Tribunal Criminal Tribunal for the Former Yugoslavia

Page 140

1 Friday, 19 May 2006

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 [The accused Miletic and Gvero not present]

6 --- Upon commencing at 11.03 a.m.

7 JUDGE AGIUS: Good morning, Mr. Registrar. Could you call the

8 case, please.

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

10 IT-05-88-PT, the Prosecutor versus Vujadin Popovic and others.

11 JUDGE AGIUS: I thank you. I'll turn to the accused, one by one.

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

13 you can understand?

14 THE ACCUSED POPOVIC: [Interpretation] Yes, I can.

15 JUDGE AGIUS: Mr. Beara, the same question.

16 THE ACCUSED BEARA: [Interpretation] I can. Thank you.

17 JUDGE AGIUS: Mr. Drago Nikolic, are you receiving interpretation

18 in your own language?

19 THE ACCUSED NIKOLIC: [Interpretation] Yes.

20 JUDGE AGIUS: Mr. Borovcanin, same question.

21 THE ACCUSED BOROVCANIN: [Interpretation] Yes, thank you.

22 JUDGE AGIUS: Thank you.

23 And Miletic is not here; Gvero is not here.

24 Mr. Pandurevic?

25 THE ACCUSED PANDUREVIC: [Interpretation] Yes, I can follow.

Page 141

1 JUDGE AGIUS: And finally, Mr. Trbic?

2 THE ACCUSED TRBIC: [Interpretation] Yes, Your Honour, I can

3 follow.

4 JUDGE AGIUS: Let's start with appearances. I see that Mr.

5 McCloskey is not with us today, and he has justification for that. So,

6 appearances for the Prosecution?

7 MR. THAYER: Good morning, Your Honour. Nelson Thayer for the

8 Prosecutor. Beside me is Ms. Lise-Lotte Karlsson, assistant case manager,

9 Lada Soljan, associate legal officer, and behind me are Diana Mautner

10 Marlchof and Christopher Mitchell of our legal staff.

11 JUDGE AGIUS: I thank you, and good morning to you and your team.

12 Appearances will go according to the same order I followed

13 before.

14 Appearances for Mr. Popovic?

15 MR. ZIVANOVIC: Good morning, Your Honour. Zoran Zivanovic,

16 counsel for Popovic.

17 JUDGE AGIUS: I thank you, and good morning to you.

18 For the accused Beara?

19 MR. OSTOJIC: Morning, Your Honour. John Ostojic on behalf of

20 Mr. Ljubisa Beara.

21 JUDGE AGIUS: I thank you, and good morning to you.

22 Appearances for Drago Nikolic?

23 MS. NIKOLIC: [Interpretation] Good morning, Your Honour. Jelena

24 Nikolic and Stephane Bourgon for Drago Nikolic.

25 JUDGE AGIUS: I thank you both.

Page 142

1 Appearances for Ljubomir Borovcanin.

2 MR. LAZAREVIC: Good morning, Your Honour. Counsel Aleksandar

3 Lazarevic for Ljubomir Borovcanin.

4 JUDGE AGIUS: I thank you. Are you on your own today, or --

5 MR. LAZAREVIC: Yes, Your Honour.

6 JUDGE AGIUS: Okay. Thank you.

7 Appearances for Radivoje Miletic?

8 MS. FAUVEAU IVANOVIC: [Interpretation] Good morning, Your Honour.

9 My name is Natacha Fauveau Ivanovic, and I am the council for Radovan

10 Miletic.

11 JUDGE AGIUS: Good morning, Madam.

12 Appearances for Milan Gvero.

13 MR. KRGOVIC: [Interpretation] Good morning, Your Honour. Dragan

14 Krgovic.

15 JUDGE AGIUS: Appearances for Vinko Pandurevic.

16 MR. HAYNES: Peter Haynes and Djordje Sarapa for Mr. Pandurevic.

17 Good morning to you.

18 JUDGE AGIUS: I thank you, and good morning to you both.

19 For the accused Trbic?

20 MS. ROHAN: Good morning, Your Honour. Colleen Rohan appearing

21 for Milorad Trbic.

22 JUDGE AGIUS: Thank you and good morning to everyone, and I

23 welcome you all to this Status Conference, which you will have noticed has

24 been convened much earlier than it would normally have been convened had we

25 not planned already to have -- to start the trial very shortly. And this

Page 143

1 is a first Status Conference that is being convened at a short interval

2 after the previous one. And there will be others, I think, between now and

3 when the trial starts. We need to discuss several matters. Some would

4 probably be discussed in Status Conferences like this. Others may be

5 discussed with me, alone or with the other two judges in camera, because

6 they may be rather administrative matters in preparation for the trial. Or

7 they could also be -- there could also be meetings with my Senior Legal

8 Officer.

9 As you will recall, the last Status Conference was convened on

10 the 4th of April. And as I have just hinted, because we are planning to

11 start the trial sometime this summer, I thought it was necessary to have a

12 Status Conference earlier; that's today. You are fully aware, and I need

13 barely repeat, that the purpose of a status conference is to organise

14 exchanges between the parties with a view to ensuring an expeditious

15 preparation for trial, and also to give each and every one of the accused

16 the opportunity to meet face to face with me and an opportunity to give you

17 -- that you have to air any grievances or any matter that you would like to

18 bring to my attention.

19 Some days ago, I instructed my SLO to organise a 65 ter meeting

20 with counsel for Prosecution and Defence. This was held yesterday. I am

21 informed that by my SLO that it was a very straightforward and productive

22 65 ter meeting, and I take this opportunity to thank each and every one of

23 you for making this possible, which makes, then, progress possible.

