1 Thursday, 7 October 2004

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 3.07 p.m.

5 [The accused entered court]

6 JUDGE AGIUS: So we are all here.

7 Mr. Registrar, good afternoon. Could you call the case, please.

8 THE REGISTRAR: Good, Your Honour. This is Case Number

9 IT-95-13/1PT, the Prosecutor versus Mile Mrksic, Miroslav Radic, and

10 Veselin Sljivancanin.

11 JUDGE AGIUS: I thank you, Mr. Registrar.

12 Mr. Mrksic, can you follow the proceedings in a language you

13 understand?

14 THE INTERPRETER: Microphone, please.

15 THE ACCUSED MRKSIC: [Interpretation] Yes, I can.

16 JUDGE AGIUS: Same question to you, Mr. Radic.

17 THE ACCUSED RADIC: [Interpretation] Good afternoon. Yes, I can

18 follow the proceedings, too, thank you.

19 JUDGE AGIUS: Thank you. You may sit down.

20 Finally, Mr. Sljivancanin, good afternoon to you. Same question

21 to you: Can you follow the proceedings in a language you can understand?

22 THE ACCUSED SLJIVANCANIN: [Interpretation] Good afternoon, Your

23 Honour. I can follow the proceedings. Everything is fine.

24 JUDGE AGIUS: Thank you.

25 Appearances for the Prosecution.

1 MR. WUBBEN: Good afternoon, Your Honour. My name is Jan Wubben,

2 senior trial attorney for the Prosecution, together with Ms. Joanne

3 Richardson and Ms. Donnica Henry-Frijlink, case manager.

4 JUDGE AGIUS: Thank you and good afternoon to you and your team.

5 Appearances for Accused Mrksic.

6 MR. VASIC: [Interpretation] Good afternoon, Your Honour, on behalf

7 of Milo Mrksic, Attorney Miroslav Vasic.

8 JUDGE AGIUS: Thank you. Appearances for Accused Radic.

9 MR. BOROVIC: [Interpretation] Thank you, Your Honour. Mr. Radic

10 will be represented by Mr. Borivoje Borovic. Thank you.

11 JUDGE AGIUS: Thank you. And finally appearances for Veselin

12 Sljivancanin.

13 MR. LUKIC: [Interpretation] Good afternoon, Your Honour,

14 Mr. Sljivancanin shall be represented by Mr. Novak Lukic from Belgrade.

15 JUDGE AGIUS: I thank you all and good afternoon to you.

16 Let's go through the usual routine which is a formality more than

17 anything else. You are used to it but members of the public may not be.

18 I'm going to explain the reasons for the Status Conference. First of all

19 I wish to confirm that the last Status Conference in this case was held on

20 the 11th of June, 2004. The Trial Chamber is required pursuant to Rule 65

21 bis to hold a Status Conference within 120 days after the previous one.

22 So we are in time -- we are within the 120 days' limit. The purpose of

23 this and other similar Status Conferences is to organise exchanges between

24 the parties so as to ensure an expeditious preparation for trial. And

25 then in addition, and this is a very important purpose of -- aim of this

1 Status Conference, is to allow the accused to raise issues in relation to

2 his or her mental and physical condition as well as to matters related to

3 detention.

4 In preparation for this particular Status Conference, a meeting

5 within the terms pursuant to Rule 65 ter (D) was held between the parties

6 and the Chamber's senior legal officer, Mr. Von Hebel on Wednesday, 6th

7 October, at 1500 hours, that's yesterday, I understand -- at least I am

8 informed that due to a delay in the arrival of the plane, counsel for

9 Accused Mrksic was unable to be present; however, he agreed that the

10 meeting could go on in his absence, for which I am thankful, for which I

11 am thankful.

12 I just want to know whether you have been briefed on what happened

13 actually during the 65 ter meeting, Mr. Vasic.

14 MR. VASIC: [Interpretation] Thank you, Your Honour. Even before

15 the meeting I had a meeting with my colleagues and we did determine the

16 request the Defence would be making at the meeting pursuant to Rule 65

17 ter. And I see that these requests for made at the meeting. After the

18 meeting my colleagues informed me of what was discussed at the meeting.

19 So I am familiar with everything that was discussed at the meeting that

20 was held pursuant to Rule 65 ter. Thank you.

