Tribunal Criminal Tribunal for the Former Yugoslavia

Page 159

1 Friday, 31 March 2006

2 [Status Conference]

3 [The accused not present in court]

4 --- Upon commencing at 10.10 a.m.

5 JUDGE BONOMY: Will the registrar please call the case.

6 THE REGISTRAR: Good morning, Your Honour. This is case number

7 IT-05-87-PT, the Prosecutor versus Milutinovic et al. Thank you.

8 JUDGE BONOMY: Thank you.

9 Mr. Hannis, can I take the appearance for the Prosecution.

10 MR. HANNIS: Thank you, Your Honour. I'm Tom Hannis, appearing on

11 behalf of the Office of the Prosecutor. I'm joined today by our case

12 manager Tamara Margitic on my right; on my left, trial attorney Christina

13 Moeller; and behind me, trial attorney Mathias Marcussen.

14 JUDGE BONOMY: Thank you, Mr. Hannis. This is a Status Conference

15 in the conjoined case of Milutinovic and others and it involves, at the

16 moment, six accused, all of whom are on provisional release. So as I take

17 the appearances for the Defence, I would like to confirm your appearance

18 and also assure me that your client is aware of the Status Conference

19 taking place and has authorised you to conduct it on his behalf in his

20 absence. So can I take the appearances in turn, please.

21 MR. O'SULLIVAN: Good morning, Your Honour. Eugene O'Sullivan and

22 Slobodan Zecevic, appearing for Mr. Milutinovic, who is not present this

23 morning, who is aware of this Status Conference and waives his right to be

24 present.

25 JUDGE BONOMY: Thank you, Mr. O'Sullivan. Mr. Fila.

Page 160

1 MR. FILA: [Interpretation] Good morning, Your Honour. My name is

2 Toma Fila and I appear with Mr. Vladimir Petrovic, representing the

3 Defence counsel of Mr. Sainovic, who is aware that we're holding a Status

4 Conference today and has authorised to us conduct the proceedings on his

5 behalf. Thank you.

6 JUDGE BONOMY: Thank you. Mr. Visnjic.

7 MR. VISNJIC: [Interpretation] Good morning, Your Honour. My name

8 is Tomislav Visnjic, an attorney, and I represent General Ojdanic, who is

9 aware of the Status Conference being held today and has waived his right

10 to attend in person.

11 JUDGE BONOMY: Mr. Ackerman.

12 MR. ACKERMAN: Good morning, Your Honour. I'm John Ackerman and

13 I'm here with Aleksandar Aleksic, my co-counsel, and General Pavkovic is

14 aware of this conference and has authorised us to proceed on his behalf.

15 JUDGE BONOMY: Thank you. Mr. Bakrac.

16 MR. BAKRAC: [Interpretation] Good morning, Your Honour. My name

17 is Mihajlo Bakrac. I represent General Vladimir Lazarevic. Together with

18 me is my colleague Mr. Milan Petrovic. General Lazarevic is aware of this

19 Status Conference being held today, and he is waiving his right to attend

20 in person and has authorised me to represent him at today's Status

21 Conference. Thank you.

22 JUDGE BONOMY: Mr. Bakrac. Mr. Ivetic.

23 MR. IVETIC: Good morning, Your Honour. Dragan Ivetic on behalf

24 of the Defence of General Sreten Lukic. General Lukic is apprised of

25 today's proceedings. He, with full knowledge, has waived his appearance

Page 161

1 and has authorised myself to appear on his behalf for today's proceedings.

2 JUDGE BONOMY: Thank you, Mr. Ivetic.

3 And I should record also that Mr. Scudder contacted me personally

4 to indicate the difficulty about his attendance today, and I authorised

5 the Status Conference to proceed in his absence also.

6 Now, yesterday afternoon we had a 65 ter Conference. I suppose

7 it's fairly easy in the atmosphere of fruitful discussion to say just how

8 cooperative things appeared to be at that time among everyone, but having

9 reflected on the matter overnight, I think it right to record now publicly

10 what seemed to me to be an extremely successful discussion and to

11 acknowledge the cooperation of all parties on both sides in efforts to get

12 this case underway as a trial at the earliest reasonable opportunity.

13 In saying that, I don't mean for a minute to pre-judge what I know

14 will be submissions that counsel will wish to make about the projected

15 dates. I simply at this stage acknowledge I think everyone's goodwill

16 towards achieving as early a trial date as is reasonable and fair.

17 A number of matters were discussed yesterday, and the position in

18 most of them was fairly clear. I think it right, though, to deal with a

19 number of them in the context of the Status Conference just to give each

20 of us an opportunity to review what appeared to be decided yesterday.

21 The first thing I think I want to do is acknowledge what's

22 outstanding. A recent decision of the Trial Chamber dealt with challenges

23 to the proposed amended indictment or objections to the proposed amended

24 indictment, and at the moment the ball is in the court of the Prosecution

25 on that one to produce a further revised indictment. Mr. Hannis indicated

Page 162

1 yesterday that that would be forthcoming within the next few days.

2 MR. HANNIS: Well, Your Honour, I believe our date is Wednesday,

3 the 5th of April, and we anticipate filing on that date.

4 JUDGE BONOMY: Thank you very much. It was also noted that the

5 additional features in this indictment would be clearly identified with

6 translation in mind, and I indicated that I would discuss the question of

7 translation with CLSS with a view to ensuring that all counsel have a copy

8 of the indictment in its entirety in B/C/S as quickly as possible, and I

9 shall undertake that at the beginning of the week, once I see what is

10 actually involved.

11 The second thing that is outstanding is an appeal by the United

12 States, I think, in relation to one interlocutory matter, and I will

13 simply report to the Appeals Chamber the importance of having the matter

14 dealt with as quickly as possible. My understanding is that there is

15 nothing required of the parties, that everything is in hand, and it's

16 simply a question of producing a decision.

17 The third outstanding matter was one raised by Mr. Ackerman, who

18 indicated to me that there had been discussions among counsel with a view

19 to formulating specific and all-inclusive requests for material,

20 documentary material, on behalf of the Defence and that within the next

21 ten days appropriate requests would be made. And I indicated to him then

22 that he should bear in mind the impending nature of the trial when

23 deciding whether it might be necessary to invoke the Court's assistance in

24 terms of Rule 54 bis in relation to any requests made. So that is a

25 matter of which the Court has notice.

Page 163

1 And the fourth outstanding matter, I think the final one, related

2 to certain protective measures already requested and then withdrawn, and

3 that matter was left on the basis that Mr. Hannis would revive it by

4 making a fresh filing in the light of the up-to-date information he

5 indicated he had. He also indicated that there may be protective measures

6 sought for other witnesses not yet intimated in full to the Defence, and I

7 urged him, and he agreed, to treat that as a matter of urgency.

8 Now, unless counsel can recollect any outstanding issue that

9 requires a determination, then I think that covers the matters we

10 discussed which yet require resolution. All right.

11 Mr. O'Sullivan.

12 MR. O'SULLIVAN: There was one other matter that you asked us on

13 the Defence side to consider. That was a date for the next 65 ter.

14 JUDGE BONOMY: Can I come back to that, if you don't mind?


16 JUDGE BONOMY: I've got that particularly in mind. I was thinking

17 more of things that require action over which I don't at the moment have

18 any control.

19 That takes me to the question of Prosecution witnesses. There

20 were a few loose ends, I think, left yesterday, Mr. Hannis, so I think

21 everyone would be grateful for as specific an indication as you can give

22 now of the number of witnesses you anticipate.

23 MR. HANNIS: Your Honour, our most recent calculation had us

24 anticipating calling some 80, 8-0, witnesses as live witnesses. We had

25 another 90 witnesses we proposed to submit under Rule 92 bis. And in

Page 164

1 addition, we have now, I believe, 11 experts we're proposing. As we

2 indicated to you yesterday, we do no longer intend to call Mr. Torkildsen.

3 JUDGE BONOMY: That may actually be ten. Does that not reduce it

4 to ten?

5 MR. HANNIS: You're right, Your Honour. I did my math wrong.

6 JUDGE BONOMY: The expert question I'll come back to, but I think

7 I can note now that you have apparently disclosed all the anticipated

8 material in relation to each of the experts.

9 MR. HANNIS: That's correct, Your Honour. I did indicate

10 yesterday that with Mr. Coo we might file a supplement based on some of

11 the new documents.

