Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1343

 1                           Tuesday, 12 May 2009

 2                           [Status Conference]

 3                           [Open session]

 4                           [The Accused Simatovic entered court]

 5                           [The Accused Stanisic not present]

 6                           --- Upon commencing at 2.29 p.m.

 7             JUDGE ORIE:  Good afternoon to everyone.  We are here for a

 8     Status Conference in the case against Mr. Stanisic and Mr. Simatovic.

 9     Could we have the appearances.  Prosecution first.

10             MR. GROOME:  Good afternoon, Your Honour.  My name is

11     Dermot Groome, I'm representing the Prosecution as the senior trial

12     attorney in this Prosecution.  I'm accompanied today by

13     Ms. Doris Brehmeier-Metz, Mr. Klaus Hoffman, and we are assisted by

14     Thomas Laugel.  Thank you, Your Honours.

15             JUDGE ORIE:  Thank you, Mr. Groome.  For the Defence, Mr.

16     Stanisic Defence first.

17             MR. JORDASH:  Good afternoon, Your Honour, myself Wayne Jordash

18     accompanied by Anne-Marie Verwiel and Amy Walsh.

19             JUDGE ORIE:  Thank you, Mr. Jordash.

20             For the Simatovic Defence.

21             MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honours, I'm

22     Zoran Jovanovic representing the accused Franko Simatovic.

23             JUDGE ORIE:  Thank you, Mr. Jovanovic.  When we are talking about

24     appearances, I would like to explain also the situation we are in here

25     with two Judges, that means not just the Pre-Trial Judge, not the whole

Page 1344

 1     of the Chamber.  Judge Picard is on another case, and, of course, I could

 2     have appeared here alone but I very much appreciate being -- having

 3     Judge Lattanzi present as well.  And although we are somewhere in between

 4     Pre-Trial Judge and a Chamber, may I assume that the parties have no

 5     difficulties, that a Chamber not provided for the rules, that is two

 6     Judges, causes no problems at this moment to continue with this

 7     Status Conference?

 8             MR. GROOME:  No objection from the Prosecution, Your Honours.

 9             MR. JORDASH:  Absolutely not, Your Honours.

10             MR. JOVANOVIC: [Interpretation] No objections, Your Honour.

11             JUDGE ORIE:  Thank you for your cooperative attitude.

12             The first item on the agenda I would have to address is that the

13     absence of Mr. Stanisic.  Let me start telling the parties what knowledge

14     is available to us at this very moment.  We were informed that

15     Mr. Stanisic has claimed that he is too unwell to attend court or be

16     present in a videolink room.  We were also informed that Mr. Stanisic is

17     unwilling to waive his right to be present in court.

18             We received this morning a letter by Dr. Eekhof stating that

19     Stanisic is not well enough to attend court, although the letter doesn't

20     say anything about the videolink.  This is information we received partly

21     in writing, that is the form we received Dr. Eekhof's report in writing

22     yesterday.

23             The Chamber was informed by Mrs. Painter [phoen] that Dr. Falke

24     had told her, and that this could be revealed to you in court - we are

25     talking about yesterday - that it would not be inhumane for Mr. Stanisic

Page 1345

 1     to be transported to the court to appear before this Chamber.

 2             In the report of this morning sent to us by Dr. Eekhof, we read

 3     as his conclusion that Mr. Stanisic cannot attend court on medical

 4     grounds.  This conclusion has raised some questions with the Chamber in

 5     view of the content of the report.  In the report, we find that

 6     Mr. Stanisic has been -- has visited, yesterday, Dr. Cazemir, the

 7     gastroenterologist, and that there were no new aspects as far as this

 8     medical specialism concerned and that the medication was not changed.

 9             We also received a report, in this report we read that

10     Mr. Stanisic underwent an MRI scan yesterday and that a small disk

11     herniation was seen and that a visit to a neurologist is planned for this

12     Thursday, and that Mr. Stanisic states that he cannot stand or walk for

13     more than a few moments.  It further indicates that the psychological

14     situation has worsened, and as Dr. Eekhof writes:

15             "As the neurological evaluation has not yet been completed, I

16     cannot exclude a somatic reason for the problems with walking and

17     standing."

18             On the basis of this report, the Chamber wondered on what the

19     conclusion was based that on medical grounds Mr. Stanisic could not

20     attend court.  Therefore, the Chamber sought clarification with Dr. Falke

21     in a telephone conversation which took place less than one hour ago; and

22     Dr. Falke, in response to a question put to him by me, as the

23     Pre-Trial Judge said that there are insufficient medical grounds to know

24     today whether Mr. Stanisic can attend court, which has some logic in view

25     of what was factually established by Dr. Eekhof who said that he cannot

Page 1346

 1     exclude a somatic reason for the problems with walking and standing.  At

 2     the same time, much of the conclusions seem to be directly related to

 3     the -- what Mr. Stanisic himself expressed.