24 And what I will be dealing with now, as we go along, will more or

25 less reflect what was agreed upon or what was discussed yesterday, and I

Page 144

1 would, of course, add over that and try to develop some issues, the

2 discussion on some issues, further.

3 When we met on the 4th of April, I had hoped at the time that the

4 Prosecution -- that the motions, responses and replies filed in relation to

5 the joint amended indictment would have been decided within relatively

6 short time. I was wrong. I mean, we encountered several problems, legal

7 problems, which we needed to address and when the cake was almost baked and

8 ready for consumption, then I was informed that there would be soon a

9 reshuffling and reconstituting -- reconstitution of Chambers and that one

10 of the Judges in this pre-trial Chamber would be moved to another Trial

11 Chamber, and that another judge from another Trial Chamber would be moved

12 to this Chamber. I'm referring particularly to Judge Kwon who has replaced

13 Judge Antonetti in my Chamber and the plan at least for the time being is,

14 although I do not decide these things myself, but the plan is that Judge

15 Kwon will be the second permanent judge who will sit on the trial which

16 will start this summer. Then there will be an Ad Litem Judge, I would

17 imagine, plus another Ad Litem Judge, who will serve as a Reserve Judge.

18 So at that point in time, I decided to -- that it would be better

19 if such a fundamental matter be decided by a judge who will be in the trial

20 rather than by a judge who will not be in the trial. My anticipation is

21 that this decision will be forthcoming, I hope by the end of next week.

22 The situation at present is it has been seen, of course, by me, it has been

23 seen by Judge Parker and it has been seen or it is being seen by Judge

24 Kwon. When I have feedbacks from both, there will be a meeting between us,

25 amongst us, and we will decide and then proceed with handing down the

Page 145

1 decision. But I wanted to put your mind at rest that it is not something

2 that we are -- that we have shelved or that we are sleeping upon. It's

3 something that is being very actively worked upon and within the end -- by

4 the end of next week, I hope you will note the outcome of your motions.

5 There is also another matter that, again, was prepared, ready for

6 filing, another decision, relating to the motion by you, Madam, requesting

7 translation of pre-trial brief, and also time for the accused, et cetera,

8 you know what I'm talking about. I'm also referring to the other motion

9 which you filed on the 28th of March requesting a translation into B/C/S of

10 two other motions. And also time for your client, after the translation

11 has been provided, to submit their responses. In case some of the accused

12 don't know, both motions have been joined by a number of other accused; not

13 all. The Chamber is about to hand down a decision on all these motions.

14 It was elaborated, it has been elaborated for quite sometime. It has been

15 seen by Judge Parker; it has also been seen by Judge Kwon. There is just

16 one minor issue that needs to be resolved, which, in my mind, does not even

17 require a meeting between the Judges because it can be easily resolved.

18 And again, I can assure you that next week, this decision will be handed

19 down. It will cover the multitude of motions that deal with the matter.

20 There is an outstanding motion from you, Mr. Pandurevic, in which

21 you renew your request for provisional release. I know also that you filed

22 subsequently a second motion asking for an oral hearing. Again, this

23 matter will -- has been actively discussed and will be decided shortly.

24 First, obviously, everything depends on whether we grant your

25 second motion that we have an oral hearing on the matters that you raise in

Page 146

1 it. If that is the case, first there will be the oral hearing and then

2 eventually the judgement based on also on what emerges from that oral

3 hearing. If there is no oral hearing, we are in a position to proceed with

4 the decision almost forthwith.

5 And that basically deals with your motions.

6 Then, Mr. Pandurevic -- then there is a motion by the accused --

7 by Mr. Gvero for access to confidential material in the Milosevic case.

8 This was filed on the 31st of March. Accused Pandurevic and Borovcanin

9 have joined in, have associated themselves with that motion. This matter,

10 I have not yet had time to discuss with the other two judges, Judge Parker

11 and the new-comer, Judge Kwon. I will do so at the earliest opportunity

12 and will decide it.

13 Most importantly, in case some of you are not aware of that, on

14 the 4th of May - that's not long ago - the Prosecution filed a motion for

15 referral of Mr. Trbic's case to Bosnia, pursuant to Rule 11 bis. This

16 matter has been referred by the president of the Tribunal, President Pocar,

17 to the Referral Bench, and so it's not a matter that I, as Pre-Trial Judge,

18 or the pre-trial Chamber will be dealing with. Of course, pending a

19 decision on that matter, on that issue, by the Referral Bench, we will be

20 proceeding on all other -- on all other matters. In fact we are proceeding

21 today with this Status Conference, and the pending motions will be decided

22 irrespective of that referral motion.

23 Then we had a significant development anticipated, of course,

24 because we dealt with it on the 4th of April; namely, when the Prosecution

25 a few days ago, on the 5th of May, filed their motion for judicial notice

Page 147

1 of adjudicated facts. You will recall that on the 4th of May we had

2 agreed, or I had indicated rather than you had agreed, that counsel for the

3 Defence will be required to file their responses within one month after the

4 decision on the form of the indictment is issued. Since that is not yet

5 issued, the term of one month has not yet started running. I wanted to

6 make that clear. I do, however, invite you to start engaging yourself

7 actively on that motion. It is an extremely important motion and we will

8 need to decide upon it at the earliest opportunity after you have filed

9 your responses.

10 Then, you must be aware that barely a week ago, on the 12th of

11 May, the Prosecution filed a motion for admission of 92 bis statements,

12 which are also first subject to responses by the Defence. The agreement or

13 my commitment with you is, and remains, that you will be required to file

14 these -- your respective responses within one month after we have handed

15 down our decision on the form of the indictment.

