Tribunal Criminal Tribunal for the Former Yugoslavia

Page 420

1 Monday, 2 April 2001

2 [Open session]

3 [Status Conference]

4 [The accused entered court]

5 --- Upon commencing at 4.08 p.m.

6 JUDGE WALD: Madam Registrar, will you call the case.

7 THE REGISTRAR: Good afternoon, this is case number IT-98-34-PT.

8 The Prosecutor versus Mladen Naletilic and Vinko Martinovic.

9 JUDGE WALD: Thank you, I welcome the parties and their counsel

10 and all our technical staff here for this pre-trial conference, Status

11 Conference. And the first thing I'll do is ask for the appearances for

12 the Prosecution and for the Defence.

13 MR. SCOTT: Good afternoon, Your Honour. Kenneth Scott appearing

14 for the Prosecutor. With me this afternoon are Douglas Stringer, Vasilly

15 Poriouvaev, Roeland Bos, and Marie-Ursula Kind.

16 JUDGE WALD: For the Defence.

17 MR. KRSNIK: [Interpretation] Good afternoon, Your Honour. My name

18 is Kresimir Krsnik of the Croatian Bar Association, together with my

19 co-counsel Visnja Drenski Lasan, and Nika Pinter.

20 MR. SERIC: [Interpretation] Good afternoon, Your Honour. My name

21 is Branko Seric, attorney member of the Croatian Bar Association. With me

22 is my legal assistant, attorney-at-law, Zelimir Par, and I hope that he

23 will soon become my co-counsel.

24 JUDGE WALD: Thank you. Let me assure myself that all of the

25 accused, both Mr. Naletilic and Mr. Martinovic, can hear the proceedings.

Page 421

1 All right? It's okay. You can hear what's going on.

2 Now, this Status Conference, as you well know, is convened

3 pursuant to Rule 65 of the Rules of Procedure and Evidence which requires

4 that a Status Conference be held every 120 days in order to ensure

5 expeditious preparation for trial and to allow the accused to raise any

6 issues regarding their health or conditions of detention. The scheduling

7 order that we issued on the 23rd of March identified a number of topics

8 for discussion today. We will start with those issues and then we'll move

9 on to any other matters.

10 Before we do that, I know that foremost in everybody's mind is

11 when will we be able to begin the actual trial. At the last Status

12 Conference that we had in December, we told you optimistically that we

13 both hoped and expected we might be able to give you some definite

14 information on that come March which, of course, has come and gone.

15 Unfortunately, it's not turned out to be that easy. As I'm sure

16 you are all aware, the three current members of the panel, none of whom

17 will return as permanent Judges in the fall; however, the trials must go

18 on, and I have been in communication with the President's office to see if

19 we can, if we can get this trial started, if possible.

20 At this point, I can tell you two things: Number one, it is

21 absolutely at the top of the list of cases that are ready for trial and

22 that will be taken to trial as soon as the judicial man- or woman-power is

23 available. The second, beyond that, I can be a little bit more specific.

24 With the advent of a corps of ad litem judges who are expected to be

25 available in June, July, et cetera, the date that I am told we are aiming

Page 422

1 for and that there is a realistic chance of going to trial would be early

2 in the fall, in September.

3 That's not an absolute commitment, but it's as close as I can come

4 to assuring you. That, to me, means that it is all the more important

5 that we get some of these details, predominantly the deposition machinery,

6 worked out so that many of these things can be done ahead of trial; the

7 depositions, the exhibits.

8 And hopefully by the time of the next Status Conference, which

9 would be 120 days away, we will at least -- that would be late July, we

10 would at least know the trial panel and hopefully have the date. That's

11 the best I can do at this juncture.

12 With that, I think we'll move on to the negotiations on the

13 deposition procedures. Now, in accordance with our November 2000

14 decision, the parties were directed to enter into negotiations on matters

15 relating to the procedure for the depositions, including issues such as

16 the location of the deposition procedure and the presence of the accused.

17 Now, I have been made party or I have been seeing some of the

18 correspondence of the OTP which has been copied to Mr. Fourmy, so I'm

19 aware pretty well of the OTP's proposals and also of the fact that some

20 progress on this issue has been made. I have not seen the other side of

21 that correspondence, so I don't know specifically what the Defence counsel

22 have said or exactly what they may have tentatively agreed upon.

23 Therefore, I would like to hear from the parties on both sides as to where

24 we are in the deposition negotiation.

25 I might also add that just today I did see a copy of the

Page 423

1 Prosecutor's latest letter in which -- which I believe the Defence counsel

2 now has copies of or has just been made available to them, which I

3 understand from my reading would add, is it four or five, new witnesses on

4 the deposition list and make some adjustments in some of the other

5 categories of witnesses.

6 I would, however, note to the Prosecution that the decision we

7 made - which was appealed and leave to appeal was not granted - was made

8 as to the depositions which were then scheduled, which were the 23 or the

9 24 then. So I am assuming that the Prosecution will, after negotiating

10 with the Defence counsel to see how much agreement they can reach on

11 these, but will at some point make a written, a written proposal to the

12 Chamber, telling us the summary of the content of the deposition which

13 will allow us to decide whether they come within the framework which we

14 established in our earlier decision and which was, at least for present

15 purposes, okayed by the Appeal Chamber.

16 And of course, as to the new cases, the new witnesses which have

17 gone into the deposition category, if the Defence does not agree in

18 negotiations to that, they will have a chance then to make their case at

19 that time.

20 But with that, let me give the floor to whomever wishes to speak

21 for the Prosecution to bring us up to date on where you are on this

22 matter.

23 MR. SCOTT: May it please the court, counsel, Your Honour, as you

24 know, we, the Prosecution, have continued preparing this case for trial.

25 We have continued to provide disclosure as supplemental disclosure becomes

Page 424

1 available and to seek the cooperation of both accused as much as possible.