 4             Finally, I asked Dr. Falke whether he could exclude that the

 5     accused is aggravating or exaggerating his complaints in view of the

 6     present situation and Dr. Falke had said that he could not exclude for

 7     that possibility.

 8             The Chamber has asked itself whether we could proceed with this

 9     Status Conference, which, of course, is not the trial itself but --

10             MR. JORDASH:  Your Honour, I'm sorry to interrupt.

11             JUDGE ORIE:  Yes, Mr. Jordash.

12             MR. JORDASH:  I can, perhaps, assist.  Lead counsel spoke to

13     Mr. Stanisic I think approximately one to two hours ago, and it was his

14     understanding that Mr. Stanisic was prepared to waive his presence for

15     this hearing.  As Your Honour will appreciate in the previous

16     Status Conferences, that's been the situation and that remains as far as

17     we know the situation.  I don't know whether what -- the confusion that's

18     arisen is that somebody at the detention centre took a form to

19     Mr. Stanisic who, not quite knowing whether he should put his name to it

20     or not, declined to, but then spoke to lead counsel, as I've said, and

21     indicated he would waive his presence today.

22             JUDGE ORIE:  Yes, if this information would have been

23     communicated to the Trial Chamber earlier, then we could have started at

24     quarter past 2.00.  Because on the form, the box is not crossed, which of

25     course caused the Chamber to pay attention to that situation, so this

Page 1347

 1     would have -- certainly would have shortened our discussions.

 2             MR. JORDASH:  Apologies.  But we hadn't seen the form, and we

 3     weren't aware of that situation.

 4             JUDGE ORIE:  I'm just in this way emphasizing how important it is

 5     that every possible new information, and apparently I understand from

 6     your words that Mr. Knoops discussed with Mr. Stanisic that he did not

 7     fill in because you said he didn't know what to do, so therefore I took

 8     it that Mr. Knoops was informed.  But let's not spend more time on it,

 9     direct communication, shortest lines, with the legal officers would

10     certainly assist in the future.

11             MR. JORDASH:  Certainly.

12             JUDGE ORIE:  I do understand -- then under those circumstances, I

13     take it that also from you, Mr. Jovanovic, there's no, and Mr. Groome,

14     there's no reason not to proceed as scheduled.

15             We have received the parties' submissions on the modalities to

16     conduct this trial, and the Chamber will consider them, and we'll issue

17     an order soon.

18             Is there any matter as far as the modalities are concerned which

19     needs further attention at this moment, would you like to add anything

20     that we find already in your written submissions?

21             MR. GROOME:  Not from the Prosecution, Your Honour.

22             MR. JORDASH:  No, thank you.

23             JUDGE ORIE:  Then I will --

24             MR. JOVANOVIC: [Interpretation] No, thank you, Your Honour.

25             JUDGE ORIE:  Mr. Jovanovic.

Page 1348

 1             The next item on the agenda, and it's just an information for the

 2     parties, that the composition of the Chamber to hear the case, the cases

 3     against Mr. Stanisic and Mr. Simatovic, is not yet final.  The present

 4     status is that the President of this Tribunal has requested appointment

 5     of Judge Gwaunza to the Chamber effective the 18th of May, 2009, and we

 6     are awaiting at this moment action on this request.

 7             Anything in relation to this agenda item?  If not I'll move on to

 8     the next one which is the motion to delay the commencement of trial, a

 9     motion that has been filed by the Stanisic Defence.

10             The present status is that we are waiting for the response of the

11     Prosecution.

12             MR. GROOME:  Your Honour, if I may assist in that regard, earlier

13     today we filed our response, and in essence, Your Honour, the Prosecution

14     is not taking the position, is deferring to the Trial Chamber on matters

15     of schedule.

16             JUDGE ORIE:  Thank you.  Of course we have to finally consider

17     the motion, and I think the Stanisic Defence asked for four weeks, we'll

18     give a decision on that.  But I already informed the parties for many

19     other reasons that the Chamber will grant -- so apart from a final

20     decision on the motion, will grant a delay in the meantime already of two

21     weeks, which would move the Pre-Trial Conference to the 2nd of June.  As

22     matters stand now, and again the Chamber has to deliberate on the motion

23     in its fullest form with the orders, but motion or no motion, already now

24     we have decided that we will move the Pre-Trial Conference as matters

25     stand now and not having read yet the written submission by the

Page 1349

 1     Prosecution, until the 2nd of June.  If that changes, you'll hear from us

 2     as soon as possible.

 3             MR. JORDASH:  Thank you.

 4             JUDGE ORIE:  If we would have a Pre-Trial Conference on the

 5     2nd of June, the opening statements and the first presentation of

 6     evidence will be rescheduled as well because they have to be adapted to

 7     the new situation.  Any questions about or any observations about this

 8     matter?

