Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1312

 1                           Wednesday, 11 March 2009

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused not present]

 5                           --- Upon commencing at 2.19 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone.

 7             Madam Registrar, would you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  This is the case

 9     number IT-03-69-PT, The Prosecutor versus Jovica Stanisic and Franko

10     Simatovic.

11             JUDGE ORIE:  Thank you, Madam Registrar.

12             May I have the appearances.  Prosecution first.

13             MS. BREHMEIR-METZ:  For the Prosecution, trial attorney Doris

14     Brehmeir-Metz.  The senior trial attorney on the case, Dermot Groome,

15     offers his apologies to the Court for not being here today.  He has to be

16     in a session in Courtroom II, where is he on trial in the Lukic and Lukic

17     case and has asked me to act on his behalf.  With me, our Legal Officer

18     Klaus Hoffman; Case Manager Thomas Laugel; and, in the back, Legal Intern

19     Birte Brodkorb.

20             JUDGE ORIE:  Thank you, Madam Brehmeir-Metz.  Mr. Groome is

21     excused.

22             Could I have the appearances for the Defence.

23             MR. KNOOPS:  Your Honours, I'm Geert-Jan Knoops, lead counsel for

24     Mr. Stanisic; escorted by Co-Counsel, Mr. Wayne Jordash; and our two

25     legal assistants, Ms. Amy Walsh and Ms. Anne-Marie Verwiel.  Thank you.

Page 1313

 1             JUDGE ORIE:  And for Mr. Simatovic.

 2             MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honours.

 3     I'm Attorney-at-Law Zoran Jovanovic, and Ms. Ingrid Morgan, Legal

 4     Assistant, is appearing with me today on behalf of our client.

 5             JUDGE ORIE:  Thank you, Mr. Jovanovic.

 6             You may see that the Status Conference that the whole Bench is

 7     there, and I feel more comfortable to be assisted by those colleagues who

 8     are already familiar with the case.  And apart from that, I think it is

 9     good to work together as much as possible.

10             The last Status Conference was on the 12th of November, and I

11     would first like to establish that the -- both accused are on provisional

12     release and have given their written consent to proceed in their absence.

13     I put this on the record.

14             And since it's not in any way challenged, I'd like to continue

15     that the last Status Conference was held on 12th of November, and since

16     Status Conferences have to be held every 120 days we have scheduled a

17     Status Conference for today.  I'm, for the first time, with you in this

18     case in its new -- in the new Chamber's composition.

19             Counsel have received kind of a short agenda.  Is that correct,

20     Mr. Jovanovic, Mr. Knoops?  We'll then follow that agenda.

21             But I would like to start with the following.  The -- I have been

22     informed, of course, about the -- through the filings that have been made

23     recently have been made, and we'll pay further attention to that soon, we

24     have been informed about the development in the medical situation of

25     Mr. Stanisic.

Page 1314

 1             Is there anything you would like to add to what has been already

 2     filed so that we have the full factual basis for any further discussion

 3     we may have this afternoon?

 4             MR. KNOOPS:  Your Honour, although not being a medical expert, of

 5     course, our experience until so far with the accused has been consistent

 6     with the medical filings as of the provisional release.

 7             JUDGE ORIE:  Yes, I was not seeking that kind of information,

 8     Mr. Knoops.  What I was seeking is whether anything came in, new reports,

 9     et cetera, what your evaluation of it is and whether you -- your

10     observations are in line with -- is a different matter.

11             MR. KNOOPS:  I understand.

12             JUDGE ORIE:  And I just want to have the full factual basis that

13     we didn't miss anything, if you, for example, would know as I know

14     meanwhile that one of the reports we asked for will arrive a bit later,

15     that's the kind of information I'm seeking.

16             Mr. Jovanovic, anything you would like to add?

17             MR. JOVANOVIC: [Interpretation] No, thank you, Your Honours.

18             JUDGE ORIE:  I'm addressing you, and I should have more properly

19     formulated my question, because we are dealing with the filings in

20     relation to Mr. Stanisic and what, of course, I wanted to ask you but did

21     not clearly do, whether there's any information in relation to

22     Mr. Simatovic, which -- of which the Chamber should be aware of.

23             MR. JOVANOVIC: [Interpretation] No, Your Honours.  Mr. Simatovic

24     is fully abiding by the conditions of his provisional release, and the

25     Court is informed about it regularly by the competent organs of the

Page 1315

 1     Republic of Serbia.  His health condition is good and he is working on

 2     his case together with his Defence counsel.  Thank you.

 3             JUDGE ORIE:  Thank you for that.

 4             We'll then move on on the now established factual basis, and I

 5     would like to start with the decision by this Chamber then still in a

 6     different composition 17th of December 2008.  In that decision, the

 7     adjournment of proceeding was prolonged beyond the original adjournment

 8     which was ordered on the 20th of May, 2008.

 9             The registry was then instructed to contact the two independent

10     court experts, Dr. de Man, who is a psychiatrist, and Dr. Siersema, who

11     is a gastroenterologist, to facilitate obtaining further reports, to be

12     provided no later than three months from the date of this decision.

13     These reports - and they have not been filed yet - are due no later than

14     Tuesday, the 17th of March, and the Chamber will review upon receipt of

15     these reports, the health condition of the accused Stanisic, for any

16     appropriate further order.

17             I already can inform you that Dr. Siersema, as I said before, has

18     asked for a short delay, and he intends to file his report on the 23rd of

19     March which is one week late.  Since we have this report not available

20     for us today, I don't think that it should cause a major obstacle to have

21     this filed one week later.

22             Is there any of the parties that would like to make any comment

23     on this?

