Tribunal Criminal Tribunal for the Former Yugoslavia

Page 380

1 Monday, 26 September 2005.

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 2.18 p.m.

5 [The accused entered court]

6 JUDGE AGIUS: So, Madam Registrar, could you call the case,

7 please.

8 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honour.

9 This is case number IT-03-67-PT, the Prosecutor versus Vojislav Seselj.

10 JUDGE AGIUS: Yes. Mr. Seselj, can you follow the proceedings in

11 your own language?

12 THE ACCUSED: [Interpretation] I can follow, but I wish the

13 interpreter would speak up.

14 JUDGE AGIUS: Yes. Perhaps you could check, please, officers, the

15 volume. And could I ask the interpreters to say something?

16 THE ACCUSED: [Interpretation] Yes, yes.

17 JUDGE AGIUS: Is it better now?

18 THE ACCUSED: [Interpretation] Yes, it is.

19 JUDGE AGIUS: Thank you. Appearances for the Prosecution?

20 THE ACCUSED: [Interpretation] It's too loud.

21 JUDGE AGIUS: It's too loud now.

22 THE ACCUSED: [Interpretation] Okay.

23 JUDGE AGIUS: Appearances for the Prosecution?

24 MS. UERTZ-RETZLAFF: Good afternoon, Your Honour, for the

25 Prosecution Senior Trial Attorney Alex Whiting, who has joined us recently

Page 381

1 in the Prosecution team, Trial Attorney Ulrich Mussemeyer. My name is

2 Hildegard Uertz-Retzlaff, and we are accompanied by the case manager, Ana

3 Katalinic.

4 JUDGE AGIUS: Thank you. I notice also that there is a stand-by

5 counsel. Could he please confirm his presence?

6 MR. VAN DER SPOEL: Good afternoon, Your Honour. Tjarda

7 van der Spoel, stand-by counsel.

8 JUDGE AGIUS: I thank you.

9 Is Mr. Daniel Saxon still on the case or not?

10 MS. UERTZ-RETZLAFF: No, Your Honour. He's on the Milosevic case

11 and has no time anymore.

12 JUDGE AGIUS: Let's begin with this Status Conference.

13 As you all know, the reason why we hold Status Conferences

14 periodically is because it is so required by Rule 65 bis, which basically

15 requires that Status Conferences are held at intervals not exceeding 120

16 days between one and another. Last Status Conference was held on the

17 30th of May of this year.

18 I'll briefly go through the various items that I have listed for

19 today's agenda.

20 I start with an outstanding motion which hopefully will soon now

21 be decided. This is -- relates to motions relating to the electronic

22 disclosure of documents to the accused and translation of documents. We

23 have had several meetings, the three judges, because this is a matter that

24 needs to be decided collegially, collectively and we have come to a

25 conclusion. At the moment, the decision is being drafted. It will deal

Page 382

1 with accused's motion number 30 which was filed on the 26th of March,

2 2004. Of course, with the Prosecution's -- the relative Prosecution

3 response. The motion for ordering, directing the accused to accept

4 disclosure material in electronic format which was filed by the

5 Prosecution on the 19th April 2004.

6 And also, the request of the accused to disclosure materials of

7 the Prosecution to have material disclosed to him in written form and in

8 Serbia filed on the 9th of November, 2004 and the relative Prosecution

9 response of the 29th of November, 2004.

10 Then on the 14th of December, 2004, I denied the accused's

11 submission number 60 which was interrelated which was basically leave for

12 appeal.

13 As I said, we hope to be able to hand down the overall decision

14 dealing with the mode in which disclosure is to take place. And we hope

15 to be able to hand down this decision before there is actually a decision

16 on the joinder issue to which I will be referring in due course.

17 There is also a request by the accused for material cited in the

18 Prosecution pre-trial briefs. I'm referring to submission number 67, in

19 case what I said wasn't clear. Basically, you will recall, Madam, that

20 Prosecution filed its pre-trial brief on the 14th of December, 2004

21 indicating that it would eventually provide a witness and exhibit list.

22 The accused responded by a submission which is numbered 67 on the 15th of

23 December, and you then in turn responded on the 18th of January. This

24 matter is of course being -- is given attention. You don't need to remain

25 standing. And we will inform you accordingly on the outcome as we go

Page 383

1 along.

2 Then we come to -- or rather, I come to the most important

3 developments in this area, namely the Prosecution joinder -- motion for

4 joinder. This all happened since the last Status Conference. In fact,

5 you will recall I stated earlier that the last Status Conference was held

6 on the 30th of May. A day after, or on the 1st of June 2005, the

7 Prosecution filed a Prosecution motion for joinder, requesting joinder of

8 this case with that against Jovica Stanisic and Franko Simatovic, as well

9 as with the case against Milan Martic.

10 For those of you who are not aware of the developments, after the

11 filing of that particular motion, this motion, president of the Tribunal

12 reassigned -- first a reassigned the Seselj case to Trial Chamber 3 on the

13 7th of June, 2005. Then subsequently, on the 5th of July, the President

14 reassigned the case, the Seselj case, to Trial Chamber II. At the same

15 time it appointed three judges to constitute a Chamber within Trial

16 Chamber III for the purpose of determining the joinder motion in this case

17 as well as in other cases. That Chamber has already handed down two

18 decisions on joinder motions similar to this one. It is at the moment,

19 since I form part of that Chamber, I can state here that we are in the

20 process of discussing the merits of the Prosecution motion for joinder of

21 this case together with the ones I mentioned, and a decision is expected

22 within a relatively short time.

23 However, I must point out that the Prosecution joinder motion in

24 this case, because of translation problems, was only filed on the 19th of

25 July, and there was the recess and we have only really started discussing

Page 384

1 it recently.

2 Again, this matter therefore is not being handled by me as

3 Pre-Trial Judge or by the three judges of Trial Chamber II. It's being

4 handled by this Chamber which resides in Trial Chamber III, with Judge

5 Robinson as Presiding Judge and myself and Judge Liu as the other two

6 Judges.

7 The other matter that I will mention in two stages is challenges

8 to the indictment. You will recall that on the 22nd of October of last

9 year, the Prosecution requested permission or leave to amend the

10 then-existing indictment, which had been confirmed on the 14th of February

11 of 2003. The -- my Trial Chamber, on the 27th of May 2005, granted the

12 Prosecution's request in principle, designating the Prosecution's proposed

13 amended indictment as the operative indictment, while we ordered some

14 minor clarifications.