 9             Then I move on to another matter which is that there may have

10     been some confusion and some questions about the Scheduling Order of the

11     24th of April, 2009, especially as far as the understanding is concerned

12     of the line in that Scheduling Order which reads:

13             "Witnesses heard or exhibits admitted at the initial commencement

14     of trial proceedings in this case shall not be considered as evidence

15     without presentation anew following recommencement of trial."

16             Let me first inquire with you whether you have any questions in

17     this respect and what these questions are.

18             Mr. Groome.

19             MR. GROOME:  Your Honour, there is a question with respect to the

20     first witness.  If it's acceptable with the Court, I'd ask Mr. Hoffman to

21     address that question to the Chamber.

22             JUDGE ORIE:  Yes.

23             Mr. Hoffman.

24             MR. HOFFMAN:  Yes, Your Honour.  It relates to the first witness,

25     B299.  On the day when he started his testimony, just prior to that the

Page 1350

 1     then-Trial Chamber granted our motion under Rule 92 ter.  I think the

 2     Prosecution would appreciate any clarification to on the status of that

 3     decision, whether that still stands or whether we have to resubmit the

 4     92 ter motion on that witness.

 5             JUDGE ORIE:  That is a decision -- that's the only decision you

 6     want to address or any other 92 bis or just this 92 ter?

 7             That decision at least has to be taken again.  Now, I can

 8     imagine, and that's another very practical matter, how 92 ter statements

 9     will be introduced, should that be done as is the practice in some

10     Trial Chambers by filing a motion to have 92 ter statements admitted, or,

11     which is the practice in some other Chambers, that an oral application is

12     made once the witness appears in court where it is secured that the other

13     party has received all the relevant statements which will be tendered so

14     that there's no confusion whatsoever about what the material is that

15     party intends to tender.  But in this case, the decision at least was

16     made once the trial had started, so the decision has be taken again.

17             Now, whether you should make the same application again.  Was it

18     in writing or was it an oral application?  It was in writing before the

19     trial started?

20             MR. HOFFMAN:  Yes, that's correct.

21             JUDGE ORIE:  Now, I can imagine that you just file a brief, new

22     application, in which you refer to the old application and that you again

23     seek to tender that statement of that witness so there's no need to copy

24     it all -- all over again as long as it's clear and whether you attach or

25     whether you refer to something that has been filed before.

Page 1351

 1             The filing was done before the start of the trial, so that is --

 2     there's no need to refile it again, but you should invite the Chamber to

 3     again give a decision on that filing and for that purpose that you

 4     resubmit the application.

 5             MR. HOFFMAN:  We will certainly do that, Your Honour.

 6             JUDGE ORIE:  As far as the response of the Defence is concerned,

 7     everything that has been done before the trial started is validly done;

 8     but if of course there's a renewed application, it might be good that

 9     either orally or in writing that we receive a confirmation from the

10     Defence that they still take the same position as they did at the time.

11             MR. JORDASH:  Certainly.  In relation to the wider question of

12     what happens to evidence which was adduced in the last trial, we had

13     understood from that remark in the recommencement decision that the

14     Prosecution would apply to have the previous evidence adduced and at that

15     point we would, if we had any objections, indicate the same.

16             So in relation to the wider question which Your Honours addressed

17     a moment ago, that would be our respective position.

18             JUDGE ORIE:  Yes.  Everything that has been decided also, before

19     the trial started, those decisions stand as pre-trial decisions, but

20     everything that happened in court which requires that a decision on the

21     pending matter is to be taken, that is -- has to be re-introduced not by

22     repeating everything, but just so that everything that happened after the

23     start of the trial is more or less annulled, that doesn't count, and

24     therefore has to be repeated.  Or since the Chamber is not composed,

25     perhaps as it was at the time -- well, certainly as it was at the time

Page 1352

 1     that, of course, the decision will then be the decision taken by the

 2     Trial Chamber after the restart.

 3             MR. JORDASH:  Thank you.

 4             JUDGE ORIE:  Again, this does not affect any Rulings that have

 5     been completed before the trial started.  Yes.  Any further questions in

 6     relation to this matter?

 7             If not, I move on to the next item, that is the issue whether the

 8     medical reports of the 19th and the 23rd of March, 2009, and the

 9     Chamber's order to change the status of the two reports of the

10     23rd of April, whether they should be made public.

11             I do understand that there is no party opposing making these

12     medical reports and the Chamber's orders public documents.  Is that well

13     understood?

14             MR. GROOME:  That's correct, Your Honour.

15             MR. JORDASH:  Yes, Your Honour.

16             JUDGE ORIE:  Yes, Mr. Jovanovic, you join Mr. Jordash as far as I

17     understand.

