Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1370

 1                           Tuesday, 2 June 2009

 2                           [Pre-Trial Conference]

 3                           [Open session]

 4                           [The accused Simatovic entered court]

 5                           [The accused Stanisic not present]

 6                           --- Upon commencing at 2.24 p.m.

 7             JUDGE ORIE:  Good afternoon to everyone.

 8             Madam Registrar, could you please call the case.

 9             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon,

10     everyone in and around the courtroom.  This is case IT-03-69-PT, the

11     Prosecutor versus Stanisic and Simatovic.

12             JUDGE ORIE:  Thank you, Madam Registrar.

13             Mr. Simatovic, can you hear me in a language you understand?

14     Apparently not.

15             Mr. Simatovic, can you hear me in a language you understand?

16             THE ACCUSED SIMATOVIC: [Interpretation] Yes, I do.

17             JUDGE ORIE:  Yes.  You still can hear me in a language you

18     understand.  Yes, thank you.

19             Could I have the appearances.

20             MR. GROOME:  Good afternoon, Your Honours.  For the Prosecution,

21     I am Dermot Groome, I am accompanied by Doris Brehmeier-Metz,

22     Klaus Hoffmann, and we are assisted today by Thomas Laugel and

23     Vickie Iacobellis.  Thank you, Your Honour.

24             JUDGE ORIE:  Thank you, Mr. Groome.

25             The Stanisic Defence.

Page 1371

 1             THE INTERPRETER:  Microphone, please.

 2             MR. KNOOPS:  Your Honour, myself, Geert-Jan Knoops, and

 3     accompanied by legal assistants Amy Walsh, and Rima Dykstra.

 4             JUDGE ORIE:  Thank you, Mr. Knoops.

 5             The Simatovic Defence.

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

 7     name is Zoran Jovanovic.  And together with Mr. Domazet and Ms. Morgan,

 8     we are the Defence team for Frenki Simatovic.

 9             JUDGE ORIE:  Thank you, Mr. Jovanovic.

10             Mr. Knoops, the Chamber received a signed waiver form for this

11     afternoon saying that Mr. Stanisic waives his right to be present.  Yes.

12     Nevertheless, we also received a report dated the 2nd of June concerning

13     the health condition of Mr. Stanisic, and despite the fact that

14     Mr. Stanisic has waived his right, the Chamber would like to receive some

15     additional information on this report.  And we have understood that

16     Dr. Eekhof is stand-by, and that we could ask questions to him through a

17     videolink.

18             Is that correct, Madam Registrar?

19                           [Trial Chamber and Registrar confer]

20             JUDGE ORIE:  Could we then have the videolink activated.  Yes.

21     I -- yes.  The videolink has been established.  Is it -- Mr. Eekhof,

22     Dr. Eekhof, at the other side of the line?  You can hear me?  You can see

23     me?

24             MR. EEKHOF: [Via videolink] Yes.

25             JUDGE ORIE:  We can see you, and we can hear you, Dr. Eekhof.

Page 1372

 1             First I would like to ask the parties if I put questions to

 2     Dr. Eekhof in relation to the medical report, is there any need as far as

 3     the parties are concerned to ask him to make a solemn declaration or?

 4             MR. GROOME:  Your Honour, not from the Prosecution's point of

 5     view, but I'm unable to hear the remote location, so when the usher is

 6     able, I'd appreciate if she could check my electronic system here.

 7             JUDGE ORIE:  Yes, Madam usher will assist you.

 8             Mr. Knoops, any need to ask Dr. Eekhof to make a solemn

 9     declaration?

10             MR. KNOOPS: [Microphone not activated]

11             JUDGE ORIE:  Mr. Jovanovic?  No need for that.

12             I have a few questions for you, Dr. Eekhof.  We've received your

13     report of the 2nd of June today in which you describe that you provide us

14     with information.  You first deal with the, as you said, presumed short

15     period of unconsciousness.  May I take it that you're not certain about

16     whether there was any period of unconsciousness and that's why you used

17     the word "presumed"?

18             MR. EEKHOF: [Via videolink] Well, nobody was present, so --

19             JUDGE ORIE:  Yes.

20             MR. EEKHOF: [Via videolink] Until proven otherwise, we always use

21     the term "presumed."  It does not mean I do not believe it.

22             JUDGE ORIE:  Yes, yes.  Then that is clear to me.

23             The next line -- the next paragraph deals with the back pain.

24     You say it's improving slowly.  That means that Mr. Stanisic slowly is

25     having less back pain?

