Tribunal Criminal Tribunal for the Former Yugoslavia

Page 249

1 Tuesday, 16 May 2000

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 4.07 p.m.

5 [The accused entered court].

6 JUDGE WALD: Will the registrar please call

7 the case.

8 THE REGISTRAR: [Interpretation] Case number

9 IT-98-34-PT, the Prosecutor versus Mladen Naletilic and

10 Vinko Martinovic.

11 JUDGE WALD: Good afternoon. I'd like to

12 welcome all the participants to this Status Conference;

13 the lawyers, Mr. Martinovic, the Registry staff, the

14 translators, and anyone else who is helping to make it

15 possible.

16 The first thing on the agenda is I would like

17 the counsel for the parties, the Prosecution and for

18 Mr. Naletilic and Mr. Martinovic, to announce their

19 appearances.

20 First the Prosecution.

21 MR. TERRIER: [Interpretation] Good afternoon,

22 Your Honour, Madam President. The Prosecutor is

23 represented by Mr. Douglas Stringer, on my right-hand

24 side, and Mr. Manuel Bouwknecht, our case manager,

25 together with myself Franck Terrier.

Page 250

1 JUDGE WALD: Let's have the counsel for

2 Mr. Naletilic.

3 MR. KRSNIK: [Interpretation] Good afternoon

4 to everyone present, in particular to you, Your

5 Honour. My name is Kresimir Krsnik, and I'm the

6 Defence counsel for Mr. Naletilic.

7 JUDGE WALD: Mr. Martinovic's counsel.

8 MR. SERIC: [Interpretation] Good afternoon,

9 Your Honour. I would also like to greet my learned

10 colleagues from the Prosecution. My name is Branko

11 Seric and I'm the Defence counsel for Vinko

12 Martinovic. I'm a member of the Croatian Bar

13 Association. Thank you.

14 JUDGE WALD: Welcome.

15 Now, my understanding is that Mr. Naletilic

16 will not be with us because he is not feeling up to it,

17 and he has sent a note for the record indicating that

18 he wishes you to represent him and for the Status

19 Conference to go ahead. Is that correct, Mr. Krsnik?

20 MR. KRSNIK: [Interpretation] Yes, that is

21 correct, Your Honour.

22 This morning when I visited my client, he

23 felt -- he was very ill, he was medicated, and he

24 expressed his doubts as to whether he would be able to

25 be here at the Status Conference. That is in keeping

Page 251

1 with what the Defence counsel has been saying right

2 from the beginning, from the first Status Conference,

3 and that is that we need an expert medical examination

4 of my client. This is under way even as we speak, and

5 then well have more information.

6 JUDGE WALD: Thank you, Mr. Krsnik. You are

7 right. Of course the Chamber has ordered that such an

8 examination to take place. The report will be given to

9 us on May 25th, at which time we will be in a better

10 position to evaluate your client's ability to undertake

11 the trial. But we are sure that you will represent him

12 with skill and ardour in the meantime.

13 The Status Conference, which, as you all

14 know, is mandated within 120 days after the Initial

15 Appearance, and 120 days thereafter, under Rule 65 bis,

16 very briefly, it has three objectives which I will

17 remind you of.

18 I know it's very warm in this courtroom, and

19 I hope that we'll be able to achieve all of these

20 objectives and be out of here hopefully within an hour

21 to an hour and a half.

22 The first is to facilitate the exchange of

23 information between the two parties and to examine the

24 progress of the case to make sure that there are no

25 undue delays. In that regard, we're going to discuss

Page 252

1 very briefly the disclosure of information that's

2 required under the Tribunal's Rules 66, 67, 68, 94 bis,

3 and 94 ter.

4 The second objective of the conference is to

5 manage the preparation by both sides so that the trial

6 will be as efficient as possible. This includes

7 various procedures that may speed the trial up, such as

8 parties agreements on undisputed facts, judicial

9 notice, affidavits, and perhaps depositions. It also

10 includes the pre-trial filings that are required under

11 Rule 65 ter.

12 The third is to give the accused, in this

13 case Mr. Martinovic, at the end of the proceeding, a

14 chance to tell us any concerns he has regarding the

15 conditions of detention.

16 Right off the bat we'll move toward the first

17 of those requirements. So I will ask both sides where

18 you are presently on the status of pre-trial

19 disclosures.

20 Now, I would remind you that at

21 Mr. Naletilic's Initial Appearance, the Prosecutor

22 indicated that the supporting materials that are

23 required to be given to the accused, to the Defence,

24 under Rule 66(A)(i) would be disclosed promptly. I

25 would now ask the Prosecution what has happened, has

Page 253

1 that been done; that is, the disclosures that are

2 required under Rule 66(A)(i).

3 MR. TERRIER: [Interpretation] Madam

4 President, as regards the obligations of the Prosecutor

5 to disclose supporting material, this measure has been

6 fulfilled by the Prosecutor as regards both of the

7 accused. Concerning Mr. Naletilic and Mr. Krsnik, this

8 was done, as we indicated to the Tribunal, at the day

9 of the Initial Appearance of Mr. Naletilic, that is, on

10 the 24th of March. We are now fulfilling our

11 obligation in application of Rule 66(A)(i).

12 As regards Mr. Martinovic and his counsel,

13 Mr. Seric, we have already disclosed on several

14 occasions 191 witness statements involving 134

15 witnesses. Some of the witnesses had given several

16 statements. These statements have been given to

17 Mr. Seric, who is representing Mr. Martinovic.

18 As regards Mr. Naletilic and his counsel,

19 Mr. Krsnik, we are now able to disclose these same

20 statements, because we have disclosed to both of the

21 accused all of the statements that are available to us

22 even if they concern the other accused primarily, so we

23 are now able to disclose to Mr. Krsnik, for the accused

24 Mr. Naletilic, these statements as well.

25 This leaves us with about 40 statements that

Page 254

1 still have to be disclosed. We cannot do it today in

2 the Serbo-Croatian language because we have some

3 problems, involving the translation problems this

4 Tribunal is familiar with. Additional resources are

5 being mobilised, and we have asked for a new deadline

6 to be indicated for the disclosure in the

7 Serbo-Croatian language. We now are able to disclose

8 the statements in the English language but we don't

9 know whether this will be sufficient for the counsel.

10 At the end of next month, we will have all of

11 the remaining statements, including those in the

12 language of the accused, and we will be able to

13 disclose them at that time to both Mr. Seric and

14 Mr. Krsnik.

15 JUDGE WALD: Let me make sure I understand

16 you, Mr. Terrier.

17 When you're talking about the witness

18 statements, the 40 statements that you have not yet

19 been able to translate into the language of the

20 accused, are those witness statements under 66(A)(ii)?

21 In other words, those are statements of witnesses that

22 the Prosecutor intends to call to testify at trial?

23 You have already disclosed the supporting material

24 under 66(A)(i); is that correct?

25 MR. TERRIER: [Interpretation] Yes, that is

Page 255

1 absolutely correct, Madam President.

2 JUDGE WALD: You are saying, if I understand

3 you, that you need until the end of next month, that

4 would be the end of June, to finish with the 40

5 statements. Did I understand you correctly that

6 that's --

7 MR. TERRIER: [Interpretation] Yes, you have,

8 Madam President. The translation service needs that

9 time in order to finish its work.

10 JUDGE WALD: All right. Thank you very

11 much.

12 Let me now ask the Defence counsel, first

13 Mr. Krsnik, whether or not you have received the

14 supporting materials, you have received many of the

15 witness statements except for the 40 that the

16 Prosecutor referred to. In other words, is the

17 information he has given us in accord with what you

18 have received, Mr. Krsnik?

19 MR. KRSNIK: [Interpretation] So far I have

20 received statements of about 30 witnesses, that was at

21 the Initial Appearance, and I haven't received anything

22 else until this day. If I understood him correctly, I

23 will get today the statements of an additional 190

24 witnesses. Because right now the Defence counsel for

25 Mr. Naletilic has about 30 witness statements so far,

Page 256

1 that's the only thing that has been disclosed to us by

2 the Prosecution.