18             Then it is ordered that the medical reports of the 19th and the

19     23rd of March, 2009, and the Chamber's order to change the status of the

20     two reports of the 23rd of April, 2009, will be public documents.

21             The next matter on the agenda is Annex E to the Prosecution's

22     re-assessment motion of the 6th of April.  Mr. Groome, if the Chamber is

23     well informed, the Prosecution is still awaiting consent of the providing

24     entity?

25             MR. GROOME:  Your Honour, I believe we have that,

Page 1353

 1     Ms. Brehmeier-Metz has been is more familiar with these recent

 2     developments, Your Honour, I'd ask her to address the Chamber.

 3             JUDGE ORIE:  Ms. Brehmeier.

 4                      [Trial Chamber and legal officer confer]

 5             JUDGE ORIE:  I see that the consent has been filed, which also

 6     lifts any -- takes away any reason to keep this Annex E confidential, and

 7     since I hear of no objections to this conclusion, it means that the

 8     Chamber hereby orders that the confidential status of Annex E to the

 9     Prosecution's re-assessment motion of the 6th of April is lifted.

10             The next item I'd like to briefly raise is that the Chamber would

11     like to instruct the parties to request for leave to reply and request

12     for leave to exceed word limits in separate filings and not to proceed

13     until the Chamber has decided upon such requests.  We want to avoid the

14     situation where, at the end of a filing which is usually only accepted

15     with leave, that we find at the end of the filing after you've read the

16     whole submission a request for leave to either exceed the word limit or a

17     leave to reply.  That should be done in a separate filing, and the

18     Chamber will, of course, then decide as quickly as possible; it, of

19     course, also depends on the subject matter of such a request.

20             Any questions or any comments or submissions in relation to this

21     item?

22             Then I move on to the consolidated witness list.  The Chamber has

23     received the Prosecution's consolidated witness list and has nothing

24     further to add at this moment, unless the parties would raise any issue

25     about this?  I hear of no comments or questions.

Page 1354

 1             Then we will move on to the -- to the disclosure, agreed facts,

 2     and adjudicated facts.  Are there any outstanding disclosure issues at

 3     this moment?  The Chamber is not aware of any but would like to be

 4     informed if there are any.

 5             MR. GROOME:  Your Honour, just a couple of translations of

 6     exhibits rather minor matters that will be -- the translations will be

 7     received later this week or early next week.

 8             During the course of the trial I'm going to ask Mr. Hoffman to

 9     keep abreast of all the current information regarding any disclosure

10     issues that arise, and he will be prepared at any time to address any

11     concerns by the Defence counsel and the Chamber with respect to the

12     disclosure and is prepared today to give a summary of the disclosure that

13     has occurred, if the Chamber wishes.

14             JUDGE ORIE:  Well, if there are no problems, if the disclosure is

15     complete, and I do not hear from any Defence team yet that it's not, the

16     Chamber doesn't need to be -- to receive a full chronological overview of

17     what has happened.

18             MR. JORDASH:  There are some issues.

19             JUDGE ORIE:  Yes.

20             MR. JORDASH:  But there are none which we need to concern

21     Your Honours with today.  We will address the Prosecution.  They ought to

22     be easily solved, and if they are not, we will return at the right

23     moment.

24             JUDGE ORIE:  Yes.  You have already taken the right approach,

25     Mr. Jordash, whatever you can resolve among yourselves is, of course,

Page 1355

 1     appreciated.  And once it causes difficulties, then, of course, the

 2     Chamber will address any matter the parties are raising.

 3             This about disclosure, I see no other comments.  I take it that

 4     especially if translations arrive late, that you will certainly

 5     communicate with the Defence when you intend to use any of those

 6     documents, if you want to use them, and then to inquiry with the Defence

 7     teams whether this causes them any specific problems.

 8             MR. JORDASH:  May I raise the issue of translations, not

 9     translations of the Prosecution documents, but Defence translations.

10             JUDGE ORIE:  Yes.

11             MR. JORDASH:  We submitted to the translation unit over 100

12     documents in June of 2008, and we received, understandably at that time,

13     an indication that our case was not a priority.  We've received four

14     translations since that time, three which came yesterday, and one which

15     came in January.  These are, we submit, critical documents for us.  They

16     are largely reports concerning the DB, the intelligence service.  And so

17     we would hope to have them as soon as possible, and we raise it now in

18     the hope that Your Honours could indicate that this case is now a

19     priority and that those translations should take place as soon as

20     possible.

21             JUDGE ORIE:  It may be clear that since the Chamber decided that

22     the case will recommence, that the attitude or the approach might be

23     quite different.  If there are any problems, again, also, if you could

24     try to resolve them with CLSS, that would be appreciated.  If there's any

25     outstanding issue, the Chamber will be glad to assist to resolve problems

Page 1356

 1     in relation to translations.  The Chamber highly appreciates the work and

 2     also the efforts made by CLSS to provide translations well in time, but

 3     it's known to all of us that the workload is huge, and we'll certainly

 4     find a way to resolve these matters.