16 So to my knowledge, there may be one or more documents that have

17 arrived today. I was busy drafting the Oric judgement with the other two

18 judges. I haven't had time to really go through them but my secretary

19 brought in definitely something related to this case by way of motions.

20 Yes. I come to disclosure matters. Mr. Von Hebel has informed

21 me fully of what was discussed, what went on, yesterday in the meeting that

22 he presided over with you, together with you. And without the need of

23 repeating, telling you what happened yesterday, because you know, I have

24 been invited or it has been suggested to me to turn my attention to you,

25 Prosecution, and inquire about the exact overview of the missing -- what

Page 148

1 appears to be missing elements in the disclosure of the entire collection

2 of Rule 66(A)(ii) statements. I understand that it's not yet completed.

3 What I'm interested in is not details. What I'm interested in is a rough

4 indication what the problem is so that I can then decide whether to give

5 you a time limit within which to complete this exercise.

6 MR. THAYER: Yes, Your Honour. During the course of preparing

7 the Prosecution's 92 bis motion, we discovered that there were numerous

8 statements which had not been provided either in English or in B/C/S, one

9 or the other, but I don't believe in any case both, to the Defence counsel.

10 In part, that was also initiate the by a meeting we had with Mr.

11 Bourgon and Madam Nikolic regarding some specific statements they had

12 requested. The combination of both those efforts revealed to us that we

13 have approximately 34 statements that need to be either translated or

14 transcribed, either into B/C/S or English. A couple of those witnesses,

15 Your Honour, may not be on our witness list. I need to double-check that.

16 But I would say it's approximately 30 witnesses in total. As I said in

17 those cases, one form of the statement is disclosed, we need to disclose

18 the other form. Obviously it's the B/C/S which is needed.

19 What we have done, Your Honour, is prevailed upon our

20 investigative teams and drawn language assistants from other investigative

21 teams to assist us in expediting those reviews. We, as recently as

22 yesterday, and Your Honour referred to the filing by the Prosecution,

23 disclosed five witness statements in redacted form. We have prioritised

24 the request from the Nikolic team in order to transcribe and furnish those

25 statements as soon as possible.

Page 149

1 In terms of an actual estimate, Your Honour, I would have to

2 consult with our deputy investigative team leader, Mr. Bob Reid, who I

3 believe was spearheading the acquisition and devotion of those assets to

4 transcribing those statements. But I can tell you that we are working full

5 speed with every resource that we have in our office to get those done.

6 That has been something we have been working on for a solid week now in

7 terms of drawing on those investigative team language assistants.

8 JUDGE AGIUS: All right. I thank you.

9 Is there anyone from the various Defence teams that would like to

10 address this issue?

11 MS. NIKOLIC: [Interpretation] Yes, Your Honour. We have

12 initiated two meetings, and we have considered the report that the

13 honourable Chamber has received from our colleagues, but there are more

14 than 30 witnesses involved. And the redacted statements by the protected

15 witnesses we received only yesterday and only in English, and they do

16 relate to specific events and the responsibility of the accused in certain

17 events. This slows down our investigation and this is what raises concern,

18 and that is why we would like to speed up the process of the disclosure of

19 those statements that we are still missing.

20 JUDGE AGIUS: I perfectly agree with you, Madam Nikolic, not only

21 for the reasons that you mentioned but also for the fact that we need to

22 move.

23 I was thinking of two, maximum three, weeks in which to complete

24 this exercise.

25 MR. THAYER: Your Honour, without consulting, that sounds to me a

Page 150

1 reasonable period of time in which to complete that project. And if, at

2 any point, it looks like we will not be able to meet that, we will advise

3 the Court and perhaps there are other resources of which we may avail

4 ourselves.

5 JUDGE AGIUS: I thank you.

6 So it's been decided to fix a time limit of three weeks from

7 today within which to complete the disclosure exercise, first of Rule

8 66(A)(ii) statements.

9 And I move to Rule 68 disclosure. I understand that there has

10 been some kind of misunderstanding in relation to the hard disk containing

11 -- external hard disk containing Rule 68 material that we talked about

12 during the 4th April Status Conference. I only became aware of it after

13 the yesterday's 65 ter meeting, and, of course, I am offering you both my

14 help here to solve the problem, if there is a problem, and expedite the

15 solution, because I am sure that a solution is needed in any case.

16 So as I take it, it is that initially, it was not understood that

17 there was going to be only one external hard disk that would do the

18 complete round from Defence team to Defence team. That's, I think, what is

19 the source of the problem. What is the actual problem is that, at least at

20 the end of the 65 ter meeting, it wasn't apparent, it wasn't known, who had

21 -- who is in possession at this time or at that time of the external hard

22 disk, and we need to find that first and then I think from then onwards a

23 solution is easy.

24 Does any one of the Defence team -- is anyone from the Defence

25 team in a position to provide the relative information?

Page 151

1 MR. HAYNES: Your Honour, I know where it is.

2 JUDGE AGIUS: Yes. That's good.

3 I take it, and without having to go through all this, that I

4 think you are all aware now that this needs to do the round. I take it

5 also that some of the teams have already gone through this process. It has

6 been available to some of you. Whoever has this external disk, please,

7 sits down with the rest of you who haven't had the opportunity to make use

8 of it, and try to solve it this way. All right? I am not going to address

9 this matter any further. I know that you will deal with it amongst

10 yourselves. Okay?

11 But, of course, it is my duty to inquire whether you have any

12 other disclosure worries or concerns.