3 JUDGE WALD: Mr. Terrier.

4 MR. TERRIER: [Interpretation] Madam

5 President, Mr. Krsnik has received, as I have said, the

6 documents that were presented to the Confirming Judge.

7 So that was pursuant to Rule 66(A)(i). What is still

8 pending and what we still have to do in order to fulfil

9 our obligations are a number of other documents.

10 As regards these other documents, we are able

11 to disclose them shortly -- not today, because we have

12 problems involving copying and so on -- we will be able

13 very soon to disclose to Mr. Krsnik the documents that

14 have already been disclosed to Mr. Seric, that is, 191

15 statements, witness statements.

16 JUDGE WALD: Those 191 do not include the 40

17 that you need a longer period of time for; is that

18 right? But those 191, when you say "in a little

19 while," I take that to mean that within the next week

20 or two you will get those, except for the 40, to

21 Mr. Krsnik; is that right?

22 MR. TERRIER: [Interpretation] Yes. Yes,

23 Madam President.

24 JUDGE WALD: All right. Now, let me ask you

25 one further question, Mr. Krsnik.

Page 257

1 The fact that Mr. Terrier says he needs until

2 the end of next month for these -- assume you get the

3 190 in a week or so. He needs some additional time, I

4 think a month and a half, for the additional 40 to be

5 translated into Serbo-Croat. Is that satisfactory to

6 you?

7 MR. KRSNIK: [Interpretation] Well, it is

8 acceptable to me because I have no other option. Your

9 Honour, on my own initiative, three weeks ago, I got in

10 touch with my colleagues for the Prosecution, asking

11 them when I will receive the other witness statements.

12 So I did that on my own initiative, and I have nothing

13 else to say. I have to be happy with this.

14 JUDGE WALD: Let me speak now with Mr. Seric

15 and make sure that he agrees with the information that

16 Mr. Terrier has given us about the receipt of both the

17 supporting materials and the 191 witness documents.

18 MR. SERIC: [Interpretation] Your Honour, the

19 information provided by my learned colleague from the

20 Prosecution is correct. I did receive the 132 witness

21 statements, and the Defence counsel for Mr. Martinovic

22 is aware of that, is in receipt of that.

23 JUDGE WALD: All right. I think we have that

24 in hand. My last question on the 66 situation is there

25 is, I take it, no possibility that the translations can

Page 258

1 be -- of the remaining 40 statements can be

2 accomplished sooner than a month and a half. In the

3 meantime, however, you can provide them in the English

4 language; is that right?

5 MR. TERRIER: [Interpretation] Madam

6 President, the statements are in English. They were

7 taken in the English language. We can disclose them in

8 English if my learned colleagues wish so. But we

9 cannot force the Translation Service of this Tribunal

10 to work faster than they do.

11 JUDGE WALD: Let me ask the two counsel for

12 the Defence. Will it be of any assistance to you to

13 get them in English ahead of the time that they come to

14 you in Serbo-Croat or not? Mr. Krsnik?

15 MR. KRSNIK: [Interpretation] For the time

16 being and at this stage of the proceedings, I don't

17 think it would be of any assistance to me if I were to

18 receive those witness statements in English. But I

19 would just like to make a note. I don't want to meddle

20 in the job of my colleagues, but I believe that those

21 witnesses are all from the former Yugoslavia, and I'm

22 surprised that they do not give statements in their

23 native language. So it seems that their original

24 statements are being translated into English and then

25 have to be translated back into Serbo-Croat. So I just

Page 259

1 have this little remark. That's rather odd.

2 JUDGE WALD: Mr. Seric, do you want them in

3 English, or are you happy to wait? Not happy, but

4 reconciled to wait until ...

5 MR. SERIC: [Interpretation] Well, Your

6 Honour, it will not change my situation to a

7 considerable degree if I receive these statements in

8 English, precisely because the Defence team, once they

9 receive the statements in English, we can understand

10 them, but we have to involve our client in the defence,

11 in the preparation of the defence, and that really

12 limits our possibility to do so if we don't have those

13 statements in Croatian.

14 JUDGE WALD: All right. I understand your

15 position.

16 Mr. Terrier, I would request of you that you

17 and your team keep on top of this, and if there is any

18 likelihood that the translation will be delayed beyond

19 the period that you are now estimating for me that you

20 will be in touch with me as the Pre-Trial Judge to let

21 me know if there is any possibility that they will not

22 be able to make that deadline.

23 As you know, the advanced disclosure of

24 witness statements is very important, and unless it's

25 done, it can cause very untoward delays later on in the

Page 260

1 proceedings. I know you're aware of that.

2 At this point, I would also remind the

3 Prosecution of their duty to disclose any exculpatory

4 evidence under Rule 68 as they move along. That means

5 that any evidence that they come upon which, in the

6 terms of the Rule, tends to suggests the innocence or

7 to mitigate the guilt of the accused, or to affect the

8 credibility of Prosecution evidence, and I'm sure

9 you're aware of that and you'll keep on top of that.

10 Okay. The next question I would ask is to

11 the Defence lawyers: Whether or not they intend, under

12 Rule 66(B), to make a request to review the

13 Prosecution's exhibits. If they do, I know that they

14 are aware that under Rule 67(C), I believe it is, that

15 the Defence -- that the Prosecutor, in turn, will be

16 entitled to inspect any exhibits, books, documents, et

17 cetera, which the Defence has.

18 Do either or both of the Defence lawyers

19 intend to invoke 66(B) for reciprocal disclosure,

20 reciprocal discovery of the documents?

21 Mr. Krsnik.

22 MR. KRSNIK: [Interpretation] For the time

23 being, no, Your Honour.

24 JUDGE WALD: How about you, Mr. Seric?

25 MR. SERIC: [Interpretation] Yes. Just like

Page 261

1 my colleague; for the time being, no.

2 JUDGE WALD: All right. It does speed things

3 up sometimes, if you will. So you might think hard

4 about that as you proceed through your preparation of

5 the case.

6 I'm also reminding you that under Rule 94

7 bis, any expert reports must be disclosed, the Rule

8 says, as early as possible. And within 14 days after

9 any such report is submitted to the Trial Chamber, the

10 parties must say whether they accept the report or wish

11 to cross-examine it.

12 My question, and I'll start with the

13 Prosecution, would be, at this point, whether or not

14 the Prosecution thinks there will be expert reports

15 that they will be tendering to the Chambers, and if so,

16 approximately when?

17 MR. TERRIER: [Interpretation] Madam

18 President, for the time being we do not think we will

19 invoke more than one expert report by Mr. Colin Kaiser,

20 who is an expert from UNESCO, and he deals with

21 religious and cultural institutions. This particular

22 issue was quite important throughout Bosnia and Mostar,

23 and he made a list of damage caused to these

24 institutions in that area.

25 It is quite a voluminous report. So far

Page 262

1 we've only had it in the English language, but it

2 concerns the area of Bosnia in its entirety, not only

3 the area of Mostar. So we think, for the time being,

4 that we will be using this report, because it is in

5 connection with paragraph 11 of the indictment, where

6 the Prosecutor states that the destruction of religious

7 and cultural objects was done, was made. I'm referring

8 to paragraph 11 of the indictment.

9 I should like to ask a question at this

10 moment, and it concerns our obligation to translate

11 this report. The report is in the English language.

12 Do we have to translate it -- do we have to translate

13 it in its entirety, or only the passages, the relevant

14 passages which concern the area of Herzegovina, and the

15 area of Mostar in particular?

16 JUDGE WALD: I'm consulting the Rule for the

17 moment.

18 The Rule certainly doesn't say anything about

19 it having to be translated in the language of the

20 accused, but since I am relatively new at this

21 business, let me at least preliminarily consult

22 Mr. Fourmy, who has had somewhat more experience along

23 these lines.

24 [Judge Wald and Legal Officer confer]

25 JUDGE WALD: To answer your question, at this

Page 263

1 juncture, it doesn't appear to me that the report

2 itself is required by the Rule to be translated in that

3 language. Now, of course if an expert comes on, or if

4 the expert comes on, then the expert would be subject

5 to the expert witness rule. However, I would think

6 that if it were possible, that if there were key

7 provisions of the report, it would facilitate matters

8 greatly if there were a translation of that. But

9 that's certainly my preliminary feeling about this.