15 On the 3rd of June, the Prosecution filed a corrigendum to the

16 amended indictment, indicating or clarifying the part referred to by the

17 Trial Chamber, and the Trial Chamber, on the 8th of July, we granted the

18 corrigendum in part and ordered in turn the Prosecution to file a modified

19 amended indictment accordingly. Prosecution filed the modified amended

20 indictment on the 12th of July, and on the 8th of September 2005, the

21 accused filed his submission number 101 and preliminary motion number 102,

22 pursuant to Rule 72 of the Rules of Procedure of this Tribunal. These two

23 documents, the accused challenges the modified amended indictment, and he

24 also once more reiterated his challenges to the legality of the ICTY and

25 alleged defects in the form of the modified amended indictment.

Page 385

1 Prosecution filed its Prosecution response to these two Defence

2 motions on the 16th of September, 2005, in which it raised the matter or

3 objected to the length of the accused's motion as being in violation of

4 the limitations set in the practice direction of this Tribunal and

5 specifically requested my Trial Chamber to refuse to receive the motion

6 and direct the accused to prepare a new motion instead in the proper

7 before the 7th of October, 2005.

8 On the 23rd of September, just a few days ago, I issued a decision

9 in which I refused accordingly to accept the accused's preliminary

10 motions, basically on the same reason I just mentioned, namely that they

11 exceeded the limitations laid down by our rules or by our directive, and I

12 ordered the accused to file his objections, if he wishes to file them

13 again, within the limitations prescribed by the practice direction and by

14 not later than the 7th of October.

15 All I want to know for the time being is whether you have been

16 served with a copy of this decision in your own language, since it is a

17 pretty recent decision.

18 THE ACCUSED: [Interpretation] I have not received this decision in

19 my own language, and before me I have the instructions on the length of

20 motions, and I see that there is no restriction on the length of

21 complaints against the length of the indictment, and also there is

22 reference to interlocutory appeals.

23 JUDGE AGIUS: Stop, stop, stop. I don't want any submissions on

24 this. I just wanted a confirmation on whether you have received a copy of

25 this decision in your own language. If you haven't, of course, the

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Page 387

1 deadline that I indicated, namely as being that of 7th of October will

2 need to be revised, and Madam Registrar, please, I would require to know

3 exactly when this decision has been translated and served in the Serbian

4 language on the accused.

5 THE REGISTRAR: Yes, Your Honour. I will look into it and get

6 back to you.

7 JUDGE AGIUS: So that, if necessary, I'll follow it up with a

8 revision of the date.

9 Yes. If you have any specific submission on the length of

10 documents, particularly as regards such motions, please make a written

11 submission to that effect and it will be decided, Mr. Seselj, but this is

12 not something that we are going to debate here. I think the practice

13 directive is clear enough, and it is also clear enough that it applies

14 to -- as to which document it applies.

15 Now we come to disclosure matters, and I want to start with

16 disclosure in terms of Rule 66(A)(ii). You will recall that on the 11th

17 of February of last year, we granted an order of non-disclosure to the

18 public pursuant to Rule 53 of some witness statements that came under

19 Rule 66. Since then a lot of water has passed under the bridges, and we

20 have had also motions, responses and decisions, basically to summarise it

21 all.

22 The position is as follows: On the 16th of December we rendered

23 our confidential decision on the Prosecution's motion for protective

24 measures for witnesses during the pre-trial phase. Attached to it was a

25 confidential and ex parte annex A which sets out the reasons for the

Page 388

1 protective measures of potential witnesses. The protective measures

2 included the delayed disclosure of certain potential witnesses' identity

3 to the accused until no later than 30 days from the affirmed trial date.

4 Then on the 27th of May of this year, the Trial Chamber further

5 rendered its decision on the Prosecution's third and fourth motion for

6 protective measures for witnesses during the pre-trial phase with

7 confidential and ex parte annex in which it assigned pseudonyms to some

8 additional potential witnesses and ordered protective measures given in

9 the previous decision to be continued with respect to certain witnesses

10 and also ordered delayed disclosure of the names or identities of certain

11 additional witnesses, and in its decision -- or in our decision on the

12 Prosecution's fifth motion for protective measures for witnesses during

13 the pre-trial and trial phases, which we handed down on the 6th of July,

14 we additionally assigned a pseudonym to a potential witness and granted

15 delayed disclosure of this witness's identity while it considered it

16 premature to put in place other requested protective measures relevant to

17 trial proceedings at this pre-trial stage.

18 I wish to know whether you have anything to add to what I have

19 stated. Prosecution?

20 MS. UERTZ-RETZLAFF: Your Honour, we made in the past several

21 attempts to disclose electronically the materials that you referred to,

22 and as this was rejected we stopped doing this and are waiting your

23 decision on the form of disclosure. After we have the decision, we can

24 disclose very soon and very fast. It depends on whether it has to be in

25 printed form or electronic.

Page 389

1 JUDGE AGIUS: Okay. Thank you. Mr. Seselj? I'm sorry, Madam.

2 MS. UERTZ-RETZLAFF: I wanted to add one more thing. What we

3 actually did disclose in paper form was the materials that the accused

4 requested in his submission number 67, and as you referred to this

5 submission, I just wanted to confirm that we did do that in hard paper.

6 JUDGE AGIUS: Okay. Thank you.

7 Yes, Mr. Seselj, do you want to comment on Rule 66(A)(ii)

8 disclosure? On this type of disclosure only.

9 THE ACCUSED: [Interpretation] Yes. I received the provisional

10 list of witnesses that the Prosecution intends to call during the trial.

11 And, as you know, Mr. Agius, that so far I have not opposed a single

12 request made by the Prosecution to keep those witnesses confidential. I

13 wanted to speed up the trial. I wanted the trial to start as soon as

14 possible. Now I saw that the Prosecution actually has a motive, a reason,

15 that is totally impermissible for not disclosing the names of the

16 witnesses. They are resorting to that measure not only to protect

17 witnesses because no one is threatening them anyway, but they are simply

18 doing that because all of them are false witnesses.

19 Secondly, I shall never receive a single document in electronic

20 form. That's a decision I made a long time ago. Well, you can try me

21 even in my absence. I wouldn't be surprised if you did that either.