2 As Your Honour just indicated, principal issue at the moment has concerned

3 the question of deposition witnesses.

4 If the Court will allow me, let me provide a short summary of

5 events bringing us to this point, primarily including events over the last

6 ten days or so. We have provided in this regard, Your Honours, two charts

7 or tables, if you will, to assist the hearing today, and have provided

8 those to counsel as well.

9 One indicates, if you will, our ongoing assessment of Prosecution

10 witnesses by category, that is, whether a court witness, live, presented

11 live to the Chamber itself; or deposition witnesses; or what we used to

12 call till some weeks ago 94 ter witnesses, now 92 bis witnesses; and

13 finally, transcript witnesses, witnesses who the Prosecution would propose

14 to offer only by transcripts from related, if you will, cases.

15 We have then provided to the Court also and counsel this table or

16 three columns of a chart, our revised deposition witness list, which was

17 first faxed -- we attempted to fax it to Defence counsel in Zagreb on

18 Friday afternoon just as soon as we had finished it ourselves, but I do

19 understand that, in any event, both counsel or both sides for the accused

20 have it today.

21 What we have tried to do, Your Honour, is be mindful of the

22 Court's admonitions over the past several Status Conferences to reduce the

23 number of live witnesses as much as reasonably possible without doing

24 violence to the process or to the substantial rights of the accused and,

25 at the same time, make use of the tools which this Tribunal has made

Page 425

1 available to us as those tools evolve. As example again, the change from

2 Rule 94 ter to Rule 92 bis.

3 This led us, some time ago, to propose, as Your Honour knows, to

4 propose to the Court and to the Defence approximately 23 witnesses, the

5 evidence of whom would be presented to the Chamber by way of deposition

6 rather than in-court live testimony. As Your Honour has just recalled,

7 this was the subject of motions, responses, and hearings in the past,

8 leading up to orders from the Chamber.

9 Ultimately, the Court did agree that the 23 depositions proposed

10 could be taken, subject to the procedures and details being worked out

11 among the parties to the fullest extent possible. Based on this, Your

12 Honour, there has been a further exchange of correspondence over the past

13 several weeks. This led most recently to each accused stating that there

14 were a number of witnesses for each of them, and I think it turned out to

15 be approximately seven, seven for each accused, which they take the

16 position should appear live before the Chamber and not be taken by

17 deposition.

18 In one table that we provided to the Chamber and counsel, we

19 indicate in the column, in the middle column, the Defence position. We

20 also then turn -- we also then indicate the Prosecution's position which I

21 will summarise momentarily. What we then decided to do, Your Honour,

22 based on this exchange of correspondence and on rule changes and on the

23 admonitions of the Chamber to streamline the case as much as possible, I

24 can tell the Court, as reflected in the recent correspondence, that in the

25 last few days, the Prosecution has conducted a top-to-bottom review of all

Page 426

1 Prosecution witnesses; not just deposition witnesses, but every witness we

2 contemplate presenting to the Trial Chamber.

3 In the course of doing that, we assessed afresh after some

4 additional months - and sometimes assessments do change - those witnesses

5 who we now feel should most appear -- should most appropriately appear

6 before the full Chamber, those which should appear or be presented by

7 deposition and, again, those who should be presented by way of a 92 bis

8 statement.

9 Now, let me jump for one moment, Your Honour, to that category

10 because the Chamber will note -- Your Honour will note, excuse me, from

11 the one table or summary document that we have provided to you this

12 afternoon that the 94 ter witnesses which were at one point indicated

13 possibly as 17 have been reduced down to 92 bis to 8. The reason for

14 that, Your Honour, and I will try to be short and will only go on if the

15 Court has particular questions about it.

16 In our assessment of 92 bis, the rules are not the same and there

17 are some changes in the rules by which we felt that some -- it's our

18 assessment that some of the witnesses who would have been appropriate

19 under 94 ter would not be appropriate under 92 bis because they do

20 directly touch upon, to one degree or another, each of the accused

21 themselves. So that's why the numbers changed, in a nutshell, and as I

22 say, I won't belabour that point further unless the Court or counsel has

23 questions about that.

24 JUDGE WALD: I have only one question: I haven't -- since I just

25 got a copy of this chart about half an hour before I came in, I didn't

Page 427

1 have a chance to go compare witness by witness with some of your prior

2 submissions. But can you just tell me offhand how many, if any, witnesses

3 are now in your deposition category that were not in your deposition

4 category before?

5 MR. SCOTT: I believe, Your Honour, there are -- let me give it in

6 categories, then I'll have to come up with a total in my own head. To be

7 honest, I haven't broken it down quite that way. Five witnesses have been

8 moved from the Court witness list -- excuse me, the live, in-court witness

9 list or category to the deposition witness list.

10 JUDGE WALD: Okay.

11 MR. SCOTT: And six witnesses who had previously been under the

12 category of, if you will, 94 ter/92 bis witnesses have been moved into the

13 deposition category. So that appears to be approximately 11, 11

14 witnesses, Your Honour, that are different than the original list of 23

15 that were proposed.

16 I am quite mindful of the Court's instructions a moment ago that

17 now that we are finally, just in the last few days to this point, it will

18 require further written application in this regard.

19 What we have done, Your Honour, is provide these tables in

20 response to meetings with both Defence counsel. We met with Mr. Seric and

21 his co-counsel about a week or so ago and we were able to agree that,

22 based on a further review, two of the witnesses who we had proposed to

23 take by deposition, we are prepared to take live instead. So we have come

24 to an agreement on those two.

25 As to the remaining proposed deposition witnesses, Your Honour,

Page 428

1 the Prosecution after, again, a further assessment nonetheless remains the

2 same. And there is not agreement on those that are listed in our table,

3 the ones which it says the Defence insists that these witnesses should

4 only be called live.