21 JUDGE AGIUS: I thank you, Mr. Vasic.

22 So move to the next point on the agenda which is outstanding

23 motions. We are all aware that the Defence challenged the form of the

24 indictment. When I say "the Defence," it's a relative statement in that

25 only the Accused Mrksic and Sljivancanin did so. On the 20th of July of

1 this year, the Trial Chamber issued its decision on the form of modified

2 consolidated amended indictment in which it allowed in part the

3 preliminary motions of Accused Mrksic and Sljivancanin and directed the

4 Prosecution to file an amended indictment.

5 Am I going too fast for the interpreters or you can catch up?

6 Okay. Thank you.

7 The Prosecution subsequently filed its second modified

8 consolidated amended indictment on the 26th of August. And on the 20th

9 and on the 24th of September respectively counsel for Sljivancanin and for

10 Mrksic filed preliminary motions alleging defects in the form of the

11 latest indictment. This was as, is usual, the practice served on the

12 Prosecution, and the Prosecution responded on the 4th of October, that is

13 three days ago. We are in a position to issue a decision within a

14 relatively short time, but before adjourning this matter for judgement I

15 wanted to make sure that you do not have any further submissions to make,

16 particularly the members of the Defence team that are interested in this

17 matter that have seen the reply of the Prosecution, the reply of the

18 Prosecution.

19 Mr. Vasic.

20 MR. VASIC: [Interpretation] Thank you, Your Honour. I have

21 received the Prosecution's response, and I believe that the reasons set

22 forth by Mr. Mile Mrksic's Defence in its preliminary motion still have

23 good cause. And it is my opinion that in the new indictment issued by the

24 Prosecution, although it has been amended, it still fails to specify all

25 the elements it should have specified according to the decision rendered

1 by the Trial Chamber. And there is nothing else that I would like to add.

2 I quite simply think that not everything was specified as it should have

3 been in accordance with the Trial Chamber's decision. Not all the parts

4 were clarified by the Prosecution with regard to the objection raised by

5 the Defence. Thank you, Your Honour.

6 JUDGE AGIUS: I thank you.

7 And, Mr. Lukic, if you have any comments. Because if you don't,

8 you just have I don't.

9 MR. LUKIC: [Interpretation] Matters are clear. I don't have any

10 comments to make, and I'm not asking for a time limit to express my

11 position with regard to what the Prosecution stated on the 4th of October,

12 2004. There is nothing I would like to comment on.

13 JUDGE AGIUS: Okay. I thank you, Mr. Lukic.

14 I don't suppose you have anything to add, Mr. Wubben?

15 MR. WUBBEN: No. Thank you, Your Honour.

16 JUDGE AGIUS: I thank you.

17 So the understanding is, Mr. Von Hebel, that we start working on

18 this decision in which we hope to be able to hand down to you very

19 shortly.

20 To my knowledge there are no further outstanding motions to be

21 determined by the Trial Chamber, which prompts me to address the next item

22 on the agenda which is disclosures. I am going to move from one type of

23 disclosure to another. And as we go along what I will stop and ask for a

24 confirmation of what I will be saying. I will start first with

25 Rule 66(A)(i), material. The information that I have is that this chapter

1 has been concluded. I just wanted to have a confirmation of this from the

2 Defence and from the Prosecution.

3 If -- you need only raise -- rise if it hasn't.

4 MR. VASIC: [Interpretation] Your Honour, on behalf of all the

5 Defence, I will say that everything was done in accordance with the rule.

6 JUDGE AGIUS: Okay. Thank you. So I don't even need to address

7 you, Mr. Wubben.

8 And then we come to Rule 66(A)(ii), statements. You will

9 recall -- I'm just trying to refresh my own and also everybody else's

10 memory. You will recall that the question of this type of disclosure was

11 raised in the course of the last Status Conference in June. At the time

12 it transpired that the Prosecution had disclosed a 31 out of a total of 53

13 statements of witnesses expected to be called by the Prosecution.

14 The Prosecution at the time added or made a statement to the

15 effect that they expected to add a few witnesses from amongst those who

16 were testifying at the time in the Ovcara trial then taking place in

17 Serbia. I recall that in general the issue of translation of disclosed

18 documents under Rule 66 and also Rule 68 was raised and submitted to the

19 trial -- to me as the Pre-Trial Judge as something that was critical at

20 the time.