12 JUDGE BONOMY: He was the only one. Now, going back to your other

13 witnesses, how many of these witnesses have not yet been disclosed to the

14 Defence? Can you tell me roughly even the number?

15 MR. HANNIS: Your Honour, of -- I haven't calculated that because

16 as some of what we were doing was replacing some witnesses. I know that

17 previously we had said I think we were going to have 66 live witnesses and

18 about the same number of viva voce -- of 92 bis. That number increased so

19 the number may be something in the neighbourhood of 20 live and 20 or 30

20 92 bis, but that's a very tentative number, Your Honour.

21 JUDGE BONOMY: That's quite a large number of witnesses, and it

22 seems to me that there can be no justification for not disclosing

23 immediately all the material, all the supporting material relating to

24 these witnesses unless there are issues of protection involved. Now, do

25 you accept that?

Page 165

1 MR. HANNIS: I do accept that, Your Honour. I would indicate that

2 for these additional numbers I'm confident that a number of them, their

3 statements have already been disclosed, they just weren't previously

4 identified as a witness we intended to call at that time.

5 JUDGE BONOMY: Now, I can immediately understand the concern of

6 Defence counsel about the vagueness of this, so I really need to have an

7 undertaking from you, Mr. Hannis, that within a week of today they'll have

8 everything in relation to which you do not envisage seeking protective

9 measures.

10 MR. HANNIS: I will undertake to do that, Your Honour, and if I

11 have a time problem, I will seek relief from you, if there's any problem.

12 JUDGE BONOMY: Okay. I think you also owe it to everyone now to

13 make it clear within the same time scale the number of witnesses and the

14 general nature of their evidence for whom protective measures are to be

15 sought and to take steps to have that resolved now so that appropriate

16 disclosure can be made at the earliest possible date. Now, do you accept

17 that?

18 MR. HANNIS: I do.

19 JUDGE BONOMY: Well, would you -- would you try to please apply

20 the same time scale to at least indicating what the position is and

21 formulating an application.

22 MR. HANNIS: I will, Your Honour.

23 JUDGE BONOMY: Thank you. Now, we also discussed the potential

24 length of the trial, and I think that there are loose ends in respect of

25 that that can't be tied up today. I hope that I accurately reflect what

Page 166

1 happened yesterday when I say that you are unlikely to have 80 witnesses

2 whose evidence in chief is given viva voce in its entirety.

3 MR. HANNIS: That's correct, Your Honour. We anticipate trying to

4 make good use of Rule 89(F).

5 JUDGE BONOMY: Yes. And we had, I hope, a -- I indicated to you

6 my understanding of where difficulties can arise when a witness's evidence

7 appears to be unbalanced in the sense that the bulk of his oral evidence

8 is given in cross-examination, but I indicated that the Court would be

9 alert to that, and we'd expect that where issues had been raised in

10 cross-examination, the Prosecution would deal with any foreseen

11 difficulties about the way in which a witness was apparently presented by

12 dealing with the matter in re-examination.

13 MR. HANNIS: I take your point on that, Your Honour, and that's a

14 matter that we intend to deal with. Part of it will depend on the

15 personalities involved in the actual trial.

16 JUDGE BONOMY: Now, you also gave me an estimate of the time that

17 you envisaged using to present the Prosecution case. Can you remind me of

18 that?

19 MR. HANNIS: I believe we said that was 18 weeks, Your Honour.

20 That's simply for the direct examination.

21 JUDGE BONOMY: Now, is that on the basis of the 80 viva voce

22 witnesses?

23 MR. HANNIS: Yes.

24 JUDGE BONOMY: Yes. So that matter is obviously subject to

25 review.

Page 167

1 MR. HANNIS: It is.

2 JUDGE BONOMY: And I invited you to have particular regard to the

3 fact that the Prosecution, in presenting the Kosovo phase of the Milosevic

4 indictment, took only 122 hours.

5 MR. HANNIS: I recall that, Your Honour.

6 JUDGE BONOMY: As against 18 weeks I think is 360 hours.

7 MR. HANNIS: Yes, based on a calculation of 20-hour weeks.

8 JUDGE BONOMY: So I think it's an important factor to bear in mind

9 that the whole of the Prosecution case over the three indictments in

10 Milosevic took 360 hours, roughly the equivalent of what you envisage for

11 the presentation of the Prosecution case in this case. I appreciate we

12 have six accused, but I think I reminded you yesterday that the crime

13 scenes are the same for all of them and the only separate individual issue

14 will be criminal responsibility, and it's not clear to me that that's by

15 any means the bulk of the case.

16 MR. HANNIS: You did, Your Honour.

17 JUDGE BONOMY: Yes. Very well. So I make it clear to you now

18 that I have a different view of the likely time scale of the Prosecution

19 case, even allowing for cross-examination. Mr. Fila made it clear that

20 it's the plan of all counsel here to agree in advance of the presentation

21 of each witness which counsel will take principal responsibility for

22 cross-examining the witness with a view to the expeditious presentation of

23 that evidence. And having that in mind, it does seem to me that 360 hours

24 may be a closer estimate of the time necessary for the whole Prosecution

25 case, including cross-examination and re-examination.

Page 168

1 MR. HANNIS: I agree, and I was pleased to hear that, Your Honour.

2 JUDGE BONOMY: All right. Thank you. So we're now looking, I

3 think, at a rather different picture from the one that has been in mind

4 for this case. The 28 months that were envisaged I expect to be

5 substantially reduced.

6 Nothing more, I think, need be said about Prosecution expert

7 witnesses, but I would like, I think, Mr. O'Sullivan to remind me of the

8 position taken by the Defence in relation to their preparation of expert

9 witnesses. Mr. O'Sullivan.

10 MR. O'SULLIVAN: Yesterday the counsel for the Defence met, and we

11 now know that there are ten experts proposed by the Prosecution, and for

12 six of those experts we agree that we can call one expert in reply. For

13 six of the ten. The other four, we're still -- we still have to work

14 among us to see whether we will have one or more experts in the other four

15 areas.

16 JUDGE BONOMY: Yes. I suggested to you that you might reflect

17 upon the time at which you would anticipate reports being available and

18 whether disclosure of the Defence expert position before the Prosecution

19 expert gave evidence might be conducive to cutting down the areas in

20 dispute. Now, have you given any more consideration to that?

21 MR. O'SULLIVAN: We haven't discussed that jointly, and quite

22 frankly, I'm opposed to that, speaking for myself at this point.

23 JUDGE BONOMY: How do you envisage dealing with an expert? By

24 that I mean instructing him finally before he gives you his final report?

25 You envisage doing that after the Prosecution expert has given evidence or

Page 169

1 at some earlier stage?

2 MR. O'SULLIVAN: At an earlier stage.



5 JUDGE BONOMY: But holding on to the material until you've heard

6 the Prosecution's expert.

7 MR. O'SULLIVAN: Well, that -- that fits into a -- it depends. I

8 can only speak for myself and my client in relation to this at this point.

9 That is our -- that will fit into our trial and Defence strategy, yes,

10 that determination.

11 JUDGE BONOMY: There are --

12 MR. O'SULLIVAN: Under the Rules, of course, our expert can follow

13 the proceedings when the Prosecution's expert is testifying. That much is

14 an exception to the Rule too.

15 JUDGE BONOMY: Well, jurisdictions all over the world have

16 different approaches, as I understand it, to the extent to which one

17 expert can follow the evidence of another. I see no difficulty with the

18 idea that a Defence expert should follow the evidence of a Prosecution

19 expert, but I have a bit more difficulty with the idea that in every case

20 it should be, well, let's wait and see before we try to cut down the areas

21 in dispute, and I think I do have certain power in relation to experts

22 which I don't have in relation to the disclosure of other Defence

23 witnesses which I may decide to exercise, and I'm interested to have your

24 comments before I make any decision on this. And what I'm -- the message

25 I'm getting is, no, we'll be fully prepared by the time the Prosecution

Page 170

1 expert gives evidence. We'll have our report, but we think it's right to

2 hold on to it until afterwards.

3 MR. O'SULLIVAN: Well --

4 JUDGE BONOMY: I'm not criticising, I'm just trying to get the

5 picture. And I understand you clearly on that, do you?

6 MR. O'SULLIVAN: I can't say that the report -- a Defence expert

7 report will necessarily be completed by the time the Prosecution expert

8 testifies.


10 MR. O'SULLIVAN: I can't say that. That's the only proviso I

11 would add to what you said.

12 JUDGE BONOMY: Well, I acknowledge certainly the cooperation among

13 counsel to try to cut down the number of experts. That's encouraging.