5 JUDGE WALD: How many is that, approximately? How many are that?

6 MR. SCOTT: I think it's 14, Your Honour. It's either 12 or --

7 JUDGE WALD: You said seven each and then you said two you agreed

8 on, but I don't know whether that includes the new five that are in the

9 deposition.

10 MR. SCOTT: To be perfectly candid with the Court, that's why I'm

11 hesitating, because I don't know whether it should be 14 or 12. But it's

12 no more than 14 and probably no less than 12, and I apologise for not

13 giving the Court that number.

14 Your Honour, it's the Prosecution position, and this is not a

15 point that is unique to this particular issue in the sense of there are

16 other tools such as the use of transcripts, the use of what used to be

17 called affidavits which, if the parties can agree, respectfully, it's up

18 to them, to the opposing party, the objecting party, to articulate its

19 reasons to the Court or the Chamber and for the Court to decide if --

20 which party or which witness may be appropriately taken in which manner.

21 We believe, Your Honour, that no substantial right of the accused

22 will be prejudiced in any way by the procedures proposed. I should jump

23 ahead of myself for a moment and also tell Your Honour, as you've probably

24 seen from the correspondence already, that we propose or prepare to agree

25 to take all the depositions in The Hague with the accused present.

Page 429

1 Now, having done that, it's our view that this is a procedure that

2 provides the accused to be present for all the procedural protections to

3 be afforded, for there to be full rights of cross-examination and

4 confrontation and, frankly, we are at a loss to know how the accused's

5 rights are substantially prejudiced by this procedure, and obviously it

6 will be up to the Chamber to decide that. But it's our position, having

7 negotiated to this point in time, that, respectfully, the burden now falls

8 on the Defence to articulate and persuade the Chamber as to why these

9 additional witnesses should not be taken by deposition. That's where that

10 stands, I believe.

11 The Defence, as to those that were among our original 23 -- and we

12 agree, granted, it has now changed a bit, but as to those original 23,

13 both accused have now submitted information to us about the estimated

14 length of cross-examination. Obviously for the new, those added to the

15 deposition list, they will need some short time to state their position on

16 those.

17 Your Honour, it's our proposal, and I shared this with Mr. Krsnik

18 this afternoon, and I can't believe -- I can't remember offhand if I did

19 with Mr. Seric or not, but our timetable, our proposed timetable,

20 obviously dependent on the Court, is that we think we'll be prepared to

21 beginning the depositions in approximately early June.

22 Now, what I think is important, I'm almost -- I can tell the

23 Chamber I'm almost done and I'm sorry to rattle on, but I think it's

24 important to tell the Chamber and for all participants to understand, this

25 is going to be a very labour- and effort-intensive project. In fact, at

Page 430

1 the end of the day, it's essentially going to be exactly what we're doing

2 right now, except there won't be a Judge on the bench. We'll have to have

3 security staff because the accused will be present, we will have to have a

4 full bank of interpretation, we will have to have at least some courtroom

5 staff, and we'll have a question-and-answer format with the Defence

6 counsel all present.

7 So this will be something that will, in fact, take substantial

8 logistical planning and cooperation by all sides. I just flag that, Your

9 Honour, so that no one is under a misconception that this is going to be

10 an easy thing to do.

11 JUDGE WALD: Some of us have had experience with depositions.

12 MR. SCOTT: I'm sure you have, Your Honour, and to the extent the

13 Court knows everything I've already said, I certainly didn't mean to

14 insult anyone's intelligence. But it's going to be a huge project, I'm

15 afraid, but we're fully prepared to embark on that path.

16 Your Honour, the only other point would be that, in answer to the

17 Court's questions in the Scheduling Order, on point 3 we, the Prosecution,

18 do not persist in the position that the depositions be taken in closed

19 session. The only reason, frankly, that that was the -- well, not the

20 only reason, but the principal reason that that was our position before

21 was that, at that time, we anticipated that all or many of these

22 depositions might be taken in the field, and we didn't necessarily want

23 them to become, if you will, a public spectacle someplace like Sarajevo

24 where everyone would be walking in, watching the depositions of these

25 witnesses.

Page 431

1 Now that they're going to be in The Hague under much more

2 controlled conditions, we are no longer taking that position. Having said

3 that, of course, each witness will have to be assessed on a

4 witness-by-witness basis as to protective measures that he or she wants,

5 as any trial witness.

6 I'll try to slow down, Your Honour.

7 Well, that's essentially it on the deposition matters, Your

8 Honour. I can address the other points on the Court's agenda, or

9 perhaps --

10 JUDGE WALD: I think it would be preferable if we do topic by

11 topic, so I'm going to call on -- when you've completed, I'm going to talk

12 to Mr. Krsnik and Mr. Seric, and then tell you what I think should be the

13 next quick step to move the deposition procedure ahead.

14 MR. SCOTT: Thank you, Your Honour.

15 JUDGE WALD: Are you done?

16 MR. SCOTT: Yes.

17 JUDGE WALD: Thank you.

18 Mr. Krsnik, let's hear from you about where you stand in terms of

19 the negotiations on the depositions.

20 MR. KRSNIK: [Interpretation] Well, Your Honour, the Defence will

21 not take as much time as my learned colleague from the Prosecution for one

22 simple reason, because we are really in correspondence. We are

23 corresponding with the colleagues from the Prosecution, and we have, in

24 fact, discussed all the important issues. And since it is impossible to

25 envisage what will happen in such proceedings, this is what happens to us

Page 432

1 now.

2 We have had lengthy discussion, myself and my colleagues, with my

3 colleagues from the Prosecution, and we concluded that out of the 23

4 witnesses, and this is what has been bothering the Defence, and this is

5 what the Prosecution indicates that the burden of proof lies on the

6 Defence, we have already presented all of the evidence to the Trial

7 Chamber, and this is why we have appealed the decision. We have always

8 been quite open in our discussions with the Prosecution, but now we learn

9 that the 23 witnesses were now reduced to 11 witnesses. We cannot give

10 you our views today because these are different 11 people, plus nine

11 others, which would be a total of 29 [as interpreted] witnesses proposed

12 by the Prosecution.