21 I will now tell you what according to the information I have, have

22 been the developments. Then tell me if you agree or whether there are any

23 developments I have not been aware of or whether there is any further

24 information that I should receive.

25 Since then the Prosecution has filed a partially confidential

1 Prosecution's report concerning disclosure. This was filed on the 9th of

2 August. I take it that you have received a copy of it. If not, please

3 draw my attention to it. And the Prosecution, according to this report,

4 has now disclosed the statement of 40 witnesses, of about 40 witnesses it

5 intends to call at trial, whilst for the rest of them it will be

6 requesting protective measures. This is the position as it emerges from

7 the report.

8 To my knowledge, the Defence argued that they do not know which of

9 these witnesses whose statements have been disclosed will be called at

10 trial. During the 65 ter meeting the senior legal officer asked the

11 Prosecution to provide the Defence with a list of all the statements that

12 have been disclosed to the Defence indicated which of those should at

13 least provisionally be regarded as witnesses that will appear at trial and

14 to copy the Pre-Trial Judge into it. So I take it this is a correct

15 report that I have received, and if there is nothing forthcoming from the

16 Prosecution, I would suggest that they could file the appropriate document

17 if possible within seven days, if that is acceptable.

18 Yes, Mr. Wubben, I see you --

19 MR. WUBBEN: Seven up to ten days -- sorry. Sorry, Your Honour.

20 And I should raise.

21 It was as I understood seven to ten days.

22 JUDGE AGIUS: All right.

23 MR. WUBBEN: And we would be glad to take that as well.

24 JUDGE AGIUS: All right. Can you live with ten days.

25 So you have ten days from -- I am actually giving you 11 days.

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1 Because the 65 ter meeting was yesterday so it should be nine. I am still

2 giving you ten. Ten starting from today, Mr. Wubben. I know that you do

3 your level best to cooperate with the Tribunal.

4 So within ten days from today from today, we shall be expecting a

5 list indicating which of those witness statements fall under

6 Rule 66(A)(ii) and which under Rule 68. We need to know that. That is an

7 undertaking on your part.

8 Then we have -- are there any further comments on Rule 66(A)(ii)

9 disclosures. Yes, Mr. Borovic.

10 MR. BOROVIC: [Interpretation] Thank you. On behalf of all the

11 Defence teams, I would like to state something that we discussed to an

12 extent at the 65 ter meeting. So far we have only had nine statements

13 pursuant to 66(A)(ii). As far as Rule 68, either (A) or (B), is

14 concerned, what the Prosecution has stated we haven't received the

15 central -- the main statements that they were supposed to provide us with.

16 What does Rule 66(A) mean as far as witnesses are concerned out of

17 the 31 statements that were provided according to Rule 68? And at the

18 last Status Conference the Prosecution claimed that these statements were

19 statements on witnesses who -- by witnesses who would be heard under

20 Rule 66(A)(ii). These are statements given by witnesses to organs in

21 Serbia and Montenegro. We don't know whether these witnesses have been

22 heard by the Prosecution, have been questioned by the Prosecution. At the

23 65 ter meeting yesterday we, quite by chance, mentioned that -- and we

24 found out with regard to a case in Belgrade, the Ovcara case, we found out

25 that certain witnesses -- people cooperating were heard by the

1 Prosecution. And in order to cooperate correctly in the future we asked

2 that those statements they provided as protected witnesses or witnesses

3 who were cooperating, we asked that they should provide these statements

4 to the Defence. The Prosecution said that from the list of the 33 people

5 who should be witnesses, we asked them to tell us which names they should

6 disclose to us. We've only been provided with Petkovic and Jaskovic

7 [phoen]. We don't know about the other names. We don't know which

8 witnesses will be testifying from that case here as Prosecution witnesses.

9 I apologise. I was speaking a little too rapidly. Perhaps the

10 interpreters are finding it a little difficult to keep up.

11 I think that a lot of time has passed, so from April of last year

12 until today we have only received nine statements pursuant to

13 Rule 66(A)(ii). Thank you.

14 JUDGE AGIUS: Yes, Mr. Wubben, do you have any comments on what

15 has just been stated by Mr. Borovic?