14 But there may even be cases, I suggest to you, as you prepare in which

15 there may be scope for mutual disclosure with the Prosecution with a view

16 to identifying how little is actually in dispute between you. And indeed,

17 even if it doesn't involve disclosure, it might be a good idea, once you

18 have more or less finalised your own expert's position, to tell the

19 Prosecution what's not in dispute so that -- and hold back, if you think

20 tactically that's the right thing to do, as little as possible in

21 everyone's interest. I just encourage you to think about these things as

22 we make progress.

23 Now, does any other Defence counsel wish to comment on expert

24 witnesses at all? Mr. Visnjic.

25 MR. VISNJIC: [Interpretation] Your Honour, I just wish to give a

Page 171

1 clarification regarding the comment you made just now about the mutual

2 agreement among counsel, that only one Defence counsel will be

3 cross-examining on behalf of all.

4 I wish to say on behalf of our client that we did not reach such

5 an agreement. Of course we will discuss it among us, but at this point no

6 such agreement has been reached among us, and we will probably act on a

7 witness-by-witness basis.

8 JUDGE BONOMY: If that's the way I put it, then it was a

9 misrepresentation of what Mr. Ackerman actually said. What I hope I said

10 was that he indicated that you would get together and decide which counsel

11 should be the lead cross-examiner in relation to each witness, reserving

12 the right - and I should have made that absolutely clear - reserving the

13 right to all other Defence counsel to raise issues that they felt had to

14 be individually explored on behalf of their clients. So I fully

15 understand that and I'm sorry about the misunderstanding.

16 MR. VISNJIC: Thank you.

17 JUDGE BONOMY: There was one other thing I wanted you to make

18 clear about Defence experts, and I think it was you that raised it

19 yesterday, and that was the question of funding and whether there are

20 advantages to be gained in relation to funding by combining your

21 resources. Now, can you clarify that for me again, please.

22 MR. VISNJIC: [Interpretation] Yes.

23 THE INTERPRETER: Microphone, please.

24 MR. VISNJIC: [Interpretation] We will make a submission to the

25 Registry requesting some sort of merging of funds available to Defence

Page 172

1 regarding experts. But the comment you just made leads me to think of my

2 reasoning, previous reasoning, about the financing of experts. The

3 Tribunal limits the financing of expert evidence in pre-trial stage and

4 the trial stage, according to the information we got from the Registry.

5 For instance, experts are financed with one lump sum in the pre-trial

6 stage, another lump sum during the trial stage, depending on the size and

7 contents of the report. We will probably need to consult again with the

8 Registry whether the system indeed allows for this.

9 This adds only one technical difficulty to the idea you voiced

10 just now. Otherwise, I completely agree with it, and I don't think there

11 will be any obstacles to doing it in this trial in the way you suggested.

12 JUDGE BONOMY: Well, I just -- I just want to record my

13 appreciation of the efforts that are being made to cut down the number of

14 experts used in this case, and I hope the Registry are alert to the

15 importance of assisting counsel so far as they can in that exercise. I

16 appreciate the difficulty for all concerned but I would encourage them to

17 recognise particularly the efforts that have been made in this case.

18 Now, that concludes my review of the position in relation to

19 witnesses, subject to anything any counsel wishes to say on the matter

20 before I move to a completely separate issue. All right. I take it that

21 silence indicates there's nothing else to be reviewed on that score.

22 I want now to turn to, as I say, a completely separate issue which

23 I alerted three of the counsel here to be in a position to address today,

24 and I did so for a particular reason. The Registry has drawn to the

25 attention of the Trial Chamber what might be seen as activity on the part

Page 173

1 of three of the accused which may not be consistent with the terms on

2 which they were provisionally released.

3 Now, I'm raising it with you as a general point. I'm purely

4 concerned about any misunderstanding that there may be in general about

5 the terms on which there is provisional release and how these terms are

6 dealt with should there be a need to review them because of unexpected

7 events or developments. I'm not regarding this at this stage as a

8 complaint that I have to address, but I was anxious to have as much

9 information as you feel able to give me about the circumstances so that I

10 can reassure myself that there isn't a general problem which requires to

11 be addressed in relation to the future position of the accused or indeed

12 any other accused on provisional release in Serbia.

13 Now, the three accused referred to were Sainovic, Ojdanic, and

14 Pavkovic. So, Mr. Fila, can I ask you if you can be of assistance to me

15 in clarifying this issue.

16 MR. FILA: [Interpretation] Mr. President, we are here in this

17 courtroom in order to tell each other the truth and to respect one

18 another. I'm saying this at the outset meaning that if any error has been

19 made, I am responsible for one part of that error and the government of

20 Serbia for another.

21 I am unable to provide any additional documents because we were

22 only notified on Tuesday and we were flying on Wednesday, and at the

23 request of the Interior Ministry -- when I made the request to the

24 Ministry of the Interior and the Ministry of Defence, they said the

25 documents were confidential and they would provide them to you if

Page 174

1 necessary. Namely, those are police reports confirming that all the three

2 accused had police escort when they travelled and that the distance in

3 question is 30 kilometres, not 60, as you were notified. It's the

4 territory of the city of Belgrade, which is 20 kilometres away from the

5 site in Pozarevac, 20 kilometres.

6 I do wish to assist you in clarifying this matter. As you can

7 see, the letter addressed to the Ministry of Justice was signed by me

8 because I am the one who is responsible for the possible violation of

9 your --

10 JUDGE BONOMY: I know there is a letter but I have deliberately

11 not read it yet because there was too much happening before I came in here

12 this morning. Let me have a moment to read the letter that you're talking

13 about.

14 MR. FILA: [Interpretation] You don't have their letter. You have

15 only the letter that I wrote, and you are -- you also have the reply from

16 the government.

17 JUDGE BONOMY: Well, Mr. Fila, I have a copy of the letter to the

18 Ministry of Justice. That's the document you're referring to?

19 MR. FILA: [Interpretation] That's correct. And you should also

20 have the reply from the Ministry of Justice granting me approval, and I

21 will now explain, if you allow me.

22 JUDGE BONOMY: I haven't been given that.

23 MR. FILA: [Interpretation] The reply is in the bundle given you by

24 the Registry. Page 1710. That's the material sent to you by the

25 Registry. I have a copy if you need one.

Page 175

1 MR. ACKERMAN: Your Honour, just to clear up confusion, if you

2 look at the original document provided by the Registry, the letter is

3 attached to it. It's not something that was supplied today.

4 JUDGE BONOMY: I'm sorry. Yes, thank you.

5 MR. ACKERMAN: If you just look at the Registry's --

6 JUDGE BONOMY: Yes. Mr. Fila, the page number again, please?

7 MR. FILA: [Interpretation] 1710. That's a reply. Before I

8 embarked on writing that letter, I asked verbally if there had been such

9 precedence before, and I was told that the interpretation of your

10 decisions is such that when emergencies are in question - baptism,

11 funeral, wedding, or something similar which requires an absence of

12 several hours or maybe a night - it is the discretionary right of the

13 Ministry of Justice, together with the Ministry of the Interior, to grant

14 approval. Let me correct myself: It is allowed for the accused to be

15 absent for a day, but not a night. And in that case they are given police

16 escort, which has been observed in this case.

17 After receiving this clarification, I wrote to the minister of

18 justice, and now I am being asked why I hadn't asked for your approval as

19 well. That's my mistake. The death of Mr. Milosevic was sudden. It

20 created enormous outcry in the media. And I believe that under the

21 circumstances this travel of 20 kilometres cannot be considered as a grave

22 violation of the terms of provisional release, and I think you have

23 better, more urgent business to attend to than dealing with this travel,

24 this journey of only 20 kilometres of half an hour.

25 JUDGE BONOMY: I hope I made it clear to you at the outset that

Page 176

1 I'm not looking at it from that point of view. I'm looking at it from the

2 general issue point of view. In other words, is there a problem here in

3 general about how these conditions are being interpreted? This -- I

4 express no view on what happened in this instance, but I can envisage that

5 if this sort of thing is not addressed and the position clarified, that

6 something unfortunate could happen, and I want to avoid that eventuality.