22 However, you are never going to serve a single document to me in

23 electronic form, and I'm never going to receive a single document that is

24 not in the Serbian language.

25 Was something turned off here?

Page 390

1 So I'll never receive any document.

2 What is this? Can I speak or what is this?

3 JUDGE AGIUS: What's the problem?

4 THE ACCUSED: [Interpretation] I have the impression that my

5 microphone went off.

6 I am never going to receive a document that is not in the Serbian

7 language.

8 And thirdly, I made a request to have all statements of all

9 witnesses submitted to me from any trial who mentioned my name during

10 their testimony or during their examination by the Prosecution, and I

11 haven't even received that yet. Without that, I am not in a position to

12 prepare my defence adequately.

13 JUDGE AGIUS: All right. That matter will be incorporated in our

14 expected decision to which I referred to earlier.

15 Now, disclosure under Rule 66(B), as you know, or as you surely

16 will recall, during the 14th June 2004 Status Conference, following a

17 request made by the accused pursuant to the Rule I mentioned, Rule 66(B),

18 I ordered the Prosecution to disclose copies of all Prosecution witnesses

19 that mention the accused's name, and this is why I had asked you,

20 Mr. Seselj, to restrict yourself to 66(A)(ii) disclosure because we were

21 coming to this in any case, and that prior to disclosing any witness

22 statements in redacted form to protect the identity of a witness, that

23 there were to be submitted in toto to the Trial Chamber for its approval

24 of any redactions that may result necessary. As a result, the Prosecution

25 filed a confidential and partly ex parte motion for non-disclosure of

Page 391

1 names and other identifying information, where it submitted to the Trial

2 Chamber 19 statements of witnesses in full and the proposed redactions to

3 them.

4 Later on, on the 13th of August, the Prosecution filed the

5 Prosecution's notice of delayed disclosure pursuant to Rule 66(B) where it

6 notified that it would delay completion of the disclosure of all witness

7 statements that mention the accused until the Trial Chamber issues a

8 decision on the motion.

9 As I said, this matter is incorporated in the decision that we

10 will be handing down on motion number 30 and others, following, that it is

11 hoped then that you will be in a position to fulfil the directive that we

12 gave to you sometime back.

13 So this matter has already been addressed by Mr. Seselj. Do you

14 want to make any statements on Rule 66(B) disclosure following what I have

15 just stated?

16 MS. UERTZ-RETZLAFF: Your Honour, just to mention that we have

17 prepared all the materials so that it can be disclosed as soon as a

18 decision is available.

19 JUDGE AGIUS: Thank you.

20 Then Rule 65 ter material. Now, this is important because it has

21 become somewhat convoluted. The Prosecution, as I stated earlier on,

22 filed its pre-trial brief on the 14th of December. In it, the Prosecution

23 submitted that it would provide a witness list after protective measures

24 were in place. The Trial Chamber decided on a second protective measures

25 decision of the 21st December 2004, after which the Prosecution filed a

Page 392

1 third and fourth motion for protective measures. A decision has been

2 issued on these, but I understand it has not yet been translated.

3 I would like to have a confirmation of this, Madam Registrar,

4 please, as early as possible.

5 I also can state that a fifth similar motion filed by the

6 Prosecution on the 25th -- 26th of May, 2005 was -- was filed. What I

7 would like to know is whether we are to expect further motions for

8 protective measures.

9 MS. UERTZ-RETZLAFF: Your Honour, a further motion for protective

10 measures is actually at the moment being prepared and that refers to the

11 amended part of the indictment. Because we haven't filed anything in

12 relation to the amended parts, and we are actually preparing this and I

13 can already say that it is about 21 witness statements that needs to be

14 redacted and the witnesses need a pseudonym and partly delayed disclosure.

15 That is already in preparation and we intend to file that actually this

16 week.

17 JUDGE AGIUS: So basically the fact that we have decided all five

18 motions filed by you still leaves you in limbo, in other words, because

19 you are contemplating a sixth motion.

20 MS. UERTZ-RETZLAFF: Yes, Your Honour, but only in relation to the

21 amended crime bases.

22 JUDGE AGIUS: All right. This brings me to raise a matter which

23 may make the whole aspect of this protective measures issue very much

24 complicated, considering particularly that there is this joinder motion,

25 because I don't know how that is going to end up, whether there is going

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Page 394

1 to be a joinder or not, obviously. But if one were to assume for the

2 moment, just an assumption for argument's sake, that that motion will

3 be -- for joinder will be granted, what's the position as regards the

4 witnesses that were indicated as forthcoming in the cases of the other

5 persons? And what about the witnesses that you are indicating for this

6 case, for whom you have asked for, and as you say will continue to ask for

7 protective measures? Because this is going to complicate the picture, the

8 scenario considerably. It would not complicate the scenario if Mr. Seselj

9 is left on his own to stand trial on his own, but if he's joined with

10 others you're going to have the problem of all the other witnesses that

11 have been indicated already in those cases.

12 MS. UERTZ-RETZLAFF: Yes, Your Honour, but for these -- for

13 instance, in the Martic case, all protective measures are already

14 requested and granted.

15 JUDGE AGIUS: Yes, but --

16 MS. UERTZ-RETZLAFF: And it would have course apply to the whole

17 case then.

18 JUDGE AGIUS: But in relation to accused Martic but there may be

19 others for whom you have not sought protective measures and for whom you

20 might want to seek protective measures if accused Seselj is joined with

21 Martic.

22 MS. UERTZ-RETZLAFF: I would think that if the cases are joined,

23 we will have to review the entire witness list because it may be that we

24 can drop some witnesses or we have to add a few joined witnesses and of

25 course we would reconsider and check all the protective measures. That's

Page 395

1 for sure.

2 JUDGE AGIUS: I'm saying all this, Mr. Seselj, particularly since

3 I think that this matter of the final list of witnesses and exhibits has

4 now entered into a tricky compartment, namely on -- much depends on how

5 the question of joinder is going to be decided by the other Chamber. If

6 there is going to be a joinder, then obviously we will need to revise all

7 this talk about witnesses lists, protective measures and exhibits. If

8 not, I think we can finalise this issue. But I'm just -- I'm not asking

9 to you comment on this because at this stage it's too premature, but

10 that's the only way it can be handled. I'll definitely not step into and

11 decide this issue while the joinder motion is still pending.