13 As you know, our view was quite clear. We are against the

14 depositions because we can now go into legal theory, we can take various

15 legal stands, but the Defence deems that it is not in the interests of

16 justice to depose witnesses because the fact that my colleague mentioned

17 that this would be almost like a trial, this is what is important. It

18 would be "almost" like a trial because the witnesses would not be heard by

19 the Judges. After all, the Judges are the people who are supposed to pass

20 the judgement, and this is why we have always been opposed to taking

21 depositions. But we will, of course, abide by your decisions and we will

22 take appropriate measures. We have, however, reached an agreement with

23 the Prosecution to take these depositions in The Hague.

24 Unless you have some additional questions, Your Honour, this would

25 be the general stand taken by the Defence. My colleagues have been

Page 433

1 informed about it, and you are also aware of our view because we have

2 discussed this at length at our status conversations.

3 JUDGE WALD: Okay thank you, Mr. Krsnik.

4 Mr. Seric?

5 MR. SERIC: [Interpretation] Your Honour, the Defence of Vinko

6 Martinovic met with the Prosecution on the 22nd of March this year at

7 noon. Our proposal was to depose the witnesses in The Hague in the

8 presence of our clients, and on Friday we learned - and we were quite

9 happy about it - that the Prosecution agreed to our proposal, and I'm

10 really thankful and glad that a certain progress has been achieved in our

11 cooperation, and I believe that we make the position of the Trial Chamber

12 easier as regards the arbitration of this issue.

13 However, at the very same meeting, we insisted that from the list

14 containing the 23 witnesses, that seven witnesses be heard before the

15 Trial Chamber in viva voce, according to what our clients told us. But we

16 undertook the obligation to persuade our client to reduce the number of

17 witnesses from seven to four, and we have been quite successful in this;

18 but the Prosecution replied on Friday that they agreed that two of the

19 witnesses be heard before the Trial Chamber viva voce and that they are

20 prepared to abandon one of the witnesses, and as regards one of the

21 witnesses, that this witness should be deposed.

22 I can now name this witness, but we should go into private session

23 for that purpose, but both the Prosecution and we know who this witness

24 is. If you want to specify the name of the witness, I would be prepared

25 to do.

Page 434

1 JUDGE WALD: It's not necessary now, please continue with your --

2 THE INTERPRETER: Microphone please, Your Honour.

3 MR. SERIC: [Interpretation] So, we are aware of the need to

4 streamline the proceedings, and in the spirit of greatest possible

5 cooperation, we reduced the number of seven witnesses to four, but we

6 still insist that the one witness that the Prosecution insists is going to

7 be deposed, we insist that he be heard before the Trial Chamber.

8 To sum up, this witness should be transferred from the list of

9 depositions to the list of witnesses who are to be heard at trial;

10 however, I have to note that when the list was expanded, the Prosecution

11 in fact did not abide by the decision of this Trial Chamber because the

12 decision refers to the list of 23 witnesses.

13 We believe that the Prosecution simply decided to expand this

14 list, taking upon itself the prerogatives of the Trial Chamber and to

15 transfer some of the witnesses. And we heard about it at the 11th hour,

16 and we cannot take a stand on this, and we ask the Trial Chamber to issue

17 a decision in this regard because this goes beyond the original decision,

18 in particular in view of the fact we have been able to analyse the

19 original decision with our clients.

20 This is the stand taken by the Defence on this issue. Thank you.

21 JUDGE WALD: Well, this is my proposal for how we move ourselves

22 ahead. This new witness list, certainly I have only seen it in the last

23 half an hour, and I think that some of the Defence counsel suggested there

24 have been some late changes.

25 What I think will get us all where we need to go would be that if

Page 435

1 within a reasonable period of time, let's say ten days, the Prosecution

2 and the Defence counsel should certainly meet at least once more on the

3 basis of this new document and see what they can agree to, what they

4 cannot. Then if the Prosecution will submit to the Trial Chamber a list

5 of those witnesses on which there is disagreement, whether or not it goes

6 back to the old period or it's the new period, but just a list of the

7 witnesses that the Prosecution wishes to depose that the Defence counsel's

8 position is adamant should not be the subject of depositions, and, of

9 course, accompanied by a brief notion of why the Prosecution believes they

10 are qualified for deposition under our preexisting criteria, then within

11 the normal period, the Defence can give its position as to each one of

12 those witnesses that are in dispute after you have unsuccessfully

13 negotiated, if indeed it is unsuccessful, and why you think that

14 particular witness should not be the subject of deposition, and the Court

15 will make a ruling on that, and you will know what the scope of the

16 deposition witnesses are.

17 If, at that point, it does seem to me that our original

18 instruction in the opinion, when you know whom the Court has agreed upon,

19 should then begin to negotiate with Mr. Fourmy. You've worked out some of

20 these points already, but as you're well aware yourself, the nature of

21 deposition taking is such that it's going to require a lot of back-up, a

22 lot of personnel, a lot of time available, perhaps in courtrooms, and all

23 of that is going to take a while.

24 So as soon as you get a decision from us on the witnesses, whether

25 they can be deposed or not, the disputed ones, and those decisions will be

Page 436

1 prompt, as you know, then I suggest we move ahead, you move ahead to

2 negotiate with Mr. Fourmy. You've already negotiated out some of the most

3 prickly spots, like the presence of counsel at the depositions, and so

4 hopefully, if you are ready to begin in early June - I have no idea what

5 the facilities of the Tribunal are - but hopefully some progress, maybe

6 all progress could be made over the summertime, so if you do begin for

7 trial, you will be able to go ahead.

8 Would that be a satisfactory way to proceed? Is ten days a

9 reasonable period of time?