Page 1373

 1             MR. EEKHOF: [Via videolink] Yes, and he's getting more mobile

 2     slowly.  He's more -- in the logbook.

 3             JUDGE ORIE:  Yes.  Has he received any physiotherapy treatment?

 4             MR. EEKHOF: [Via videolink] It's been offered to him.

 5             JUDGE ORIE:  Yes.

 6             MR. EEKHOF: [Via videolink]  And as far as I know, he's refused

 7     twice.

 8             JUDGE ORIE:  Yes.  And on -- who indicated that this might be --

 9     because we do not find anything in the neurological report that

10     physiotherapy might improve his condition.  Was that your assessment?

11     Was that the assessment of the medical expert?  Could you tell us what --

12     who indicated that this might be a proper treatment?

13             MR. EEKHOF: [Via videolink]  Well, the neurologist could not

14     find -- could not explain the complaints by neurological things.  And as

15     Mr. Stanisic had been lying for quite a long time, Dr. Falke had

16     prescribed physiotherapy, to get active quickly.

17             JUDGE ORIE:  Yes, now is it to improve his mobility because he

18     has been lying for quite a while --

19             MR. EEKHOF: [Via videolink]  Yes, yes.

20             JUDGE ORIE:  -- or do you expect also any positive effect in

21     relation to his back pain?

22             MR. EEKHOF: [Via videolink]  Well, he's been lying so long that

23     he needs to get more active, and being more active would relieve the pain

24     in the long run.

25             JUDGE ORIE:  Yes, and I do understand that he has not received it

Page 1374

 1     because he doesn't want to receive such treatment?

 2             MR. EEKHOF: [Via videolink]  Yeah, that is correct.

 3             JUDGE ORIE:  The next line is clear to me, that is, colitis

 4     unchanged.  The next line, psychological situation, unchanged.

 5             I'd like to move to your conclusions.  First you say he's not fit

 6     to be transported.  Could you explain to us on what this conclusion -- on

 7     what factors this is based?

 8             MR. EEKHOF: [Via videolink]  Mostly on the back pain.  He's been

 9     transported to the hospital for the MRI and other exams by specialists,

10     but it's always quite painful experience for him, which I do believe.

11             JUDGE ORIE:  Your last words were "which I do believe."  Is it a

12     matter of belief or is it a matter of establishing on the basis of

13     medical findings that he's suffering from this back pain?

14             MR. EEKHOF: [Via videolink]  Well, pain, as you know, can never

15     be objective.  We have to rely on what the patient says.  Moving around,

16     he does give a painful impression.  And I heard when he went to the

17     hospital, it was quite painful for him.  And he complained at the moment

18     and said it was possible for him to go see a specialist, so I assumed --

19             JUDGE ORIE:  Yes, now following your own words, you said when he

20     went to the hospital it was quite painful for him, and he complained at

21     the moment when it was -- so what you say he was complaining about pain.

22     Whether it was painful or not, you conclude that on what the patient told

23     you.

24             MR. EEKHOF: [Via videolink]  That's what I have to -- what we

25     have to rely on.

Page 1375

 1             JUDGE ORIE:  Yes.

 2             MR. EEKHOF: [Via videolink] Next conclusion that he's not fit to

 3     sit for more than ten minutes.

 4             JUDGE ORIE:  Could you explain the basis for this conclusion and

 5     also explain the ten minutes' limit which you -- which we find in your

 6     conclusion?

 7             MR. EEKHOF: [Via videolink] Well, trying to objectively look into

 8     it, we ask him to check what his daily routines are.  And during the

 9     meals he sits down for ten minutes, but after that he goes back to bed,

10     presumed because of his back pain.

11             JUDGE ORIE:  So the conclusion that he's not fit to sit more than

12     minutes is therefore mainly deduced from what you observe what he is

13     doing?

14             MR. EEKHOF: [Via videolink]  Yes.

15             JUDGE ORIE:  That's clear to me.  Next is he is fit enough to

16     participate in proceedings if sitting is limited to ten minutes.  That is

17     based on this same observations?

18             MR. EEKHOF: [Via videolink]  On the same observations.

19             JUDGE ORIE:  Yes.  Then the last of your conclusions is he's fit

20     enough to participate in proceedings up to one hour in the bed that has

21     been installed in the video teleconference room.  Could you explain what

22     led you to conclude that it was up to one hour that he would be fit to

23     participate in proceedings?