7 MR. FILA: [Interpretation] I understand.

8 JUDGE BONOMY: Yes. Now, is there anything --

9 MR. FILA: [Interpretation] I just wish to tell you what it looks

10 like. The Ministry of Justice believes that it is possible to grant

11 approval for several hours, but certainly not more than 12. The minister

12 of police is then notified, and he designates police escort. Generally

13 speaking, they are under police supervision, under surveillance, round the

14 clock. They cannot leave their apartments without police escort, even

15 when they are going to see their counsel. When Mr. Sainovic is going to

16 meetings with me, he goes under police escort. That not only provides

17 surveillance but also prevents attacks, et cetera.

18 So the way we understand it, it is not necessary to summon the

19 Trial Chamber to decide on matters like this for such a small, short

20 absence. You will see from the report that you will receive and that I

21 haven't received because they explained it's confidential and it's not our

22 business to know how the police organises their work.

23 That is all I can tell you. And if there are any omissions on our

24 part, I am entirely responsible, not Mr. Sainovic. Death is a -- an

25 important occasion in our Orthodox Christian church. And if Slobodan

Page 177

1 Milosevic hadn't been in question, this would never have occurred.

2 Can I be of assistance in any other way?

3 JUDGE BONOMY: If you're right, that it shouldn't be necessary to

4 summon the Trial Chamber to decide on matters like this, then it's

5 important that that is well known and that the ground rules for such

6 situations are clear. On the other hand, if they weren't clear, then it

7 could be said that the strict terms of the -- of the conditions apply, and

8 it's that sort of uncertainty that I'm anxious to avoid.

9 As it turns out, for all I -- from all I have heard, the funeral

10 passed off reasonably well, but you could imagine other circumstances in

11 the -- anywhere in the Balkan region where something unfortunate happened.

12 Gosh, it happens at football matches every night. So there are

13 foreseeable potential consequences for even minor excursions like this,

14 and therefore I think it is important that the position is clear and that

15 the matter's not left in doubt. However, I'm grateful to you for

16 explaining the position to me.

17 Mr. Visnjic, is there anything you need to add to this or do you

18 feel the need to explain the position of Mr. Ojdanic in particular?

19 MR. VISNJIC: [Interpretation] Your Honour, very briefly. On

20 behalf of General Ojdanic, I submitted my request on the 16th of March

21 around 1400 hours to the Ministry of Justice, and around 1600 hours I

22 received their reply on the same date, granting approval for him to attend

23 the funeral that was held on the 17th of March. I submitted that

24 document. I filed it.

25 What I wish to say is that I actually support this position of the

Page 178

1 Ministry of Justice, although it's the first time that my client has

2 availed myself of that particular possibility in almost one year that he

3 has been on provisional release. On one previous occasion, my client

4 absented himself from Belgrade for treatment, and on that occasion we had

5 approval from the Trial Chamber.

6 However, under these circumstances, I believe the position of the

7 Ministry of Justice is completely reasonable, because otherwise I think

8 this Trial Chamber would be completely snowed under similar requests, very

9 minor, and would cause unnecessary outlay of resources that can be much

10 better spent, and we would be facing an absurd situation over details like

11 the one I recently found about. One of the accused on provisional

12 release, for instance, had to visit a doctor that is only one kilometre

13 away from what is formally considered the territory of the city of

14 Belgrade, and that required him to request special permission. That is an

15 indication that maybe the procedure should be simplified. But even in

16 this case, the matter was completely under the control of the Ministry of

17 Justice and the Ministry of the Interior, which as my colleague pointed

18 out, carries out round-the-clock surveillance.

19 In order to provide you with a complete picture, my client was

20 specifically told by his escort that if his escort does not get permission

21 from the Ministry of the Interior, that is the Ministry of Police, he

22 would be arrested if he leaves the territory specifically designated by

23 the terms of provisional release. So we have two ministries exercising

24 control, and both these ministries have accordingly notified the Ministry

25 of Finance. So we cannot say that this travel of our clients violated the

Page 179

1 guarantees provided by the State or that it was self-willed or that it

2 jeopardised the safety of any victims or witnesses or that it indeed

3 violated any of the restrictions imposed by the terms of provisional

4 release. Thank you.

5 JUDGE BONOMY: I think, Mr. Visnjic --

6 THE INTERPRETER: Microphone, Mr. President.

7 JUDGE BONOMY: I think, Mr. Visnjic, what it boils down to is an

8 interpretation of the first condition that applies to each of these

9 provisional release orders. A ministry statement, according to the

10 Registrar, was to the effect that the obligation was not to leave the

11 territory of the city of Belgrade without the approval of the ministry.

12 There's nothing in these orders that authorises the ministry to give such

13 approval.

14 Now, I understand all you're saying about how you might view this

15 as a -- as a technicality or as a sensible course of action or whatever,

16 but in the end of the day, the ministry may have abrogated to themselves

17 authority which, if they really wanted to have it, they should have been

18 asking the Tribunal to grant them, rather than simply causing confusion by

19 acting in what on the face of it is in breach of the terms in which each

20 of the accused was released.

21 So I acknowledge that nothing in particular appears to have

22 occurred that had any adverse effect, but, nevertheless, as I emphasised

23 to Mr. Fila, it's important that these things are not left in doubt and

24 uncertainty.

25 Anyway, thank you for your comments. Mr. Ackerman, is there

Page 180

1 anything you wish to say?

2 MR. ACKERMAN: Well, Your Honour, I think you understand the

3 situation very clearly. Only -- I'll only say this: I have provided with

4 -- to you today the letter requesting permission for my client to -- to

5 travel and the letter from the ministry authorising it, so that, at least

6 in his mind, he was in compliance with -- with the requirements. He's

7 recently released and walked into a situation where this had apparently

8 become a rather standard practice.

9 Whether or not that needs to be addressed or not is a matter, I

10 suppose, that needs to be taken up by the Judges. It seems to me that the

11 Tribunal relies upon the government of, in this case Serbia, and the

12 police and the Justice Ministry to a great extent in enforcing the terms

13 of provisional release, and it would seem that a bit of discretion might

14 be appropriate in that regard because of matters that come up rather

15 quickly and can be dealt with.

16 It's my observation that they go beyond what is required by the

17 Judges. The -- each of the persons on provisional release is under

18 24-hour police surveillance. There are police with them constantly. They

19 can't go anywhere without police being with them, and so it's not just

20 that they check in to the police once a day; they're with them all the

21 time. So I think it's not a problem, but if the Tribunal wants to

22 instruct the Ministry of Justice that they are not authorised to issue

23 these permissions, I think that's what should happen, but I don't think

24 it's anything to do with our clients.

25 JUDGE BONOMY: I can tell you I have experience of applications

Page 181

1 being made to the Trial Chamber for variation of conditions for funerals,

2 so it's plain that others have taken a different view of what the

3 conditions require.

4 Anyway, I'm very grateful to all three counsel for explaining the

5 position.

6 Mr. Hannis, I wasn't anticipating that you would necessarily have

7 anything to say on this.

8 MR. HANNIS: Your Honour, I realise it's primarily a matter

9 between the Court and the accused, but I did have a comment, if you're

10 willing me -- if you're willing to permit me to make one.

11 JUDGE BONOMY: I'm certainly not going to prevent you, but as long

12 as it's relevant to the general point I'm considering.

13 MR. HANNIS: I hope it will be. I hope that you will find that it

14 is. My concern, Your Honour, is that there appears to be a fundamental

15 disconnect or misunderstanding here. I agree that looking at the incident

16 itself, for example, with Mr. Fila's client travelling that sort distance

17 for that short time under the circumstances, certainly if the application

18 had been made to the Court, I anticipate there would be no problem and it

19 would have been granted. My problem is, as you pointed, the release

20 conditions are that they are not to leave the territory. There is no

21 exception, there is no delegation of this Court's authority to the

22 Ministry of Justice in Serbia, and that's my concern. They've taken it

23 upon themselves, apparently, without any consultation with the Court, to

24 do that.

25 In addition, I do note I was handed some documents this morning

Page 182

1 from co-counsel for Mr. Pavkovic indicating that apparently has been made

2 requests for and been granted permission to travel on five other occasions

3 prior to the funeral outside the city, and at least on one of those

4 occasions it appears the permission was not just until midnight but for a

5 period of 24 hours, and date of travel was indicated as "when needed."

6 That's a little broader discretion. Those particular requests I think

7 were not signed by Minister Stojkovic but, rather, a person who is

8 described as State Secretary Bjelica. And these were matters that were

9 not in the Registrar's report but I think they should come to your

10 attention as well on the issue of the general point.

11 I would request, Your Honour, that you consider the possibility of

12 having the minister of justice appear before you to make sure that there's

13 a clear understanding of where the authority lies.