24             MS. BREHMEIR-METZ:  No comments, Your Honour.

25             JUDGE ORIE:  Thank you.

Page 1316

 1             Further, in this decision of the 17th of December, the Chamber

 2     has ordered that Dr. Tarabar and Dr. Bucan, who are the treating

 3     gastroenterologists and the neuropsychiatrist, would continue to report

 4     to the Chamber at the end -- on a monthly basis at the end of each

 5     calendar month, and the reports to be received by the 9th of the next

 6     month, of the following month.

 7             Further, Dr. Tarabar was required to notify the Chamber of any

 8     hospitalisation for treatment, and the date of discharge, if he would

 9     have been discharged from hospital, and that information should be sent

10     without delay.

11             The Chamber observes at this moment that it seems that -- that

12     there is no future compliance with respect to this order.  Dr. Tarabar

13     was late with his report, and since these reports have to be translated

14     as well, that is of some concern to the Chamber.  Further, we have not

15     received any report from Dr. Bucan, although reference is made sometimes

16     in Dr. Tarabar's reports about the area of expertise and area of

17     treatment of Dr. Bucan.  Of course, the Chamber expected to receive

18     reports from both, but we will further -- we'll further see whether we

19     have to give more clear instructions on that.

20             So, therefore, any further orders or measures will be considered

21     by the Chamber.

22             Is there anything the party would say like to submit in relation

23     to the reporting schedule and the reporting as it has taken place until

24     now?

25             Ms. Brehmeir.

Page 1317

 1             MS. BREHMEIR-METZ:  I apologise.

 2             All I wanted to comment in this respect is that the motion the

 3     Prosecution has announced as being planned to be filed would deal with

 4     these matters as well.  That had been our intention.

 5             JUDGE ORIE:  Yes.  And asked already for permission to exceed the

 6     length of your submission.

 7             I'll first ask the Defence whether they have any submissions and

 8     are ready to, perhaps, briefly respond to the extent possible to the

 9     application for exceeding the length of the motion.

10             Mr. Knoops.

11             MR. KNOOPS:  Thank you, Your Honour.  Of course, it's, I believe,

12     not a matter for the Defence to interfere with the reporting system of

13     the Military Academy.  But it's just an observation from the bar table

14     that the disposition of the Chamber of the 17th of December,

15     paragraph 38, section D, orders Dr. Tarabar or in his absence

16     Dr. Pecelj-Brocic and Dr. Bucan to continue to report.  It doesn't say as

17     such that they should separately report to the Chamber, and I noticed in

18     the last report Dr. Tarabar filed of the 13th February of this year,

19     reference is made to Dr. Bucan and his dealings with the patient.

20     Although, I may admit that the report has not been signed by Dr. Bucan.

21             So, I'm not sure, but that could have caused some kind of an

22     unclarity for the two respective experts.

23             JUDGE ORIE:  Yes.  But it seems to me -- let's not make a drama

24     out of it, but that word "and" is sufficiently clear in the disposition

25     under number -- paragraph 38, under D, and, of course, it's like asking a

Page 1318

 1     lawyer on tax matters to report on criminal matters.  I think we have two

 2     experts.  They have reported.  They're invited to report, so I would very

 3     much encourage and we'll see how to achieve that.  That we get the

 4     reports from those who have seen the patient, have examined the patient

 5     in this respect, and have -- have the sufficient expertise to report on

 6     that.

 7             Thank you for this.

 8             And what about the -- the request by Ms. Brehmeir-Metz for

 9     exceeding the length of the usual 3.000 words.

10             MR. JORDASH:  Clearly the issues are complex.  On the other hand,

11     we have had lengthy submissions and lengthy written motions on the

12     subject.  The issues have become quite clear.  We're waiting on the

13     latest reports, and we would submit brevity perhaps is something which

14     would assist at this stage, given the length of the present proceedings.

15             JUDGE ORIE:  Yes.  Mr. Jordash, I think we still have to get used

16     to each other.  There is no clear "I object" or "I do not object."  You

17     are urging the Prosecution to be as brief as possible, in view of what we

18     still expect.  So therefore you do not oppose clearly and say, No,

19     Ms. Brehmeir, you should stay within your 3 .000 words.

20             MR. JORDASH:  We don't oppose but we --

21             JUDGE ORIE:  Yes. [Overlapping speakers] ...  You do not oppose,

22     but you urge for brevity rather than spending unnecessary words.

23             MR. JORDASH:  Well, we do seem to be going, to a degree, around

24     in circles.  The issues have become narrower, and we would submit they

25     can be dealt with narrowly.

Page 1319

 1             JUDGE ORIE:  Yes.

 2             Ms. Brehmeir-Metz, no objection.

 3             Mr. Jovanovic, I take it that you -- your client is not affected

 4     by the motion we expect from Ms. Brehmeir-Metz.  Nevertheless, if would

 5     you like to say something about it, you're free to do.

 6             MR. JOVANOVIC: [Interpretation] Thank you, Your Honours.

 7             We have no comment as far as the part of the submission which we

 8     referred to the health condition of the Jovica Stanisic is concerned, but

 9     from this announcement of the OTP regarding this future filing, the

10     question arises how far it will also refer to the accused Franko

11     Simatovic and the possibility of continuing the trial, because I think

12     that it is a bit unusual to ask in advance for exceeding the number of

13     words without knowing in advance how much of it will be devoted to the

14     health condition of the accused Jovica Stanisic, and how much to the

15     possibility of the continuous of this trial, including that of the

16     accused Mr. Simatovic.

17             The OTP could file two motions.  First of all, presenting it's

18     position on the accused Jovica Stanisic, and finally, when we have a

19     clear position about the OTP and the Trial Chamber on that particular

20     issue, possibly only after that we could discuss the possibilities of the

21     further continuation of the trial.

