would look into these events of his transport and inquire as to

13     what measures had been taken so that it would not occur again.  The

14     Chamber, through an informal -- through informal communications has made

15     inquiries with the Registry and has been informed that the delay was the

16     result of an internal miscommunication with the unit responsible for his

17     transport and that steps have been taken to ensure that no such

18     miscommunication or delay would occur again.

19             Next issue.  Mr. Groome, at the 65 ter meeting, the Chamber

20     invited the Prosecution to file any additional submissions on the trial

21     process in your next pre-trial report.  You earlier had indicated that

22     you were interested in making such submissions, and at the meeting you

23     requested to make the submissions in a separate report that could be

24     filed publicly.  This request is granted.  And at the 65 ter meeting, it

25     was already stated that the Defence may also make submissions by filing a

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 1     separate report.  And these reports should be filed publicly, if

 2     possible.

 3             Mr. Lukic, for the next item, if at any moment you feel that we

 4     would have to go into private session, please tell me because what I am

 5     touching upon is the health issue.

 6             Mr. Lukic, the issue of the Chamber having access to Mr. Mladic's

 7     medical information was raised at the 65 ter meeting and in subsequent

 8     informal communications.  The Chamber is aware that your client gave a

 9     general consent to the Chamber having this information at the first

10     Status Conference and also that Mr. Mladic, again -- sorry, he did say so

11     already at the first Status Conference, but he, again, gave a general

12     consent for the Chamber to be informed of his medical history and current

13     situation.  He gave that consent yesterday.

14             However, the Chamber wishes to clarify that you, as legal

15     representative of Mr. Mladic, representing him in court, that you must

16     take additional steps beyond providing the Chamber with this consent if

17     you are seeking certain actions due to concerns you may have related to

18     Mr. Mladic's health.  So if there is any other thing you would like --

19     action to take, then you may need to take additional steps.

20             As you are aware, normally health and medical matters fall under

21     the purview of the Registry, and the Chamber will only be involved in

22     medical issues if they impact on the proceedings before it.  And the

23     Chamber expects you or the Prosecution to raise any such issues in a

24     formal motion if you would wish to do so.

25             Because of the medical issues brought to the attention of the

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 1     Chamber during the last few days, the Chamber is currently considering to

 2     order a medical report addressing the full medical picture of the

 3     accused.

 4             Has either party any questions related to what I've just said or

 5     does either party wish to make additional comments on the subject of

 6     Mr. Mladic's health?  In inviting you to make any such submissions, I

 7     repeat that if you would prefer to make them in private session we would,

 8     of course, move into private session.

 9             Mr. Lukic.

10             MR. LUKIC:  Your Honour, we don't think it's necessary to go to

11     private session.  I think you got the report or -- because I got the

12     report from the Prosecution, I haven't received one on the Mr. Mladic's

13     health and why he is not with us today.  So whichever way you think is

14     the best, either to inform the public or to keep you -- only for

15     Your Honours, we will leave it for you.

16             JUDGE ORIE:  The reason why the Chamber would not be inclined to

17     discuss these matters is because the Chamber is of the view that if

18     Mr. Mladic gave his consent to inform the Chamber about the medical

19     record, that is both history where we have received information and the

20     present situation, we received the report today, that the Chamber should

21     use that information primarily in order to form its opinion on the impact

22     it may have on the trial proceedings and not to share that with the

23     public.

24             Now, you are Mr. Mladic's counsel.  To what extent you want to

25     share with, I take it, the consent of your client, matters with the

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 1     public, I leave that, of course, to you.  As far as I am concerned, there

 2     is no need to do it at this moment, and I also will avoid to enter into a

 3     debate with you on the interpretation of any medical reports.  So if you

 4     want to inform the public, I would say following the media, you may have

 5     done so to some extent already.  If I will not in any way respond to what

 6     you're saying, that does not mean that I would agree, necessarily, with

 7     your interpretation of what the doctors have reported and what is in the

 8     medical history of your client.

 9             So therefore, I do not know.  It's not necessarily relevant for

10     our proceedings at this moment.  We'll also further discuss at a later

11     stage whether what is considered until now as private, that is medical

12     information about your client shared with the Chamber to enable the

13     Chamber to form an opinion on whether and what impact it may have on the

14     proceedings, whether at any later stage the Chamber would feel a need to

15     share with the public some, all of, nothing of this information when

16     deciding on matters as scheduling.  That's a matter we'll consider at a

17     later stage.  At this moment, on the basis of this information we have

18     received until now, the Chamber has now -- feels no need either to

19     discuss it, leaves it to you.  Of course, the only thing is that the

20     Chamber would emphasise very much is that, you and I not being doctors,

21     not to start interpreting medical information in such a way that it

22     either minimises what the real situation is or to exaggerate on the other

23     side, because I think no one, the last being the public, would be served

24     by either downsizing or upgrading matters which we both are not experts

25     in and then rather have at a later stage if there is any need to put

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 1     further questions to doctors about how to interpret, to do that in an

 2     organised way and in this courtroom, whether in private or in public

 3     session.  That's my guidance at this moment.

 4             MR. LUKIC:  Thank you, Your Honour.  Then I have nothing to add

 5     at this moment.

 6             JUDGE ORIE:  Yes.

 7             Mr. Groome.

 8             MR. GROOME:  Just briefly, Your Honour, the Prosecution would

 9     inquire whether the Chamber has considered whether there would be a

10     benefit to separating the treatment function from the reporting function

11     to the Chamber, and having two doctors, one whose sole responsibility is

12     to provide the Chamber with objective information and the other whose

13     sole responsibility is the health and welfare of Mr. Mladic.

14             JUDGE ORIE:  Yes, there are good reasons to make a distinction

15     between doctors treating a patient and doctors reporting to the Chamber

16     as was done in other cases before this Tribunal as well.  When I said

17     that the Chamber is currently considering to order a medical report

18     addressing the full medical picture of the accused, this is one of the

19     issues we are considering.

20             Any further questions?  Any further comments?  Then my last

21     question is whether there is any matter any party would like to raise in

22     addition to matters raised by the Chamber or already raised by the

23     parties.

24             MR. GROOME:  Not from the Prosecution, Your Honour.

25             JUDGE ORIE:  Mr. Lukic.

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 1             MR. LUKIC:  We have nothing, Your Honour.

 2             JUDGE ORIE:  Then the last thing we have to think about is about

 3     the next Status Conference.  The next Rule 65 ter meeting will be held on

 4     the 5th of December, 2011, and the next Status Conference is scheduled

 5     for the 8th of December, 2011.  And I would further remind the parties

 6     that the next progress report on agreed facts is due on the 25th of

 7     November of this year as is the Prosecution's next pre-trial report.

 8             We therefore adjourn until the 8th of December, 2011, courtroom

 9     and exact time to be communicated by the Registry at a later stage.  We

10     stand adjourned.

11                           --- Whereupon the Status Conference adjourned at

12                           4.56 p.m.