 5             And so the first person to be addressed would be Mr. Nilsson; he

 6     would be the first one, he has close contacts with CLSS and we'll offer

 7     his assistance in resolving the problems.  But if finally that will not

 8     work out, and that's not our experience that it doesn't work out, then,

 9     of course, the Chamber will further look into the matter.

10             MR. JORDASH:  Thank you.

11             JUDGE ORIE:  Second, agreed facts.  Any progress made there?

12             MS. BREHMEIER-METZ:  We have, indeed, made a little progress

13     since our last Status Conference.  I have since received a letter from

14     the Defence Mr. Stanisic conditionally agreeing on certain facts that the

15     Prosecution has proposed and on identities of victims.

16             Mr. Jovanovic has unfortunately not been able to agree to any of

17     my facts, but I understand that he is in the process of revising his

18     position with regard to the adjudicated facts.  The Prosecution, of

19     course, remains available for any further discussions on this matter, and

20     I assume that in the near future we will have a meeting amongst the

21     parties to further discuss any progress that could be made.

22             JUDGE ORIE:  Yes.  It is -- I hope it is not a never-ending

23     story.  Until now it seems that progress is at least very slow.  I'm not

24     blaming any of the parties at this moment, we were not involved; but the

25     Chamber encourages the parties very much to make progress, and I'll

Page 1357

 1     address this matter perhaps within the next five or ten minutes in

 2     relation to another matter.

 3             Next one is adjudicated facts.  We have received the responses,

 4     also by the Stanisic Defence, of the adjudicated facts.  This raised at

 5     least, Mr. Jordash, one question in relation to -- in relation to at

 6     least some positions taken by the Stanisic Defence.  I do understand that

 7     in respect of some of the adjudicated facts, the Defence takes the

 8     position that the Prosecution is misrepresenting these facts in its

 9     proposals.

10             Now, we see a motion, we see your response.  And the first thing

11     that comes on to my mind is that if there's a misrepresentation, that

12     apart from responding to the Chamber that there is, that you immediately

13     approach Ms. Brehmeier and say it misrepresents this and this respect,

14     it's not complete, would you mind to add two or three words or five words

15     so as to make us agreeable to not further opposing these adjudicated

16     facts.  Has this been done?

17             MR. JORDASH:  Well, we'll hoped that our response was detailed

18     enough to indicate to the Prosecution what our objections were and how

19     they could be reformulated.  I think the ones we objected to we certainly

20     tried to do that.

21             JUDGE ORIE:  Ms. Brehmeier, do you see -- has it triggered any

22     review of the way in which you formulated them?  Of course, if an

23     adjudicated fact does not present the totality of the event or whatever

24     is described in the adjudicated facts, of course that, in itself, if it's

25     not complete, that means that only part of that fact, the part presented

Page 1358

 1     by Ms. Brehmeier, can be taken judicial notice of.  Ms. Brehmeier, of

 2     course, is not expected to include portions you would consider relevant.

 3     I could imagine the accused say, Well, then we'll file a motion for

 4     adjudicated facts in which we complete those facts exactly or reformulate

 5     them in such a way that we can move on, rather than to say, This is what

 6     you say, we are opposing for this and this reasons.  An active

 7     contribution to finding a solution is -- would be highly appreciated.

 8             And in this respect, as I announced earlier, I would like to draw

 9     your attention to a set of adjudicated facts that you also opposed now,

10     however, for other reasons, it being that these were facts that were

11     established on the basis of an agreement between the parties, rather than

12     having been litigated in full.

13             Let me just try to find a few of them.  For example, you raise

14     this issue in relation to 1, 3, 4, 5, 7, 10, 12, 13, 14, 15, well, quite

15     a number, where you say, We appose because they do not meet the

16     requirements.  That is, that they are litigated rather than the result of

17     an agreement between the parties.

18               You are right, formally.  Now, let's take number 1, just for an

19     example:

20             "In April and May, 1990, multi-party elections were held in the

21     Socialist Republic of Croatia.  The Croatian Democratic Union, HDZ, won

22     41.5 per cent of the votes and two-thirds of the seats in parliament.  On

23     the 30th of May, 1990, the HDZ candidate, Franjo Tudjman, was elected

24     president of the presidency of the Socialist Federal Republic of

25     Croatia."

Page 1359

 1             Now, just based on the assumption, I didn't check it at this

 2     moment, but just based on the assumption that this was a fact which was

 3     agreed upon by the parties and in that sense adjudicated and not as a

 4     result of full litigation, what is it that is challenged by the

 5     Stanisic Defence about this fact number 1, apart from the formal reason

 6     that it may have been the result of agreement rather than -- could you

 7     explain to us what's the basis for your opposition, your objection

 8     against, apart from the formal point of view?