22             Thank you.

23             JUDGE ORIE:  Yes.  I take it the Office of the Prosecution has

24     chosen to file a submission in which the two matters are dealt with.

25     That is, what is the present medical situation; what does this mean in

Page 1320

 1     legal terms; and how are we going to proceed.

 2             Is that, in short, what you want to file?

 3             MS. BREHMEIR-METZ:  That is, in short, the gist of the motion and

 4     it is going affect the accused Franko Simatovic in the general terms that

 5     whatever affects the health status of Mr. Stanisic and the consequences

 6     to be drawn from that, for the further progress of the trial is, of

 7     course, also going to affect Mr. Simatovic.  But it is it in -- in its

 8     gist it is going deal with Mr. Stanisic.

 9             JUDGE ORIE:  Yes.  Of course, there's some uncertainty at this

10     moment about the medical reports.  May I take it, Ms. Brehmeir, that

11     you'll wait until we have received the medical reports because otherwise

12     we need a second filing, I take it, to update the Chamber, or do you --

13     are you not going to wait?  Where you're expected to have to wait until

14     the 17th, now you'll even have to wait until the 23rd.

15             MS. BREHMEIR-METZ:  Our initial plan, Your Honours, had been to

16     file this motion regardless of the income of the court-appointed experts

17     prior to the 17th because there is a lot of subject matters that need to

18     be dealt that are not touched upon or are not going to be touched upon by

19     the court-appointed experts.  We were considering the possibility of then

20     filing a brief addendum dealing with the court-appointed experts' reports

21     only, but I am, of course, happy to hear Your Honours' guidance on that

22     and follow Your Honours' guidance.  It is not a problem for the

23     Prosecution to wait with the filing until the court-appointed experts

24     have actually come in and can be covered by that motion as well.

25                           [Trial Chamber confers]

Page 1321

 1             JUDGE ORIE:  Any further submissions in relation to what

 2     Ms. Brehmeir told us?

 3             Mr. Knoops.

 4             MR. KNOOPS:  Your Honour, we have observed that the announcement

 5     of the Prosecution for permission to exceed word limit was also based on

 6     the premise that we are facing a new chamber, and the Prosecution, in its

 7     motion for permission to exceed the word limit, also refers to the fact

 8     that it would helpful to the new chamber to get a medical update of the

 9     existing medical evidence.

10             So it's our submission that if it's the intention of the

11     Prosecution to actually summarise what has been dealt with in the past,

12     in terms of fitness or unfitness, such a motion seems to us quite

13     superfluous with all due respect, and we would encourage also in view of

14     the judicial economy that the Prosecution would file the motion after the

15     court-appointed experts have submitted their reports.  It seems to us

16     more practical because in no way you can, I think, ignore the reports

17     which are due to be filed in March.  There will be submissions on the

18     basis of these reports in any event I believe.

19             So, in our view it would be simply more practicable that if the

20     Chamber agrees and also the Prosecution to await those reports.  And,

21     again, I believe that filing a motion to update a new chamber is not

22     exactly the way to file a motion.  The Chamber has access to all medical

23     materials from the past so that we don't believe this is a reason to file

24     a separate motion from the perspective of the Prosecution.

25             JUDGE ORIE:  Mr. Jovanovic, anything to add?

Page 1322

 1             MR. JOVANOVIC: [Interpretation] Thank you, Your Honours.

 2             In the light of the position of the OTP, to the effect that every

 3     future decision regarding the accused Jovica Stanisic certainly produce

 4     an effect and have consequences also on the accused Simatovic.  It is --

 5     leads me to the position that it is not actually expedient to this

 6     because the health condition of the accused Stanisic before the

 7     court-appointed experts' reports arrive.  This will certainly be a fact

 8     that the Trial Chamber will have to consider in handing down its ruling.

 9             I believe that that will be the expedient way to proceed.

10             JUDGE ORIE:  Thank you, Mr. Jovanovic.

11             Ms. Brehmeir-Metz, it even had not come to my mind that you want

12     to be repetitious in that motion and to summarise; all the material is

13     available to the Chamber, all the discussions about this are available to

14     the Chamber as well.  So the Chamber would certainly not appreciate, but,

15     again, it had not yet come to my mind that you would intend to do that.

16             The Chamber would certainly not appreciate if we start

17     summarising the past.  That's one.

18             The Chamber, you asked for guidance.  The Chamber would like you

19     to you file such a motion after we've received the reports from the

20     court-appointed experts, and the Chamber does not urge you, as suggested

21     by Mr. Jovanovic, to split up the medical part and the procedural

22     consequences.  If you'd like to deal with them as, more or less, as a

23     summarised before, that is okay as far as the Chamber is concerned.

24             Anything else to be said about this subject?

25             Then I'd like to move to the next topic, which is pending

Page 1323

 1     motions.

 2             There are several decisions pending on motions which concern

 3     subject matters that are best left to the Chamber, which will conduct the

 4     trial.  It was at the 12th of November of last year's Status Conference

 5     that Judge Robinson identified these as being the motions brought under

 6     Rules 92 bis, 92 ter, and 92 quater as well as motions for protective

 7     measures, motions for testimony by way of video-conference link, or

 8     motions concerning submission of expert witness reports, and a motion for

 9     judicial notice of adjudicated facts.

10             As far as adjudicated facts are concerned, there has since the

11     last Status Conference, there has been a second Prosecution motion filed

12     the 12th of December, 2008, and the Stanisic Defence filed a request for

13     an extension of time; and the Simatovic Defence has filed its response to

14     second Prosecution motion for judicial notice.  I think the last one was

15     about the -- the facts taken from -- the 213 facts taken from the Martic

16     trial.