16 MR. WUBBEN: Yes. Yesterday at the 65 ter conference we had been

17 triggered by this questions and Ms. Joanne Richardson will answer them.

18 JUDGE AGIUS: Thank you. Ms. Richardson.

19 MS. RICHARDSON: Good afternoon, Your Honour. In response to what

20 was just raised by the Defence as the Office of the Prosecution speaking

21 with at least two witnesses and -- to the charge that we have not turned

22 these statements over, with respect to at least one witness we can verify

23 that we indeed did not speak with him; we made attempts to. And we were

24 prevented from the -- by the authorities in Belgrade from speaking with

25 this witness because he had not testified yet in their trial, and they

1 felt that this would compromise their proceedings. So we are also

2 required to abide by the rules of procedure in Serbia. And as soon as we

3 are able and are allowed access to these witnesses, we will indeed turn

4 over a statement as soon as we have them. And if there are any questions

5 from the Defence that there are other witnesses that are contending --

6 sometimes these contentions are based in rumour and not fact, they can

7 contact us and we can certainly verify whether or not this is true. There

8 is no reason why we can't informally address these matters.

9 With respect to the statements that were turned over, we, the

10 Prosecution, had sought to provide the statements that were given to us

11 from the Ovcara proceedings to the Defence as quickly as possible to

12 enable them to review the statements and to prepare. We acknowledge that

13 we have not spoken to all of these individuals, but it was in our earnest

14 approach to this matter that we wanted them to have the statements as soon

15 as possible and so we labelled them as 66(A)(ii). And we anticipated as

16 well that there would be some 68 material in them, because of course the

17 trial in Belgrade may present conflicting theories with what is being

18 presented here. So it was really in our attempt to accommodate the

19 Defence that these statements were turned over to them. And we will, as

20 we promised yesterday at the 65 ter, provide them with a list where we

21 will more accurately indicate which witnesses we anticipate we will be

22 calling. But keeping in mind, of course, this is only based on what to

23 date we have been able to assess. And that the -- if there are any other

24 witnesses who are not listed as 66(A)(ii), and we have turned over those

25 statements, the Defence needs to keep in mind that we may very well at a

1 later date change that assessment and indicate that they will be

2 testifying on behalf of the Prosecution once we have spoken to them. So

3 it's now a matter of bringing -- giving the Defence an updated statement,

4 simply giving them a better indication of the exact witnesses we know to

5 this point that we will be calling.

6 JUDGE AGIUS: Okay. That's very helpful indeed and helps to

7 clarify a little bit the position.

8 I did notice as well that we had -- the discussion turned also on

9 Rule 68 material disclosure which I am going to address now. Basically in

10 the partially confidential Prosecution fourth report concerning disclosure

11 of the 9th of August that I referred to earlier, the matter of 68

12 disclosure is dealt with. And as a pre-trial Judge I have taken due

13 notice of what is contained in that report. I remind you that at the time

14 of the last Status Conference it appeared to me at least - correct me if

15 I'm wrong - that 75 documents and 14 statements from witnesses from the

16 Ovcara trial currently taking place in Serbia had been disclosed to the

17 Defence in terms of -- pursuant to Rule 68. I think we -- I have

18 confirmed this. If I am not correct, please correct me. Now I also --

19 MR. VASIC: [Interpretation] [No interpretation].

20 JUDGE AGIUS: I also take it that during yesterday's 65 ter

21 meeting you continued discussing the ongoing process of Rule 68 material

22 disclosure, that you were encouraged -- that there were some problems at

23 the moment relating to procuring such information from the Ovcara which

24 you have helped clarify. These difficulties are perfectly understandable.

25 They are not capriciously -- capricious or self-inflicted. So I

1 reiterate the encouragement or the words of exaltation that my senior

2 legal officer made yesterday. I encourage you to continue cooperating. I

3 am sure that there is goodwill on the part of the Prosecution and that

4 there should not be any difficulties along the way for further disclosure

5 of whatever Rule 68 material emerges or surfaces.

6 Are there any further comments on Rule 68 material disclosure?

7 Mr. Vasic.

8 MR. VASIC: [Interpretation] Thank you, Your Honour. As for

9 Rule 68 I also hope that my learned friends will continue to carry out

10 their obligations and that their database in this case will receive

11 priority. We heard an explanation a few minutes ago about the obligation

12 of the Prosecution to tell us which witnesses will be included according

13 to Rule 68 and Rule 66(A)(ii) respectively.