10 However, if upon doing any further research I come to a

11 different conclusion, I will let both parties be aware

12 of that.

13 When do you think that you would be

14 submitting such a report either to the Defence, for

15 their advance knowledge, or later on to the Chamber?

16 MR. TERRIER: [Interpretation] Madam

17 President, I can just inform you about my experience in

18 another case.

19 JUDGE WALD: Please.

20 MR. TERRIER: [Interpretation] Even, of

21 course, in the Rules, and I'm referring in particular

22 to Rule 67, the Rule does not oblige us to have that

23 translation. But we have a similar obligation in some

24 other systems.

25 What concerns me is the following: I think

Page 264

1 it is perfectly normal, logical, and feasible, without

2 too much difficult, to translate the pages that concern

3 the area of Mostar and Herzegovina, but it is

4 absolutely useless, on the other hand, and it would be

5 a waste of time, if we have to translate the report in

6 its entirety. The report consists of about 400 pages

7 and it concerns the area of Bosnia as a whole, and some

8 areas in Croatia, in particular, the area of

9 Dubrovnik.

10 So what we would like to do is that we be

11 allowed not to translate the entire report but only,

12 and as soon as it is practically possible, the pages

13 that concern the area of Mostar, and, I think, I'm not

14 quite sure, that it must be about 50 pages, 50 pages

15 concerning the area of Mostar, that is.

16 JUDGE WALD: Let me get the reaction of

17 Mr. Seric and Mr. Krsnik.

18 Would that be satisfactory to you, if the

19 parts of the report which have any relevance to the

20 episodes that we're considering in this case are

21 translated to you in the native language? Will that be

22 satisfactory to you?

23 Mr. Krsnik.

24 MR. KRSNIK: [Interpretation] Your Honour, it

25 seems logical to the Defence that the Prosecutors

Page 265

1 should stick to their indictment and to translate only

2 those parts that are relevant for the indictment, which

3 would enable us to defend our clients to the best of

4 our abilities. I do not see any sense in translating

5 things that concern the overall situation in Bosnia, in

6 particular in Croatia, because these proceedings have

7 to do with the indictment that was issued by our

8 learned colleagues.


10 Mr. Seric.

11 MR. SERIC: [Interpretation] Your Honour, as

12 regards the destruction in Bosnia and in the wider

13 area, my client, Vinko Martinovic, doesn't have

14 anything to do with that. Only the things that

15 happened in Mostar have to do with him, and he knows

16 best what happened there. So we agree -- I agree that

17 only those parts that are relevant for this area be

18 translated, and then we can examine it and challenge

19 those parts that we deem fit.

20 JUDGE WALD: All right. I'm also informed,

21 and you can correct me if I'm mistaken here,

22 Mr. Terrier, that the author of the report, Mr. Kaiser,

23 is it, has already testified before this Tribunal in

24 another case. So there will be available transcripts

25 which have been translated in B/C/S as to his

Page 266

1 testimony.

2 Okay. Now, I'd like then -- and do you have

3 a rough idea when you're likely to submit that report?

4 If the conditions which you specified and which are

5 satisfactory to the Defence; namely, just the

6 translation of the relevant portions.

7 MR. TERRIER: [Interpretation] Madam

8 President, frankly speaking, today I am unable to give

9 you a specific date. We have to contact the

10 Translation Service once again for that purpose. And I

11 do not think that we would be able to disclose a

12 translation of those 50 pages before the month of

13 July.

14 JUDGE WALD: Well, I have in mind, although

15 it is skipping ahead some, that we would have another

16 Pre-Trial Conference in which I hope many of these

17 things will have settled into, probably in early July.

18 That would satisfy both the 120-day period for your

19 client, Mr. Krsnik, and allow some of these matters,

20 including the witness statements that you talked about,

21 to be settled in. So that timing sounds as though it's

22 a reasonable one.

23 Let me move on to a quick survey of whether

24 or not the parties have considered -- I hope they

25 have -- and will continue to consider and perhaps to

Page 267

1 execute some of the methods for shortening trial.

2 Now, the first obvious method would be taking

3 some of the testimony by deposition, pursuant to 71, or

4 even possibly by video conference, to 71 bis.

5 Does the Prosecution presently have any

6 intention to take any of the testimony by deposition?

7 MR. TERRIER: [Interpretation] Yes, Madam

8 President. When we established, initially, contact

9 with Defence counsel and when we were able to assess

10 these points of agreement and disagreement, so once we

11 establish that kind of contact, we will be able to tell

12 you what witnesses exactly can be heard here by the

13 full Chamber and what witnesses can be heard, in

14 accordance with Rule 71, by videolink, if, of course,

15 it involves certain problems, in particular those

16 relating to security.

17 So we should like to ask the Chamber to use

18 this particular provision for a limited number -- a

19 certain number of witnesses, but today we are not able

20 to provide you with that list because we have to

21 establish this type of contact with our colleagues from

22 the Defence so that we can see on what issues we can

23 agree.

24 JUDGE WALD: I understand that, and I assume

25 again that by the time -- if we have another Pre-Trial

Page 268

1 Conference, say, in early July, you will be far enough

2 long to be able to inform us.

3 How about the Defence? Mr. Krsnik and then

4 Mr. Seric. Do you have any intention of using

5 deposition testimony for any of your witnesses? Go

6 ahead, Mr. Krsnik.

7 MR. KRSNIK: [Interpretation] The Defence does

8 not intend to do so, in particular as the Defence

9 counsel for Mr. Naletilic thinks that this Court is a

10 court of the highest standard. The Defence does not

11 wish to discuss these proceedings in terms of

12 expediting them or making them shorter. We want to see

13 the justice done and to be done in its entirety. For

14 that to be done, we think that all the witnesses have

15 to come here, be heard before this Trial Chamber, and

16 cross-examined, because we already have some

17 information about the conditions -- circumstances in

18 which the witness statements were taken in Bosnia. We

19 know that --

20 JUDGE WALD: I'm sure that -- I'm sorry. Go

21 ahead.

22 MR. KRSNIK: [Interpretation] I just wanted to

23 complete my sentence. So in principle, the stand of

24 the Defence is that all the witnesses have to come here

25 and be heard before this Trial Chamber and be

Page 269

1 cross-examined here in the courtroom.

2 JUDGE WALD: I understand your position,

3 though I'm sure you're aware that if testimony is taken

4 by deposition, that means that it is taken subject to

5 cross-examination. And indeed, sometimes justice best

6 done by being done as quickly as is possible under

7 fairness.

8 But how about you, Mr. Seric? Have you

9 considered the possibility of depositions?

10 MR. SERIC: [Interpretation] Your Honour, I

11 wish to support the statement of my colleague,

12 Mr. Krsnik, but I wish to give a theoretical

13 introduction on which we base our view. I will repeat

14 that this International Criminal Tribunal was

15 established by the Security Council of the United

16 Nations to prosecute serious violations of humanitarian

17 law in the territory of the former Yugoslavia. It's an

18 authority par excellence for the whole world and for

19 Croatia. That is why we, the Defence, deem that we

20 should pursue the principle of adversarial proceedings

21 and direct examination, and in the interests of justice

22 and of having a fair trial to which we are obliged

23 under Article 20 of the Statute, the witnesses have to

24 be heard before the Trial Chamber.

25 The Defence wishes to stress that our

Page 270

1 experience so far tells us something about how the

2 witnesses feel when they testify at home, so to speak,

3 because it may, and indeed it happened already, that it

4 may be different than when they testify before the

5 Court. And it is precisely this feeling, this sense,

6 that they are testifying in their own home, in their

7 own village, in their own environment, and that after

8 they inculpate my client very seriously, they just

9 cross the street and go back to their home as if

10 nothing has happened, without even seeing the accused,

11 and the entire street, the entire village, knows that

12 they testified the way they did. And then at the same

13 time, somebody else who has an impact -- who affects

14 their financial and other status, and that has

15 happened, the Defence has information that in some

16 cases the witnesses' houses were not repaired until

17 they testified, so they have this feeling that their

18 testimony affects the quality of their lives, and

19 indeed their security, this affects the accuracy of

20 their testimony.