 9             Is it that it was not in April and May 1990 that the multi-party

10     elections were held, or do you challenge the outcome of that election, or

11     that the HDZ did not get two-thirds of the seats in parliament, or that

12     Mr. Franjo Tudjman was not elected on the 30th of May, 1990 as president

13     of the presidency of the Socialist Republic of Croatia?  What is it?

14             MR. JORDASH:  It's -- Your Honours identified precisely, I

15     suppose, the issue, which is, it was a formal objection.  I won't pretend

16     otherwise.  It was a formal objection.

17             JUDGE ORIE:  What is your position in relation to this, I mean

18     now on the substance?

19             MR. JORDASH:  I cannot foresee that we'll object to that or be

20     disputing it.

21             JUDGE ORIE:  Yes.  Which means that instead of taking your time

22     to write down a formal objection against it, it would be one phone call

23     to Ms. Brehmeier to tell her that on the substance you do not agree.  So

24     therefore we have a clear fact which can be agreed upon and that you

25     don't have to spend time on writing formal objections.

Page 1360

 1             I could give you a few other examples:

 2             "On the 29th of May, 1991 the SAO-Krajina government was

 3     established with Milan Babic as President Milan Babic appointed

 4     Milan Martic as minister of defence.  On the 27th of June, 1991

 5     Milan Martic was appointed minister of interior."

 6             Of course if there's any problem with that, then rather not -- if

 7     that is an agreed fact in another case, it seems to be a fact which will

 8     be well documented and therefore relatively easy to agree upon, or to

 9     identify where the problem is, inform Ms. Brehmeier about what the

10     problem in relation to this one is, and then I take it you'll reconsider

11     or you'll start preparing your evidence to be presented to challenge this

12     adjudicated fact.  What I do not understand is that we get a formal

13     response without any sign of any effort to be made to move forwards.

14             MR. JORDASH:  Your Honour, it's not that no effort was made.  It

15     was that we were waiting to see if Your Honours would rule on the issue

16     of certifying the appeal.  Your Honours will be aware that we applied to

17     have Your Honour certify an appeal in relation to our having to deal with

18     the overall issue of adjudicated facts.  And we perhaps have left it too

19     late to then consider as deeply as we would like to have done the actual

20     facts themselves.

21             Our position is, as you know from the application for leave, is

22     that we are not in a position to do them.  I'm not going to revisit that,

23     Your Honours have ruled, and we wait for Your Honours to rule on the

24     certification.  But that's an explanation as to the situation we were in.

25             JUDGE ORIE:  Yes, which still would not prevent you from

Page 1361

 1     addressing Ms. Brehmeier and to tell her we will maintain our formal

 2     position up until the moment that the Trial Chamber has decided whether

 3     or not to grant the request for a certificate to appeal, but in the

 4     meantime, not stop everything.  It may be clear from these two examples

 5     that what the Chamber expects the parties to do is to move forward.

 6             MR. JORDASH:  Your Honour, it's --

 7             JUDGE ORIE:  Rather than to take every stop in order to take a

 8     rest.  I'm not -- don't -- I'm not trying to be nasty to you, but I'm

 9     trying to be very clear to what the Chamber expects the parties to do.

10     That is, move on, keep moving rather than formally opposing and then sit

11     back and see what next happens.  That's what the Chamber expects the

12     parties to do.

13             You are not inviting me to go through the other examples because

14     there are many.  I think these two examples would certainly clarify our

15     position.

16             MR. JORDASH:  The point is well made, if I may say so, and very

17     clearly understood.

18             JUDGE ORIE:  Yes, so the message was received by all parties, I

19     take it.  The Chamber would like to come, as soon as possible, to the

20     core of the case rather than to lose itself in all kind of marginal

21     matters.

22             As a Presiding Judge, I have developed in the past a system which

23     I would not propose to you as the preferred system by myself, that is, to

24     meet with the parties at 7.00 in the morning to further hear about any

25     progress made in certain respects.  It's my experience that after one or

Page 1362

 1     two 7.00-in-the-morning meetings, that more progress is made which has,

 2     as a result, that not many 7.00-in-the-morning meetings need to be held.

 3             I don't know how much you like your early-morning hours, I do

 4     like them, but I'm glad to give them up now and then if need be.  I hope

 5     that this message is received as well.

 6             One specific disclosure issue in relation to Rule 94 bis; is

 7     there any outstanding disclosure issue in relation specifically to

 8     Rule 94 bis?

 9             MR. GROOME:  Your Honour, there is with respect to Mr. Masovic,

10     if I could ask Mr. Hoffman to inform you about that disclosure issue.