14 JUDGE BONOMY: Thank you, Mr. Hannis. It would be helpful if you

15 gave copies of these documents to the court registrar. On the -- we

16 already have them.

17 MR. ACKERMAN: They already have them. We gave them to everyone,

18 Your Honour.

19 JUDGE BONOMY: Thank you, Mr. Ackerman.

20 MR. ACKERMAN: The purpose was to show that this was a pattern

21 that had developed and not some aberration that the funeral --

22 JUDGE BONOMY: I don't intend personally to invite the ministry to

23 appear here or indeed make representations. I simply wish to identify

24 whether there is a general issue. I think there is one. I intend now to

25 report the information I've gleaned to the Trial Chamber, but I suspect

Page 183

1 that what they'll want to do is simply report it back to the Registry, and

2 the Registry can then decide what, if any, course is appropriate in

3 relation to this. Whether it's simply to alert Trial Chambers to deal

4 with it individually or whether it's a policy matter that needs to be

5 dealt with in general will be for others within the Tribunal to decide.

6 Mine was a fact-finding mission this morning, and I think that you also,

7 Mr. Hannis, have supplemented my knowledge, and I'm grateful for that.

8 MR. HANNIS: One last point, Your Honour. Part of my concern and

9 request regarding perhaps having the minister here to make it clear is

10 that one of the media stories about this account quoted the Deputy Prime

11 Minister as saying that no one in the government given permission. So

12 internally that is a problem.

13 JUDGE BONOMY: I am aware of that from the submission but I don't

14 consider it's for me in my context of my role as the Pre-Trial Judge in

15 this case to take the matter up with the ministry directly. I certainly

16 won't be doing that.

17 Mr. Fila.

18 MR. FILA: [Interpretation] Your Honour, had Mr. Hannis not raised

19 the subject, although I did expect the subject to be broached, the

20 Vice-Prime Minister's -- Deputy Prime Minister's statement, so I asked

21 what this was about. The Vice-Premier said that the government did not

22 make a decision on the matter. And the government of Serbia did not

23 indeed make a decision. I checked that out, so please believe me that I'm

24 telling you the truth when I say this, because the government does not

25 resolve questions of this kind. These are questions that are resolved by

Page 184

1 the minister of justice together with the minister of the interior. So

2 that Mr. Labu [phoen] said something which has nothing to do with him, and

3 he does have occasion to speak about things he doesn't know about. The

4 Hague Tribunal, for example. It doesn't come under his remit. And in

5 1993 he said, for example, that these three accused, Pavkovic, Lukic, and

6 - what was the third's name? - Lazarevic, were accused because Sainovic

7 and Ojdanic had given their names to the Prosecutor. That same

8 Vice-Premier said that. But we have a government that we -- the kind of

9 government we have and most frequently people are talking about things

10 they know nothing about, but that's the situation, so thank you, I needed

11 to make that additional explanation.

12 JUDGE BONOMY: Thank you, Mr. Fila. I hope when we get to the

13 trial that we'll be able to concentrate on forensic rather than political

14 issues.

15 I'll turn now to the question of timetabling for the future

16 conduct of the pre-trial phase and also the trial itself, and I think I

17 should hear first of all from Mr. O'Sullivan who reminded me earlier of my

18 request that we should try to identify a date for the next 65 ter

19 conference.

20 MR. O'SULLIVAN: Well, yesterday you asked us to consider when may

21 be an appropriate date to hold the next 65 ter. We did discuss that, and

22 we can inform you that a convenient date for us is Wednesday, the 19th of

23 April. We think that that -- having it sooner rather than later is

24 important, and the 19th of April doesn't conflict with either the Western

25 or Eastern Easters. It falls between the two. So from our side it's a

Page 185

1 date in all regards.

2 JUDGE BONOMY: I'm feeling particularly guilty now. You'll

3 realise how limited are the holidays for Judges in this Tribunal, and

4 apart from the recesses, we have two weeks which we can identify for

5 ourselves, and this Trial Chamber identified that week, because it

6 coincided with Easter Monday, as the week off. It would be very helpful

7 to me if it wasn't the 19th of April.

8 If we were to go into the following week --

9 MR. VISNJIC: Your Honour, maybe we can inform you little bit -- I

10 mean after Status Conference, when we discuss about possible dates.

11 JUDGE BONOMY: Any date the following week would be fine, if that

12 can be done.

13 MR. VISNJIC: Your Honour, I think it's better we inform you

14 after.

15 JUDGE BONOMY: Okay. Now, as I explained to you yesterday, I

16 tried to formulate a provisional timetable based on the date at which I

17 thought it was reasonable to try to begin this trial, and I want to

18 explain exactly what -- again what my thinking on this was.

19 The Court recess is slightly movable for Trial Chambers, so it can

20 fit within a period of five weeks but it's a three-week period in itself,

21 and the core three-week period which this Trial Chamber has to recognise

22 on this occasion is from the 15th of July until the 6th of August. It

23 seemed to me that if this trial was to be -- because of its size, number

24 of accused, number of personnel, just general logistical issues, if we

25 were to be sure of having the trial up and running properly immediately

Page 186

1 after the recess, then we had to have all formalities out of the way

2 before the recess and we had to have the trial actually under way before

3 the recess. So I identified the date for the commencement of the trial as

4 the 10th of July. I had in mind that if there was to be an opening from

5 the Prosecution, that's when it would be. I had in mind that hopefully

6 evidence presented then would not be so controversial as to cause

7 difficulty for any counsel involved in the case or any accused.

8 Mr. Hannis, yesterday, indicated that he was going to be

9 accommodating, so far as individual counsel were concerned, even at later

10 stages in the Prosecution case, in the sense that he would accommodate

11 counsel who found difficulty in dealing with a witness because that

12 witness was being introduced at a particular stage. So with that degree

13 of flexibility, I was hoping that we could commence the trial on the 10th

14 of July.

15 Mr. Ackerman has raised certain personal difficulties that that

16 would give him, and there are other personal issues affecting counsel

17 which I have been alerted to and we don't need to elaborate upon here, but

18 having considered any personal difficulties, it seems to me that the --

19 there are two ways that we can be sure that they won't be -- or that those

20 involved will not be prejudiced.

21 First of all, we have in each case a team representing the accused

22 and, therefore, the individual attendance of lead counsel is not required

23 at every stage. Indeed, I'm in a jurisdiction normally where it's not at

24 all uncommon for appearances to be shared pretty liberally between two

25 counsel representing an accused, and the Court thinks nothing of it.

Page 187

1 And the second way I think of ensuring that no prejudice is caused

2 is through the alertness of the Judges presiding to ensure that each

3 accused has an entirely fair trial.

4 Now, I know that there may remain concern about these projected

5 dates and I'm now anxious to hear from any counsel who wishes to express

6 that concern.

7 Mr. O'Sullivan.

8 MR. O'SULLIVAN: Yes, Your Honour. Thank you. I'd like to make

9 submissions on where I see the status of this case at this time. I feel

10 that yesterday's 65 ter conference, as you stated at the beginning of this

11 hearing, was very fruitful, and we fully support your proposal to work

12 intensively on an ongoing basis to work towards preparing this case for

13 trial.

14 In relation to a proposed trial date, however, I wish to be candid

15 and direct with you, Your Honour, and to state unequivocally that this

16 case cannot and must not begin this summer. As you indicated to us, this

17 case is not yet assigned to a Trial Chamber, and we ask you to impress

18 upon the powers that be in this institution which do set trial dates and

19 assign Trial Chambers to look at the status of our case.

20 The suggestion of setting this matter for trial this summer, Your

21 Honour, flies in the face of your Trial Chamber decision of the 22nd of

22 March on joinder, and here's why I say that: We have yet no indictment in

23 this case, and a final decision on joinder is forthcoming. We know that

24 on April 5th, the proposed indictment will be filed by the Prosecution,

25 and 15 days after the B/C/S translation we can respond. Then you will

Page 188

1 rule. That process will probably take us to somewhere in the month of

2 May.

3 Now, what are we to expect in this new proposed indictment or the

4 final indictment when we reach that point? Well, your March 22nd order or

5 decision indicated that there were going to be three important matters

6 which will appear in this new indictment. First, the alleged -- the

7 forces alleged to have perpetrated crimes in Kosovo in 1999, alleged

8 crimes in 1998, and the Joint Command. Your March 22nd decision states

9 that: "The OTP must plead the material facts of these allegations with

10 sufficient specificity to enable the accused to prepare a defence."