12 Now, there is Rule 68 material. This is exculpatory material

13 disclosure. As you know, there are two aspects to this issue. One is the

14 mode of disclosure, and this will be addressed and decided once and for

15 all in the decision that I have pre-announced. It deals specifically with

16 Rule 98 -- Rule 68 -- Rule 68 material.

17 And then the other one is of course whether you have all this

18 material available and what have you disclosed so far to the accused and

19 what rests or remains to be disclosed, and in what language, please.

20 MS. UERTZ-RETZLAFF: Your Honour, we have only disclosed very few

21 materials on hard copy, when they were very limited, and the rest is still

22 on hold because the same problem applies here. We want to disclose

23 electronically and, of course, in the language in which the document is

24 currently available. If the decision of the Trial Chamber is different

25 and we would have to disclose, let's say, on hard copy, we still can do it

Page 396

1 in relatively short time. But if we also have to disclose in hard copy

2 and Serbian language, that would include a lot of translation.

3 JUDGE AGIUS: But you are definitely certainly in a position to

4 help this Tribunal by -- this Trial Chamber by indicating whether -- in

5 which language these documents are predominantly in.

6 MS. UERTZ-RETZLAFF: My colleague, Mr. Mussemeyer, just mentioned

7 75 per cent of the material is already in the Serbian language, so there

8 is a translation, then translation part for 25 per cent, so the bulk of

9 the material could be disclosed very quickly.

10 JUDGE AGIUS: I'm mentioning this, Madam, without prejudice, of

11 course, to the principle that has been stated by various Trial Chambers

12 and also by the Appeals Chamber as to whether Rule 68 material needs to be

13 translated or not. I mean, I'm leaving that matter obviously unprejudiced

14 because there are submissions on that and we will deal with that as we go

15 along.

16 And if I were to ask you the rest, the remaining 25 per cent, that

17 would -- that are not in the Serbian language, what would that amount to?

18 I mean, volume-wise.

19 MS. UERTZ-RETZLAFF: Your Honour, I'm not -- I can't really answer

20 that question. I'm sorry.

21 JUDGE AGIUS: If you can provide the Trial Chamber with an

22 indication, or the Registrar with an indication, it would help us a lot.

23 MS. UERTZ-RETZLAFF: Yes. I will check that and then --

24 JUDGE AGIUS: Thank you. Because obviously, in Rule 68 material

25 matters, I remember at least one or two instances of Status Conferences

Page 397

1 here in this present case where you actually, without of course committing

2 yourselves and without prejudicing the outcome of the issue on how -- on

3 the mode of disclosure, had accepted to hand to the -- provide the accused

4 with hard copies of Rule 68 material. So you have been extremely

5 cooperative with the Trial Chamber at least in this area. This is why I'm

6 asking you to be more cooperative, if you can.

7 MS. UERTZ-RETZLAFF: Yes, Your Honour.

8 JUDGE AGIUS: Thank you.

9 Do you wish to comment on Rule 68 disclosure? I think you need to

10 await first our decision on the mode of disclosure and then if you have

11 complaints or remarks or whatever, you can address them later, but at this

12 stage, everything depends actually on how we are going to decide the

13 issue.

14 THE ACCUSED: [Interpretation] I do have a comment to make,

15 Mr. Agius, which I would like to make straight away. By definition, the

16 Prosecutor is an official of international justice, and it is his duty to

17 disclose exculpatory material, and in that sense, to assist the accused.

18 It is equally important as the duty to bring the accused to justice. So

19 the Prosecutor has two equally important obligations before him. But for

20 this obligation, the one I'm interested in, he says he doesn't have the

21 necessary resources.

22 Now, the Prosecutor is going to have to show that these identical

23 resources have been invested in prosecuting and in finding exculpatory

24 material that would help my own Defence case. Only then will he be able

25 to say that he has done his duty correctly and properly. Here, the

Page 398

1 Prosecutor is not saving any resources to prosecute even if it means to

2 pay false witnesses and bribe them, whereas on the other hand he keeps

3 saying that he doesn't have the necessary resources to disclose material

4 to me in the Serbian language and on paper. That is the simplest thing.

5 Whatever the decision is going to be, I'm not going to receive any

6 material unless it is in Serbian and unless it is on paper. There is no

7 force which is going to make me accept that. The international pact on

8 human rights and covenant on human rights guarantees that for me, so you

9 needn't play that game just to waste time.

10 JUDGE AGIUS: Yes, Mr. Seselj, I think you have been here long

11 enough to learn that it's not you who will set out the rules. That's we

12 that set out the rules, and you will have to live with them and accept

13 them. If you don't accept them, then you have to pay the consequences.

14 That's number 1.

15 Number 2 is I can assure you that there is no way the Prosecution

16 can evade its responsibility under Rule 68 on the basis of lack of

17 resources. I can assure you that I will stand in the way between that and

18 anyone to make sure that Rule 68 disclosure is carried out according to

19 the mode we will establish, and in a complete manner.

20 Now, before we come to the last few issues, there is the amended

21 indictment now. Or, rather, an application by the Prosecution filed on

22 the 12th of July, 2005 for modified amended indictment in compliance with

23 the directions of the Trial Chamber contained in our decisions of the

24 27th May and 8th July respectively.

25 I referred to this earlier on. I'm referring to it now because

Page 399

1 having gone through the modified amended indictment, I would like to hear

2 submissions from you, preferably in writing, because it's not as easy as

3 it might appear on the face of it, as to whether this modified amended

4 indictment presents or includes new charges or not. The reason is a very

5 simple one. If the modified amended indictment qualifies as introducing

6 new charges, then obviously we have to go through a special procedure

7 again by resorting to a further appearance on the part of the accused,

8 according to Rule 50(B) to give him an opportunity to enter a plea if he

9 so wishes to the indictment as amended and as including new charges.

10 I would like you to think about this. If you are in a position,

11 especially from the Prosecution side, to accept that the modified amended

12 indictment does contain new charges, then I think I can close the

13 discussion on that matter now -- here and now, and then fix a date for an

14 additional fresh appearance on the part of the accused. If you don't

15 agree, I will give you a time limit within which you indicate your reasons

16 why you don't agree that there are new charges included in the modified

17 amended indictment, and of course the accused will equally be given an

18 opportunity to present his view. But if you agree that there are new

19 charges, I don't think we need to hear the accused, because all this will

20 go in his favour rather than against him.