13 I see none. There are no other disclosure that you are aware of

14 from the Prosecution side?

15 MR. THAYER: No, Your Honour.

16 JUDGE AGIUS: Okay. I thank you.

17 Usually I would discuss with you the matter of agreed facts, but

18 I think it's too premature to do that, also because we haven't handed down

19 our decision on the motions that I mentioned. That will come later. But

20 needless to say, I keep this completely separate and distinct from the

21 merit of the Prosecution motion in relation to adjudicated facts. It has

22 got nothing to do with that. It's a completely separate notion.

23 Now, can we go a little bit for sometime in private session,

24 please?

25 [Private session]

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25 [Open session]

Page 156

1 THE REGISTRAR: We are back in open session, Your Honour.

2 JUDGE AGIUS: Yes. I thank you, Ram.

3 Let's now deal with the most important part of -- or almost the

4 most important part of this Status Conference, and that is the work plan.

5 I want you to know that I am completely aware of the problems

6 that you both have in relation to the starting of the -- and proceeding of

7 this trial. And it is certainly not my intention to disregard them. In

8 fact, I have discussed them with Mr. Von Hebel yesterday, and I have been

9 thinking about them, and as far as I can, I will try to accommodate

10 everyone.

11 I also wish to make things clear, that the completion strategy

12 has got nothing to do -- it's not in the back of my mind, only except in so

13 far as the longer it takes to start this trial, the longer other trials

14 will -- other accused and other trials will have to wait, and the greater

15 will be the risks for everyone that justice will not be done. So my

16 concerns about the completion strategy is only in relation that it -- I

17 take upon myself that it is my duty to ensure that we start this trial and

18 that possibly we could start all other trials and bring them to an end as

19 early as we can.

20 On the other hand, I also have problems of my own. I am at the

21 moment involved in the drafting of the Oric final judgement, and my

22 anticipation is that the final judgement will be handed down at the end -

23 the last day of June, plus or minus -- not minus, maybe plus one or two

24 days, if needs be. And that's unless I encounter, together with my other

25 two judges, major problems, which has been the case sometimes, not -- not

Page 157

1 in the Oric case only, but in every other case. So that's the schedule.

2 As I explained to you earlier, one of the other judges in the

3 trial will be a permanent Judge. The other two will be Ad Litem Judges.

4 There is no way Ad Litem Judges and no sense in appointing Ad Litem Judges,

5 bringing them over and swearing them in during the summer recess when no

6 one is here. On the other hand, bringing them over after the summer

7 recess, that's the second week of August, would mean that there is no way

8 that we can start the trial any time soon because they would have to settle

9 down and also familiarise themselves with a case which is not a minor case.

10 I know how much work is involved in preparing for this trial. So my idea

11 is to have the Ad Litem Judge and the Reserve Judge here in time to be able

12 to be in a position then to start the trial with me and Judge Kwon fully --

13 fully instructed or fully informed about what needs to be done, about the

14 facts of this case, before we start trial.

15 So what is my proposition or my plan, at least for the moment,

16 and again I mean there are ifs and buts and anything could happen which

17 might change this schedule that I have in mind. My idea is that we need to

18 come in the courtroom and start the trial before the recess, because that

19 would give me the opportunity and the possibility of having the Ad Litem

20 Judges here in the beginning of July. And I would be able to sit with them

21 and discuss with them and prepare the beginning -- the start of the trial.

22 I'm talking of having a Pre-Trial Conference on the 13th of July, and, of

23 course, for that trial conference, Pre-Trial Conference, there will be the

24 Ad Litem Judge and the Reserve Judge. Then, on the day after, on the 14th

25 of July, we will have the official opening of the trial. Nothing special

Page 158

1 will happen that day, because I understand that there are problems from the

2 Prosecution's side but also from the Defence side. The period of the

3 recess will serve all of us to instruct ourselves better and to be prepared

4 then to start first with the opening statements and order.

5 However, I understand that because of what we discussed and the

6 indication that I gave during the 4th April Status Conference, some of you,

7 both from the Prosecution side and from the Defence side, have entered into

8 commitments which, at least on the advice of my Senior Legal Officer, make

9 it pretty much impossible to have the opening statements on the part -- by

10 the Prosecution before the 20th of August. So my idea is that there are,

11 and will still be, several very important household matters to deal with,

12 which will be dealt, as necessary, during the preceding week, that is, the

13 week starting on the 14th of August.

14 You will be advised beforehand what these household matters will

15 be, because much depends on what happens between now, the next Status

16 Conference, the Pre-Trial Conference, and so on and so forth. So it could

17 well be that one of those days or more will be dedicated to the matter that

18 we discussed in private session. It could well be other matters. I am not

19 in a position to anticipate what or which at the present moment, but the

20 idea is that that week will be dedicated to resolving all the issues that

21 need to be resolved before we really start the trial.

22 This is the proposition that I am making and the plan that I have

23 in my mind. At the same time, it would accommodate all those who have had

24 these prior commitments which may be difficult now to move.

25 And then we take it up basically from the 21st of August onwards,

Page 159

1 when I understand the Prosecution will be in a position to make its opening

2 statements. In the meantime, I would appreciate very much if, maybe too

3 early now, but if in due course and by the time of the Pre-Trial Conference

4 in July, you give us an indication whether it is your intention -- I mean

5 any one of the teams -- to make opening statements too, and whether you are

6 in a position to advise the Trial Chamber if any of your respective clients

7 will be making statements as they are entitled to do.

8 Any such statements, of course, will follow the opening

9 statements of the Prosecutor. I barely need to state that. All right?