14 I just wish to add another problem, and believe that in this way

15 we could speed things up and prevent any further problems from cropping up

16 in these proceedings.

17 When speaking of witnesses whose statements were disclosed to the

18 Defence according to Rule 66(A)(ii) and who will be called as Prosecution

19 witnesses, could they provide to the Defence all the statements that they

20 have available right now. I believe that this is in the spirit of

21 Rule 66(A)(ii) and on the other hand the Defence will have enough time to

22 prepare. Also could we please have a list of all the proceedings that

23 these witnesses took part in and also all the persons who interviewed

24 them, the police, various authorities, and so on and so forth. The

25 Prosecution knows this best of all, so could we please have all these

1 witness statements of each and every one of these witnesses, all of those

2 that were disclosed to the Defence according to Rule 66(A)(ii).

3 JUDGE AGIUS: Thank you, Mr. Vasic.

4 Is there feedback from Mr. Wubben or from Ms. Richardson?

5 [Prosecution counsel confer]

6 JUDGE AGIUS: Is it a request that you can comfortably meet or

7 does it create problems for you?

8 MR. WUBBEN: One moment, please.

9 JUDGE AGIUS: Yes, Mr. Wubben.

10 [Prosecution counsel confer]

11 MS. RICHARDSON: If I may, Your Honour.

12 JUDGE AGIUS: Yes.

13 MS. RICHARDSON: We will try to accommodate Defence. We will not

14 at this time make any promises with respect to all of the statements. A

15 number of these witnesses have testified before this Tribunal. They have

16 testified before the military tribunal in Belgrade, and some of them are

17 yet again testifying in Ovcara. Some have spoken to police officers in

18 Serbia at different times.

19 We will do all within our power to provide them with what we have.

20 There are ISU searches that have not been completed because we are low on

21 the priority, list of priorities before the Tribunal, and so we are

22 somewhat limited in what we can provide. But whatever is in our

23 possession with respect to the various statements that these witnesses may

24 have made we will provide to them. And with respect to where these

25 statements came from, we may or may not be able to provide that

1 information. But we will certainly consider it.

2 JUDGE AGIUS: Okay. I thank you.

3 Again, I think we ought to liaise and keep contact with each

4 other -- with one another on this and see if you can meet halfway or reach

5 an agreement.

6 Any further observations on Rule 68 disclosure? No.

7 Let's move fast. It looks as if we are moving ahead in a way

8 which would lead us to a trial sooner than we thought. I can't tell you

9 the exact date of the trial, but it is anticipated that the trial will

10 start either early in 2005 or in mid-2005, early summer of 2005. So --

11 unless we get hitches, but it seems that we can plan for a trial to be

12 held on that -- in that time frame.

13 This is a matter now that I am going to touch upon in which I

14 usually get involved -- I prefer to get involved the least possible. But

15 I do make accommodation and that is with regard to agreed facts.

16 I know that Mr. Von Hebel encouraged you to start the process of

17 seeking to discuss amongst yourself and between yourselves the possibility

18 of reaching agreement on a number of facts, which usually, if it happens

19 at all, is a very helpful tool in the hands of the Trial Chamber and also

20 in the hands of the parties because it cuts down on time which can then be

21 made use of more profitably for the proper Prosecution or the proper

22 Defence as the case may be.

23 So I repeat the exaltation. I, too, recommend to you to start

24 discussing the possibility of reaching agreement on certain facts. This

25 is contemplated, as you know, in the rules and you are encouraged to

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1 follow that road. I am informed and I was very happy to read this, the

2 senior legal officer's report, that the Defence showed an interest in

3 getting this process started. So please go ahead. But as I said, the

4 Trial Chamber cannot help you here and will not -- I as a pre-trial Judge

5 will not interfere or intervene in this process.

6 Now, before I come to the final part of the Status Conference are

7 there any other matters that any one of you, Prosecution and Defence,

8 would wish to raise? I start with the Prosecution.

9 MR. WUBBEN: Your Honour, we would like to accommodate this Trial

10 Chamber with cooperation on agreed facts. We will -- may take some weeks

11 before -- first we want to address the list and statement of witnesses and

12 after that's done, we will take up this contact and we will be pleased to

13 cooperate with Defence counsels further on. Thank you.