21 MS. UERTZ-RETZLAFF: Your Honour, we actually had -- we were

22 already surprised that a new initial appearance hasn't yet been scheduled

23 because we -- although it's the same counts and the same charges when we

24 look at the counts, but the underlying conduct is now somewhat more

25 complex and additional. Therefore, we would agree that an additional

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Page 401

1 initial appearance is necessary.

2 JUDGE AGIUS: I fully agree with that, Madam, but I just wanted

3 the comfort of the Prosecution agreeing to that because it comes from the

4 horse's mouth, sort of.

5 We will proceed. Let me explain this to you, Mr. Seselj. You

6 know that there has been this modified amended indictment. According to

7 me, it does include new charges, in the sense that you are being charged

8 with responsibility, criminal responsibility, for additional events,

9 although they are in turn incorporated into existing counts. There is

10 also a change in the modified amended indictment as regards the action

11 described in it as hate speech. It changes somehow the charges that you

12 had until the indictment was amended.

13 So our rules require that if at any time the indictment is

14 changed, is altered, is amended in a way which will incorporate new

15 charges, then we have to go back to the same procedure we went back when

16 you first arrived here in The Hague. We will have a special appearance in

17 which the new charges will be explained to you and then you will be asked

18 to enter a plea. We are not going to do that today. We will fix an

19 initial appearance. We will try to fix it for next week, early next week.

20 Right? And you will be informed accordingly when this will -- this

21 initial -- further initial appearance will take place. It will be a short

22 sitting, and you will just be required to enter a plea of guilty or not

23 guilty or to remain silent as you may wish.

24 Now, last item on the agenda is the conditions of the accused.

25 Before I ask you to comment generally --

Page 402

1 THE ACCUSED: [Interpretation] Mr. Agius.

2 JUDGE AGIUS: Please, one moment, please, Mr. Seselj, don't

3 interrupt me when I'm speaking. I give you all opportunity to speak but

4 when I say so. In the meantime, please let me finish what I have to say.

5 Conditions of the accused. You will recall that following a

6 matter raised, a complaint raised by the accused during the last Status

7 Conference, in consultation with the other two Judges composing my Trial

8 Chamber, we appointed experts, one is a medical expert on allergies, and

9 the other one an expert on monitoring of the environment, to examine not

10 only the accused but also the quality of air in the Detention Unit,

11 particularly in the area of the cell where the accused is being kept.

12 Finally, and I say finally because I expected it before, these two

13 gentlemen have filed their report. One is a report on air quality in the

14 Detention Unit. The other one is a report on the accused's pollen

15 allergy.

16 And before I proceed, I want to know whether you have been given a

17 copy of this report in your own language.

18 THE ACCUSED: [Interpretation] I received a copy -- one copy in the

19 Serbian language and some additional material they tried to hand to me in

20 English and I think in Dutch as well. That was a more complete report,

21 but I didn't accept that because I accept only documents handed to me in

22 Serbian. So I don't really know which of those I received and which I did

23 not.

24 JUDGE AGIUS: What I will be saying is without prejudice on

25 whether you are entitled to receive every single document in your own

Page 403

1 language or not, but in matters relating to your health, I obviously would

2 stand up for you and expect all documents to be handed to you, all

3 relevant documents to be handed to you, in a language that you can

4 understand.

5 Now, the position is as follows: This report more or less, as I

6 stated, has just arrived, basically less than two weeks ago. I have

7 studied it, and the other two Judges have studied it. We need to sit down

8 and come to a decision on the matter.

9 I don't know whether -- I can't ask you to volunteer comments on

10 it if you haven't seen the entire document, but if you wish to make any

11 statement, you can do so.

12 I can also tell you another thing, that in at least the report

13 that I have seen there is an indication that the concentration of pollen

14 in the air is acute in a particular period of the year more than in

15 others. And this is not one of the periods that -- during which the tests

16 were carried out.

17 One of the things, in fact, that I will need to see is whether we

18 can take this report or these two reports as complete, taking that into

19 consideration, or whether we will need to go back on this matter and have

20 a reassessment both of you as a person suffering from pollen allergy, as

21 well as the air quality in the Detention Unit during that particular time.

22 We haven't had an opportunity to meet, the three Judges, on this

23 issue, but this is one area that will inevitably come up during the

24 discussions.

25 If you wish to make a statement on this matter, for the time being

Page 404

1 on this matter only, please do so by all means. If you wish to make a

2 statement later when you have had an opportunity to read through these

3 documents completely, we will give you an opportunity, if necessary, a

4 special Status Conference to cover that issue on its own.

5 Yes, Mr. Seselj.

6 THE ACCUSED: [Interpretation] I have already written a motion to

7 you, Mr. Agius, and I drew your attention that Hans Holthuis, the

8 secretary or Registrar, is -- waits intentionally for the pollen season to

9 pass to conduct the research. The research was done out of season, but

10 nonetheless if you saw the final report by the physician, the physician

11 established that it is highly probable that changes in the conditions,

12 that is to say, that as I was in prison, they made the symptoms of my

13 allergy worse. And that is sufficient satisfaction to me.

14 To be quite frank, I don't expect the Trial Chamber or the

15 administration of the detention centre to do anything to improve

16 conditions - I have no illusions on that score - but I would have some

17 other things to say with respect to the process of presenting within

18 frameworks of a Status Conference certain matters, so that we don't

19 adjourn before you give me a chance to say what I have to say.

20 JUDGE AGIUS: Certainly not, Mr. Seselj. As regards other

21 conditions of detention, do you have any remarks to make or any complaints

22 to raise? Apart from this allergy business.

23 THE ACCUSED: [Interpretation] Yes, yes. The head of the Detention

24 Unit, Timothy McFadden, is continuing to maltreat me. He refuses to

25 photocopy any of the documents. Even when I write a motion or submission

Page 405

1 on one or two pages, he does not allow this to be copied but says that I

2 have to write another submission for that to be permitted, which means

3 that I have to write two things double. And I said at the previous Status

4 Conference that in the intensive preparation of my Defence case I am

5 studying documents, literature and so on and so forth, and that I have

6 several hundred pages written out in handwriting, and I would have to send

7 a copy of those to the expert team helping me out in my defence, and I

8 wrote to the head of the detention centre to ask him to give permission

9 for that but he never responded.