10 As I said, this is all tentative. The whole schedule can shift

11 depending on various contingencies. Anything could happen.

12 You might even have difficulties in finding Ad Litem Judges, for

13 example, who can come at such short notice. So we will play it by the ear.

14 I will do my utmost to try and schedule the start of the trial and the

15 continuation of the trial in a way which would not create any problems for

16 any one of you; at the same time trying to make sure that we are in a

17 position then when we start to continue without major hurdles.

18 Are there any comments that you would like to make on this before

19 I proceed further on other matters, related matters?

20 MR. THAYER: Not from the Prosecution, Your Honour.

21 JUDGE AGIUS: From the Defence? Madam Nikolic?

22 MS. NIKOLIC: [Interpretation] Just one question, Your Honour. At

23 this moment, could we be advised of the date of the next Status Conference

24 and the next 65 ter meeting? This would help us with our work on the

25 ground.

Page 160

1 JUDGE AGIUS: Madam Nikolic, this has been on my mind, and it has

2 been on my mind because it's not difficult for me to say that the next

3 Status Conference will be on such and such a day. The situation as it is

4 now has changed dramatically, in the sense that there is now a permanent

5 Judge, Judge Kwon, who is not involved in any other trial at the moment,

6 who will be the second permanent Judge in this trial, who will also be

7 dealing with several matters. So progress can be accelerated, to a large

8 extent. The problem that I have is you -- I mean, when I say "you" I mean

9 all of you, because I know that you are not all permanently residing here

10 at all times; some of you are, some of you aren't. Some of you have to

11 travel. And so this is the problem that I have. And those of you who are

12 not here, I would take it for granted are not sitting pretty doing nothing

13 at home.

14 So my problem is I would like to have another Status Conference,

15 not later than a month, not later, much later, than after the expiration of

16 the month that you have for the filing of your response on the Prosecution

17 motion on the adjudicated facts, on the filing on other matters that I

18 mentioned earlier. The month will start running presumably from the end of

19 next month. I am pretty sure that either way we decide these issues, there

20 is -- there probably will be an appeal, if not on all motions, at least on

21 one, on one decision. But still, I think my plan is that soon after the

22 expiration of that month, when we have in front of us your filings and we

23 can roughly gauge where we are, then there will be another Status

24 Conference, preceded by a 65 ter meeting.

25 We are talking, hopefully, if I hand down those decisions next

Page 161

1 week, we are talking of a Status Conference which would probably be

2 convened the end of June, end of June, more or less the last few days of

3 June. If I have problems with the Oric case, that could be moved to the

4 first week of July. But I would anticipate that in preparation of the Pre-

5 Trial Conference that will take place in July in any case, that you would

6 try to make an effort to be here more or less the last -- the end part of

7 June, beginning of July, for a Status Conference, 65 ter meeting, Status

8 Conference, and subsequently but soon after, for the Pre-Trial Conference.

9 That's what I have in mind. I don't think there is any point in organising

10 another Status Conference between now and when you file your responses to

11 the Prosecution, pending the Prosecution motions that I mentioned earlier,

12 unless there are serious and urgent matters that need to be addressed, in

13 which case we will follow the same procedure as in the past. You will --

14 the SLO will communicate with you and see -- and try to organise a day, set

15 a day which is convenient to everyone.

16 That's my plan, all right? Thank you for bringing that up, Madam

17 Nikolic, because it was important.

18 Now, I asked the Senior Legal Officer, Mr. Von Hebel, yesterday,

19 to discuss with you, and more or less find out your reaction to, the system

20 that was adopted in Prlic, in the Prlic case, during the final stages of

21 the pre-trial phase, which required the Prosecution to file in XL format

22 all the relative details in relation to evidence as it relates to counts,

23 witnesses as they relate to counts and events, and documentation and

24 everything.

25 I have been given to understand that the association of Defence

Page 162

1 counsel looks very favourably on that form of presenting the Prosecution

2 case prior to the commencement of the trial. I'm given the information

3 that it is a very valuable kind of document for the Trial Chamber and for

4 the parties to have, as it would enable the Trial Chamber then to be --

5 pre-trial Chamber to be actively involved with the Prosecution in

6 establishing time limit for the conclusion of the Prosecution -- for the

7 presentation and conclusion of the Prosecution case and also the kind of

8 evidence that really needs to be brought forward.

9 I take it that you were informed of this yesterday, that I look

10 favourably on this system of approaching the Prosecution pre-trial brief

11 for the purpose of preparing trial. And unless I hear serious objections

12 from the Defence that would convince me to the contrary, or of the

13 contrary, it is my plan to fix a time limit for the Prosecution, with a

14 clear indication that this would be the procedure to follow in preparation

15 of the case, or in preparation of the trial.

16 Can I have a feedback from the Prosecution on this and then, of

17 course, I will turn on the Defence teams.

18 MR. THAYER: Yes, Your Honour. Candidly, we have not had an

19 opportunity to discuss the Prlic decision with respect to that specific

20 issue of the XL format. I can tell you that we will continue to do

21 everything we can to make the evidence available in the most efficient and

22 effective manner for all parties involved, but unfortunately I cannot

23 provide an answer to the Court at this point as to whether we will be

24 capable of delivering upon that promise, were we to make that promise with

25 respect to the spread sheets. We have just furnished our exhibit list; we

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1 may have some additional exhibits to add to that. So we ourselves are in

2 that process, and I will endeavour to provide the Court with an answer once

3 we delve a little more deeply into that. Unfortunately, that's the best

4 answer I can give you at this time.