17             The Chamber considers that it would be useful to make progress in

18     this respect.  The Chamber can't force you to agree on certain matters.

19     However, adjudicated facts, of course, are to this extent, different,

20     that it's not agreement an anything.  It's just -- and that's what I

21     expected the party would do, to comment on the admissibility of these

22     facts as adjudicated facts.

23             Now to some extent at least the Simatovic Defence has done so.

24     At the same time, I must admit that I do not fully understand, for

25     example, facts where apparently you that judicial notice will be taken by

Page 1324

 1     this Chamber of adjudicated facts, where I really have great difficulties

 2     to understand where the problem might lie.

 3             I just give one example.  The -- for example the Cerovljani,

 4     Dubica, and Bacin proposed facts number 190, reads:

 5             "Krcine is on the outskirts of Bacin and less than a ten-minute

 6     walk from the Catholic church in Bacin."

 7             Now this has been -- I should say that it's number 98 on the list

 8     and it's dealt with in paragraph 190 in the Martic judgement.  I have

 9     great difficulties to understand for what reason a party would oppose

10     this adjudicated fact.

11             Mr. Jovanovic could be help me out to understand what made you

12     oppose against everything.

13             MR. JOVANOVIC: [Interpretation] Your Honour, the Defence has

14     formulated its position in both of our responses to the Prosecution's

15     motions.  It is our general position that regardless of the fact, even

16     though previously the Defence said that it will reconsider this issue, we

17     see it as an ongoing matter.

18             JUDGE ORIE:  [Previous translation continues] ... has the Chamber

19     been informed about any reconsideration and in the -- one of the latest

20     filings by the Prosecution, it was said that despite the offer to

21     reconsider, nothing has happened in the field of adjudicated facts and I,

22     on the 17th of November, it was clear that everyone said we will

23     reconsider.  If you reconsider something that either results in

24     something, in which case, of course, Ms. Brehmeir-Metz would like to know

25     and she says nothing.  Or would you inform the Chamber or you would tell

Page 1325

 1     that reconsideration has not brought anything.  And, therefore, I'm just

 2     asking you now, I take one example - I could take many others -  what --

 3     is Krcine not on the outskirts of Bacin, is it more than a ten-minute

 4     walk from the Catholic church, or is there no Catholic church in Bacin?

 5             What's the use of not making progress in this respect?  Again, if

 6     there is a serious challenge to this fact, apart from how important that

 7     will be in this case, then please tell me what caused you to, among other

 8     things, oppose this as well?

 9             MR. JOVANOVIC: [Interpretation] Your Honours, if you want me to

10     be quite specific about this very fact that you quoted, this is part of

11     the position as presented by the Defence, simply speaking these are facts

12     that have been taken out of context, in our view.  Each such fact was

13     contained in a more general description in one of the locations from the

14     crime base.  It is the position of Defence that by accepting these fact,

15     we will put ourselves in the position where we will be prejudiced.  Our

16     situation will be more difficult during the trial when it comes to

17     establishing the facts about, say, the village of Bacin.  And by doing

18     so, by accepting this fact, we would give advantage to the Prosecution,

19     which --

20             JUDGE ORIE:  [Previous translation continues] ... accepting this

21     fact I think.  What you are -- what you are requested to do is to tell us

22     whether this fact, which was adjudicated, whether it would be permissible

23     to take judicial notice of it.  There is - as the case law is clear -

24     that if you want to challenge these facts, please do so.  No problem.

25     You can do it.  But, of course, then have you to come up with something

Page 1326

 1     serious.  That is if on an evaluation of evidence which was not further

 2     challenged and which is final, if a Trial Chamber has established a

 3     certain fact, then that fact, again, can be taken judicial notice of if

 4     all the requirements of the case law and the rule on adjudicated facts

 5     are met.

 6             Now, what you say it was bring us in a bad position.  It's crime

 7     base and we would admit that these facts have occurred.  What actually

 8     happens is the following:  That you give a sweeping statement or crime

 9     base taken out of context, et cetera, not acceptable, which gives the

10     Chamber no guidance.  If you would say, Look at those five, look at what

11     they say there, we are not -- we are opposing against taking judicial

12     notice of this, because we have good reasons A, B, C, and D to say that

13     these five are not correct.  That it was a misappreciation, that the

14     evidence which we are able to bring before this chamber will certainly

15     undermine the evidence that was before the other chamber.  We will make a

16     serious effort.  Then we know what we are talking about, but to say, 231,

17     all crime base.  No.  It's -- that is not the best way of drawing the

18     attention of this Chamber to the real issues.  And if you say, All the

19     crime base is the issue, it's all taken out of context, then, of course,

20     we'd like to know what the proper context is.

21             You're not saying the facts are wrong, apparently.  You're saying

22     it's taken out of context.  Then please present the right context to us

23     and give an indication as what that context, the proper context would be.

24             We are talking about small facts, and the Chamber would like to

25     know to what extent there are serious objections against taking judicial

Page 1327

 1     notice of them.

 2             That's the issue, in my view, and, therefore, just a --

 3     everything out position, I think at an earlier stage there were 33 that

 4     were not opposed.  I think the case law of this Tribunal gives clear

 5     guidance on what kind of objection against proposed adjudicated facts is

 6     taken seriously, and if you just say, We oppose everything, that

 7     certainly will not focus the attention of the Chamber on what the real

 8     issues will be.

 9             Mr. Jovanovic, that's my brief comment at this moment and, of

10     course, it's meant to be an encouragement to -- to further look at it.