10 MR. SCOTT: Yes, Your Honour, absolutely.

11 JUDGE WALD: Okay. And then the Defence will be expected to reply

12 to that, witness by witness, what their reasons are.

13 Now, one other thing left over from the earlier time. The Defence

14 was requested in our earlier order to provide the Trial Chamber with an

15 estimate of the time required to cross-examine the deposed witnesses, but

16 my suggestion is that we wait and see what the final list of deposed

17 witnesses is, and then I will ask you within a time period I specify to

18 present us with what you think is that particular time category.

19 Okay. Then let me move on to the proposed trial exhibits which

20 was another one of the matters we were going to discuss. Now, again, the

21 letter sent by Prosecution to Defence counsel that I have seen was sent --

22 was copied to Mr. Fourmy, dated 13th February, refers to prior disclosure

23 made by the Prosecution to the Defence of materials the Prosecution

24 intends to exhibit as trial exhibits. The letter asks counsel for the

25 accused to state whether they had objections to that material.

Page 437

1 I understand that there's been some progress on this and so,

2 again, I'm going to call upon counsel for the Prosecution and then counsel

3 for the Defence to inform the Chamber as to the current status of the

4 exhibits.

5 MR. SCOTT: May it please the Court. Your Honour, I will be

6 briefer on this. Unfortunately, there has only been limited progress with

7 one of the accused concerning two categories of documents so far. There's

8 some -- there is -- I apologise, some cooperation from Mr. Seric. That is

9 documents that consist of or come from what's called the Narodni List, the

10 official gazette of the Croatian Community of Herceg-Bosna.

11 Mr. Seric has agreed that the -- there is no question as to the

12 authenticity or admissibility of the documents or the records themselves.

13 He, of course, reserves, and we understand this, the position to argue

14 what they mean and what conclusions should be drawn from them. But if I

15 am stating his position correctly, and I'm sure he will correct me if I am

16 wrong, he does not question the authenticity or admissibility of the

17 documents themselves, that is concerning the so-called the Narodni List.

18 Essentially, they are the publications of statutes and orders and

19 declarations, decrees by what was called the Herceg-Bosna government of

20 Bosnian Croats.

21 There was then also progress concerning several death

22 certificates. Again, Mr. Seric's position is, and we appreciate that, is

23 that the authenticity of the documents themselves are not contested, that

24 is, there is no need for a mere custodian to come and say, "These

25 documents come from this place." Again, he does reserve the position to

Page 438

1 argue what the documents mean in reality and whether, in fact, that person

2 died under the circumstances or not. But the documents are what they

3 purport to be, and there doesn't need to be any additional authentication

4 of the documents themselves.

5 Now, I believe, Your Honour, that's about -- well, no, there is a

6 videotape -- no, I take -- I was correct the first time. I think that's

7 as far as we've gotten, I'm afraid, Your Honour. And if I can just check

8 with my own co-counsel. Those are the only agreements, and only with one

9 accused, that we've been able to reach today. Thank you.

10 JUDGE WALD: Is it your impression that you've reached the outer

11 limits of what negotiations or further attempts at agreement can bring or

12 is there some benefit in keeping at it?

13 MR. SCOTT: Well, Your Honour, I believe with Mr. Seric there is

14 room on some areas to continue to negotiate, although on some things he

15 has indicated a strong view. For instance, on international armed

16 conflict, he does not contemplate that ever becoming the subject of an

17 agreement. But I am, nonetheless, hopeful there will be some areas in

18 which we can come to further agreements on.

19 I must say, and I'm not standing here necessarily to pick a fight,

20 but with Mr. Krsnik, I'm afraid, we just cannot seem to make progress and

21 to get agreement on almost anything. He did indicate this afternoon, Your

22 Honour, to be perfectly fair and transparent, in meeting with him just a

23 short time ago, he did indicate that perhaps if we had a chance in the

24 future to go various exhibits, exhibit by exhibit, perhaps there would be

25 some that he could agree to. But other than that statement, in all

Page 439

1 fairness, I have to tell the Court today there has not been any progress

2 with Mr. Krsnik.

3 JUDGE WALD: Thank you. I think with that introduction, we'll let

4 you, Mr. Krsnik, tell us your version of where you are in terms of

5 attempting to find areas of agreement that will make the whole exhibit

6 process easier at trial.

7 MR. KRSNIK: [Interpretation] Your Honour, I do not share the

8 opinion that we cannot reach agreements on certain issues. I think we

9 can. But the issues which do not affect the interests of our client.

10 I have here dated the 2nd of March 2001, a letter which I

11 addressed to you, Mr. Scott, where we said that we do not intend to

12 contest authenticity of certain documents, especially the official

13 gazette. However we intend to contest the opinion of Dr. Zoran Pajic, who

14 was an expert witness in the Blaskic, and who based himself on certain

15 documents which gave rise to wrong conclusions. And we agreed today that

16 we could come up with documents that we -- that there was no need to

17 review those documents, but that we will see whether it is possible to

18 reach an agreement.

19 I apologise. I tend to forget the interpretation. I think that

20 we made a significant step forward today. We do not contest the right of

21 the Prosecutor to tender certain documents; however, if we do contest the

22 authenticity of certain documents, it is the contents and the conclusions

23 of those documents that we have a problem with. That is what was clearly

24 stated in our letters, and also during the meeting that we had today.

25 So that is the position of the Defence. My learned colleague,

Page 440

1 Mr. Scott, said today that we would not hurry up, that we would not try to

2 speed up the proceedings because it is in the interest of our client. We

3 intend to weigh each and every fact appropriately, and we do intend to

4 consider every aspect of the relevant issues, and I think that it is in

5 the interest of justice and also in the interest of both parties. Thank

6 you.