24             MR. EEKHOF: [Via videolink]  Well, also this is based on

25     observations.  But when talking about his health and when visiting him,

Page 1376

 1     he can -- we can hold normal conversations or talked about half an hour.

 2     And the hour is always a guess, of course, we cannot base that on real

 3     objective facts.

 4             JUDGE ORIE:  Thank you for those answers.  I, at this moment,

 5     have no further questions, but I'm looking at my colleagues.

 6             Has any of the parties any questions to Dr. Eekhof?  Yes, perhaps

 7     it would be in light of the circumstances, Mr. Knoops, to give you first

 8     an opportunity, if you have any further questions, and then ...

 9             MR. KNOOPS:  Thank you, Your Honour.

10             JUDGE ORIE:  Yes.

11             Dr. Eekhof, could you just confirm whether you can see Mr. Knoops

12     standing at this moment?

13             MR. EEKHOF: [Via videolink]  Yes, I can.

14             JUDGE ORIE:  Yes, you can see him.  I can't see what you can see.

15             Please proceed.

16             MR. KNOOPS:  Good afternoon, Dr. Eekhof.

17             MR. EEKHOF: [Via videolink]  Good afternoon.

18             MR. KNOOPS:  Dr. Eekhof, in your report you refer to the

19     unchanged psychological situation of the accused.

20             MR. EEKHOF: [Via videolink] Yes.

21             MR. KNOOPS:  What do you mean with the word "unchanged"?  What is

22     the level of reference in regard to this qualification?

23             MR. EEKHOF: [Via videolink] It was the level when I first met

24     him, so I'm writing weekly reports to the Trial Chamber and his

25     psychological situation has not improved, clearly now that we write it

Page 1377

 1     clearly in this time.

 2             MR. KNOOPS:  Does the word "unchanged" refer to the findings of

 3     Dr. Petrovic of the 10th of May in a report?

 4             MR. EEKHOF: [Via videolink] Yes, more or less.  I read the

 5     report.

 6             MR. KNOOPS:  Was the report you filed today substantiated by an

 7     additional report of Dr. Petrovic about the psychological situation of

 8     the accused?

 9             MR. EEKHOF: [Via videolink]  By that report, yes.  I have not

10     spoken to him today.

11             MR. KNOOPS:  So there is -- with respect to this report new

12     report of Dr. Petrovic?

13             MR. EEKHOF: [Via videolink]  Sorry, I did not understand you.

14             JUDGE ORIE:  I think, as a matter of fact, that there may be some

15     confusion.  I think Mr. Knoops was asking whether you took into account

16     any new report compared to the one which was delivered on the 10th of

17     May.  Did you see any new report?

18             MR. EEKHOF: [Via videolink]  No.

19             MR. KNOOPS:  So, in fact, the qualification "unchanged" is based

20     on the report of the 10th of May?

21             MR. EEKHOF: [Via videolink]  And my own observations.

22             MR. KNOOPS:  Observations, yeah.

23             Dr. Eekhof, you also state in your report that in your opinion as

24     a general practitioner, there are no evident psychiatric reasons

25     preventing him from participating in proceedings.  I can deduce from your

Page 1378

 1     answer just a few seconds ago that there wasn't a separate psychiatric

 2     evaluation --

 3             MR. EEKHOF: [Via videolink]  No.

 4             MR. KNOOPS:  -- which underlie your reports?

 5             MR. EEKHOF: [Via videolink]  No.

 6             MR. KNOOPS:  How far -- because you state that he is fit enough

 7     to participate in proceedings up to one hour in the bed that was

 8     installed in the VTC room.  How far did you -- were you able to deduce

 9     from the level of depression of Mr. Stanisic whether he was able to

10     participate in proceedings?

11             MR. EEKHOF: [Via videolink]  Well, as a GP we're trained to judge

12     depressions.  We're not psychiatrists, which means there was this

13     possibility that we judge it a bit different.  But I -- most of my

14     conclusion is on the fact that normal conversations are necessary, and

15     the list of things we check are unchanged.

16             MR. KNOOPS:  Did you -- were you able to evaluate, for instance,

17     the level of concentration, the level of active participation of the

18     accused?

19             MR. EEKHOF: [Via videolink]  I judge it by -- with my

20     conversations with Mr. Stanisic.  He is fully aware and concentrated when

21     we speak.  That's what I base it.  That's the basis of my conclusion.