21 Well, we are all experts here. We know what

22 Grasburger [phoen] wrote about this issue. The effect

23 of the environment from which the witnesses come is not

24 so strong. If they are there, they have to testify the

25 way that the environment expects them too.

Page 271

1 JUDGE WALD: I think I understand your

2 position and the reasons why you're taking it. At this

3 point, I would simply remind you that the Rules of the

4 Tribunal do provide for depositions to be taken where

5 it is in the interests of justice to do so.

6 Now, if you decide you do not want to do any

7 of your witnesses by deposition, you have given us some

8 of the reasons to do so. If the Prosecution, however,

9 decides that it wishes to advance some of its witness

10 testimony by deposition, I'm sure there will be an

11 opportunity for you to object. But I would again

12 remind you that many of the trials before the Tribunal

13 have had deposition testimony in them, which, I think

14 it is the consensus, they have not suffered to any

15 degree for lack of fairness. And in some cases, it is

16 a question not of getting the absolute best possible

17 means in every case but of losing the witness

18 altogether if the witness cannot come by deposition.

19 But I don't think we have to, at this

20 juncture, go into all of the arguments, pro and con, on

21 that. I wished merely to find out your intent on

22 these.

23 The same is true of the next two questions

24 which I may surmise you may answer similarly, but you

25 may surprise me, and I'll ask the Prosecution first

Page 272

1 whether or not they've identified any facts that they

2 think might be the subject of judicial notice, pursuant

3 to Rule 94.

4 In some of the cases that we've had, there

5 have been consensual -- consent of both sides to

6 recognising some adjudicated facts. Now, I'm not sure

7 that there are that many similar proceedings to the

8 issues that are involved in this case, but I wonder if

9 you've thought about. If not, if you will think about

10 it.

11 MR. TERRIER: [Interpretation] Madam

12 President, I will reply to your question as completely

13 as possible. Will you just help me to understand, and

14 to add something under Rule 71, the way we understand

15 it at the Office of the Prosecutor.

16 Let me first tell you, and I should like to

17 answer the argument of Mr. Seric, namely, that some of

18 the witnesses could be led to testify in a different

19 manner. My answer is that Rule 71 does not provide

20 that it can be heard in their kitchen at home. This is

21 something that's transmitted here, to this courtroom.

22 In those conditions and bearing in mind those

23 circumstances, I have to say that the witnesses will be

24 in an appropriate environment and they will have to

25 testify sincerely and as completely as possible.

Page 273

1 Let me add one more thing. The witnesses who

2 will be saying, maybe, "I recognise the accused

3 Naletilic or the accused Martinovic," those witnesses,

4 the witnesses who are able to identify the accused and

5 to say that the accused committed a crime, namely, the

6 fact witnesses, I think that those witnesses will have

7 to be called and testify before the Chamber.

8 This will not be the case of all of the

9 witnesses that we intend to call. Other witnesses will

10 bring other important information to this Chamber but

11 they will not necessarily identify either of the

12 accused. And those witnesses are the ones that I had

13 in mind when I said that they could be heard if not by

14 the procedure provided -- that they could be heard by

15 the use of videolink. So this is my answer to the

16 position exposed by my learned colleagues.

17 If we have a fact witness, that witness is --

18 of course, it will be easier for him to express himself

19 in the absence of the accused, but those witnesses will

20 be called. And I think that this is very useful in the

21 determination of the truth. So we do not intend, in

22 accordance with Rule 71, to hear witnesses by

23 videolink. Witnesses who are fact witnesses and who

24 can seriously inculpate the accused.

25 To go back to the judicial notice that you

Page 274

1 mentioned, we primarily have in mind the issue of the

2 conflict in Bosnia and Herzegovina in the relevant

3 times. This has already been the subject of some

4 debate and discussion and evidence that was heard in

5 other cases before this Tribunal.

6 However, this discussion has not completed,

7 has not been completed to this date. So we suggest

8 that the Chamber base itself on the adjudicated facts

9 in other cases as regards the issue of the armed

10 conflict in Bosnia-Herzegovina at the relevant times.

11 For the time being, I see it as the only

12 issue that we intend to invoke, in accordance with Rule

13 94.

14 JUDGE WALD: Thank you, Mr. Terrier. That's

15 very helpful for you to focus us on that. And I might

16 get an initial reaction from the two Defence counsel on

17 that, whether or not you think, after discussions, you

18 may be in a position to agree to using judicial notice

19 on adjudicated facts, just on that single issue on the

20 nature of the armed conflict here, which I know you

21 consider to be an issue in the case from your prior

22 pleadings.

23 You certainly don't have to give any final

24 answer today. Mr. Terrier has put us on notice that

25 that's something which he thinks is certainly worthy of

Page 275

1 discussion and might become the subject of a motion

2 which he would put before the Chamber.

3 If you wish to share with us your initial

4 reaction, it certainly doesn't have to be your final

5 position on that, I'd be happy to hear you. It might

6 be useful to him too.

7 Do either counsel wish to say something on

8 this?

9 Mr. Krsnik.

10 MR. KRSNIK: [Interpretation] Madam President,

11 the musings of the Prosecutor, I take them to be just

12 that, the musings. You will have to excuse us.

13 Mr. Seric and myself are rather new here, and we are

14 just studying the precedents of all the cases that were

15 tried before this Tribunal. And as far as we know, no

16 facts have been concluded, no judgements are final,

17 because no cases have been completed, the appeals are

18 still pending.

19 So we don't know what are those things that

20 our learned colleague from the Prosecutor thinks has

21 already been adjudicated, because in the view of the

22 Defence, no Trial Chamber has yet proven or accepted,

23 established, that the existence of an international

24 armed conflict in Bosnia.

25 So in our discussions, we will have to go

Page 276

1 case by case to see what has been accepted and to see

2 whether the Defence can admit to that or accept it.

3 JUDGE WALD: All right. Well, I think we've

4 established that it's the subject of discussion.

5 Perhaps we can go no further than that.

6 Now, the next and last issue on methods that

7 I want both sides to think about and discuss before the

8 next Pre-Trial Conference has to do with a motion which

9 has already been submitted by the Prosecution and has

10 been under advisement by the Chamber, I think, for more

11 than a month, maybe two months now, and that is a

12 motion made under Rule 95 -- I'm sorry, 94 ter, dealing

13 with so-called affidavit evidence.

14 Now, the Prosecution's submission was that

15 because it is not feasible for them in many cases to

16 satisfy technically the requirement of an affidavit

17 because Bosnian law doesn't recognise that particular

18 term, and they think many of their witnesses would have

19 some problem in testifying even before -- or in making

20 out an affidavit or formal statement before the local

21 judges, which has been done in some other cases, they

22 would like the Chamber to interpret Rule 94 ter to

23 allow a procedure whereby the Prosecutor's staff would

24 take the statement and would require the witness to, in

25 effect, affirm that they were telling the truth under

Page 277

1 pain of any penalty that would follow a false statement

2 for the Tribunal.

3 Now, we've heard from Mr. Krsnik about all --

4 I've read with great interest and care the oppositions

5 that you have filed to that. The first thing I'd like

6 to ascertain, however, is we have not heard from

7 Mr. Martinovic's counsel, and I wondered if you wanted

8 to say something on that issue here today. You

9 received that motion, I take it, a few months ago.

10 MR. SERIC: [Interpretation] Your Honour, I

11 did receive the motion, and speaking conditionally, if

12 the witness statements that the Court and the

13 Prosecution and the Defence are of such probative

14 value, then what is at issue is what the other indirect

15 evidence -- what is the importance of that indirect

16 evidence.

17 The Rule, as is stands, is fine. So speaking

18 conditionally, I cannot say whether I agree or not. I

19 can say that on a case-by-case basis, depending on each

20 individual witness statement. If the witness statement

21 is good, then we do not need the indirect evidence, the

22 indicia, the circumstantial evidence that would speak

23 to the credibility of the witness statement that is at

24 issue and that the Prosecution uses to prove a point.

25 JUDGE WALD: Well, I'm going to give

Page 278

1 Mr. Terrier a chance to add any additional thoughts he

2 has on it. But I'm not going to -- this is a matter

3 which would have to be ruled upon by the entire

4 Chamber, obviously, and I'm not going to rule upon it

5 today. But I will relay back to them the comments that

6 are made.