7 JUDGE WALD: I'm sure, Mr. Krsnik, being an experienced counsel

8 that you are, you are fully cognisant of the only aim we have here, the

9 difference between agreeing to the authenticity of a document and agreeing

10 to what inferences can be drawn from that document.

11 Obviously, you are not going to agree probably with most of the

12 inferences the Prosecution wants to draw from any of the documents that it

13 puts in. It wouldn't be a Defence counsel were you, but it certainly

14 speeds a trial along if the parties are able to agree that this document

15 is what it says it is. It's a death certificate, or it's a report from so

16 and so, or it's some kind of a document that it purports to be and then

17 you can argue until, as they say, hell freezes over, about what inferences

18 can be drawn from that document. In that spirit, I would hope that you

19 would continue to see if there aren't many of these documents in the

20 Prosecution's list that you can at least agree as to the authenticity of.

21 So I will hope that that process will continue. As you know, the

22 requirements simply requires -- the Rules simply requires the Prosecution

23 to submit a list of the exhibits and, to the degree feasible, whether or

24 not their authenticity has been agreed upon by the Defence. So they will

25 be able to do that in any case by trial time.

Page 441

1 Now, I want to ask if either of the parties has any other

2 outstanding matter that they would like to raise at this time?

3 The Prosecution?

4 MR. SCOTT: Only to make the record, Your Honour, if I didn't

5 before on your -- on the Court's agenda, item 5, simply to make of record

6 that we do continue to request reciprocal disclosure from the Defence on

7 virtually every item of correspondence. Sadly, we have not received any

8 to date and perhaps we never will, but we will continue to at least ask

9 for it. Thank you.

10 JUDGE WALD: Will you enlighten me just a bit. When you talk

11 there about providing reciprocal disclosure of Defence materials, spell

12 that out just a little bit.

13 MR. SCOTT: Well, Your Honour, two things: In a non technical

14 sense, we would like the disclosure process to be more of a two-way street

15 so that the trial can be streamlined in fairness to all sides.

16 JUDGE WALD: You'd like to see some of their proposed exhibits.

17 MR. SCOTT: Yes, Your Honour. To be candid, we put some of our

18 cards on the table, to use the vernacular, and it would be nice if they

19 put some of their cards on the table, so to speak.

20 Now, in a more technical sense so it's clear, as Your Honour knows

21 from your experience at the Tribunal, for some time now, reciprocal

22 disclosure is only triggered, again at least in a technical sense, when

23 there is a 66B request. Now, it's been the position of the Prosecution

24 and my counsel, my co-counsel will correct me if I am wrong, that neither

25 of these accused have ever made a 66B request, I assume largely because

Page 442

1 they don't want to trigger the reciprocal discovery obligation which, I

2 suppose, is their prerogative.

3 Having said that, as the Court knows, the Prosecution has

4 nonetheless voluntarily, if you will, without a 66B request being made,

5 has provided a large volume of documentary disclosure to each of the

6 accused but, unfortunately, we have not received anything back from the

7 Defence. Thank you.

8 JUDGE WALD: Well maybe for the record, it would make sense to get

9 a formal answer. I'm sure that both Mr. Seric and Mr. Krsnik are well

10 aware of 66B and have considered it, and I can almost guess at their

11 answer, but I think I will ask them to state it anyway. The 66B part as

12 well as anything you might like to add about your willingness to

13 voluntarily, even if you don't adopt 66B, disclose to the Prosecution some

14 of your material.

15 Mr. Krsnik, do you want to tell us about that?

16 MR. KRSNIK: [Interpretation] Your Honour, if I remember it

17 correctly, during the last Status Conference, we discussed the issue, and

18 I can only repeat what I said then. When will our colleagues from the

19 Prosecution finally tell us: We have finished. We will not have any

20 changes, any amendments on the lists of witnesses. And then the Defence

21 will also be in the position to start disclosing their material.

22 As you have seen today, we have just received an amended list of

23 witnesses. So it is not in the interests of my client to start disclosing

24 his material at this point.

25 JUDGE WALD: Thank you.

Page 443

1 Can I have your position, Mr. Seric?

2 MR. SERIC: [Interpretation] Your Honour, the position of the

3 Defence of Mr. Vinko Martinovic is quite similar to the position of Mladen

4 Naletilic's counsel. However, I must add that we are still far away from

5 the end of our investigation, both concerning witness statements and other

6 types of evidence, documents, that is. I have to emphasise that the

7 Defence of Vinko Martinovic has not received any assistance and perhaps

8 not even understanding of -- on the part of certain organs and authorities

9 in Croatia and in Bosnia.

10 For example, and this is something that we intend to show both to

11 you and the learned counsel for the Prosecution, we addressed ourselves to

12 the Ministry of Foreign Affairs both in Croatia and Bosnia and Herzegovina

13 as regards the issue of cooperation, and there is really nothing that can

14 be done about that. All doors have been closed to us.

15 What I want to say is that we don't have anything to show because

16 we haven't simply received anything. I hope you are familiar with the

17 situation in Croatia, Your Honour. I know that you paid a visit to

18 Croatia so you are aware of the proceedings in the Republic of Croatia.

19 The Defence counsel here simply receives no help, no assistance

20 whatsoever. And I also must add that I have been working almost

21 exclusively alone because the team of the Defence of Mr. Naletilic [as

22 interpreted] hasn't been approved yet -- sorry of Mr. Martinovic, and

23 Mr. Par hasn't become my co-counsel yet.

24 We should therefore like -- we don't want to start disclosing

25 documents at this point in time, but it is our position that we can always

Page 444

1 discuss the issue together with the counsel from the Prosecution outside

2 the courtroom, both regarding witness statements and documents.

3 And we have some other minor issues which we intend to bring up

4 later on. Thank you.

5 JUDGE WALD: Well, I see some small threads of hope that, as time

6 goes on, you may be able to reach some agreements. I remind you,

7 Mr. Seric - you probably don't need it - that there does come a time when

8 the rules may provide for you to petition for judicial assistance in

9 helping to get needed documents or perhaps even witnesses.