22             MR. KNOOPS:  In the report of Dr. Petrovic also mentioned in your

23     first medical report, it's mentioned that the psychological situation has

24     worsened.  It's a report of 12 May.

25             MR. EEKHOF: [Via videolink]  I know, yeah.

Page 1379

 1             MR. KNOOPS:  Did anything develop in that situation?

 2             MR. EEKHOF: [Via videolink]  Well, he has contacted Dr. Petrovic

 3     again.  And as I understand [indiscernible] been organised.  But since

 4     the 12th of May, the situation, in my opinion, has not changed much, not

 5     positive nor negative.

 6             MR. KNOOPS:  And was there any incentive to review the

 7     psychiatric situation of the accused after the 12th of May by an expert?

 8             MR. EEKHOF: [Via videolink]  In my opinion, not, but ...

 9             MR. KNOOPS:  Would it be your advice to the Court to have the

10     situation anew evaluated by an independent expert in the psychiatric

11     field?

12             MR. EEKHOF: [Via videolink]  It might be a good idea, as, of

13     course, I'm a GP and not a psychiatrist.

14             MR. KNOOPS:  Thank you.

15             No further questions, Your Honour, at this stage.

16             Thank you.

17             JUDGE ORIE:  Thank you, Mr. Knoops.

18             Mr. Jovanovic, may I take it that you have no questions for

19     Dr. Eekhof?

20             MR. JOVANOVIC: [No interpretation]

21             JUDGE ORIE:  Mr. Groome, any further questions on behalf of the

22     Prosecution?

23             MR. GROOME:  Yes, Your Honour, thank you.

24             JUDGE ORIE:  Mr. Groome may have some questions for you,

25     Mr. Eekhof.

Page 1380

 1             MR. GROOME:  Dr. Eekhof, I'd like to focus your attention on the

 2     back pain that you describe in your report, and would you please address

 3     the issue of pain medication.  Has there been any discussion or

 4     consideration of whether pain medication might ease Mr. Stanisic's

 5     discomfort and allow him to sit in a chair or lie in the bed for a longer

 6     period of time than mentioned in your report?

 7             MR. EEKHOF: [Via videolink]  He is on some medication at the

 8     moment.  Now, back pain can be very severe, even though it is not a

 9     serious ailment.  I do not -- I think the combination of medication and

10     the physiotherapist would help.  He's luckily also been more active,

11     walking around more often than he did a few weeks ago.

12             MR. GROOME:  I'm sorry.  I'm a little bit confused.  Is he

13     currently being prescribed medication to ease that back pain now?

14             MR. EEKHOF: [Via videolink]  Yes, yes, yes.

15             MR. GROOME:  And is he complying with the taking of that

16     medicine?

17             MR. EEKHOF: [Via videolink]  Yes, Yes.

18             MR. GROOME:  So your assessment in terms of how long he is able

19     to remain sedentary either in a chair or in a bed is based upon him

20     maintaining the medicine that you've just -- you've already prescribed?

21             MR. EEKHOF: [Via videolink]  Yes.

22             MR. GROOME:  Thank you, Doctor.

23             I have no further questions, Your Honour.

24             JUDGE ORIE:  Dr. Eekhof, since no one seems to have further

25     questions to you, I would like to thank you very much for making yourself

Page 1381

 1     available, and you are accused.

 2             MR. EEKHOF: [Via videolink]  Thank you.

 3             JUDGE ORIE:  Then we can close the videolink.

 4             We're here today for a Pre-Trial Conference.  It has been

 5     established that Mr. Stanisic has waived his right to be present, and we

 6     have heard more about his medical condition at this moment.  The first

 7     item -- the first issue I'd like to raise is the time that is available

 8     for the Prosecution and the number of witnesses to be called during the

 9     Prosecution's case.  The Chamber wonders whether the Prosecution could

10     explain why the witness list of the 6th of May of this year was not in

11     conformity with the Rule 73 bis (C) determination made by the Chamber at

12     the Pre-Trial Conference on the 28th of April, 2008.  At that occasion

13     the Trial Chamber decided that the number of witnesses to be called would

14     be limited to 90, and that the number of hours was set at a maximum of

15     130 hours.

16             Now, the witness list of the 6th of May of this year includes 107

17     witnesses, and there is a pending application to add one witness to that

18     list, so that would make the total number 107.  And the time which is

19     used for the examination of these witnesses is assessed at 183 and a half

20     hours.