7 I wish to inform you of one thing, and that

8 is that the Chamber has been seriously considering

9 this. It has not been sitting on the table not being

10 looked at, as it were. And one question which I would

11 address to you is that Rule 94 talks about an affidavit

12 or formal statement which is signed by a witness. This

13 is in corroboration cases in accordance with the law on

14 procedure for such state in which such affidavits or

15 statements are signed.

16 Now, in your motion, you told us about one

17 provision in Bosnian law which allows evidence to come

18 in if it is sworn before a local judge, I think. But a

19 question that was raised in our mind is whether or not

20 there is not some provision in Bosnian law which would

21 be in full accord with the terms of 94 ter which do not

22 require that the statement be sworn before a local

23 judge, but rather that it be acknowledged before some

24 authority that's recognised by Bosnian law akin to the

25 kind of notary, or notary public which we have not only

Page 279

1 in French law but in American law, and in at least one

2 of these cases in this Tribunal has been accepted under

3 94 ter.

4 In other words, you don't have to have a

5 local magistrate, but does Bosnian law recognise a kind

6 of statement which is confirmed before a type of

7 notary?

8 In that regard, we plan to submit a letter to

9 the Bosnian government simply asking them for

10 information about the state of their law as to whether

11 or not they have a kind of notary procedure but --

12 which again, I point out, has been accepted in other

13 cases before this Tribunal. But I would like to find

14 out from you whether or not, from your point of view,

15 if such a system existed, that would alleviate some of

16 the concerns you have or not.

17 MR. TERRIER: [Interpretation] Madam

18 President, Mr. Stringer will answer your question on

19 behalf of the Office of the Prosecutor.

20 MR. STRINGER: Good afternoon, Madam

21 President, and greetings to counsel.

22 Your Honour, in respect of this issue, your

23 first question and the question of the Trial Chamber,

24 in respect of whether provisions exist under Bosnian

25 law for what we call a notary in the English language,

Page 280

1 I've had some dealings with this issue for some time

2 now. It's my vague impression that there may exist in

3 Bosnian law such a provision; however, it's not found

4 in any of the laws or procedures that apply in criminal

5 proceedings.

6 It may be that such a person exists under the

7 law of Bosnia-Herzegovina in other sorts of areas,

8 other legal areas, such as areas involving real estate,

9 other forms of property, other areas in which persons

10 may be called upon to notarise or to place some sort of

11 official seal or to ascertain the authenticity of

12 signatures on documents. So it may be that a provision

13 exists under some part of the law in

14 Bosnia-Herzegovina; however, I don't believe it exists

15 under the law that applies in criminal proceedings.

16 The law that we've cited in the motion is

17 what we believe is the closest provision that exists;

18 that is, Article 230 which empowers a judge to put a

19 witness under oath and to take a statement during the

20 pre-trial or investigative phase of the case. But as

21 Your Honour is aware, that procedure is only -- can

22 only be used in Bosnia when there is an apprehension

23 that the witness, because of sickness or some other

24 reason, will not be able to appear at the hearing.

25 So that is really something that's the

Page 281

1 opposite from what's envisioned in our Rule, and

2 applying the language of 94 ter strictly, we don't

3 think that we can meet that criterion in terms of

4 illness or other reasons which would prevent a witness

5 from coming to the Tribunal.

6 JUDGE WALD: I think, Mr. Stringer, however,

7 in reading the question, I don't propose to answer it,

8 but the question is at least raised by the wording of

9 94 ter, whether or not the procedure which is talked

10 about in accordance with the law and procedure in which

11 such affidavits or statements are signed relates to the

12 fact that it is legal to have a particular official

13 witness the statement, as opposed to whether or not

14 that particular witness statement would be admissible

15 in a criminal proceeding in that particular country.

16 For instance, as I say, in at least one other

17 proceeding, a statement that was notarised by an

18 American notary public was accepted under this

19 particular provision, whereas I think it would be

20 probably doubtful whether or not that would be

21 admissible in a criminal proceeding.

22 This is simply a question that has been

23 troubling us. I think it's no secret that the

24 interpretation of 94 ter is involved in many cases

25 before -- several cases before the Tribunal, and in

Page 282

1 fact we do have an interlocutory appeal which is

2 pending upon whether or not a witness statement that

3 was taken by a prosecutor, not perhaps under the exact

4 wording of the oath that you -- not the oath, but the

5 acknowledgement that you propose, whether or not that is

6 admissible.

7 So I simply wanted to apprise you of this.

8 We are working on it, and we will come down with a

9 ruling on that in time to make it of use to the

10 parties.

11 MR. STRINGER: Thank you, Your Honour.

12 JUDGE WALD: Now, the next item, and I am

13 bound to get us out of here within the next -- all

14 right. Mr. Krsnik, do you have something to say? Go

15 ahead.

16 MR. KRSNIK: [Interpretation] I apologise,

17 Your Honour, but I do believe an intervention is in

18 order.

19 Madam President, my colleague and myself, and

20 most of us, the Defence counsel representing our

21 clients here before this Court, we graduated from law

22 schools in the former Yugoslavia. I just want to

23 present a view that is contrary to the one expressed by

24 my learned colleague. I think that he is not really

25 familiar with what he terms "the Bosnian law." This

Page 283

1 law has not changed substantially from the law that was

2 in effect in the former Yugoslavia, the criminal and

3 property law.

4 In fact, there was substantial law and

5 procedural law in Yugoslavia and all of the republics.

6 It is similar to the system that is in effect in the

7 United States. For some -- in some cases, some cases

8 are tried under the federal law and some under the

9 republican law.

10 After all the events that we are familiar

11 with, these laws have changed to a very little degree.

12 What I want to say is that in the criminal procedure

13 law in force both in Bosnia and in Croatia, it does not

14 envisage the possibility of oath-taking similar to the

15 one that is in effect here.

16 The witness is presumed to be under an

17 obligation to speak the truth. They do not take an

18 oath. It is presumed that they are speaking the

19 truth. And if it is proven that they haven't been

20 speaking the truth, then appropriate measures are

21 taken.

22 And as to notaries public, this system of

23 notaries public has not been established in

24 Bosnia-Herzegovina yet. In Croatia there is such a

25 system in place.

Page 284

1 In Bosnia-Herzegovina, all the statements and

2 all the other papers that need to be notarised, in

3 France, in the US, and so on, they have to go to the

4 local authorities, to the municipal administrative

5 body, and have it notarised there.

6 So what is being discussed in Rule 94 ter,

7 and what our learned colleagues from the Prosecution

8 are talking about, it's irrelevant. And it is

9 inappropriate, in fact, to use such statements taken in

10 this way before this Court.

11 This is a very short representation of the

12 situation now.

13 JUDGE WALD: All right. Thank you,

14 Mr. Krsnik.

15 MR. STRINGER: Your Honour, may I just make

16 one very brief rebuttal?

17 JUDGE WALD: Yes. Go ahead.

18 MR. STRINGER: We were actually looking

19 forward to getting the views of the Defence on this

20 very point because I think it's clear to all of us that

21 they are in a better position to know what is the law

22 of the Federation of Bosnia-Herzegovina now.

23 In the response that was filed by counsel for

24 Mr. Naletilic, there is no indication whatsoever of any

25 disagreement with the characterisation of the law that

Page 285

1 the Prosecutor included in her submissions on this,

2 including the copies of the legislation which we

3 believe applies. And, of course, on the part of

4 counsel for Mr. Martinovic, there was no response

5 whatsoever.

6 So it is, I think, something to be borne in

7 mind at this late date the positions of counsel on what

8 is the applicable law. That is number one.

9 Secondly, it may be that counsel's in a good

10 position to know the law that prevailed in the former

11 Yugoslavia prior to its dissolution. However, the law

12 that we've cited to the Trial Chamber is the current

13 law of Bosnia-Herzegovina, their laws on criminal

14 procedure enacted in December of 1998.

15 So again, we believe that's the current law.

16 It's certainly law that was enacted in that country

17 long after the former Yugoslavia ceased to exist, and

18 it is the law which, in our view, comes closest to what

19 is envisioned by Rule 94 ter.