11             Do you have anything you'd like to bring to my attention in

12     respect of these matters or if there's any question, if you would like to

13     seek any further guidance, then ... so it's clear what the Chamber would

14     expect more or less, what would -- what kind of debate we would have

15     between the parties on this matter.

16             MR. JOVANOVIC: [Interpretation] No thank you, Your Honours.  I

17     don't need further guidance.

18             As I have said earlier, in our direct contact with the

19     Prosecution, we have announced the possibility of reconsideration of

20     adjudicated facts after the Martic judgement.  We made no promises to the

21     Prosecution that we would accept in, and later on we presented our

22     position formally in writing.  Nevertheless, we will accept your

23     suggestion, and despite the fact that the Prosecution submitted a motion

24     for facts to be accepted and even though we gave two responses to the OTP

25     motion, we still believe that it is possible for us to have direct

Page 1328

 1     contacts with the Prosecution and to further clarify this matter.

 2             Thank you.

 3             JUDGE ORIE:  Yes.  I encourage you to have further contacts with

 4     the Prosecution on the matter.

 5             I'm paying so much attention to this because this is one of the

 6     few areas where we could make progress.  There are a few others which are

 7     suffering a bit from -- from a kind of paralysis.

 8             Mr. Knoops, what I just said to Mr. Jovanovic, of course, would

 9     be for the further conversations.  Any further positions to be taken

10     would be relevant for the Stanisic Defence as well because on the 17th of

11     November I think you also said that you would further -- you would

12     perhaps reconsider some of the submissions.

13             MR. JORDASH:  Your Honour, we find ourselves in difficulty in

14     this way.  That, as Your Honours and as you -- you know, our client is

15     suffering from severe illnesses.  We have a client who once upon a time

16     was able to give us clear and forceful instructions.  And we have a

17     client who we know, if he was in a fit state, would wish to do so on this

18     matter.  We also have a client who, if and when he becomes well again, we

19     know will be unhappy if he has not had the opportunity to contribute to

20     this important discussion, especially as it relates to important issues

21     such as the -- if I may call it the Martic crime base.

22             So we are in that difficulty in terms of practical consideration

23     to our client.  We also consider ourselves in some difficulty ethically

24     in that we are assigned to him, and we would wish to act on his

25     instructions, especially when it comes to evidential matters, and we

Page 1329

 1     regard that assignment in the sense that first and foremost we look to

 2     him for our instructions.  We, of course, secondarily or perhaps equally

 3     look to assist the Court.  But our first focus as assigned is to look to

 4     Mr. Stanisic.

 5             In addition to that, the second complication is that we do keep

 6     getting from the Prosecution motions adding significant pieces of

 7     evidence.  So it's not that we can look back at the instructions we once

 8     had from Mr. Stanisic and say, Well, we got sufficient to go with those

 9     instructions, because we cannot have that confidence when we are being

10     served with, well, certainly the Prosecution are attempting to add --

11     well, on the 20th of January 83 documents.  A considerable significance.

12     So we -- these are our difficulties, and whilst we, of course, want to

13     assist the expeditious and fair progress of the trial, we would ask for a

14     degree of sympathy when it comes to issues which, whilst not binding us,

15     we know our client will be unhappy with any, if you like, concession even

16     those which are not bound -- we are not bound by ultimately.  He is, in

17     our respectful submission, the real expert in our case, and we cannot

18     rely upon him at the time.

19             JUDGE ORIE:  Perhaps adjudicated facts is one of the best

20     examples to demonstrate that the case law on it is of a very technical

21     nature.

22             Well, I do not whether you are waiting for Mr. Stanisic's

23     comments in the legal/technical sense.  I would say on many other

24     subjects and apart from sympathy, all Defence counsel have our sympathy.

25     That is -- but, of course, you asked for it in a specific context,

Page 1330

 1     Mr. Jordash.

 2             This is, I would say, prima facie, the area where the evaluation

 3     of the evidence.  You have access to the files, to the context of the

 4     judgement, you can check whether the matter has been raised on appeal,

 5     yes or no.  You can check all these kind of things where, if you do not

 6     get detailed instructions in that respect, I would say that would be far

 7     more vital in many other respects where I have -- which I have not

 8     addressed at this moment.

 9             MR. JORDASH:  [Microphone not activated] We can look and look at

10     the threshold legal tests, but in terms of whether the facts are

11     something which we will seek to oppose or seek to, if you like,

12     re-establish during our case, we are to a degree dependent on the case

13     we're going to run.

14             JUDGE ORIE:  But that has got nothing to do with taking judicial

15     notice of the agreed facts -- of facts which were established by another

16     Trial Chamber.  Because still if you think - and I think I explained to

17     Mr. Jovanovic before - if you think that establishing these facts was a

18     clear mistake, they didn't have the evidence, they evaluated the evidence

19     in a wrong way, of course, it takes a bit more to challenge adjudicated

20     facts than just facts that you consider not to be proven or not to be

21     fully proven by the Prosecution because it has been already subject of

22     extensive litigation often or -- and a lot of facts are excluded if they

23     are just agreed upon and not established by the Chamber on the base of

24     the evidence.  There aren't any -- I mean, the case law is quite clear on

25     that.  And, therefore, if at a certain moment you would say -- well,

Page 1331

 1     first of all, there may be many, I just gave one.  I don't know whether

 2     you've consider it's more than a ten-minutes walk from Bacin, but I would

 3     be surprised if that would be become the issue in this case.