21             Mr. Groome, any way why the decision of the Chamber of last year

22     would not stand?

23             MR. GROOME:  Your Honour, I think there was some confusion as to

24     whether that would have been one of the decisions that the Chamber would

25     consider afresh.  If it is the Chamber's decision that the Prosecution is

Page 1382

 1     bound by that decision, then I would be bound by that decision, then I

 2     consider myself bound by that decision, and I would only ask to the end

 3     of the week to re-file the consolidated witness list to bring it in

 4     conformity or full conformity with Judge Robinson's determination made on

 5     that day.

 6             JUDGE ORIE:  Yes, it comes a bit of surprise when other respects,

 7     clarification was sought on what exactly should be done again and not

 8     necessarily be again, that this rather important issue, that you did not

 9     seek any clarification at all, and that you just moved on as if the

10     53 and a half additional hours would be granted.  It comes as a bit of a

11     surprise.  And apart from that, it takes quite a lot of work, isn't it,

12     to do the job twice?

13             MR. GROOME:  Well, I apologise for that, Your Honour, but I

14     assure you it wasn't any presumption on the Prosecution's part that we

15     were going to get any time -- any additional time that the Chamber did

16     not intend.

17             JUDGE ORIE:  Yes.  Of course we -- the Chamber will have to look

18     at your new witness list to see whether there's any reason to change

19     anything, but the Chamber expects you, first of all, to file a witness

20     list and whatever other submissions you would like to make that you could

21     even do with less than 130 hours of why you would, in view of this one

22     additional list, why you might need 133 hours.  I mean, the Chamber waits

23     for any further submissions on the matter, but the starting point at this

24     moment is that the ruling of last year --

25             MR. GROOME:  Your Honour, would it be acceptable for us to file a

Page 1383

 1     new consolidated witness list by the end of the week?

 2                           [Trial Chamber confers]

 3             JUDGE ORIE:  Yes, until Friday -- you've got until Friday, close

 4     of business.

 5             MR. GROOME:  Thank you.

 6             JUDGE ORIE:  We'll also not at this moment further deal with the

 7     matter.  We'll just wait and see what your new filing will bring us,

 8     unless any of the Defence counsel would like to make any comments or any

 9     submissions on the matter at this stage.  I see from nodding no

10     simultaneously by two Defence counsel that there's no need for that.

11             Then I move on to the next item which is the modalities of trial.

12     On the 29th of May of 2009, the Chamber issued its decision on the start

13     of the trial and the modalities for trial, and I take it that the parties

14     have read this decision by now.  I'd like with to make one addition to

15     item 1 of the modalities.  Ideally with court hearings two days per week,

16     for trial management purposes, it would be best to sit on Thursday and

17     Friday one week, and then Monday and Tuesday the week after.  But the

18     Chamber aims not to sit on Fridays.  Therefore, if the courtroom schedule

19     allows, we'll aim to sit on Wednesday and Thursday, and then the week

20     after that on Monday and Tuesday.

21             Scheduling is a rather complex issue.

22             Are there any questions in relation to the decision, the decision

23     on the start of the trial and the modalities?  I see you're on your feet,

24     Mr. Groome?

25             MR. GROOME:  Yes, Your Honour, just one point of clarification.

Page 1384

 1     In paragraph 10 of the Trial Chamber's decision, the Chamber accepts the

 2     Prosecution's argument that there must be a bifurcation of any assessment

 3     of Mr. Stanisic's health when the medical treatment he receives by his

 4     care providers.  The issue I wish to raise with the Chamber is the

 5     following.  In paragraph 3 of the annex attached to that decision, the

 6     Chamber requires the UN Detention Unit reporting medical officer to

 7     submit a weekly report on the medical condition of the accused and a

 8     gastroenterologist once every four weeks.  What is not clear to me, Your

 9     Honour, and I seek clarification from the Chamber, is whether the

10     personnel that will be providing such reports will have any

11     responsibility with respect to the treatment of Mr. Stanisic, or will

12     they be completely independent assessors?

13             JUDGE ORIE:  Yes, that's clear as a matter of clarification.

14             Any questions by the other parties or any further submissions in

15     relation to what was just raised by Mr. Groome.

16             Mr. --

17             MR. KNOOPS:  Sorry, not by Mr. Groome, another note.

18             JUDGE ORIE:  Yes, any other -- then we'll deal with them after

19     we've heard all the questions.