10 So the most simple of technical matters for one to prepare one's

11 defence, that is photocopying, is not being allowed, whereas I am offered

12 a lap top, a computer. Give me the minimum of technical resources. Don't

13 offer me the state-of-the-art and cutting edge of technology. Give me the

14 minimum, the possibility to photocopy.

15 And second, the visit by my family at the beginning of the month I

16 prepared 1.000 pages of various court documents which are accessible to

17 the public. Previously, I presented documents that were not accessible to

18 the public and informed my expert team that they must not go public with

19 that material and they never violated that specification. Now the head of

20 the Detention Unit waited for five days until my visit passed. They

21 didn't give it to my family, and those documents were returned to me later

22 on. So I don't have basic cooperation, basic relations with my Defence

23 team. Previously I was able to present those documents quite normally to

24 them.

25 Let me also remind you that the head of the detention centre gave

Page 406

1 me a cynical answer. He said that I should get some indigo paper and

2 write it out in duplicate form. I think that that is against basic proper

3 conduct towards detainees as befits an international tribunal.

4 So that is something that has made it very difficult for me to

5 conduct my defence. And I demand that the Trial Chamber bring in a ruling

6 which would prevent this kind of treatment by the leader of the detention

7 centre towards me.

8 JUDGE AGIUS: I will -- Mr. Seselj. Mr. McFadden, the commandant

9 of the Detention Unit, has got rules that he needs to follow. I take it

10 that these rules do not impose on him the duty or the responsibility to

11 photocopy documents for the detainees over there. However, what -- and

12 if -- and if the situation is like that, I cannot just, because you have

13 raised the matter, order him to accommodate your requests for

14 photocopying. But I will cut and paste this part of the transcript, have

15 it communicated to him so that if he so wishes, he can reply to your

16 accusations. I also say that you are the -- seems the first and only

17 person amongst the detainees accused here that complained against

18 Mr. McFadden. But I will of course give him an opportunity to answer, if

19 he wants to answer. If he chooses not to, then I invite you to

20 incorporate your specific requests to either the Registrar or the Trial

21 Chamber. The Trial Chamber does not meddle or interfere with the various

22 jurisdictions. The Registrar has got his jurisdiction. The commandant

23 has got his own jurisdiction. We only interfere when the -- either there

24 is an abuse of that jurisdiction or there is a practice which is hampering

25 your right to a fair trial.

Page 407












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Page 408

1 Please, Madam Registrar, communicate this part of the transcript

2 to Mr. McFadden, inviting him to make his comments, if he so wishes,

3 within a week from today, within a week from today.

4 As I said with regard to pollen allergy, if we need to have

5 another special ad hoc Status Conference we will do that, but I need to

6 discuss with the other two Judges the content of the reports because we

7 have read it but we haven't conferenced about it.

8 Now, I understand that you also have other matters that you would

9 like to raise. Please go ahead.

10 THE ACCUSED: [Interpretation] I have a few more problems that I

11 wish to speak about. First of all, in the month of June, the secretary of

12 your Trial Chamber informed me that the Prosecution filed a request to

13 institute criminal proceedings against me due to contempt of court and

14 that the Trial Chamber rejected that request. It was confidential and

15 ex parte. However, I have to be informed about that. It cannot be that

16 confidential that I should not know of the reasons at all that led the

17 Prosecution to --

18 JUDGE AGIUS: Stop, stop, stop. Mr. Seselj, I will just tell you

19 you are not establishing the rules of the game. We do that. And if we

20 have decided that matter, you're no longer entitled to discuss it any

21 further. So next point.

22 THE ACCUSED: [Interpretation] In my opinion, I have the right to

23 know because it concerns me.

24 JUDGE AGIUS: We have decided that you don't have a right to know

25 more than we have told you, and that's the end of the discussion on this

Page 409

1 matter.

2 THE ACCUSED: [Interpretation] I stand in awe of your view.

3 Secondly, in June, the warden of the prison informed the OTP about

4 a telephone conversation of mine, and the OTP assessed that that can be a

5 reason for a new request to initiate proceedings for the crime of contempt

6 of court. On that basis, the Registrar banned all contacts for me for two

7 months, banning all contacts with my family, everyone. These two months

8 have gone by and these proceedings on account of contempt of court haven't

9 been initiated at all. How can that be possible? Such a decision is

10 passed, I prepare myself for a defence, there are no proceedings. Two

11 months have gone by and nothing doing. As if nothing happened. I come

12 from a legal system that has many deficiencies but that kind of thing is

13 impossible even there.

14 I request that the contempt proceedings be started because on

15 account of that I had contacts with my family and with everybody else

16 banned, forbidden. If these proceedings are not started, then I request

17 that proceedings be initiated against the warden of the Detention Unit and

18 the Registrar, Hans Holthuis, because if they do not prove that I

19 exhibited contempt of court, then I have concrete evidence to the effect

20 that they are abusing their positions in order to mistreat me.

21 Furthermore, on several occasions, I filed in writing submissions

22 to the Registrar, and I repeated that at previous Status Conferences,

23 namely that I be given copies of all the Judgements of the International

24 Criminal Tribunal for Rwanda in the Serbian language that the Prosecution

25 mentions in its pre-trial brief and all other documents pertaining to my

Page 410

1 case. Is that not my elementary right, to familiarise myself with case

2 law upon which the Prosecution bases its indictment? Once the Registry

3 tried to submit me a copy of one of these judgements in English. I

4 refused to accept it, and they stopped responding in any way.

5 Thirdly, I asked the Registry in writing to submit a text of the

6 Rules of Procedure and Evidence to me in its complete form, and I repeated

7 that several times. The Registry is simply silent on this. I do not have

8 the entire text of the Rules of Procedure and Evidence. During the course

9 of the past year, at least one amendment was not provided to me. I never

10 received Rule 11 bis within the amendments to the Rules.

11 Fourthly, the question of my legal advisors has not been resolved

12 yet as well as normal communications with the expert team that is there to

13 assist my defence. I do not have the right to privileged meetings with

14 them, that is to say, meetings that would not be supervised in any way,

15 and also I do not have the right to privileged telephone communications

16 with them. I've been in detention for two and a half years now, and all

17 other detainees have that right for this kind of telephone communications.

18 Fifthly, you will recall, Mr. Agius, that the -- since the

19 transcripts of Status Conferences and trials are not translated into the

20 Serbian language that I be given video recordings with the minutes marked

21 so that when I quote something, I can quote the exact minute when

22 something was said. I haven't received any video recordings yet. And

23 it's been four months now since the last Status Conference. Before they

24 did this as a matter of urgency. I would receive them within a week.