 4             MR. JORDASH:  It's as I sought to argue, it is the issue, one

 5     that the accused has information which would assist us with making these

 6     decisions, but it is also the additional ethical element of not wanting

 7     to consider these issues without our client, who provides us with

 8     instructions.  I understand what Your Honour is saying in terms of the

 9     legal significance of adjudicated facts, but nevertheless this is

10     something we would have ordinarily have wished to sit down with our

11     client and discuss, and he would have taken a full role in it as he did

12     until his illness prevented him.

13             And so we, of course, want to assist, but at the same time - and

14     this is why I used the word "sympathy" - because this is an ethical

15     consideration as well, which isn't something which necessarily lends

16     itself to tangible explanation.  We feel ethically obliged to have him

17     well before making decisions which he would wish to participate in.

18             JUDGE ORIE:  Of course, there are two elements in this.  The

19     first is that you - and I fully understand that - want to give proper and

20     full attention to what your client tell you -- tells you.  At the same

21     time, at this moment, the procedural situation is that no unfitness to

22     stand trial or unfitness to give instruction has been established.  That

23     may be different once we have received the other reports.

24             But, of course, on the basis of the decisions taken by the

25     Chamber until now, there's no good reason to accept that the illness

Page 1332

 1     prevents him from giving instructions.  I do understand that you have not

 2     received instructions, that you have your own opinion about the reasons

 3     for that.  I certainly take it that we'll pay further attention it to

 4     once we have received the other reports.  But that is the procedural

 5     situation we find ourselves in at this moment.

 6             Yes, Mr. Knoops.

 7             MR. KNOOPS:  May I just clarify one thing, Your Honour.  I think

 8     there is -- otherwise, we are quite confusing also from our perspective.

 9             The basis of our motion is not that we as Defence will oppose any

10     of the adjudicated facts.  The basis of our motion is that in light of

11     the fact that in November, indeed during the Status Conference, I

12     informed the legal officer that we would be willing to reconsider our

13     position, that after the Status Conference, the motion was filed on the

14     12th of December, containing 26 pages annexed with 230 proposed

15     adjudicated facts amounting to 11 pages of legal argumentation.  That is

16     the main foundation, Rule 127, in light of the handicap we are facing

17     irrespective of fitness or not.  So the basis of the foundation is not

18     that we will oppose anything which is adjudicated or not.  The basis is

19     that we simply do not have sufficient time and sources to responsibly

20     respond to an adjudicated facts motion containing 230 proposed

21     adjudicated facts.  That is the main foundation of the motion.

22             JUDGE ORIE:  And the earlier motions, how many did you oppose to

23     and how many did you not oppose to?  I mean, we're now talking about a

24     213 recently filed but we have, of course, all the series with quite a

25     number.  What's exactly there the progress made?

Page 1333

 1             MR. KNOOPS:  Well, Your Honour, we have first motion which we

 2     responded to.  This is the second motion.

 3             JUDGE ORIE:  Yes.

 4             MR. KNOOPS:  On adjudicated facts so ...

 5             Prosecution received our responses to the first adjudicated facts

 6     motion.

 7             JUDGE ORIE:  And any further -- was that the one where 33 were

 8     out of 450 or how many there were --

 9             MR. KNOOPS:  I cannot recall.

10             JUDGE ORIE:  -- that you did not oppose.  A minimal number?

11             33 is the number which is still on my mind.

12             MR. KNOOPS:  Your Honour, I'm informed that indeed that motion

13     was partly opposed, since most of the alleged adjudicated facts went to

14     the conduct of the accused.

15             JUDGE ORIE:  Yes.  We will -- and we'll further have a look at

16     that, and I certainly -- I do now understand that it's mainly -- that it

17     was recently filed and its resources with the handicap and not with the

18     real obstacle.  Whether that will change in the future, we'll see that.

19             Would it be a good idea if the parties would just make clear

20     appointments.  Say, in two weeks we'll go through the -- for example,

21     through the easy ones.  If I could just give you a suggestion,

22     Mr. Knoops, for -- number 64, Martic trial judgement 173, Cerovljani is

23     situated above 3 to 6 kilometres north of Hrvatska Dubica and in 1990 its

24     population was some 500 people.

25             What it takes is a map and a -- the margin is even 3 kilometres

Page 1334

 1     on that distance, and what we need is the, I would say the 1990 census to

 2     see whether it's approximately 500 people.  Let's try to get -- let's try

 3     to make progress, rather than to discuss on why no progress can be made.

 4             I think I have said enough about the adjudicated facts.  Now, you

 5     may have understood that the Chamber urges you that in one of the few

 6     fields where progress can be made that it will be made.

 7             Any further submissions in relation to this?

 8             Ms. Brehmeir-Metz.

 9             MS. BREHMEIR-METZ:  Just very briefly respond to what we've heard

10     now.

11             It is indeed precisely the kind of facts that Your Honour has

12     just pointed at from the second adjudicated facts motion that the

13     Prosecution proposed in its recent, most recent proposal, to find an

14     agreement on facts.  It was precisely that kind of facts mere crime base

15     facts or the names and identities of victims that were killed in the

16     incidents, at the crime bases, that the Prosecution has proposed to find

17     agreement on, but regrettably those proposals were, first of all, not

18     responded to at all.  And what we now hear, and I have set that out in

19     the recent motion requesting the hearing that we are at now, the argument

20     of certainly Mr. Stanisic's Defence, we have just heard; namely, we don't

21     receive proper instructions.  And I can just reiterate what Your Honour

22     has just said.  We have a fitness motion that says the accused,

23     regardless of his chronicle illness, is able to instruct counsel, and

24     what is required here is not that the accused is able to provide to his

25     counsel daily instruction in relation to all the details of the case.