20 JUDGE WALD: Thank you, Mr. Stringer. This

21 particular debate will be continued inside Chambers,

22 and we'll will let you know how we come out of that.

23 But I point out to you that I take no umbrage at all

24 with your statement of the law in Bosnia insofar as 230

25 is concerned, and as far as the criminal procedure

Page 286

1 goes.

2 The question that concerns the Chamber,

3 because it is a Tribunal-wide question which has

4 occurred in other cases too and is currently being

5 debated in other cases, is whether or not if, indeed,

6 the Bosnian law, under your view, would allow only

7 something in its present form, pursuant to 230, whether

8 or not we should then take the step ahead that you urge

9 upon us and the Defence counsel would be very negative

10 about. So we're seeking to look at all possible

11 alternatives before we make that choice.

12 Now, let me talk a little bit about the next

13 step before the Pre-trial Conference, which in light of

14 some of the information that we have gotten so far

15 suggests that that will probably be in early July, by

16 which many of these other disclosure requirements

17 should be satisfied.

18 Now, I point out to you that what I'm aiming

19 at, what I am aiming at and I hope you all are aiming

20 at, is that we would be through with the pre-trial

21 stage of the case in -- certainly by the end of

22 September. In other words, the case would be ready,

23 positioned, to go to trial by the end of September.

24 Now, I know you might say, "A-ha, but what

25 are the possibilities that we really would be able to

Page 287

1 go to trial?" As you know, our Chamber is currently

2 occupied with two trials; one of them, with any kind of

3 luck, will be over, the trial phase will be over in the

4 late fall; the other one we're not sure about, but

5 we're aiming about something that's close to that.

6 There, too, is also the possibility that

7 another Chamber might become free and be able to take

8 the case if it were positioned. So I think there is a

9 real virtue in us having all the pre-trial management

10 phase done by the end of September. And as I say, I

11 would envision having another Pre-Trial Conference in

12 early July.

13 Now, let me -- that would also assure

14 Mr. Naletilic's 120-day right to be heard from from the

15 time of his Initial Appearance.

16 But let me tell you what I hope the parties

17 will be able to do aside from the disclosure business

18 that we talked about earlier.

19 One, I think that the parties should get

20 together and exchange information and documents to the

21 point that they can decide and tell me at the next

22 Pre-Trial Conference what points are disputed and what

23 are undisputed in the indictment, almost paragraph by

24 paragraph, to see whether indeed there are some things

25 which it is not necessary for you to dispute in order

Page 288

1 to provide the fullest possible defence to your

2 clients.

3 So we're hopeful that you would be able to

4 come to us, as has been done in some of the other cases

5 of which I'm familiar with it, the indictment which

6 says, "Paragraphs 1, 2, and 3," or "Parts of paragraphs

7 1, 2, and 3 we don't dispute; the rest we do." That

8 would be helpful.

9 Rule 65 ter (E) requires that the Prosecutor

10 go first in terms of putting together some statement

11 for the Chambers of exactly what the issues will be in

12 the trial. And Rule 65 ter (E) requires that that

13 pre-trial brief, which I would see as coming sometime

14 in September so that we can have a final Pre-Trial

15 Conference at the end of September, that that would

16 include, as is in the Rule, a preliminary statement on

17 the facts and the law from the Prosecutor's point of

18 view; a statement on the points of law and fact that

19 are disputed and undisputed; and a list of witnesses,

20 I'm now talking mainly from the Rule, with any requests

21 for pseudonyms, and the estimated time that their

22 testimony will take.

23 Let me make three comments vis-à-vis

24 witnesses: One, the Chamber would really like to know,

25 and hopes the Prosecution will be in a position at that

Page 289

1 time to know what protective measures, such as facial

2 distortion, pseudonyms, keeping the name out of the

3 public domain, even in extreme cases -- and I point out

4 very extreme cases -- closed session that the

5 Prosecution will be requested for witnesses ahead of

6 time. In some other trials, as I'm sure you're aware,

7 it's caused some delay in the trials to have those

8 arise at the last minute.

9 Now, the Rule also requires that the

10 Prosecutor include a summary of the witness'

11 testimony. I've seen various forms of summaries. Some

12 of them appear to be merely a kind of summary of the

13 statement as the statement which is not too helpful for

14 us. I think that the summary should be very specific

15 as to the points of the indictment or the Prosecution's

16 theory of the case that are affected or that are

17 made -- that the witness' statement is relevant to,

18 because that will make it much easier to move ahead.

19 I hope this does not fall on deaf ears, but

20 we must emphasise the need for, in all cases possible,

21 shortening the list of witnesses, and perhaps

22 classifying them in terms of the importance and again,

23 whether their evidence might be taken by deposition or

24 by affidavit because I'm sure you're all aware of the

25 number of cases that are waiting to be tried and it

Page 290

1 will take an interminably long time if every single

2 case has hundreds of witnesses and takes more than a

3 year to try. It simply will be impossible to get the

4 work of the Tribunal accomplished.

5 So with that in mind, I would like to hear,

6 even now, very preliminarily, and I think you can give

7 this to me because it would be a very preliminary

8 estimate, of the number of witnesses you think -- the

9 range of the number of witnesses that you think that

10 you'll be calling. And I'm going to ask the Defence

11 witnesses the same. Knowing that you can't tell

12 finally until, perhaps, a few months from now. But

13 give me a rough idea of how many witnesses you think

14 you're going to be calling, live witnesses, at this

15 stage.

16 Mr. Terrier.

17 MR. TERRIER: [Interpretation] Madam

18 President, as you say, today it is very difficult to be

19 precise in response to your question. So what I can

20 tell you at this point, and I have to express myself

21 under a caveat because we do not know what is going to

22 be accepted as a fact not in dispute to this date; and

23 secondly, we still do not know whether we will be able

24 to use the procedure provided for by Rule 71 or Rule 94

25 bis.

Page 291

1 So with this double caveat, we can tell you

2 that we intend to call to testify before the Tribunal,

3 before the Chamber sitting in full, between 60 and 70

4 witnesses. If we count one witness per day, we will be

5 able to hear -- we would actually be able to hear 1.5

6 witnesses per day, working day, and this applies only

7 to the Prosecution's time. So that will take us to 45

8 to 47 days of hearing, and this is indeed a very rough

9 estimate that I'm able to give you today. We hope that

10 we will be able to further reduce the number of

11 witnesses. Thank you, Madam President.

12 JUDGE WALD: You've told us that at the

13 present time the range would be in the vicinity of nine

14 weeks; right? Forty-five days.

15 MR. TERRIER: [Interpretation] Yes, Madam

16 President.

17 JUDGE WALD: Okay. I understand the

18 Defence's job of estimating is a much more difficult

19 one at so early a stage in the game, but perhaps you

20 can give us a notion of the range of numbers of

21 witnesses that you think you may bring in for the

22 Defence.

23 Mr. Krsnik.

24 MR. KRSNIK: [Interpretation] Well, Madam

25 President, you are indeed right. The position of the

Page 292

1 Defence right now, and I believe for the entirety of

2 the trial, will be more difficult because we do have a

3 feeling that our learned colleagues from the

4 Prosecution are more privileged than we are. I don't

5 have my team as yet. I did not receive a decree

6 nominating my co-counsel, and only today did I receive

7 the decision that I have been appointed for three

8 months, provisionally. So I don't have the security,

9 and all this results in a certain insecurity in the

10 Defence counsel.

11 For all these reasons, the Defence really,

12 for the time being, cannot envisage the number of

13 witnesses or the number of trial days for the Defence.

14 And what we really depend on is the quality of the

15 witness statements tendered by the Prosecution. Only

16 then will we be able to give you an answer and to reply

17 to those allegations with our witnesses.

18 My client has been charged with 22 points of

19 the indictment. I need, let's say, two witnesses for

20 each count, and that would take us to 44 witnesses,

21 let's say. So the roughest estimate would be the same

22 number of trial days as my learned colleague. But do

23 not take us -- do not hold us to that. This really is

24 the roughest of estimate.