11             JUDGE ORIE:  Yes, Mr. Hoffman.

12             MR. HOFFMAN:  Very briefly, Your Honour, it's related to the

13     expert witness Amor Masovic.  He has submitted a report, but he is

14     currently working on updating the figures and some of the details in

15     annex related to the victims of the charged crimes.  I've spoken to him

16     lately, recently, and he promised to have that updated report ready by

17     the end of this month.

18             JUDGE ORIE:  And do you have yet any idea when you want to

19     present this report, in the early stages of the proceedings or ...

20             MR. HOFFMAN:  At the moment we intend to present that evidence at

21     a later stage, so it shouldn't be of any prejudice to the Defence.

22             JUDGE ORIE:  Now, you told us that it was updating figures and

23     some details.  Has the original report -- with a clear understanding that

24     this gives not the final figures and that updates have to be done, could

25     it be made already available to the Defence, or is it already available

Page 1363

 1     to the Defence?

 2             MR. HOFFMAN:  I'm not quite sure if I understand you correctly,

 3     but the initial report of Mr. Masovic --

 4             JUDGE ORIE:  Was already filed.

 5             MR. HOFFMAN:  -- was filed, has been disclosed --

 6             JUDGE ORIE:  Yes.

 7             MR. HOFFMAN:  -- in the original in translation, it's just a

 8     matter of him getting more information about the exhumation, the -- some

 9     of the identities and --

10             JUDGE ORIE:  Yes.

11             MR. HOFFMAN:  -- things like that.

12             JUDGE ORIE:  So you are just giving notice that this is not the

13     final version of the report that was filed.

14             MR. HOFFMAN:  Exactly.

15             JUDGE ORIE:  Any questions or submissions in relation to any

16     expert reports, apart from this one?

17             If there's nothing there, then I have my last item, as far as I'm

18     concerned, on the agenda before briefly addressing the detention

19     situation and the health of the accused, that is, the technicalities for

20     trial.  As I said earlier, the practice in this Tribunal, especially in

21     relation to 92 ter motions, is not the same in every Chamber.  I would

22     invite the parties to see whether they prefer to receive and - of course,

23     later for the Defence - file, 92 ter statements in formal motions, or

24     just to disclose all the material which will be tendered under

25     Rule 92 ter sometime in advance, three weeks, two weeks, whatever the

Page 1364

 1     parties would agree upon so as to enable them to properly prepare for

 2     cross-examination.

 3             The Chamber is - especially since we are not yet in our final

 4     composition at this moment - is rather neutral on the matter and invites

 5     the parties to further discuss the matter whether 92 ter statements

 6     should be filed formally in advance of being tendered in court, or

 7     whether it's timely disclosure of the final versions; and, of course,

 8     proofing notes may change matters at a last moment.  If the parties would

 9     prefer a system in which disclosure well in advance of tendering the 92

10     ter statement at trial, then of course the Chamber would like to receive

11     copies of those statements at that same moment.

12             If 92 ter statements are introduced through a formal motion, then

13     of course the Chamber will have received it as an attachment, as an annex

14     to those motions, or rather, these statements.  I do not know whether you

15     have any thoughts already developed on the matter or whether you would

16     like to discuss it and then inform the Chamber what the preferred course

17     of action is.

18             MR. GROOME:  Your Honour, the Prosecution has already made a

19     number of 92 ter filings.  Would it assist the Chamber if we were to

20     discuss whether there might be agreement between the Prosecution and the

21     respective Defence teams and save the Chamber from having to draft

22     decisions where there is agreement?

23             JUDGE ORIE:  If there's agreement, certainly sometimes, of

24     course, decisions on -- finally decisions on admission of

25     92 ter statements, of course, depend on the evidence the witness gives in

Page 1365

 1     court, so, therefore, these will then be often oral decisions anyhow.

 2             But we see that there is difference in practice, for example, in

 3     the Perisic case, motions are usually not filed, and there is a Perisic

 4     guide-lines on admissibility of evidence and conducts of counsel.  If you

 5     would consult that and see to what extent you would agree with this

 6     practice, and then inform the Chamber, that would be appreciated.

 7             Another such matter is when exactly the Prosecution gives advance

 8     notice to the Defence on how witnesses are scheduled to appear and what

 9     exhibits will be used.  For example, two weeks in advance might be a good

10     thing to do.  At the same time, of course, we have to gain experience in

11     how this trial will proceed to see to what extent time-limits are to be

12     applied as usual or whether we have a different approach.

13             The parties are invited to communicate on this matter and see to

14     what extent they can agree on a practice then to be reported to the

15     Chamber so the Chamber can consider whether it agrees with this practice,

16     but, of course, the Chamber is very much inclined to rely on any matter

17     on which the parties agree, unless the Chamber considers it's not an

18     appropriate way to proceed.

19             These were the, if I could say so, rather technical matters on

20     our agenda.  I would like to be informed, Mr. Simatovic, either by

21     yourself or through counsel, whether the detention situation or your

22     health triggers any need to inform the Chamber.  And about health issues,

23     if there's anything, if you'd like to deal with it in private session,

24     please indicates so.

