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1 Friday, 26 November 2004

2 [Status Conference]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 2.31 p.m.

6 JUDGE GUNEY: [No interpretation]

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

8 IT-02-60/1-A, the Prosecutor versus Momir Nikolic.

9 JUDGE GUNEY: [No interpretation]

10 Mr. Nikolic, can you follow the proceedings in a language you can

11 understand?

12 THE APPELLANT: [Interpretation] Yes, Your Honour. I can follow

13 the proceedings in a language I understand. Thank you.

14 JUDGE GUNEY: [Interpretation] Thank you, Mr. Nikolic. Please be

15 seated.

16 Could I now please ask the parties to identify themselves. Shall

17 we start with the Prosecution?

18 MR. MARCUSSEN: Good afternoon, Your Honour. The Prosecution is

19 represented by myself, Mathias Marcussen; by Mr. Norman Farrell, senior

20 appeals counsel on the case; and Ms. Lourdes Galicia, who is our case

21 manager.

22 JUDGE GUNEY: [Interpretation] Thank you, Mr. Marcussen.

23 I am now going to turn to the representative of the Defence of Mr.

24 Nikolic.

25 MS. LINDSAY: Good afternoon, Your Honour. Virginia Lindsay on

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1 behalf of Mr. Nikolic.

2 JUDGE GUNEY: [Interpretation] Thank you, Ms. Lindsay.

3 Let me remind you that in accordance with the provisions of

4 Rule 65(B) of the Rules of Procedure and Evidence of the Tribunal, a

5 Status Conference must be held within 120 days within the filing of the

6 notice of appeal and then with another 120 days in order to enable to the

7 accused [as interpreted] to raise any issues that he deems important. In

8 this case which is on appeal, this is the third Status Conference.

9 Mr. Nikolic, or Ms. Lindsay, are there any concerns regarding

10 conditions of detention or conditions of health of the accused [as

11 interpreted] that you wish to raise before the Chamber?

12 THE APPELLANT: [Interpretation] Your Honour, I don't have any

13 particular problems in the Detention Unit. I do have certain problems

14 with my health, but they are being taken care of by the personnel in the

15 Detention Unit and my counsel will advise you of everything that we have

16 discussed. Thank you.

17 JUDGE GUNEY: [Interpretation] Thank you very much. I take note

18 of what you have indicated. You may be seated now.

19 Ms. Lindsay, is there anything that you wish to add to what your

20 defendant has just indicated?

21 MS. LINDSAY: Do you mean in -- I'm not sure if you mean in terms

22 of the conditions of confinement or in general about the case.

23 JUDGE GUNEY: [Interpretation] [In English] The condition of the

24 confinement?

25 MS. LINDSAY: No, I have no other issues.

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1 JUDGE GUNEY: [In English] Thank you very much.

2 [Interpretation] Let me now turn to the issues regarding the

3 status of this appeal. As for the appeals proceedings, the Appeals

4 Chamber notes that we have so far received all relevant motions in public

5 and confidential versions, including several corrigenda. The Appeals

6 Chamber has also taken note of the amended appeal filed on the 26th of

7 October, 2004. The Appeals Chamber is now considering four motions filed

8 by the parties, including the motion for admission of additional evidence

9 filed by Mr. Nikolic; the motion of Mr. Nikolic asking for judicial

10 notice; motion of the Prosecutor to exclude certain documents including a

11 corrigendum, which has been filed today; and finally, an urgent request

12 filed by Mr. Nikolic today, asking for access to confidential documents

13 filed in the Blaskic [as interpreted] case.

14 As regards the motion submitted by the Prosecution for the

15 purpose of exclusion of certain passages, let me indicate that the filing

16 of this motion was effective on the 24th of November, 2004. The response

17 to this motion is expected not later -- and I emphasise, not later -- 6th

18 of September [as interpreted], 2004.

19 Appeals Chamber will be in a position to render the decision

20 regarding these motions shortly. As far as we are concerned, I do not

21 have that we have any other additional information that needs to be

22 imparted to the Chambers within the framework of this Status Conference.

23 So I will now turn to the parties and ask them if they have any

24 remarks to make or any issues that they wish to raise. Ms. Lindsay, you

25 have the floor.

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1 MS. LINDSAY: Yes, Your Honour. There's two matters that I would

2 raise. The first is that we do expect to be filing an additional Rule

3 115 motion. We had hoped to file it by today, but have been unable to do

4 so. We will endeavour to file by the time we file the response to the

5 Prosecution's motion to strike. And we're doing everything we can to

6 file as soon as possible.

7 The other matter that I want to mention is that -- involves a

8 factual error that appeared on the web site of the Tribunal in the part

9 of the web site is in B/C/S. The registry was notified of this error

10 this morning and it's already been corrected, and we wanted to thank them

11 for their rapid response in correcting the error so quickly. However,

12 for quite a long period of time, the web site has indicated that Mr.

13 Nikolic was charged under Article 7(3) in addition to the charges under

14 Article 7(1). Because it was on the web site for so long, I wanted to

15 state publicly for anyone who has seen this that, in fact, Mr. Nikolic

16 has never been charged with command responsibility under Article 7(3) and

17 no such allegations have been made, to my knowledge. Therefore -- I

18 wanted to state that on the record. And other than that I have no other

19 representations to make.

20 JUDGE GUNEY: [In English] Thank you very much, Ms. Lindsay. I

21 took note of the intention that you will shortly you are going to file a

22 motion in the framework of Rule 115, and I am happy that the registry

23 acted accordingly and try to correct the error which was made. So now

24 Mr. Marcussen, you have the floor.

25 MR. MARCUSSEN: Thank you, Your Honour. The Prosecution do not

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1 have anything to add, any further steps, that we wish to take in the

2 future, other than to respond to filings and things like that.

3 But just maybe to clarify one small matter in relation to what

4 Ms. Lindsay just said. Ms. Lindsay was kind enough to inform us of this

5 issue with the web site this morning and it appears that there might be a

6 discrepancy. I would agree with Ms. Lindsay on this in that in the B/C/S

7 version of the ICTY web site seems to indicate that Mr. Nikolic was

8 charged in the -- what we refer to in these proceedings as the Amended

9 Joinder Indictment from the 27th of May, 2002, on all counts for

10 responsibility under Article 7(3) of the statute.

11 And my learned colleague is correct, that that's not what the

12 indictment -- that that's not how the indictment was phrased. But just a

13 point of clarification is that my colleague said that Mr. Nikolic had not

14 been charged under 7(3) for any crimes, but maybe it wasn't what she

15 meant to say but just for the record Count 6 in the indictment of 27 May

16 2002 does include a count -- includes responsibility under 7(3).

17 Now, of course, Mr. Nikolic didn't plead guilty to this count

18 when it came up, but I thought I should make it clear that although there

19 is a problem maybe with the web site, it is not entirely -- it's not

20 incorrect for all counts. But I understand that the Registry has

21 corrected this so that the web site will now correspond to the English

22 version of the web site, which I believe has now gotten the facts right.

23 Just this small clarification for Your Honour. Thank you.

24 JUDGE GUNEY: [Interpretation] Thank you, Mr. Marcussen, for the

25 clarification. I believe that the issue is now clear enough unless Ms.

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1 Lindsay wishes to add anything.

2 [In English] I see none.

3 [Interpretation] I therefore think that we can adjourn this

4 Status Conference. The Status Conference as adjourned. It is so

5 decided.

6 --- Whereupon the Status Conference

7 adjourned at 2.45 p.m.