11 The addition of these new material facts will cause

12 Mr. Milutinovic unfair prejudice unless he is given an adequate

13 opportunity to prepare an effective defence. The nature and scope of

14 these new material facts significantly broadens this indictment, Your

15 Honour. And let me focus on the 1998 crimes.

16 At a minimum, we must re-examine and analyse all previous

17 disclosure from the Prosecution in relation to 1998. We must re-examine

18 the Milosevic proceedings in light of 1998. We must now review the

19 proceedings in the Limaj case and the Haradinaj case. Both cases pertain

20 to events in Kosovo in 1998.

21 JUDGE BONOMY: Well, can I just stop you there. Mr. Hannis

22 pointed out yesterday that what this was was an elaboration of paragraph

23 95 of the third amended indictment. That third amended indictment is

24 dated the 5th of September, 2002. It talks about events beginning in late

25 February 1998. And it deals with allegations of a widespread -- or a

Page 189

1 campaign of shelling of Kosovo Albanian towns and villages, widespread

2 destruction of property, expulsion of the civilian population. It talks

3 about United Nations's estimates by mid-October 1998 of over 298.000

4 people, roughly 15 per cent of the population, internally displaced within

5 Kosovo or having left the province.

6 Now, what has changed apart from the possibility that these

7 allegations actually disappear?

8 MR. O'SULLIVAN: Well, that paragraph is in the section called

9 Additional Facts, I believe, at the tail end of the indictment. And as

10 your decision of the 22nd of March quite rightly points out, that all

11 previous Kosovo indictments and the pre-trial brief from 2004 describes

12 1998 in what appears to be the least possible detail. Those are the words

13 you wrote. And we agree with that. And now for the first time we can

14 look at -- there's been no -- Milutinovic was given no notice until this

15 joinder indictment was proposed - no meaningful notice - that the crimes

16 in 1998 would be pleaded as material fact. In fact, they were not in the

17 first Milosevic indictment, the Milutinovic indictment, which is seven

18 years old. It was not pleaded in any way materially in the Pavkovic

19 indictment, which is 2003. And the existing indictment was so broad and

20 it covered so many matters that the throw-away paragraph 95, which under

21 the heading of Additional Allegations, or Additional Information, which

22 also includes things going back to 1991 and 1974, if you look at the full

23 array of additional facts, now is -- the Prosecution wants to plead it

24 materially for the reasons it has indicated. Well, that brings it into

25 play for us. So there was no prior notice, Your Honour, in my submission.

Page 190

1 And certainly we were not going to go to the Registry and say we

2 need additional funds to investigate 1998. They hold our feet to the fire

3 to know exactly what we're doing about 1999, about the indictment. So

4 there is a resources issue involved in this as well.

5 We learned today that there's going to be new disclosure. Fifty

6 new witnesses, seven years down the road. That's one-third of the

7 witnesses the Prosecution intends to call. All these matters require

8 further investigation, and I'm only emphasising the 1998 aspect of the new

9 material facts. But there's more, Your Honour.

10 We are still reviewing crucial material that has been coming to us

11 on a regular basis from the Milosevic proceedings. Since September we

12 have received 10.000 pages. In addition, on CD we received 1.700 MFI

13 documents from the Milosevic proceedings.

14 My submission is that this new proposed -- the proposed indictment

15 containing these new material facts broadens the indictment significantly,

16 and unless Mr. Milutinovic is given adequate time and resources to

17 prepare, his rights to have -- guaranteed to him by Article 21(4)(b) of

18 the Statute will be violated, and we ask you, as the guardian of those

19 rights, to ensure that he gets a fair trial and we are given adequate time

20 to prepare. So we undertake to continue working on this trial to prepare

21 this trial with you as the Pre-Trial Judge, but we are absolutely opposed

22 to an early start-up date. Those are my submissions.

23 JUDGE BONOMY: Thank you, Mr. O'Sullivan.

24 Mr. Fila?

25 MR. FILA: [Interpretation] As the Defence counsel of the accused

Page 191

1 Sainovic, I support what Mr. O'Sullivan has just said, and that is the

2 position, I assume, of all the Defence counsel. It is unusual that we

3 today here are discussing the date of the beginning of trial faced with

4 the situation when we have neither the indictment nor disclosure of all

5 the material, when we don't know which Trial Chamber will be hearing the

6 case, and when we are faced in a situation, as I say, which is rather

7 unusual. And if a situation is unusual, it doesn't mean to say that it is

8 impossible. And in supporting everything that Mr. O'Sullivan has just

9 said, I wish to add that I have given it great thought and that I think we

10 should try and find a solution which would lead us to having the trial not

11 begin at this early date but that we don't waste time waiting, to have to

12 meet again at the beginning of next year and then once again take note of

13 the fact that we need more time, and so on and so forth.

14 So, Mr. President, let me repeat publicly what was said less

15 publicly yesterday during the meeting. Our meeting yesterday showed us

16 the way forward, threw light on the way forward which we should progress

17 along. So instead of the trial to start in July, can we introduce a

18 practice to have the meetings held every 15 -- ten to 15 days so that we

19 could go through the 80 witnesses that Mr. Hannis is proposing to hear, to

20 see how much time we'll need for them, who is going -- which one of us is

21 going to conduct the cross-examination, so in effect to have a trial

22 without a trial. And that is a common practice in continental law, in

23 civil law, that this is easily arranged, and so that when we go ahead with

24 the trial, when we have an indictment, when all the deadlines have

25 expired, when we have the pre-trial brief, when we know exactly what we're

Page 192

1 going to do, that all the time that will seem to have been lost because we

2 take these few months will be made up very rapidly because the trial will

3 be efficient and rapid. And if we discuss all these matters, the

4 witnesses, the experts, and so on and so forth and say that such-and-such

5 a person will be examined by Mr. O'Sullivan during a 20-minute period,

6 we'll stick to that; it will be 20 minutes. You'll have the

7 examination-in-chief plus the 20 minutes. Or we're just going to take the

8 written statement and we won't need to cross-examine a witness at all. So

9 all these matters can be solved by agreement and respecting the principles

10 of a fair and just trial, the resources, and to ensure a fair trial for

11 one and all.

12 So I completely accept what Mr. O'Sullivan has just said and I

13 personally say that it would be very adverse of me to accept something

14 without providing a solution myself. So I think this would be the way

15 forward. It would be a good solution. Thank you, Your Honour. So much

16 from me. I don't want to take up any more of your time.

17 JUDGE BONOMY: Thank you, Mr. Fila. Mr. Visnjic.

18 MR. VISNJIC: [Interpretation] Your Honour, Mr. O'Sullivan has

19 exhausted all my points, the points on my agenda that I wish to raise.

20 However, there is one piece of information that we were told by Mr. Hannis

21 today that shocked me rather in view of the discussions we held yesterday.

22 The number of new witnesses throws completely new light on my

23 vision of our preparations for the trial to begin, and at this point in

24 time I'm rather confused about all the prognosis for the trial to go ahead

25 in view of what we discussed yesterday and in view of this additional

Page 193

1 piece of information served to us today when a third or a fourth - I

2 haven't done the calculations exactly - of witnesses we are being given is

3 completely new witnesses, even had we received part of the statements.

4 So as far as I'm concerned, this is a novel situation which

5 demands detailed reorganisation on our part with respect to preparing our

6 defence cases, and that only once we have received the witness statements

7 and once we are disclosed the names of these new witnesses.

8 That's what I wanted to say. Otherwise, I agree fully with all

9 the details set forth by Mr. O'Sullivan and which is the result of our

10 consultations. Thank you.