25             I must admit that I've forgotten, Mr. Simatovic, to ask you at

Page 1366

 1     the beginning of this hearing, my apologies for that, whether you could

 2     hear me in a language you understand; but from your body language, I

 3     understood that you are receiving translation.  If you could please

 4     confirm that you were able to follow the proceedings.

 5             THE ACCUSED SIMATOVIC:  [Interpretation] Your Honours, I can

 6     follow the proceedings, everything is fine with me as far as health is

 7     concerned, and everything is fine in detention.

 8             JUDGE ORIE:  Thank you for that information.

 9             At the beginning of this hearing we spoke already about the

10     health issues which are not dealt with in private session because they

11     have gained some public interest as it was expressed by Judge Robinson at

12     the time.  At the same time, I don't think that we have to keep it short;

13     we have the four main issues being pouchitis, stomach problems,

14     psychological/psychiatric issues, depression, I would say, and the fourth

15     now the herniatic disc issue.

16             I think a lot of information has been exchanged.  Chamber thinks

17     that it's informed about it.  If there's any doubt about that,

18     Mr. Jordash, you are invited to address the Chamber.

19             MR. JORDASH:  At this stage, I have nothing to add.  Thank you,

20     Your Honour.

21             JUDGE ORIE:  Thank you.

22             Then my -- and the same of course is true for detention issues.

23             MR. JORDASH:  The same, yes, Your Honour.

24             JUDGE ORIE:  Yes.  I think the parties were informed that as far

25     as the modalities of trial are concerned, that I visited the UNDU

Page 1367

 1     yesterday in order to see how the arrangements for video conference

 2     attending of court sessions was organised and what it was so that if, at

 3     a later stage, we look at our screens so that I would at least know what

 4     I'm looking at.  Parties are informed about that.

 5             Is there any other matter to be raised by the parties at this

 6     moment.  Ms. Brehmeier or Mr. Groome?

 7             MR. GROOME:  Not from the Prosecution, Your Honour.

 8             JUDGE ORIE:  Mr. Jordash?

 9             MR. JORDASH:  No, thank you.

10             JUDGE ORIE:  Mr. Jovanovic?

11             MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.  I would

12     like very briefly to go back to one topic, and that's -- concerns the

13     trial.  I don't want to burden the Trial Chamber with the problems we are

14     facing due to the delay and postponement of this trial; I would like,

15     however, to know whether the Pre-Trial Conference has now been postponed

16     for at least two weeks with a possibility of further extension.

17             We are in contact with the Registry, and I would like to remind

18     you of the fact that the previous time, when the conference was postponed

19     due to the poor health of Mr. Stanisic, the Simatovic Defence filed a

20     motion for provisional release that was granted.  Of course, the Defence

21     would not repeat this motion if the postponement was short, but you know

22     that every day unnecessarily spent in detention is too long.  Of course,

23     I'm not asking the Chamber to make this decision earlier than they had

24     intended.

25             JUDGE ORIE:  I see, Mr. Jovanovic, what problems it causes the

Page 1368

 1     Simatovic Defence, you Mr. Simatovic.  As matters stand now, the

 2     Stanisic Defence has requested a delay of four weeks.  As I said before,

 3     a final decision has not been taken yet; but for a variety of reasons,

 4     the Chamber has decided at this moment to delay the Pre-Trial Conference

 5     until the 2nd of June, that is two weeks, rather than four weeks from the

 6     original scheduling.

 7             I see your point, two weeks is a -- if I say, short period of

 8     time, I must say a relatively short period of time because it's still 14

 9     days and to spend 14 days in pre-trial detention is not just to be called

10     short.  If, however, further and longer delays come within the -- within

11     our horizon, then, of course, the Chamber will address any matter in

12     relation to pre-trial detention you would raise under those

13     circumstances.

14             The -- two weeks at this moment has not triggered the Chamber to

15     proprio motu consider any reinstatement of the provisional release as it

16     was -- as your client was in previously.

17             I think there's no misunderstanding you are just mainly drawing

18     our attention to the possible consequences of further delays for

19     pre-trial detention and possibilities of provisional release.

20             Any other matter?  If not, then this concludes the

21     Status Conference.  We therefore adjourn until the 2nd of June.  But the

22     various health issues that are still pending, of course, may, I'm saying

23     may, not will, may cause further meetings.  Whether that would be a

24     formal Status Conference or a 65 ter meeting is still to be seen, but as

25     matters stand now, we stand adjourned to the 2nd of June; time is still

Page 1369

 1     to be determined.

 2                           --- Whereupon the Status Conference adjourned at

 3                           3.35 p.m., to be reconvened on the 2nd day of

 4                           June, 2009.