20             Mr. Knoops, please proceed.

21             MR. KNOOPS:  Yes, Your Honour, the Defence for Mr. Stanisic would

22     like to raise the content of paragraph 7 of the annex.  Actually, we were

23     hesitant to raise it today, but now that we heard the testimony of

24     Dr. Eekhof we would like to suggest to the Chamber in order to assist the

25     speediness of the trial to -- alongside the reporting by the medical

Page 1385

 1     officer of the UNDU also to have a weekly or two-weekly report of a

 2     psychiatrist, not being Dr. Petrovic -- or it could be Dr. Petrovic, for

 3     instance, by doctor De Man.  The problem we might face in the future is

 4     that once the Court would follow the reasoning in paragraph 7 that on the

 5     day of the particular court session, the Court might face the necessity

 6     to invoke what it says an independent medical expert to familiarise

 7     herself with the medical situation of Mr. Stanisic.

 8             Now, what we have received until so far are updates by Dr. Eekhof

 9     on mainly the physical situation of the accused while he's referring to a

10     report in this situation on 10th of May of Dr. Petrovic concerning the

11     psychological condition.  It might be of assistance to the Court to have

12     alongside the reporting system as set out in paragraph 7 for that

13     scenario, also beforehand a reporting system in place, for instance, by

14     Dr. De Man on the psychiatric situation of the accused.  Today we heard

15     that, although Dr. Eekhof is as a general practitioner, familiar with

16     some of the psychological aspects of the accused's health, he's not an

17     expert on that.  And I think the statement he gave today does give rise

18     to certain questions as how can the psychological or psychiatric

19     situation be assessed on the basis of a document of the 10th or the 11th

20     of May?  And by suggesting this to the Court, we could therefore prevent

21     the situation we had last year, namely, that on the day of the particular

22     court session the Court confronted with a statement from the medical

23     officer has to assign or has to invoke a psychiatric expert to evaluate

24     that component of the health of the accused.  That could cause several

25     delays when the Chamber would decide to go alongside that route.  And,

Page 1386

 1     therefore, if the Chamber could consider to have such a system in place,

 2     an additional reporting system by a psychiatrist, that could maybe

 3     beforehand solve quite some delays.

 4             And we as Defence, we have, of course, several questions as to

 5     the -- the foundation of a statement of a general practitioner as saying,

 6     Well, his psychological situation has not been changed or his psychiatric

 7     situation has not changed.  And still we might face the situation that

 8     the accused for mental reasons is not able to come to court or

 9     participate.  And, therefore, it is a suggestion on the basis for

10     experience of last year to the Court to consider this addition to

11     paragraph 7.  Thank you.

12             JUDGE ORIE:  Thank you.

13                           [Trial Chamber confers]

14             JUDGE ORIE:  Let me start in reverse order.

15             Mr. Knoops, you have made a suggestion to expand the --

16     paragraph 7.  The Chamber will consider your suggestion, we'll think

17     about it, and you'll hear from the Chamber what the conclusion would be.

18             Mr. Groome, if there's any need to make further submissions on

19     the suggestions made by Mr. Knoops, then, of course, you have an

20     opportunity, and I'll give you an opportunity to do that.  But we'll not

21     decide on the matter immediately.

22             So the second issue, Mr. Groome, the -- whether or not the

23     reporting doctors are involved in the treatment of Mr. Stanisic is a

24     matter of constant concern by this Chamber.  The fact that we are talking

25     about a reporting medical officer is already the result from trying to

Page 1387

 1     clearly separate who treats and who reports.  Now, unfortunately where it

 2     looked as if a reporting medical officer, a general practitioner, would

 3     not be involved in the treatment of Mr. Stanisic, it now turned out that

 4     Dr. Eekhof plays a role - perhaps not the most important role - in the

 5     treatment of Mr. Stanisic.  Which, as it was phrased, I think is that he

 6     is now involved in the pathway of treatment, which, of course, interfered

 7     with what the Chamber had on its mind and what was discussed earlier with

 8     the parties about who reports and who treats.

 9             The Chamber is in an ongoing discussion with the Registrar, the

10     UNDU, and medical experts in order to have a clear picture on who treats

11     and who reports because the combination of the two might not be the best

12     solution under the present circumstances.  This may be not a very

13     satisfactory answer to you apart from that the matter is under our

14     attention every single day.

15             MR. GROOME:  Thank you, Your Honour.  I appreciate that

16     additional information.