11 JUDGE BONOMY: Mr. Fila?

12 MR. FILA: [Interpretation] I do apologise to Mr. Ackerman and to

13 Your Honour. Just one piece of information that is very important for us

14 for this trial. As you know, Ms. Del Ponte visited Belgrade, and at

15 precisely the day before yesterday, a complete agreement was signed which

16 allows the Prosecution access to all archive material in Serbia and

17 Montenegro. All archives in Serbia and Montenegro. The problem that

18 remains now is for them to know what they're looking for. If they know

19 what they're looking for, then they have the possibility of accessing it

20 as well. And this will complicate our lives additionally when they have

21 access and obtain the documents. This is the first time they have been

22 granted this. They did not have it during your conducting of the

23 Milosevic trial. The agreement was signed the day before yesterday, so

24 this is just a small piece of information that I wanted to put to the

25 Court, and I apologise for taking up more of your time.

Page 194

1 JUDGE BONOMY: Thank you, Mr. Ackerman.

2 MR. ACKERMAN: Your Honour, I just -- at your invitation, I'd like

3 to supplement a little bit of what I said yesterday. When I left here

4 yesterday, I reflected on -- on some things that you had told me, and one

5 of those specifically was that you were somewhat critical of me for

6 advising you that I really hadn't spent a great deal of time looking at

7 the witness statements and spent too much time looking at Rule 68

8 material. And in pondering that, what you appeared to be saying to me was

9 that the way to prepare for trial is to read the inculpatory material and

10 forget about the exculpatory. And it's actually just the other way

11 around: How can I possibly cross-examine a Prosecution witness if I

12 haven't found the material necessary to do that cross-examination, which

13 is contained in the Rule 68 material.

14 JUDGE BONOMY: I think you know, Mr. Ackerman, that the point I

15 was making is you hardly can realise what exculpatory material you're

16 looking for until you know what the inculpatory material is in the first

17 place.

18 MR. ACKERMAN: Well, the indictment is pretty clear with regard to

19 all of the crime base stuff as to what the Prosecution's contention is.

20 And I have read some of the witness statements, Your Honour, when it's

21 become important for me to do so. You invited me to put some meat on the

22 bones that I was discussing yesterday, and I'm handicapped by not having

23 all of my material here with me in The Hague. It's mostly back in my

24 office in Texas, but I was able to find a few things, just to give you a

25 sort of thumbnail of the things I am finding in the Rule 68 material. I'm

Page 195

1 finding witness statements, and I'll mention -- probably better go into

2 closed session because I don't know if these names are protected. And if

3 we can go into closed session for a moment.

4 JUDGE BONOMY: Do you have any objection to that, Mr. Hannis?

5 MR. HANNIS: No objection. I would agree.

6 JUDGE BONOMY: All right. Let's go into closed session.

7 I'm reminded that that's probably an extreme measure that's not

8 necessary and that private session would be adequate.

9 MR. ACKERMAN: I get those confused.

10 [Private session]

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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11 Page 196 redacted. Private session.















Page 197

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 [Open session]

14 THE REGISTRAR: We're in open session, Your Honours.

15 JUDGE BONOMY: Just before you move on to that subject, is there

16 anyway in which you envisage that the Prosecution can assist with access

17 to witnesses that you identify who may be exculpatory witnesses?

18 MR. ACKERMAN: Your Honour, I don't know. I'm reluctant to even

19 make that request. It -- they certainly might be able to assist me with a

20 current location which I did intend, if we can't locate them, to ask the

21 Prosecution if they know their current location. They may or they may

22 not. I mean, these are people that they have not talked to for years,

23 apparently. But in terms of their assistance in -- I don't know how else

24 they could assist except tell me where they are and how I can contact

25 them. But the Prosecution certainly can't escort me to Kosovo, I don't

Page 198

1 think. Unless UNMIK says that they can give us safe conduct, safe

2 entrance into Kosovo, then I don't -- I don't have any inclination to go

3 there if it's going to be in danger of my life. And I think that's a

4 serious problem and I think it's a problem that this Tribunal needs to

5 address. Maybe with UNMIK, to take it up with UNMIK as a very formal and

6 official manner, or something, because we can't -- I mean, we can't defend

7 if we can't go there and talk to witnesses.

8 Now, let me go just very briefly to this 54 bis issue. The way

9 the -- the way the Rules read, I'm not -- I'm not permitted to get

10 assistance of the Court until I get refusal from the countries involved.

11 Now, if -- if there's a way to circumvent that and get Court assistance

12 before I get refusal from the countries involved, I'm convinced that would

13 speed matters up. So if that's your position, I need to know it.

14 JUDGE BONOMY: No, no. You have to obviously make the request in

15 the first place. The real issue is over how long you allow for a

16 response. You don't wait forever for a response. You have to take

17 account of the timetabling of the case and then exercise a judgement about

18 when it's appropriate to invoke the assistance of the Court.

19 MR. ACKERMAN: Okay.

20 JUDGE BONOMY: That's the only point I was making. It may be that

21 if a trial is two years away, then you can afford to wait, but if it's

22 impending, then you can't.

23 MR. ACKERMAN: I understand. And what -- what I'll do and what I

24 intend to do in any event in the letter is put a deadline on -- on the

25 letter that I -- that I would like a response by a certain date.

Page 199


2 MR. ACKERMAN: All right.

3 JUDGE BONOMY: That's what happened in relation to the other

4 litigation we referred to earlier.


6 JUDGE BONOMY: Mr. Bakrac, do you wish to add anything?

7 MR. BAKRAC: [Interpretation] Your Honour, I have that happy

8 circumstance, or perhaps unhappy and happy for the other Defence counsel,

9 as fifth Defence counsel, all the topics have been exhausted that I wanted

10 to raise. They are joint topics, and I agreed yesterday with what

11 Mr. Ackerman said at the 65 ter conference when he spoke on the basis of

12 the, conditionally speaking, three new accused and how much time they have

13 to prepare their defence.

14 I today also agree with everything that has been said by

15 Mr. O'Sullivan and indeed by what Mr. Ackerman added.

16 What I wish to add is this: It's a fact that is linked to my

17 client, and I assume that the other accused have a similar problem. We

18 for a year have been collecting documents and evidence to support our

19 case, our defence case, and we're encountering great difficulties in that

20 regard. The Defence of General Lazarevic needed a lot of time to identify

21 a certain amount of documents. This took a long time, and then to address

22 in official terms the archives through the ministerial council and the

23 Centre for Cooperation with The Hague Tribunal for gaining access to those

24 documents.

25 In January, as early as January, the Defence put in a request for

Page 200

1 identified documents but up till the present day we have not received a

2 single one of those.

3 Now, in view of the fact that we're discussing the beginning of

4 trial here and that we have pinpointed the month of July as a possibility,

5 it is quite evident that in addition to what my colleagues Mr. O'Sullivan

6 and Mr. Ackerman have already said yesterday and today, that this will be

7 an additional problem that we have to face, that is to say that the

8 Defence has to prepare for the start of trial and the time it will need,

9 and that is why I say I agree fully with what my colleagues Mr. O'Sullivan

10 and Mr. Ackerman have already stated, as well as Mr. Fila, of course, my

11 colleague Mr. Fila who asked that the start of trial be postponed. And I

12 fully endorse and support the fact that we could have more frequent 65 ter

13 meetings, perhaps, which would be more expeditious in the long-run. It

14 would lead to a more expeditious and rational trial rather than having the

15 start of trial be on the 10th of July. Thank you, Your Honour.

16 JUDGE BONOMY: Thank you, Mr. Bakrac. The comment I made to

17 Mr. Ackerman about invoking the assistance of the Court under Rule 54 bis

18 would apply in particular to the situation that you've just outlined where

19 an application or a request for assistance made in January has still

20 elicited no response. In my view, that's more than ample time for a

21 response. So it's a matter for you, but I suggest that action is required

22 in that situation.

23 MR. BAKRAC: [Interpretation] Your Honour, maybe there has been a

24 misunderstanding. We don't have a negative answer. It's a matter of

25 technical possibilities, complicated procedures, approvals to be granted,

Page 201

1 the whole paperwork that these documents have to go through in order for

2 us to receive them. The problem is that not that we won't get the

3 approval but that these documents --

4 JUDGE BONOMY: I admire your patience. It's a gift I'm not

5 endowed with, I'm afraid. Thank you, Mr. Bakrac.

6 Mr. Ivetic?

7 MR. IVETIC: Thank you, Your Honour. The Lukic Defence

8 whole-heartedly concurs with the statements made by our colleagues here

9 today and we wish just to underscore and highlight certain issues of

10 particular importance to our defence that illustrate the need -- the

11 concerns that everyone has voiced regarding a trial date in early July.

12 First, I would highlight that although the Trial Chamber in August

13 and December envisioned Defence counsel to have complete access to the

14 materials from the Milosevic case, outside factors have prevented the

15 various Defences from obtaining those documents on a time schedule that

16 had then been anticipated. By way of example, my Defence team just

17 yesterday, five minutes before the 65 ter conference, and then only with

18 the assistance of the associate legal officer, whom I have to thank very

19 heartily, were provided with the Milosevic exhibits on a portable hard

20 drive, which we now have access to and we can now review. I'm told that

21 the quantity of those documents comprises approximately 9.5 gigabites on

22 the hard drive, which is I don't know how many thousands of pages.