5 JUDGE AGIUS: All right. On the other hand, I know at firsthand

6 although initially there was some resistance on the part of the Prosecution

7 in that case, the ultimate conclusion is that it's something that actually

8 facilitates your labours, and that it should be the system or the method

9 that should be adopted. That's from the Prosecution side. I think if you

10 inquire further, you would be able to confirm what I am telling you.

11 From the Defence side, is there -- it concerns you very little,

12 actually, because I'm sure it will give you more information and more

13 organised information, but is there anyone who would like to contribute to

14 this debate or show any concerns about this? My idea is that this will not

15 delay the progress of the preparations for trial. Rather, it would

16 instruct the preparatory stage much better and instruct you much better.

17 But if there are any concerns, I would be very pleased to hear them. Yes?

18 MR. BOURGON: Good morning, Your Honour. I would just like to

19 say a quick remark, not specifically related to a what you just mentioned

20 but to something that my colleague from the Prosecution just mentioned.

21 Maybe I misunderstood, but he said we have just completed our list of

22 exhibits. My understanding is that the list of exhibits was given to us

23 with the pre-trial brief of the Prosecution, and the reason I mention this

24 at this point is that we would like to avoid receiving additional material

25 that we are not aware of at this time between now and the start of the

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1 trial. And again, this is important because, specifically for the client

2 that we represent, most of the evidence that has been given to us by the

3 Prosecution, and the Prosecution has yet to give to us, as was candidly

4 admitted by my colleague, dates from, very often, January of 2006, and we

5 are wondering what is happening here, because this case has been going on

6 for quite some time. The Prosecution has been working on this case for

7 more than ten years, and suddenly we see these statements being collected

8 in, let's say, November, December 2005, January 2006. Now, maybe we have

9 additional exhibits being prepared. We just would like to know the case we

10 have to meet, and for this we need to have some kind of certainty with

11 respect to the witnesses that will be called by the Prosecution and with

12 respect to the exhibits that they will use.

13 To this day, we take it for granted that we are working on the

14 basis of the Prosecution's pre-trial brief, and we would like Your Honour,

15 the Chamber, to be quite firm, in that if there are any changes to that

16 list, to the Prosecution's pre-trial brief, that they should justify why

17 they have not been able to come up with exactly what is the case against

18 the client we represent up to this time. Thank you, Your Honour.

19 JUDGE AGIUS: All right. I'm sure that the officer, prosecuting

20 officer knows exactly what you're talking about, what the problem -- what

21 his responsibilities are. I will not involve myself in this, because

22 obviously, as you put it, this could be a matter contested between you and

23 I would have to decide it. So I'm keeping my distance. Of course, if you

24 would like to remark on --

25 MR. THAYER: If I may briefly, Your Honour. Just to put Mr.

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1 Bourgon's mind somewhat at ease, I was referring to our 65 ter exhibit list

2 when I referred to our recent exhibit list. There is not another separate

3 list that we are going to spring on Defence counsel. We do, however, as I

4 mentioned, have some handful of additional exhibits, which we will provide

5 probably on CD format once we have compiled that list.

6 The reason why, in shortest terms, that some of these statements

7 have not been made available sooner is that these interviews, as Mr.

8 Bourgon noted, were conducted in January of 2006. The reason why some of

9 this investigation has been done or conducted at that point is we have been

10 meeting better success with cooperation among some of these witnesses. It

11 is simply a product of the timing. But we will endeavour, as we have been

12 on a number of issues that I won't burden the Court with, in a one-on-one

13 relationship with Defence counsel, to resolve these issues.

14 JUDGE AGIUS: I thank you for that information.

15 Last but not least on this -- on the matter of the trial, I will

16 need definitely, before the trial starts, or as soon as it starts, to give

17 you a deadline by which time period -- time period by which you have to

18 conclude your case, and I will be doing the same with you. So this is a

19 matter that you need to start addressing.

20 Now, your position is much more clear than the position of the

21 Defence because in the case of the Defence, there is always that element of

22 uncertainty, not knowing exactly what evidence will be produced here in the

23 courtroom. I am also fully aware that in trying to fix the time limit for

24 the Prosecution case, the question of Rule 92 bis evidence assumes a great

25 importance. This is why it will be necessary for me, after the expiration

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1 of the month following the decision on the form of the indictment, that I

2 will come back to you. At that point in time, at that point in time, I

3 would know more or less where you stand in relation to the motion of the

4 Prosecution relating to 92 bis evidence, and that would help me come to a

5 conclusion. But you also should start thinking, as from now, the several

6 Defence teams, about an estimate of time you require for presenting your

7 own Defence case, because I would need to know that, and short of any

8 information I would still have to fix a time limit in any case. So that's

9 the position. I think I have made myself clear on this.

10 Is there anyone of you that would like to raise any other matter

11 in relation to the trial itself, trial matters?

12 I see none, which brings me to the next matter. Is there

13 anything else that you would like to raise before I address the eight

14 accused here and ask them about their health situation?

15 MR. THAYER: Not from the Prosecution, Your Honour.

16 JUDGE AGIUS: Nothing from the Defence? I see none. Thank you.

17 So I will go through the whole process as in previous Status

18 Conferences.

19 Before I do so, however, there is one final thing that I need to

20 address to you, Mr. Borovcanin and your counsel, Mr. Lazarevic. You will

21 recall that last time there was this issue about whether you should or

22 shouldn't enter a plea or whether you weren't -- were prepared to enter a

23 plea to one of the counts that you had. And we had agreed that since that

24 was a matter that was the subject matter of one of the pending motions, I

25 would be dealing with that and then eventually you would be given the

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1 opportunity either to enter a plea or not to enter a plea, in which case I

2 would enter a plea on your behalf. The matter is going to be decided.