25 JUDGE WALD: No. This is not a committal,

Page 293

1 but it gives us some idea in planning. And I would

2 expect by the time of the next Pre-Trial Conference, in

3 early July, when you've received all of these witness

4 statements, that you would give us a much firmer

5 number.

6 How about you, Mr. Seric? Remembering that

7 there may well be that between you one witness may

8 serve, in some cases, both of your purposes.

9 MR. SERIC: [Interpretation] Your Honour,

10 absolutely, and not only that. According to the

11 preliminary discussions between myself and my

12 colleague, we will have joint witnesses, so to speak,

13 which will reduce the number of witnesses required for

14 each individual Defence.

15 Regardless of the fact that this is a joint

16 indictment, the places and counts are different for

17 each of the indictees. My position is a bit more

18 favourable, since I did receive the provisional

19 decision on appointment several months before my

20 colleague, so I do not have any complaints, despite the

21 fact that not all of my colleagues in the team have

22 been paid, those working in the field.

23 The Defence has contacted about 151 witnesses

24 so far. We intend to call anything between 60 and 70

25 witnesses, similar to the number called by the

Page 294

1 Prosecution. Some of the witnesses may overlap with

2 the Defence of Mr. Krsnik. I cannot tell you that with

3 any certainty because I have not been able to advise

4 Mr. Krsnik about the material that I received from the

5 Prosecution because I was told to keep it

6 confidential. So this is just a preliminary

7 statement.

8 JUDGE WALD: Thank you. I certainly hope

9 that you and your -- the other Defence counsel can get

10 together and eliminate any duplication in terms of your

11 witnesses, as has been done in some other joint trials

12 in the Tribunal, because otherwise we will go on for

13 years and years and I don't intend that that should

14 happen.

15 I'd also remind the Defence that during this

16 period when the Prosecution is working to put together,

17 with an aim for September, its pre-trial -- final

18 pre-trial brief, that very soon thereafter, under Rule

19 65 ter (E), the Defence must also come up with some

20 brief of its own, talking about which facts it disputes

21 and does not dispute, and also that under Rule 67(A),

22 if either of your clients intends to offer any special

23 defences, like alibi, mental incapacity, that they must

24 be made as soon as possible. I'm well aware of

25 Mr. Naletilic's ongoing examination, and I assume that

Page 295

1 whatever that produces, you will take that into

2 regard. But if there are to be any defences such as

3 mental incapacity, physical inability, alibi, that sort

4 of thing, then they should be made as soon as you have

5 the necessary information and facts.

6 Also, at an early point, and certainly by the

7 next Pre-Trial Conference, we would like to know

8 whether the defendants themselves plan to testify or

9 not.

10 I have a few other things to talk to you

11 about very briefly, about the so-called house rules and

12 our Trial Chamber and the way this Trial Chamber

13 handles trials, which will affect the kind of papers

14 that you file. We do have a working practice in the

15 Chamber that requires the parties, before you file any

16 motion with the Chamber, that the parties, the Defence

17 counsel and the Prosecution, should at least contact

18 each other and talk with the other side, attempting to

19 either reach an agreement or to narrow the areas of

20 difference, rather than just sending us the paper

21 motion and then we find out by the reply that there

22 really isn't an issue or the issue is much narrower or

23 it could have been worked out. So we want you to at

24 least talk to each other before you file formal,

25 written motions with us.

Page 296

1 If it is a relatively simple matter, we would

2 prefer that you consider making an oral motion instead

3 of a written one. Now, I understand when we're in the

4 pre-trial period, we're not in trial every day. But if

5 it is a motion which can, for instance, wait until the

6 next Pre-Trial Conference and will not unduly inhibit

7 your preparation for trial, then we would rather be

8 able to take care of it then but not at the expense of

9 delay. If you need to get it in and get it decided,

10 then go ahead and file it.

11 We do have a rule because this is a mixed

12 Chamber, for which I'm responsible because I'm the

13 English speaking member of it and my colleagues speak

14 French more natively than I do, but we do have a rule

15 for all of our cases now that written motions be filed

16 in both French and English.

17 And lastly, as you prepare your exhibits for

18 trial, and part of the Prosecutor's pre-trial brief has

19 to be a list of exhibits that the Prosecutor intends to

20 offer and if he anticipates -- if she anticipates

21 objections by the Defence to those, please consult with

22 the Registry about the method that this Chamber has

23 been using in its present two trials in organising the

24 exhibits in a way which we think cuts down considerably

25 on the waste of time in the court so that we're not

Page 297

1 running around with pieces of paper before everybody.

2 We do have a system which we have worked out

3 which seems to be working well in the Kvocka and Krstic

4 trials which are currently in operation, which has a

5 system of pre-numbering the exhibits and cutting down

6 on the time in trial. And you can certainly go to the

7 Registry, Mr. Dubuisson, and you can find out about

8 that, and I'd like you to do that.

9 I also, finally, remind you that at the -- in

10 one of the decisions which has already been rendered on

11 the indictment in the Martinovic challenge, we did ask

12 the Prosecutor in that case to think in terms of trial

13 preparation in terms of the larger offences. This was

14 an answer to challenges about cumulative charging. In

15 other words, the trial may be facilitated if one

16 thinks, and I think Mr. Terrier at an earlier oral

17 argument on this, you agreed with that, with Judge

18 Rodrigues, that if you think in terms of preparing the

19 case in terms of the greatest or the largest or the

20 highest hierarchy offence, as it were, that that may

21 facilitate -- because however we come out ultimately on

22 the question of cumulative charging, many of the other

23 offences, or large parts of them, will be consumed in

24 the more serious offence.

25 Now, that concludes basically the things that

Page 298

1 I wanted to cover in this conference. I have alerted

2 you to the fact that we will have another conference in

3 early July, and we will tell you about that, and I

4 expect the disclosure to be finished and I expect to

5 have firmer answers on many of the other questions

6 which have been raised and which, when you get a copy

7 of the transcript of this Status Conference, you will

8 be able to see. We will hope to have an answer to your

9 motion by that time to facilitate your preparation.

10 At this point, I'd like to find out if either

11 the Prosecution or the Defence has anything further

12 they want to raise now, and then I will ask

13 Mr. Martinovic, our accused, if he has anything he

14 wishes to raise about the conditions of his detention.

15 Mr. Terrier.

16 MR. TERRIER: [Interpretation] Madam

17 President, I have a very brief question concerning the

18 language or, rather, the languages of this Tribunal.

19 We will prepare a pre-trial brief. I can no

20 longer find the French term for it. We will compose it

21 in English. But do we have to translate it into French

22 at the same time, and do we have to file both versions

23 at the same time? It's a technical problem that we are

24 faced with, and I should like to hear the decision of

25 the Court on this matter.

Page 299

1 JUDGE WALD: Well, it has been the

2 newly-announced position of the Chamber that we do wish

3 to have them filed simultaneously, because French and

4 English are the working languages of the Tribunal,

5 under the Rule and, I believe, also under the Statute.

6 And because we do have both native-speaking French and

7 native-speaking English Judges, we would like them to

8 be filed simultaneously.

9 Do I have any questions from the Defence?

10 Mr. Krsnik.

11 MR. KRSNIK: [Interpretation] I have three

12 points that I wish to advise you about, Your Honour.

13 First of all, I would like to inform this

14 Chamber that about three weeks ago -- Mr. Terrier, when

15 was it that we last had a discussion with you? I think

16 it was three weeks ago. My client, Mr. Mladen

17 Naletilic, who I feel -- everybody seems to be

18 forgetting the fact that he is a seriously ill person.

19 He is a heart patient, cardiac patient. He was in this

20 Court. He was closed up in a separate room for four

21 and a half hours, and of course he was ill and the

22 nurses had to intervene. He got his medication. And I

23 have been asking for an explanation of that incident

24 and have yet to receive one.

25 The second issue. My client is allegedly,

Page 300

1 according to the Rules, obliged to wear a bulletproof

2 vest, which is very heavy. Your Honour, this

3 bulletproof vest will kill him before saving his life,

4 because with his fragile health condition, just imagine

5 what it is like for him to be wearing this heavy

6 bulletproof vest, which is almost 20 kilos. So I would

7 like this Trial Chamber to issue an order for him not

8 to be obliged to wear it, because it does more harm

9 than good.