25 These are the problems that have to do with the payment of

Page 411

1 expenditures. The members of the expert team that assist my defence and

2 that work very intensively have already done a lot of work, and I owe them

3 a lot of money.

4 I have expressed my readiness when talking to members of the

5 Registry to finance part of my defence within my financial capabilities.

6 However, that which I cannot afford has to be financed by the Registry

7 because the Statute of the International Criminal Tribunal guarantees

8 certain resources for my defence. That is Article 21. Paragraph 4,

9 subparagraph (b) of the Statute of the International Criminal Tribunal.

10 The members of the expert team assisting my defence have

11 threatened to stop working if I do not pay them at least the money that's

12 already due, and there is a lot that's already due, and they have in mind

13 the billing hours that are in accordance with the rules of this Tribunal.

14 And finally, Mr. Agius, I have to tell you something that I

15 objected to during my initial appearance because Article 20 of the Statute

16 says that the accused enters his plea before a Trial Chamber, not a Judge.

17 Last time, it was before Judge Schomburg as an individual. So that was in

18 direct violation of the initial appearance.

19 I don't know when you're going to schedule the next initial

20 appearance but I have to warn you of the following: The entire amended

21 indictment will have to be read out. That is my right. I want it read

22 out in its entirety. And I demand that it not be on Tuesday, Wednesday,

23 Thursday or Friday next week because I have very strong personal reasons

24 for saying that, and you can find out what that is from the head of the

25 Detention Unit. It can be Monday but no other day next week. Then it

Page 412

1 would have to be some other week.

2 I will insist that Article 20 of the Statute be strictly observed

3 in this respect because I believe that the Rules of Procedure and Evidence

4 cannot modify in any way any explicit Article of the Statute.

5 That is all I have to say today.

6 JUDGE AGIUS: Again, Mr. Seselj, please stop trying to rewrite our

7 rules. The further initial appearance will be held as provided in our

8 rules and as it has always been held so far.

9 Let's take these issues one by one. You are, I suppose, if you

10 wish to only called upon to make comments, remarks, on the issue of no

11 contempt proceedings having followed the information that the accused

12 alleges he received from one of the security officers of the Detention

13 Unit. Do you wish to make a statement in the first place? Because if you

14 don't wish to make a statement of course I will not force you to.

15 MS. UERTZ-RETZLAFF: Yes, Your Honour, I can quickly advise you on

16 this. What the accused did in June 1995, he violated the communication

17 rules of the Detention Unit and following this, we therefore requested

18 that his communication privilege should be restricted, and this is simply

19 what happened. We did not file any -- did not intend to file any contempt

20 proceedings in this relation. That was not -- never discussed and never

21 considered.

22 JUDGE AGIUS: The other -- thank you, Madam.

23 The other aspect related to this matter that you raised,

24 Mr. Seselj, is that this is a matter that is regulated by the Registrar

25 and the commander of the Detention Unit and not by the Trial Chamber. So

Page 413

1 we will not interfere on that.

2 Now, the other question that you raised was the -- you expect the

3 Registrar of this Tribunal to make available to you all the decisions of

4 the Rwanda Tribunal, and I take it from what you said that you were only

5 handed one translation. We cannot, again, interfere with what the

6 Registrar considers to be his obligations. If you are not satisfied with

7 any decision that the Registrar may take in relation to this matter, you

8 are free to file a motion and then if we are entitled to examine the

9 discretion or the way that the Registrar has exercised his discretion, we

10 will do so. But we will not interfere with his decisions if his

11 discretion has been exercised in accordance with the Statute and the

12 rules.

13 The other matter that you raised is that according to you, you do

14 not have an updated, complete copy of the rules of evidence and procedure

15 or Rules of Procedure and Evidence, and specifically you mentioned that,

16 for example, you have not been given a copy in your own language of the

17 amendment to 11 bis -- of Rule 11 bis. The way we need to go about it is

18 for the Registrar to find out together with you, in cooperation with you,

19 because you have to cooperate in this, what you have missing, if anything

20 at all, and anything that is missing will be supplemented. But I cannot

21 tell the Registrar to print out the entire rules again for you, if he has

22 already given you a copy of the rules as you indicated he had done

23 sometime back.

24 But again, Madam Registrar, please, do communicate to the

25 Registrar the Pre-Trial Judge recommendation that in consultation and in

Page 414












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Page 415

1 cooperation with the accused, they find out what is missing and make sure

2 that he has got an entire -- a complete copy of the rules in his own

3 language.

4 The question of legal advisor and expert teams, and I will combine

5 with it the question of payment to these so-called legal advisors and

6 so-called expert teams. As I said, for the time being this is not the

7 problem of the Trial Chamber or of the Pre-Trial Judge, Mr. Seselj. This

8 is a matter that you have to sort out with the Registrar. The origin of

9 the problem is, and seems to remain, the fact that you have not come

10 forward, first, that you have decided to defend yourself, which is your

11 right, and no one will interfere with that. And secondly, that you have

12 not come forward with names that the Registrar was prepared to accept. I

13 think this matter has to be sorted out between you and the Registrar, and

14 I have no reason to interfere at this present moment in time, unless I

15 have more information and indication that the Registrar is being

16 unreasonable. I have no reason for the time being to even suspect that.

17 Videos. I take it that it's only the last -- the video of the

18 last Status Conference that has not been given to you, if I understood you

19 well. In any case, even if I have not understood Mr. Seselj well, any

20 videos of Status Conferences that have not been supplied to him with a

21 time record to make it possible later on for immediate reference, need to

22 be given to him by the end of this week, at the latest.

23 Did you hear, Madam Registrar? You will communicate this to

24 Mr. Holthuis.

25 Yes, the only other remaining thing is that the accused has

Page 416

1 indicated his desire that the further initial appearance, the entire

2 modified amended indictment be read out. That's his right. And so,

3 please make the necessary preparations because it's a lengthy indictment.

4 Make necessary preparations to have the room available for the -- the

5 courtroom available for the entire time needed.