3 It's part of the decision that I referred to earlier on, which I will be

4 handing down hopefully next week, so I'm not asking you to enter any plea

5 today. That will come next time.

6 And the same reservation, Madam Fauveau and also Mr. Krgovic,

7 there is still the matter of your clients having to enter a plea. We will

8 come to that. There is no point in bringing them over to enter a plea or

9 make a video connection there and make them enter a plea now. That can be

10 done later on.

11 So, Mr. Popovic, would you like to raise any matter relating to

12 your state of health or condition of detention? We are in open session.

13 If it is your preference that if there is anything to discuss that would

14 you like to discuss it in closed session or in private session, then we

15 will go into private or closed session.

16 THE ACCUSED POPOVIC: [Interpretation] No need for us to go into

17 private session, Your Honour. But I do have some comments and objections

18 that are relative to the work of Mr. Jovanovic, the way he collects

19 information and deals with the information.

20 JUDGE AGIUS: One moment. The transcript says "Mr. Jovanovic".

21 You mean Mr. -- your council, Mr. Zoran Zivanovic?

22 THE ACCUSED POPOVIC: [Interpretation] No, Your Honour, no.

23 JUDGE AGIUS: I wanted to make sure, because if you're out of it,

24 you're out of it; but if you are in, you are in. Who are you referring to?

25 THE ACCUSED POPOVIC: [Interpretation] I'm referring to Mr.

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1 Jovanovic who works for the Registry and who has to do with the financial

2 situation of the accused.

3 JUDGE AGIUS: I see. All right. And so what is your problem?

4 What is your complaint?

5 THE ACCUSED POPOVIC: [Interpretation] My concern has to do with

6 the way he does what he does. When he spoke to my wife in Belgrade, he

7 told her that we have everything provided for us here. And I am a diabetic

8 and I need different types of food, as a result of which I have increased

9 expenses. I receive food as any other detainee, which shouldn't be the

10 case. I've already written complaints about that.

11 Second of all, with regard to the fact that he said that we have

12 everything provided to us, I claim that that is not the fact. There are

13 some things missing by way of clothes and other things that we have to

14 purchase ourselves. The allocation that he came up with, I don't know how

15 he did that, according to which rule, and how he came to the conclusion

16 that some of the Defence has to be paid for and some of it doesn't have to

17 be paid for, I believe that this is not realistic and it does not rely on

18 facts. Whoever makes such a decision has to reconsider and has to come up

19 with a realistic financial base, because what he's doing now is

20 disgraceful.

21 JUDGE AGIUS: I thank you, Mr. Popovic. Let's take things one by

22 one. The decisions of the Registrar relating to financial matters, et

23 cetera, are dealt with by the various directives and regulations and --

24 that we have, and the accused has always got a remedy that can be explored.

25 I am sure that if you discuss this with Mr. Zivanovic, he will explain the

Page 169

1 whole process. The Trial Chamber does not get involved in that unless -

2 unless - the conclusions reached by the Registrar are unreasonable, not

3 based on the facts that he has in front of him, or when they are so

4 grievous, so serious, that they may or do influence on your right to have a

5 fair trial. That's when we get involved. And we have been involved in the

6 past, both in relation to when the Registrar decides that you need to pay

7 part of your legal costs, but again our jurisdiction there is limited. The

8 other matter that you raised -- so I suggest that you discuss that with Mr.

9 Zivanovic. However, I will be copying that part and communicating it to

10 the Registrar so that if he needs -- or feels that he needs to act upon it,

11 he will do so. And I have, believe me, I say it publicly, I have full

12 trust in the Registrar, that he will do his duty. And if he doesn't, then

13 we intervene, and we have intervened in the past. I mean, I have reversed

14 decisions taken by the Registrar, even in relation to the matters that I am

15 talking about.

16 The other matter about diabetes, yes, it is of concern to me.

17 Are you receiving medical treatment in the Detention Unit for your diabetic

18 condition or not? Do you have diabetes 1 or diabetes 2, to start with?

19 THE ACCUSED POPOVIC: [Interpretation] To be honest I don't know

20 if it's 1 or 2. I receive one tablet in the morning, one 500 milligram

21 tablet in the morning, and that is that.

22 JUDGE AGIUS: I think you have diabetes type 2 and not type 1,

23 because otherwise you would be receiving insulin. That's why I asked you

24 what the situation -- what the situation is.

25 What I am going to do is that I will also copy this part of your

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1 statement to the commandant of the Detention Unit, Mr. McFadden, and if

2 necessary discuss the matter -- discuss the matter with him. I have no

3 doubt in my mind that if you have a diabetic condition, you shouldn't be

4 eating everything that everyone else is eating. So that's definitely

5 something that I will interest myself in, and the Registrar has taken note

6 of what I have said. I think the entire statement of the accused, plus my

7 intervention, needs to be blocked, copied, to the Registrar, and the first

8 part of his statement relating to his diabetic condition needs to be

9 copied, together with the latter part of my intervention, to Mr. Tim

10 McFadden, with direction, a direction to -- direct to Mr. McFadden to make

11 his remarks. It's not an option. He has to make his remarks to the Trial

12 Chamber on the accused's complaint, and any other matter related thereto,

13 within a week from service -- within a week from service, of the

14 communication.