Page 1335

 1     What the Prosecution submits is totally sufficient is that he gives

 2     certain basic guidance and leaves further decisions to discretion of

 3     counsel.  That, we would submit, is what counsel is here for.  And,

 4     therefore, I can only stand by Your Honour and reiterate that the

 5     Prosecution, of course, remains open for any discussion on agreed facts.

 6     However, I venture to say that I fear progress is going to be difficult

 7     to achieve.

 8             JUDGE ORIE:  Mr. Jordash.

 9             MR. JORDASH:  Certainly for the record, we would wish to make

10     clear that whilst we recognise the uncertainty of the position as

11     concerns Mr. Stanisic's fitness vis-a-vis legal definition, we would wish

12     the Court to know that it is our experience with him, which leads us to

13     confirm that he is unable to provide instructions to us.  Now, whether

14     this is an medical reason for that we don't know.

15             JUDGE ORIE:  Well, may I take it that you wanted to say that he

16     doesn't give instructions.  You said he is unable experience -- in your

17     experience that he's unable, which is an interpretation, already, of what

18     you can observe; that is, that he doesn't, when invited to do so, that he

19     doesn't give instructions, which is not the same as that he is unable to

20     do so.

21             MR. JORDASH:  You're right, Your Honour.  But what we would say

22     is this.  We've tried and he has, in our view, tried but what we -- the

23     place with arrive at is not terribly coherent, and my learned counsel at

24     the beginning said, Our experience with him has been consistent with the

25     medical evidence.  And it's, again, I use the word "sympathy" because

Page 1336

 1     it's right.  We have a position which is legally unclear, but we have to

 2     work with this position on a practical level.  And, yes, there's an

 3     implication which comes from the Prosecution on a regular basis that he

 4     is -- he's making it up.  And we cannot say with certainty he isn't, but

 5     what we can say is that when we've tried he appears to try and yet is not

 6     able to give us coherent instructions [Microphone not activated].

 7             JUDGE ORIE:  Yes.  Thank you, Mr. Jordash.  Soon we'll know more,

 8     I take it.  We will then have received the latest medical reports and

 9     whether the procedural status in any way then changes or not, we'll see.

10                           [Trial Chamber confers]

11             JUDGE ORIE:  Then let's move on.

12             As far as the Chamber is -- yes, as far as the agreed facts are

13     concerned, they were briefly raised.  I raised the adjudicated facts.

14     They're, of course, the same counts; that is, draw the attention of the

15     Chamber to matters that are really in dispute and that matter in this

16     case.  The parties themselves are best able to see whether it's just

17     difficult to accept the evidence which is there or to assess that there

18     is important evidence which, undermines the Defence evidence which

19     undermines the Prosecution evidence.  And again, if you ask our attention

20     for 100 items, whereas ten are vital, then most of the time on the

21     remaining 90 items is wasted time, and you will be less successful in

22     focussing our attention on what really is the core of the case.  That is

23     apart from adjudicated facts which is even a bit easier, I would say,

24     than agreed facts, may guide you in your further conversations.

25             Next issue is disclosure, unless anything would be anything to be

Page 1337

 1     added.

 2             MR. KNOOPS:  Your Honour.

 3             JUDGE ORIE:  Yes.

 4             MR. KNOOPS:  Also, I think it's important for the Bench to note

 5     that in order to take away any impression that Defence counsel is not

 6     trying to do their best in order reach an agreement on either adjudicated

 7     or agreed facts.  As Your Honours may know, we have filed a response on

 8     the Prosecution request for an oral hearing on the 19th of February,

 9     2009, with a confidential annex.  That annex includes a statement of our

10     Defence team, page 2 at the first paragraph.  Of course, it's

11     confidential; I will not repeat it in public.  And if Your Honours will

12     be so kind to take that paragraph before you, I ask your attention for

13     the first two sentences of that letter we sent to the Prosecution.

14             JUDGE ORIE:  That's the 19th of February submission.

15             MR. KNOOPS:  That's correct, Your Honour, yeah.

16             JUDGE ORIE:  You referred to -- you asked our attention for?

17             MR. KNOOPS:  First paragraph, page 2 of the letter.

18             JUDGE ORIE:  Yes.

19             MR. KNOOPS:  Which is confidential annex to our --

20             JUDGE ORIE:  Yes.

21             MR. KNOOPS:  -- response.

22             Your Honours may observe that we have drafted a document in which

23     we go into many of the agreed facts.  Yet for the reasons it set out in

24     that paragraph, we feel not at liberty to file that draft in this stage,

25     in light of the medical evidence we are facing.

Page 1338

 1             So --

 2             JUDGE ORIE:  I must admit, Mr. Knoops, that I have your response

 3     here, but the confidential annex I haven't got at this moment.

 4             Mr. Pittman will provide me with -- I couldn't take the whole

 5     file with me, and I didn't know you would ...

 6             Yes, I have it in front of me.  It's page 2, first paragraph.

 7             MR. KNOOPS:  That's correct, Your Honour.

 8             JUDGE ORIE:  Yes.  And it's --

 9             MR. KNOOPS:  So, to make a long story short, we have actually a

10     response made available for the Prosecution which we think, as Defence

11     counsel, we could submit -- but yet because of the situation as it is

12     currently still there, we believe that --

13             JUDGE ORIE:  Well, the current procedural situation --

14             MR. KNOOPS:  Yes.

15             JUDGE ORIE:  -- is that there's -- that Mr. Stanisic could not

16     attend trial hearings in this courtroom, and whether that is still the

17     case is still to be considered.  But from the possibility to instruct or

18     anything like that is a procedural situation that he is considered to be

19     able to do that.

20             Let me just see whether ...

21                           [Trial Chamber confers]

22             JUDGE ORIE:  Yes.  As I said before, the situation, procedurally

23     is at this moment, it has not been established that he is not in a

24     position to give instructions.