17             JUDGE ORIE:  Is there any need -- would you like to respond to

18     Mr. Knoops' suggestion, or would you prefer to do that in writing, but

19     then, of course, not in two weeks, but if you want to think about I

20     want --

21             MR. GROOME:  Well, I can respond very simply, and it's just to

22     recall some of the points raised in the Prosecution's submission on the

23     modalities is that the Prosecution also feels that it would be

24     beneficial, having also learned from the experience last year to have

25     this independent psychological assessment.  So the Prosecution in some

Page 1388

 1     ways agrees with Mr. Knoops that there would be some benefit in having a

 2     person report to the Chamber, be assessing Mr. Stanisic on a regular

 3     basis, so we are not in the situation where it arises at the last moment,

 4     witnesses are in The Hague, and it's a rather difficult situation to deal

 5     with at that stage.  So I do support Mr. Knoops' suggestion in part with

 6     respect to another independent assessing psychiatrist.

 7             JUDGE ORIE:  Thank you for that response.

 8             The Chamber will, as I said, Mr. Knoops consider the matter and

 9     let you know.  If there's nothing else in relation to this matter, I

10     would like to move on to the next item which is trial scheduling during

11     June and July.

12             On the 6th of May, 2009, the Stanisic Defence requested for

13     postponement of commencement of the trial.  And on the 12th of May the

14     Prosecution responded that it took no position with regard to the motion.

15     During the Status Conference on the 12th of last month, the Chamber

16     decided for a variety of reasons which were totally unrelated to the

17     request by the Stanisic Defence to reschedule the Pre-Trial Conference

18     from the 18th of May to today, the 2nd of June.

19             On the 2nd of June -- on the 27th of May, the Chamber decided to

20     deny the Stanisic Defence's request and informally communicated this

21     decision to the parties through an e-mail from the Senior Legal Officer.

22     The Chamber considered that even under the difficult organisational

23     circumstances of the present case a Defence counsel need to prioritise

24     its Tribunal obligations.  Also, since the trial would not be starting

25     full time, the Chamber considered that the parties would have time to

Page 1389

 1     conclude other professional obligations.  The Chamber indicated that in

 2     the -- indicated in the already-mentioned informal communication that

 3     scheduling considerations anyway might prevent the opening statements

 4     being heard earlier than four weeks from the original as-planned date of

 5     the 25th of May, 2009.

 6             So the practical effect might not be any different from when we

 7     would have granted the request, but we have denied it, but it might not

 8     make that much of a difference.

 9             One of the things the Chamber in relation to this would like to

10     ask to you, Mr. Knoops, whether you have any already-established court

11     appearances on such days so that we could see to what extent we could

12     take that into consideration.  Of course, there's still co-counsel,

13     Mr. Jordash, but of course we're aware not trying to make life any more

14     difficult for you as it is already.  Could you give us any set dates for

15     court appearances which would make it difficult for you to appear in the

16     Stanisic case?

17             MR. KNOOPS:  First of all, Your Honours, thank you very much for

18     your patience with the Defence team of Mr. Stanisic and also the fact

19     that you're willing to consider it and accommodate our problems.  The

20     main -- I can provide maybe that's more efficient for today provide

21     tomorrow morning a list with some dates which are, for me, quite

22     difficult to change.  But on the other hand Mr. Jordash's main concern

23     was his other obligation in the appeals case in Sierra Leone, the

24     dead-line he had to meet this week.  And our other obligation case

25     relates to Michel Bagaragaza at the ICTR which is already postponed twice

Page 1390

 1     which makes it for us unsecure when this case could start.  It's still

 2     unclear.  But with respect to, say, some domestic court sessions which,

 3     for me, are very vital to attend, I could provide the Court tomorrow with

 4     a list tomorrow, but it will be a short list, I can promise.

 5             The Defence will do as much as possible to have either

 6     Mr. Jordash or myself in court, and I will get back to the Chamber as

 7     soon as possible with some dates in June or July, but there will be few

 8     of them.  Our main problem was the month of May which is now covered by

 9     the other postponement by Your Honours' other reasons.

10             If that may help the Court I can provide, as said, this list as

11     soon as possible with the dates.  For us, the main problem remains how

12     the ICTR will schedule the Bagaragaza case.  The last information is that

13     it's being postponed until after the summer recess, and even then it's

14     still not sure when the case will go to trial.  We were informed that

15     because of a lack of capacity of the Judges, the case which was

16     originally scheduled for February and then April has now been pushed back

17     until after summer recess.  But we'll keep the Court informed about any

18     court date of the ICTR in the Bagaragaza case.