14 JUDGE AGIUS: I thank you, Mr. Wubben.

15 Mr. Vasic, starting with you. You happen to be the nearest. Do

16 you have any other matters that you would like to raise?

17 MR. VASIC: [Interpretation] Thank you, Your Honour. I would like

18 to thank my learned friend and I believe that this is the right path to

19 take. We hope that we will make headway with regard to agreed facts. We

20 expect the Prosecution to give us their proposals and then we're going to

21 respond to that.

22 Could we please move into private session for a moment,

23 because a question I would like to deal with has to do with the strategy

24 of preparing the Defence and perhaps it would be easier to deal with it in

25 private session. Thank you.

1 JUDGE AGIUS: There's no objection on your part, Mr. Wubben?

2 MR. WUBBEN: No.

3 JUDGE AGIUS: Let's go into private session for a while.

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16 [Open session]

17 JUDGE AGIUS: So we are agreed. You will have -- let me have a

18 copy of all this correspondence. I take it there are no further matters

19 that you would like to raise, neither the Prosecution nor the Defence

20 which basically brings me to the last part of the Status Conference, which

21 again might appear as a formality but which I do not consider as a

22 formality. I consider it as a responsibility, as a duty, on my part.

23 I'm going to address you, Mr. Mrksic, first. Would you like to

24 raise any matter that is related to your state of health.

25 THE ACCUSED MRKSIC: [Interpretation].

1 JUDGE AGIUS: Microphone.

2 THE INTERPRETER: Microphone, please.

3 JUDGE AGIUS: It's not on.

4 THE ACCUSED MRKSIC: [Interpretation] Everything is fine. I have

5 no questions to raise. For the time being my health is relatively good.

6 I hope that it will remain so until the trial begins.

7 JUDGE AGIUS: I hope so, Mr. Mrksic. Do you wish to address me on

8 any matter that may be related to your state of detention in the Detention

9 Unit?

10 THE ACCUSED MRKSIC: [Interpretation] I can't hear the

11 interpretation now.

12 JUDGE AGIUS: I will repeat the question. Do you wish to address

13 me on matters related to your state of detention? Is everything going

14 fine for you at the unit, at the Detention Unit, or not?

15 THE ACCUSED MRKSIC: [Interpretation] Everything is fine as far as

16 the Detention Unit is concerned, if that was your question. I have no

17 objections.

18 JUDGE AGIUS: You may sit down.

19 Mr. Radic.

20 THE ACCUSED RADIC: [Interpretation] Your Honour, I also have no

21 objections. Everything is fine for the time being. Thank you.

22 JUDGE AGIUS: That includes your health as well, I take it? Thank

23 you, Mr. Radic.

24 Mr. Sljivancanin.

25 THE ACCUSED SLJIVANCANIN: [Interpretation] Your Honour, I have no

1 objections with regard to the Detention Unit. I still don't feel well,

2 though, and I feel this length of time that I'm spending in prison waiting

3 to be an encumbrance because I feel I'm innocent. So could you please do

4 your best that this trial starts as soon as possible so that we finally

5 hear the truth about this Ovcara that has been discussed for so long. Let

6 justice finally be done and let the truth be heard. My attorney,

7 Mr. Lukic, is trial-ready at this moment. We are prepared to begin. That

8 is what I wish to say.

9 JUDGE AGIUS: I thank you, Mr. Sljivancanin. We will do our best.

10 You know hat we can only hold six trials at a maximum at any one time.

11 And while six trials are all going, we can't start the seventh. And there

12 are other trials also that will need to start before yours. But as I

13 said, the trial -- my Trial Chamber is doing its level best to make sure

14 that this trial goes -- starts at the earliest -- as early possible. If

15 we are lucky, it will start in the beginning of 2005 which is not very far

16 away from us. I thank you.

17 THE ACCUSED SLJIVANCANIN: [Interpretation] Thank you.

18 JUDGE AGIUS: That brings us to the end. The Status Conference --

19 I declare the Status Conference closed and we therefore stand adjourned.

20 The next Status Conference will be convened according to the rules.

21 Thank you and good afternoon to everyone.

22 ---Whereupon the Status Conference

23 adjourned at 3.58 p.m.

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