25             Further, of course, we could -- but perhaps not -- this would not

Page 1339

 1     be the right moment or not, the level of detail of instructions, of

 2     course, is considered in a common law tradition quite differently in many

 3     jurisdictions.  Some would just want him, an accused, to choose who he

 4     wants to be represented by, how to plead, whether he wants to appear as a

 5     witness in his own case, et cetera.  But that's very limited.

 6             So to the extent -- what actually are the merits of any reliance

 7     on the inability of Mr. Stanisic to give you instructions is to be

 8     considered soon.  The procedural situation at present is that it has not

 9     been established that he cannot, and therefore, the Chamber, with the

10     sympathy you asked for, is, of course, proceeding on this basis.  We

11     can't just on your subjective feelings where the Trial Chamber has

12     decided otherwise not -- not just say, Okay, take as much time as you

13     want.  And I'm not in doubt of your good intentions in this respect and

14     therefore it's good that you have drawn our attention to that Annex A, to

15     your response, which is a confidential annex.

16             Anything else?

17             MR. JORDASH:  May I just raise just for Your Honours' attention.

18             I don't wish to repeat myself, but simply --

19             JUDGE ORIE:  You're invited not to do so, yes.

20             MR. JORDASH:  Well, I will be very brief.  It's simply that --

21     it' s not, with the greatest of respect, an issue of simply our

22     subjective assessment.  We -- the latest psychiatric report gave

23     Mr. Stanisic a GAF score of 31 to 40 which indicates impaired judgement

24     and that -- the practical situation we find ourselves in, that we

25     approach our client who has this, according to the latest psychiatric

Page 1340

 1     evidence, [Overlapping speakers] ...

 2             JUDGE ORIE:  [Overlapping speakers] ...  let's not put forward

 3     the one psychiatric report which favours, others may be there which do

 4     not favour.

 5             Therefore, as I said before, we'll receive soon further medical

 6     examination, further medical reports, and I did not intend to say that

 7     it's just your subjective views.  Of course, they will be supported by

 8     something, but it's -- at this moment your interpretation on the basis of

 9     your selection of the material.

10             MR. JORDASH:  I won't belabour the point, Your Honour.

11             JUDGE ORIE:  Next point, disclosure.  As far as the Chamber is

12     aware, there are no outstanding disclosure issues.

13             Is that correct?  If everyone is silent on disclosure issues, I

14     take it that it is correct.

15             Ms. Brehmeir, you do not feel guilty at this moment?

16             MS. BREHMEIR-METZ:  I don't hear anything from the Defence, which

17     in itself is a good sign.  What I had intended to say was that

18     Mr. Hoffman would address you on disclosure issues, because he's dealing

19     with that in the Prosecution team.  But, actually, there is not much we

20     have to report on that.

21             JUDGE ORIE:  There appears nothing to be important enough to

22     bring to our attention.  And, Mr. Hoffman, you do not feel guilty at this

23     moment in any way of not having disclosed anything?

24             MR. HOFFMAN:  No Your Honour, thank you.

25             JUDGE ORIE:  Yes.  That's good.

Page 1341

 1             MR. KNOOPS:  Your Honour, I'm just informed by my legal

 2     assistant, Ms. Amy Walsh, that there are some minor disclosure problems

 3     that we can --

 4             JUDGE ORIE:  Worthwhile mentioning that --

 5             MR. KNOOPS:  We can deal that with a letter to the Prosecution.

 6     We're not going bore the Chamber with that.

 7             JUDGE ORIE:  Yes.

 8             MR. KNOOPS:  Thank you.

 9             JUDGE ORIE:  And I hope you still do not feel guilty after you've

10     received that letter, Mr. Hoffman.

11             Mr. Jovanovic, anything you would like to raise in relation to

12     disclosure?

13             MR. JOVANOVIC: [Interpretation] No, thank you, Your Honours.

14             The possibly minor problems that have cropped up will be able to

15     be solved in direct contact with the OTP.  For the time being, having

16     reviewed the disclosed material, the Defence has not found some things

17     which are on the list, possibly it is an omission on our part.  If not, I

18     shall get in touch with our colleagues from the OTP.  I believe we will

19     be able to settle that quickly.

20             Thank you.

21             JUDGE ORIE:  If anything remains after that, the Chamber, of

22     course, is always willing to assist the parties in resolving it.

23             Then I move to the next subject.

24             Any other matters to be raised?

25             Let's start with the Defence.  Mr. Jovanovic, any other matter

Page 1342

 1     not yet dealt with that you'd like to raise?

 2             MR. JOVANOVIC: [Interpretation] No, thank you, Your Honours.

 3             JUDGE ORIE:  Mr. Knoops.

 4             MR. KNOOPS:  Thank you, Your Honours.  None.

 5             JUDGE ORIE:  Ms. Brehmeir-Metz.

 6             MS. BREHMEIR-METZ:  None from the Prosecution, thank you.

 7             JUDGE ORIE:  Thank you.  Then this concludes this Status

 8     Conference.

 9             I'm afraid that we can't set a date yet for the next Status

10     Conference.  The Rules tell us that it should be within 120 days, but

11     much depends, of course, on the Chamber's review of the reports which

12     we'll receive soon, the report of the independent court expert in

13     relation to the health condition of Mr. Stanisic.

14             Once we have reviewed them, we will issue an appropriate order,

15     and whether that would be a Scheduling Order or whether it would be an

16     order to invite the party for further submissions is still to be seen.

17     But we will then issue the appropriate order.

18             We stand adjourned, sine die.

19                           --- Whereupon the Status Conference adjourned at

20                           3.27 p.m.