10 And, finally, you received my motion in which

11 I asked for an expert evaluation, and both to you and

12 to the Registry, I supplied some names, and I had a

13 reason to do so. We have a problem now. Of course, my

14 client trusts the appointed doctors, but he does not

15 want to relate to them before the doctors that he

16 trusts, especially the psychologists from Croatia that

17 he already was in touch with, because as you know, the

18 trust is the most important thing in the patient-doctor

19 and the patient-psychologist relationship. On the

20 other hand, you ordered that this evaluation be

21 completed by the 25th of May. It will not be possible

22 to complete it by that time unless the attending

23 physicians from Croatia, in particular, Dr. Cikaz

24 [phoen] from the Revro [phoen] hospital in Zagreb, and

25 Dr. Maja Stroci [phoen], who in fact performed three

Page 301

1 surgeries on my client's heart, they should help the

2 team that is going to be doing the evaluation in order

3 to speed this whole process up.

4 So I would like to ask the Trial Chamber

5 respectfully to meet those requests of mine.

6 JUDGE WALD: Mr. Krsnik, enlighten me. Who

7 obliges your client to wear the bulletproof vest?

8 That's an obligation imposed by whom?

9 MR. KRSNIK: [Interpretation] I don't know. I

10 really don't know.

11 JUDGE WALD: Well, I would suggest that --

12 first of all, we won't even have a Status Conference

13 for another month and a half, but I would suggest that

14 you be in touch with the Registry, who takes care of

15 the logistics of getting both accused and witnesses to

16 court, to find out where that obligation is coming from

17 and to see if you can't work it out at that level.

18 As for the expert evaluation, now, as I

19 recall, we did accord with your wishes that -- at least

20 I think one of the persons conducting the investigation

21 was someone suggested by you. Is that not correct?

22 MR. KRSNIK: [Interpretation] Yes.

23 JUDGE WALD: And the Registry is the one who

24 is accorded, under the law, with the responsibility of

25 picking out the approved people to conduct it. But if

Page 302

1 my recollection is correct, at least one of the people

2 that you suggested and wanted to was on that team. So

3 I'm not entirely clear. Is it that you don't think

4 that the team will meet the deadline, or what is it

5 exactly that you're ...

6 MR. KRSNIK: [Interpretation] Yes, precisely.

7 Today is the 16th of May, and the evaluation should be

8 completed by the 25th. And for a serious, good

9 evaluation of my client, taking into account the

10 condition -- his condition, it cannot be completed by

11 the 25th, especially if the doctors see him for the

12 first time and especially in light of the fact that

13 they received the documents only yesterday.

14 So in order to speed the whole process up, we

15 should have Dr. Cikaz and Dr. Maja Stroci assist them,

16 because only in that way will this evaluation be

17 completed in time and in an appropriate fashion.

18 Especially after this evaluation, after the findings

19 and the opinion, the Prosecution may want to

20 cross-examine the experts.

21 JUDGE WALD: What I want to tell you is I

22 wish you to get in touch with the Registry and the

23 people who made the initial selections and are

24 overseeing this examination to see if you can work out,

25 in a consensual way, any of your time problems before

Page 303

1 you come back to the Chamber.

2 As you know, it's an important examination,

3 but until we know what the results are, it's very

4 difficult not only for you to proceed but even for the

5 rest of us to get on with our work and to see whether

6 or not this, in fact, will be a joint trial. So there

7 is a premium on getting it done.

8 Now, initially that date was set, and I don't

9 remember the date of the order, but I don't remember

10 that anybody objected at that moment and said, "We

11 can't meet that deadline." So I would suggest that you

12 talk with the relevant people in the Registry to

13 register any suggestions you have for speeding this up

14 before you -- certainly before the Chamber takes any

15 action on that.

16 MR. KRSNIK: [Interpretation] The Defence is

17 familiar with that. I just wanted to advise the

18 Chamber about those things that are ongoing.

19 JUDGE WALD: All right.

20 MR. KRSNIK: [Interpretation] I will get in

21 touch with the Registry, of course.

22 JUDGE WALD: Okay.

23 Yes, Mr. Terrier.

24 MR. TERRIER: [Interpretation] Madam

25 President, Mr. Krsnik has just said that the

Page 304

1 Prosecution should cross-examine those expert

2 witnesses. I'm somewhat surprised --

3 MR. KRSNIK: [Interpretation] Yes, but even

4 maybe.

5 MR. TERRIER: [Interpretation] I'm still

6 surprised, because I did not think that this would

7 present a defence by the accused. I thought that it

8 was only a matter of health care involving the current

9 situation of Mr. Naletilic and the need to provide the

10 medical services in the best possible way. If this is,

11 indeed, the case, we are in favour of everything that

12 can be done in order to ensure Mr. Naletilic excellent

13 treatment for his condition.

14 However, if we are dealing with Rule 94 bis,

15 if we are dealing with an expert report that is going

16 to be communicated to the Prosecutor and the Chamber,

17 this is an altogether -- this is a completely different

18 problem. This now presents a type of defence offered

19 by the accused. If that is the case, we have to be

20 made familiar exactly with the type of defence he

21 intends to offer, whether we are talking about his

22 diminished responsibility or lack of his responsibility

23 at the relevant times. And, secondly, if this is still

24 a defence offered by the accused, we wish to be able to

25 also have a say in the appointment of experts.

Page 305

1 But of course we think that the issue goes,

2 first of all, to the health care that has to be

3 provided to Mr. Naletilic while he's in the detention

4 unit, and that particular health care has to be the

5 best possible he can get.

6 JUDGE WALD: Mr. Terrier, let me just read a

7 line from the Chamber's order of 18 April, which says:

8 "Noting the oral motion of the Defence in

9 which the accused asks for an examination to evaluate

10 his mental and physical capacity to attend and

11 participate in trial proceedings, noting that the

12 Prosecution indicated it did not oppose the oral

13 Defence motion for such examination at the Initial

14 Appearance, noting that 74 bis permits the Trial

15 Chamber to order it, for the foregoing reasons orders

16 that an expert medical and psychological evaluation of

17 the accused Mladen Naletilic be conducted to determine

18 his mental and physical capacity to attend and

19 participate in his trial."

20 Now, I think that that's fairly clear, what

21 the purpose is. I think it would be premature at this

22 point for us to -- certainly, until they get that

23 report, I don't see how they can possibly decide

24 whether or not they are going to try to present any

25 kind of motion along these lines. So I would suggest

Page 306

1 if they can get together with the Registry, get this

2 report in. Then we will know where we're at, and any

3 appropriate motions can be made from that time on.

4 If there isn't anything else, I would like to

5 call upon the accused, who has been very patient here,

6 Mr. Martinovic, and ask him if he has any concerns

7 about conditions in detention that he would like to

8 raise with us at this time.

9 Mr. Martinovic.

10 THE ACCUSED MARTINOVIC: [Interpretation] I do

11 not have any complaints about the detention.

12 I have complaints about the Defence, because

13 the team has not been established yet and we are not

14 able to work on the matter.

15 JUDGE WALD: Well, I think -- I have your

16 concern under appraisal, Mr. Martinovic, and your

17 Defence counsel has already articulated the concern,

18 and we hope that -- he is your Defence counsel now. He

19 is fully authorised to go ahead and continue with your

20 defence, and we certainly hope that any of these

21 problems we will try to work out with him so that you

22 will be fully and fairly represented. Thank you.

23 If there are no other concerns, then we will

24 adjourn this Pre-Trial Conference. We all have to be

25 very busy in the ensuing several weeks. There are

Page 307

1 motions which have to be outgoing, which have to be

2 decided. We will get the report on one of the

3 accused's condition. And we will be in touch with you

4 as to the time of the next Pre-Trial Conference, and we

5 sincerely hope that you will work on getting the

6 answers to the questions we've talked about and

7 hopefully cutting down on the number of issues which

8 will be disputed, with -- perhaps this is too

9 optimistic -- the hope that the number of witnesses

10 that both sides plan to call can also be cut down.

11 Thank you. This Status Conference is

12 adjourned.

13 --- Whereupon the Status Conference

14 adjourned at 5.46 p.m.