15 Did you get me, Ram?

16 THE REGISTRAR: Yes, Your Honour, it's been noted.

17 JUDGE AGIUS: So the matter of diabetes has been --

18 THE ACCUSED POPOVIC: [Interpretation] Your Honour.

19 JUDGE AGIUS: Go ahead, Mr. Popovic.

20 THE ACCUSED POPOVIC: [Interpretation] I just wanted to say that I

21 don't want to be misunderstood. In the Detention Unit I have increased

22 expenses which Mr. Jovanovic did not want to admit. I buy my own fruit; I

23 buy my own sweeteners. He knows that, but he's reluctant to admit that.

24 That's why I have made you aware of that.

25 JUDGE AGIUS: Right. As I said, that's also very important and

Page 171

1 it will be communicated to the Registrar, and communicating it to the

2 Registrar, I would expect also the Registrar to come back to me and tell me

3 what his position is on all this. But I also want -- would like you to

4 discuss the matter with your counsel, because there are remedies that are

5 provided for in the rules or the regulations of this Tribunal and you

6 should first exhaust those remedies before involving the Trial Chamber.

7 But I will definitely involve myself in both matters, to the extent that I

8 can.

9 Mr. Beara? My same question to you. Do you have any comments,

10 complaints or remarks on your state of health or detention?

11 THE ACCUSED BEARA: [Interpretation] No, I have no objections at

12 all. Everything is in order.

13 JUDGE AGIUS: I thank you, Mr. Beara.

14 Mr. Nikolic? Same question to you.

15 THE ACCUSED NIKOLIC: [Interpretation] Your Honour, I don't have

16 any complaints. There are some minor matters that I might be complaining

17 of, but I'm dealing with those with my lawyers. My health condition is

18 good and everything else is good.

19 JUDGE AGIUS: Mr. Borovcanin?

20 Thank you, Mr. Nikolic.

21 THE ACCUSED BOROVCANIN: [Interpretation] Your Honour, I don't

22 have any particular comment or complaints.

23 JUDGE AGIUS: Yes. The microphone wasn't switched on. Thank

24 you. But I still see that it has come on the transcript. I thank the

25 interpreters for pointing that out and for entering the accused's statement

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1 in any case.

2 So Mr. Pandurevic? Same question.

3 THE ACCUSED PANDUREVIC: [Interpretation] Your Honour, as far as

4 my health is concerned, and as far as my detention conditions are

5 concerned, I don't have any complaints. But I would like to raise my

6 concern about the materials and whether we will be able to receive them in

7 a language that we understand. So far we only have the pre-trial brief in

8 English, which we don't understand, and we would very much like to get it

9 in our own language well in advance of the trial.

10 JUDGE AGIUS: I thank you, Mr. Pandurevic. As you must have

11 heard me before, that is a matter that is going to be decided next week,

12 not only in relation to the pre-trial brief but also in relation to other

13 documents and motions.

14 Last, Mr. Trbic. Same question to you. Any complaints about

15 your state of health or state of detention?

16 THE ACCUSED TRBIC: [Interpretation] As far as the Detention Unit

17 and my health, I have no complaints. I would just like to convey to you

18 that there has been a hearsay about the transfer of my case to Sarajevo, to

19 Bosnia, that is. I would like to address to you with a request, if

20 possible, that there should be no more talk about that until I'm appointed

21 a new lawyer, which I believe will be done next week. And, of course, I

22 need a certain time with my new lawyer to prepare for any possible

23 discussion on my transfer to Sarajevo.

24 JUDGE AGIUS: I thank you, Mr. Trbic. As I stated earlier on,

25 that is a matter with which I will not be dealing and the pre-trial Chamber

Page 173

1 will not be dealing, so you will not have to worry about that, as far as

2 the pre-trial Chamber is concerned. I mean, you will have all the

3 opportunity, you and your new counsel, to make your submissions to the

4 Referral Bench that will be deciding on that issue. It's not me or my

5 Trial Chamber that will be dealing with it. It's another Chamber, another

6 team of judges. But one of the pre-trial judges, that's Judge Parker, will

7 be on the Referral Bench, will be on the Referral Bench, so that's the

8 position.

9 And the decision of the Trial Chamber, then, obviously will

10 depend on what will be the outcome of the referral case, which brings me to

11 a completely different topic related to one that we discussed earlier on,

12 included in the ifs and buts, because one of the developments is precisely

13 this motion by the Prosecution to have Mr. Trbic referred -- to be tried in

14 Bosnia, with the consequence that there would be -- his case would be

15 severed from that of the rest of you.

16 If the matter is not yet decided by the referral court by the

17 time we are supposed to start, unless there is a specific, separate motion

18 to have the accused Trbic separated, severed, from the rest, that would be

19 another problem that we will have in front of us, and it could well end up

20 with being a critical matter for the Trial Chamber to decide, possibly also

21 delaying the start of the trial.

22 But again, please do understand that I am in the same predicament

23 as you are, and the ifs and buts, if you have ifs and buts, I have got more

24 of them than you do, and I will try to deal with what arises accordingly.

25 So I think we have covered what we needed to cover. I do wish to

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1 publicly thank you for your cooperation, not only today but also in the

2 interval between Status Conferences. My Senior Legal Officer keeps me

3 informed of every single bit of development and how productive and how

4 cooperative his interactions with you are. I do appreciate that because it

5 makes things easier for me and the Trial Chamber, and I can assure you of

6 my cooperation, full cooperation, in return.

7 As agreed, please plan for another Status Conference at the end

8 of June or, latest, beginning of July, and then to be followed with a Pre-

9 Trial Conference, unless we have a cataclysm that would require

10 postponement or rescheduling of everything.

11 Thank you and good afternoon to everybody.

12 --- Whereupon the Status Conference adjourned at

13 12.36 p.m.