10 I also would remind you that in terms of co-counsel, although that

11 obviously lies in the domain of the registry, there is a rule that it's

12 usually two months before trial, but if you are entering in a large number

13 of depositions such that it is possible here, when the time comes, when

14 you're farther along and those depositions have definitely been scheduled

15 and we know they're going to happen, then I think it's quite possible that

16 you would be able to obtain your co-counsel.

17 But I have asked the Prosecution if they had other matters to

18 raise. Let me now ask you, first Mr. Seric and then Mr. Krsnik, if

19 there's anything else you want to raise here?

20 MR. SERIC: [Interpretation] Yes, Your Honour. I would like to add

21 that on several occasions I turned your attention and the attention of the

22 registry to the issue of the use of the privileged telephone line for the

23 communication of myself with my client, in particular, the mobile phones,

24 since I am more often in the field than in my office. No decision has

25 been rendered with the exception of the fact that the President, Judge

Page 445

1 Jorda, has received my petition and it is now being processed, but we

2 don't know at which stage it is.

3 But I would like to ask you if you could use your authority and to

4 use your authority with the registry and with the President so that I am

5 able to communicate with my client because I don't see how it is possible

6 for me to conduct my investigation in the field at the same time, and at

7 the same time be here in The Hague and communicate with him.

8 Thank you very much.

9 JUDGE WALD: Just to make sure I understand you, Mr. Seric. Your

10 problem - and you pointed out one of your petitions is in the office of

11 the President now, but just so I'm fully cognisant of what the issue is -

12 is that you don't want to or you can't use a regular telephone as opposed

13 to your mobile telephone? Because you would be allowed the privilege on a

14 regular telephone, as I understand it. Is that right?

15 MR. SERIC: [Interpretation] The only privilege I have is to talk

16 to my client from the telephone which is in my office. When my client

17 wants to talk to me, he can only talk to -- he can only call the -- my

18 office line, and this is the only privileged line I have. And then when

19 I'm not in the office, which is more often than not, he cannot call me

20 there. And after all, I'm also in The Hague sometimes and he cannot -- it

21 makes no sense for him to call me at my office.

22 JUDGE WALD: Thank you. I understand the problem. Okay,

23 Mr. Krstic -- Krsnik, I got my cases mixed up.

24 MR. KRSNIK: [Interpretation] Your Honour, this is the issue that I

25 have been waiting for in fact. I just want to discuss some of the recent

Page 446

1 events. I will dare to say that because of the recent events, the events

2 of the past two months, I will dare to say that my client's rights to a

3 defence is being impeached.

4 I will say that I have moved my entire office to Bosnia and

5 Herzegovina, and that as of last October I have been living there. You,

6 Your Honour, know that I am the main counsel, and that I am entitled to

7 three investigators, whereas my colleagues from the Prosecution, you know

8 the kind of apparatus that they have at their disposal.

9 In addition, there have been three incidents in the location where

10 my office is in Bosnia and Herzegovina. I was maltreated by the SFOR

11 forces, the very same forces, international forces that have been deployed

12 in Bosnia and Herzegovina with a mandate to safeguard the Dayton Peace

13 Accords and to render all assistance to all the officials of the Tribunal,

14 which I am one of those. They arrived at midnight. They were armed.

15 They wanted to enter my office, although despite the fact that there is a

16 large plaque saying "ICTY Defence."

17 Since they were armed and it was late at night, my -- one of my

18 associates ended up in emergency, in the emergency room of the Mostar

19 Hospital. I have sent the appropriate documents to the Tribunal. And

20 just to continue very briefly, the same thing happened the next day.

21 Then we saw some persons hiding in the woods near my office where

22 they continued taping, taking recordings. I keep talking to witnesses

23 there, and when they saw that SFOR was doing this, they became quite

24 afraid, because I can tell you, quite frankly, half of the people in

25 Bosnia-Herzegovina are afraid that they would end up before this Tribunal.

Page 447

1 This caused them some concern, and as a result, I have been thwarted in my

2 efforts by the very people who have been mandated to keep the peace there.

3 I have also been forced to take a pro bono investigator. In other

4 words, I have to pay for this person from my own pocket from the fee that

5 I receive from my work here. Of course, the investigator has to talk to

6 his client when he's in the field. The registry did not issue him with an

7 ID, and as you know, this person has to have an ID precisely because of

8 such situations that I have already mentioned. He has to be able to

9 identify himself in the field.

10 We still have not received this, but this is not the end of the

11 story. He has been prohibited from talking privately with his client. He

12 was forced to discuss certain things, to be monitored while he discussed

13 those things. I think that the registry overstepped the boundaries of its

14 authority, and I think that this is an obstruction of the right to a

15 defence.

16 I also asked for travel to America to be authorised. I did not

17 want to go there to -- on a holiday. I wanted to talk to potential expert

18 witnesses which are essential to me in the proceedings before the court.

19 I was refused; my application was refused. I objected, appealed to the --

20 complained to the President of the Court because I believe that this is

21 obstruction of the Defence. I fail to see any other reason why this

22 happened.

23 Your Honour, you know that I am unable to conduct this work on my

24 own. I have interviewed hundreds of witnesses in the field. We have to

25 prep those witnesses. We have to cooperate with the other side to prevent

Page 448

1 the trial from being late. I still do not have co-counsel, and I believe

2 that this is also obstruction of the Defence because we know that in two

3 months, we will have depositions taken from at least 23 witnesses. You

4 know that I need to have my co-counsel at that time because this, in fact,

5 marks the beginning of the trial.

6 So, Your Honour, I will tell you frankly when I was in New York, I

7 got in touch with certain persons in the United Nations in trying to find

8 ways to solve this because I do not want to find myself in the situation

9 in which I will be thwarted in my efforts to defend my client because of

10 the conduct of the registry, so I would like to ask you for your

11 intervention in this regard.