23 JUDGE BONOMY: Are you saying that this is all the exhibits in the

24 Milosevic case? This is your first access to the exhibits?

25 MR. IVETIC: That is correct, Your Honour.

Page 202

1 JUDGE BONOMY: Why was there a delay in giving you these?

2 MR. IVETIC: The delay was in terms of, it's my understanding that

3 the exhibits, according to the Registry, were on the JDB database which,

4 unfortunately, our Defence team still does not have access to. This

5 morning, the latest communication from the Registry that I received

6 indicated that although our key, our decoder key for the JDB, had been

7 issued in December, that due to a misunderstanding it had not been

8 authorised to access. So as of this morning I still cannot remotely

9 access JDB unless I'm present on the premises of the Tribunal at one of

10 the local area network connected computers to do so. Which, of course,

11 causes quite a dilemma.

12 JUDGE BONOMY: If you knew this in December, why did you not do

13 something about it earlier?

14 MR. IVETIC: We have been liaising with the Registry since then to

15 try and resolve this matter, and as I indicated, they indicated it would

16 now be resolved.

17 But more importantly, with regards to material that we have been

18 working with on the --

19 THE INTERPRETER: Please slow down, Mr. Ivetic. Thank you very

20 much.

21 JUDGE BONOMY: You did hear the message -- you perhaps haven't.

22 The interpreter is asking you to slow down a little.

23 MR. IVETIC: I will endeavour to do so.

24 JUDGE BONOMY: Thanks very much.

25 MR. IVETIC: With respect to the material, I believe some of the

Page 203

1 material that Mr. Bakrac was referencing is material that we are also

2 seeking from the Serbian government. I'm particular with respect to my

3 client. We have been asking for material from the various MUP archives

4 that we know exist since my client was an employee of the MUP for many

5 years and which we believe provides very exculpatory material for our

6 client, and we're told that this material may comprise as much as 30 to

7 40.000 pages. We have been working with the Serbian authorities to try

8 and gain access to this material, but it has been slow in coming due to

9 the multitude of the material and technical aspects of providing it to us.

10 I am told, as far as that material is concerned, that we have now

11 been given approximately four out of 12 categories of material, all of

12 which, based upon our knowledge of what should be there, are very relevant

13 to our defence and exculpatory for General Lukic.

14 JUDGE BONOMY: Can you give me an example?

15 MR. IVETIC: Yes, I can, Your Honour. There are records

16 pertaining to efforts undertaken by the MUP following the Kosovo conflict

17 to investigate allegations of crimes that occurred within the premises of

18 Kosovo and Metohija, crimes that were committed perhaps by civilians,

19 perhaps by MUP personnel, perhaps by army personnel, et cetera. This

20 information relates to investigations that were undertaken, some of which

21 my client was personally involved in, and the charges that were presented

22 or evidence that was presented to the state Prosecutor's office to

23 actually charge and prosecute these individuals for war crimes within the

24 Serbian government and within the Serbian judicial system. In fact, there

25 have been reports in -- that I've seen in the news pertaining to

Page 204

1 particular cases that were brought in Serbia that I know were initiated by

2 my client and were the fruits of this labour that was undertaken by the

3 MUP and that this documentation would be very crucial to our defence in

4 terms of establishing the -- establishing that there is no criminal

5 responsibility for my client for the charges alleged within the

6 indictment. So that is one of the areas that we have been having issues

7 with.

8 The second outside factor that needs to be taken into account is

9 the Registry and the manner in which the Registry provides for the defence

10 of these cases. Now, the Registry in I believe it was in January of this

11 year indicated that on their estimation and based upon their judgement the

12 resources for the Lukic Defence were to be spread out over a nine-month

13 period in this year because that was their indication of the minimum time

14 period required to prepare for the defence. Similarly, in August of last

15 year, as part of our work plan, we requested that a co-counsel be provided

16 for this case. The Registry has steadfastly indicated that, pursuant to

17 their guidelines, co-counsel will not be provided until five months prior

18 to the start of trial, and thus as of today's date, our team officially

19 does not have a co-counsel, which is why I request special permission to

20 be present in lieu of Mr. Scudder today.

21 Now, the difficulty that that provides is primarily in respect to

22 travel insofar as co-counsel and counsel are granted leeway to travel and

23 meet with investigators and conduct defence-related activities on behalf

24 of the Defence team. Other members of the Defence team, such as myself,

25 are not granted such precedence or leeway by the Registry. Your Honour

Page 205

1 will recall that in the proceedings, the 65 ter and the status that

2 occurred in December of 2005, I was not present. That is because my

3 travel request was denied by the Registry. We have issues like this

4 arising time and time again where, in order to travel to Belgrade, as I

5 did in December after the date of the Status Conference, I had to expend

6 personal funds to do so. And that hampers the ability of the Lukic

7 Defence to competently prepare for and attain a level of readiness for a

8 trial in early July of this year. And I would only ask that the Trial

9 Chamber be aware of many of these outside factors that have hampered, I

10 believe, not just our Defence but the Defence of the other two individuals

11 who are "recent" additions to these proceedings.

12 So those are just some of the issues that I wish to highlight with

13 respect to the difficulties that the Defence has had in preparation and

14 that we foresee will continue to hamper our abilities and would make it

15 difficult for us to be professionally and ethically able to declare our

16 readiness for trial in early July of 2006. And I just highlight the

17 concerns that Mr. Ackerman made yesterday with respect to, from our

18 jurisdiction in the United States, whether we can ethically and

19 professionally do so, given the fact that we know that there's material we

20 have not received and will not have an opportunity to review in time for

21 the July trial date. And I thank the Court for its time.

22 JUDGE BONOMY: Thank you, Mr. Ivetic.

23 MR. ACKERMAN: Your Honour, may I have just a second?


25 MR. ACKERMAN: Mr. Ivetic reminded me of something I was going to

Page 206

1 apprise you of and neglected to do so. At this stage, my assignment in

2 this case remains temporary. So I'm not permanently assigned to this case

3 yet. And that's because the Registry has spent these many months

4 investigating the financial resources of my client and still have not come

5 to a decision as to whether he must contribute to his own defence in some

6 way. That's a particular problem for counsel from America. I don't know

7 if you're aware of it, but there is a regulation by the United States

8 Treasury Department that would prohibit me from accepting any funds from

9 anyone charged with a war crime in this Tribunal, and we encountered that

10 problem in a previous case here and got it solved, but it was in a

11 completely different context. In this context, there's no doubt but what

12 I would be absolutely be prohibited from accepting any funds whatsoever

13 from -- from Mr. Pavkovic. And if the Registry were to determine that he

14 was responsible for, say, half of my compensation, then I would simply

15 have to withdraw from the case. I don't think I'd have much choice, and

16 that could create huge problems. The only alternative is that you can

17 make application to the Treasury Department for a waiver, but sometimes

18 those take many, many months to get dealt with. So that's where we are in

19 that regard.

20 JUDGE BONOMY: All right. Thank you, Mr. Ackerman.

21 Now, Mr. Hannis, do you wish to address this issue at all?

22 MR. HANNIS: No, Your Honour.

23 JUDGE BONOMY: Thank you. Well, I will take account of the

24 submissions that have been made when I draft the work plan, which will

25 include the projected dates for various events, including the trial

Page 207

1 commencement, and I'll deal with that in an order which will be issued

2 next week.

3 I can indicate now that it's unlikely to be significantly

4 different from the indication I gave except that it's likely to be far

5 more detailed, and that's because some of the submissions which have been

6 made just now behind which there is greatest force depend to some extent

7 on developments which have yet to occur, but the intensity of management

8 of the case will be such that there will be plenty of opportunity to

9 reflect upon and submit about the developments in the case as they occur.

10 Now, that completes my agenda for this Status Conference. Are

11 there any matters that -- any additional matters that any Defence counsel

12 wish to raise? Thank you.

13 Mr. Hannis, is there anything else you wish to raise?

14 MR. HANNIS: No, Your Honour.

15 JUDGE BONOMY: Thank you. Well, I simply conclude by expressing

16 my gratitude to everybody for their continued cooperation in the efforts

17 we're making to have this case heard, and I look forward to our next

18 meeting, which will be along the lines of the time scale discussed

19 earlier, I anticipate sometime in the week beginning the 24th of April.

20 --- Whereupon the status conference adjourned

21 at 11.58 a.m.