6 I think we have dealt with everything that we needed to deal with.

7 And I can bring the Status Conference to an end.

8 MS. UERTZ-RETZLAFF: Your Honour?

9 JUDGE AGIUS: Yes, please go ahead.

10 MS. UERTZ-RETZLAFF: I would like to raise two points. The first

11 is in relation to the reports filed by the Registrar on 5th of September,

12 2005. The Prosecution did not receive two of the reports, two of the

13 reports dealing with the medical situation of the accused were filed

14 ex parte, and we think that medical concerns of the accused should be

15 known to the Prosecutor. Therefore, we would actually request to get

16 copies of these ex parte filings. And we don't really know why it were --

17 why they were filed ex parte.

18 JUDGE AGIUS: Do you wish to comment on that, Mr. Seselj, or not?

19 I think it's in your interests -- I think it would be in your own

20 interests actually to have -- but anyway, let me listen to what you have

21 to say on this.

22 THE ACCUSED: [Interpretation] I'm against that. No document that

23 has to do with my health should be marked as ex parte or confidential.

24 All documents pertaining to my health should be absolutely public. There

25 is nothing I have to hide.

Page 417

1 Mr. Agius, I have another objection. Perhaps it's a problem of

2 interpretation or translation but I cannot believe that this was your

3 interpretation. I did not say that I wanted to have a look at all the

4 judgements of the Rwanda Tribunal, only those that the Prosecutor mentions

5 in his pre-trial brief and other documents that have to do with my case.

6 Secondly, I did not say that I received one translation. I did

7 not receive a single translation. They tried to hand over to me a

8 judgement in English but nothing was translated. Without that, it is

9 impossible for me to carry out my defence. That is the only legal

10 precedent that the Prosecutor has in mind when working on an indictment

11 against me.

12 How can I prepare my defence without looking at the judgements

13 that they invoke?

14 Thirdly, you keep talking about this registry as if they were a

15 special court instance. And they are not. They are there to assist the

16 Trial Chambers and the accused. They are simply a professional service.

17 They are not a court instance. If you allow the Registry to be a court

18 instance that is going to impede my defence, all right, but I shall bear

19 that in mind while preparing my defence.

20 JUDGE AGIUS: Thank you, Mr. Seselj.

21 The rules and the Statute provide for a remedy for everything that

22 you may be unhappy with.

23 As regards your -- the matter that you raise, it seems that the

24 accused agrees with you that you should have a copy of those documents

25 that have been filed ex parte, and we will discuss this with -- amongst

Page 418

1 ourselves, the three Judges, because it's a decision that needs to be

2 taken collectively but these documents are not to be made available to the

3 Prosecution before we say so, Madam Registrar.

4 Yes, I take it that there is another matter to raise?

5 MS. UERTZ-RETZLAFF: Yes, there is another point. The Prosecution

6 would like to draw the attention of the Trial Chamber to the accused's

7 submissions, number 104 and number 103.

8 JUDGE AGIUS: One moment. Let me just --

9 MS. UERTZ-RETZLAFF: The submissions are called submission of

10 Dr. Vojislav Seselj informing the Prosecution Pursuant Rule 67 of the

11 Rules of Procedure and Evidence of his intent to offer special defence.

12 JUDGE AGIUS: When is the date of the filing, please?

13 MS. UERTZ-RETZLAFF: The date of the filing is 8 September 2005.

14 JUDGE AGIUS: Yes, yes.

15 MS. UERTZ-RETZLAFF: And it's similar motions. And when we read

16 the submissions, what we found is actually both are basically

17 unsubstantiated and insulting allegations against particular Prosecution

18 witnesses. In one submission, that's number 104, it's Dr. Stankovic, an

19 expert witness. And in relation to submission 103, it's Mr. Milan Babic,

20 another Prosecution witness.

21 The Prosecution is aware that those filings are made public on

22 press conferences by the so-called expert team, or the SRS party, and I

23 think that should be noted by the Trial Chamber because the only reason

24 for doing this is -- in the opinion of the Prosecution -- to actually

25 scare the witnesses and avoid to cooperate with the Prosecution. There is

Page 419

1 no other reason to slander them in public.

2 JUDGE AGIUS: Yes. But Madam, if this is the position you take,

3 you also have a remedy. If you strongly believe that this is the case,

4 you have a remedy, and if you seek this remedy from the Trial Chamber, the

5 Trial Chamber will tell you whether it is the case of agreeing with you or

6 not. But you can't just -- just as I don't allow Mr. Seselj to throw

7 allegations like that and expect to get a remedy instead of through the

8 usual and formal way, informally, the same goes for you. If you think

9 that there is malice behind these two motions, then you -- no one is going

10 to stop you from seeking a remedy. But I will not give you a remedy

11 simply because you have raised this matter here and now during the Status

12 Conference, without actually formalising it and asking for re-remedy that

13 would be contemplated under the rules. So feel free to do that, just as I

14 tell Mr. Seselj to feel free to file motions if -- the other thing I

15 wanted to mention, now that you ever mentioned these two motions, 103

16 and 104 is that they were mistakenly filed before Trial Chamber III.

17 MS. UERTZ-RETZLAFF: Yes, Your Honour.

18 JUDGE AGIUS: That's a mistake that Mr. Seselj did but we are

19 basically ignoring that, rectified it and considered them as having been

20 filed before Trial Chamber II.

21 MS. UERTZ-RETZLAFF: Yes, we saw that too.

22 JUDGE AGIUS: I'm not sending it back to him to say file it again

23 before Trial Chamber II. We have taken them as having been filed before

24 Trial Chamber II. Anything else?

25 MS. UERTZ-RETZLAFF: No, thank you, Your Honour

Page 420

1 JUDGE AGIUS: All right. That brings me to -- yes, Mr. Seselj?

2 You don't need to answer on this because I said that I will not

3 consider it --

4 THE INTERPRETER: The interpreters cannot hear the speaker.

5 THE ACCUSED: [Interpretation] The proceedings make it incumbent

6 upon me to respond to everything that the Prosecutor says here regardless

7 of how you treat --

8 JUDGE AGIUS: Again, Mr. Seselj, you will not dictate to the Trial

9 Chamber or to me what the procedure to be followed is. I will not allow

10 you to respond because I already told the prosecuting officer that I will

11 not take consideration of her complaint unless and until it is duly

12 incorporated in a motion which will then give you the opportunity to

13 respond, but that's the end of the discussions for today.

14 The Status Conference is adjourned.

15 --- Whereupon the Status Conference adjourned at

16 3.41 p.m.