12 Thank you.

13 JUDGE WALD: Mr. Krsnik, I have been receiving the communications

14 that you've been sending, and as I'm sure you're well aware vis-a-vis the

15 SFOR, I certainly, nor do any of the Judges of this Tribunal, have any

16 direct contact with SFOR in terms of their activity or in terms of what

17 they're authorised. The OTP in its response has denied having any

18 involvement with them, and at this point I certainly believe that to be

19 true.

20 Let me just point one thing out, though, that there is a bit of a

21 two-way street here. I believe that as a Defence counsel, you do have an

22 obligation to make sure that all of the information that you have for your

23 client or that you receive from the Prosecution vis-a-vis Prosecution

24 potential witnesses is kept safely, and I think without saying any more

25 about it, I think you certainly have to review your own responsibilities

Page 449

1 as to where you decide to locate your office. I can't say more than that,

2 and it's not within my domain to be involved with whatever the SFOR

3 activities are.

4 As to the funding for a trip to the United States, that is in the

5 President's court, both literally and figuratively, and quite possibly

6 after he rules, that will be the end of that matter. But as I understand,

7 you didn't request the trip for -- to talk to specific witnesses but,

8 rather, to see whether -- to survey the field as to potential witnesses.

9 Is that right? That's a fairly tall order. My own experience, my own

10 country would not suggest that -- that probably would meet the same fate

11 over there.

12 As far as the co-counsel goes, I do believe that if we get to the

13 next step where we have a firm arrangement made for depositions to go

14 ahead and the relevant details finalised, that the registry will be

15 receptive to the appointment of co-counsel.

16 On the last issue, and then if you have something more to say you

17 may say it, on the last issue of the investigator. I did make some

18 inquiry as to what the usual rules were as to the privilege, privileged

19 conversations between non-counsel members of the Defence team and the

20 accused, and I was told by the registry representatives that the general

21 rule, applied not just in your case but in everyone's case, is that the

22 lawyer certainly may speak to the client, privilege. If the lawyer brings

23 along an accompanying member of the team who is not a lawyer, then they

24 are allowed as a party, as it were, to talk to the counsel; but that a

25 non-lawyer member of the team by him or herself is not generally allowed.

Page 450

1 And that appears to be a registry rule that's applied across the board,

2 not particularly in your case.

3 Now, do you have something else you wish to say?

4 MR. KRSNIK: [Interpretation] Yes, Your Honour. As regards the

5 SFOR, I believe that this Tribunal, both you and myself, so to say, we are

6 all employed by the same employer, and that is the United Nations, and

7 that is why I believe that this Tribunal could ask officially from the

8 United Nations for an explanation as to why SFOR is doing this, because it

9 is not -- it does not have the mandate to act in this manner towards the

10 Defence counsel before this Tribunal.

11 It was a very unpleasant incident, and an investigation is

12 underway. I have been informed that the SFOR military police is

13 conducting an official investigation into the incident and so is the IPTF,

14 and I have been accorded protection by the International Police Force, the

15 IPTF.

16 So it was not an insignificant incident. I do believe that it

17 should be of interest to this Tribunal if something like this happens to a

18 Defence counsel, especially in view of certain privileged information or

19 documents, confidential documents that I have that they could have taken

20 away by force. How would you label such an act if that had happened? I

21 was forced to move a part of my office to Bosnia and Herzegovina because

22 everything is happening there. I can't sit here in The Hague and let

23 somebody else conduct my investigation in Bosnia and Herzegovina.

24 So I also took the trouble of informing the United Nations myself,

25 and I received a reply informing me that they are conducting an

Page 451

1 investigation.

2 As regards the investigators, the investigators so far have not

3 been subject to monitoring until such time when this particular

4 investigator appeared on the scene, and then he was monitored. I believe

5 that it was an arbitrary decision by the registry. They apply some rules

6 of their own. Both Ms. Drenski and Ms. Pinter were not monitored when

7 they interviewed our witnesses. This is quite logical, when they

8 interview, when they talked to my client, which I believe was quite

9 logical.

10 And I apologise, I'm sorry, as regards my trip to America, I

11 explicitly mentioned -- I specified who I wanted to see there, although I

12 did not mention their names. I had an expert for modern politics from the

13 Stanford University and expert for criminal law from the Yale University,

14 and I did, in fact, talk to them, and there is a document corroborating

15 that. Of course, I never would have gone to America without a specific

16 goal.

17 I will not wait for this trip to be approved because it is very

18 important for my client, so I will take every appropriate measure.

19 Despite the position taken by the registry, I will fulfil my role.

20 JUDGE WALD: Thank you, Mr. Krsnik.

21 THE INTERPRETER: Microphone please, Your Honour.

22 JUDGE WALD: Yes. I'd like to hear from the defendants, both

23 Mr. Naletilic and Mr. Martinovic, if there's anything they wish to bring

24 to the Court's attention, any complaints about conditions in detention or

25 the like.

Page 452

1 Mr. Naletilic? No? It's still a B-plus hotel? That's what you

2 told us last time.

3 THE ACCUSED NALETILIC: [Interpretation] No, it's a five-star.

4 JUDGE WALD: That's better; it's improving.

5 Mr. Martinovic, do you have anything? All right.

6 Well, thank you very much. I think the one definite thing, we

7 will hear from the Prosecution about any disputed deposition witnesses,

8 the Defence will reply to that, the Court will rule, and we'll move ahead

9 toward trying to finalise the arrangements for that. With those

10 arrangements, I think when they are finalised, then some of these problems

11 of co-counsel may move at the same time.

12 I hope that my prediction of a trial date will prove realistic,

13 not optimistic, and otherwise, thank you all very much. It's adjourned.

14 --- Whereupon the Status Conference adjourned at

15 5.15 p.m.











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