19             JUDGE ORIE:  Yes, if there would be any -- we do understand that

20     this scheduling is uncertain at this moment.  If in any of your domestic

21     cases your appearance in domestic courts would possibly result in a

22     non-representation of Mr. Stanisic, then of course we would like to have

23     full details of whether it's trial, whether it's pre-trial, and where

24     and -- so that we can see how we can -- whether and if so how we can

25     accommodate the Defence.

Page 1391

 1             I already informed you that the Registry is currently working out

 2     a schedule for the beginning of this trial.  This has not yet been

 3     finalised.  As I said before, it's a complex matter.  The Chamber will

 4     inform the parties as soon as possible when the opening statements in

 5     this case will be heard and when the presentation of evidence will

 6     commence.  I already, however, can inform you that this Chamber will not

 7     sit in the Stanisic/Simatovic case in the week of the 22nd up to the 26th

 8     of June and that we will also not sit in the week following immediately

 9     the recess.  The recess ends on the -- let me -- no, the formal recess is

10     -- and I think they usually take it from the Monday to the Monday.  But

11     the last date in court before the recess is the 24th of July and the

12     first day after the recess is the 17th of August, but this Chamber will

13     not sit in that first week, that is, the week of the 17th up to and

14     including 21st of August, which would mean that we would, at its

15     earliest, restart at the 24th of August.

16             Any further questions in relation to this matter?  Mr. Groome.

17             MR. GROOME:  Your Honour, just on the matter of scheduling, if I

18     could advise the Chamber, the Prosecution stands ready on very short

19     notice to give its opening.  The opening is prepared.  I am advised that

20     it may be difficult to bring witnesses here in less than two weeks'

21     notice.  Of course we will endeavour to do that should the Chamber

22     schedule hearings.  But with the requirement of visas and that, I am

23     informed that it may be some with some difficulty that a witnesses

24     brought here in shorter than a period of two weeks.  So the Prosecution

25     would appreciate as much advanced notice as possible as to when the

Page 1392

 1     Chamber would like to hear evidence in the case.

 2             JUDGE ORIE:  Yes, the Chamber is aware of problems that sometimes

 3     arise from getting visa.  Sometimes there's also a problem in getting

 4     passports.  That, of course, can be dealt with at an earlier stage.

 5             MR. GROOME:  Yes, Your Honour, we have dealt with that.  It's

 6     just the visa question that's the problem.

 7             JUDGE ORIE:  Just the visa question.

 8             Any further matter in relation to scheduling?

 9             Mr. Jovanovic.

10             MR. JOVANOVIC: [Interpretation] Your Honour, we're discussing

11     some technical problems which are obviously increasing and due to the

12     timetable which we have to abide by.  In such situations there is always

13     communication between the Defence and the Registry and the Defence team

14     for the accused Simatovic, that is, my learned colleague and myself are

15     not residents in Holland as are the lawyers representing Mr. Stanisic, so

16     that we have a constant problem in communicating with the Registry

17     regarding the need to be present in The Hague and what the status of the

18     time spent in The Hague is.

19             Last year almost throughout the meetings it wasn't clear whether

20     the case was in the pre-trial or trial status, and this went on until a

21     few days ago when I communicated with the Chamber which is charging us

22     membership fees as if we were in the trial stage though we are in the

23     pre-trial stage.  These are really minor issues, and I'm sorry for

24     raising them before the Trial Chamber, but the Registry requires

25     explanations why we're in The Hague, whether the time spent here can be

Page 1393

 1     counted as two weeks prior to trial, or is it longer than that?  So there

 2     are series of formalities which we have to deal with and which encumber

 3     our activities regarding the case itself.

 4             I should also like to know if at all possible with greater

 5     precision when the trial is due to begin.  I didn't quite understand

 6     whether you said we won't be working in the week from the 22nd to the

 7     26th, whether the opening statement is due after the 26th or before the

 8     20th of June.

 9             JUDGE ORIE:  Mr. Jovanovic, unfortunately, I can't answer that

10     question at this moment.  I have good expectations that the work on the

11     schedule may be finalised within the next one or two days.  And of course

12     we'll immediately inform you about that.  It is a matter of Judges

13     sitting in various other cases.  Sometimes again with other Judges while

14     sitting in other cases.  So it is a rather complex matter.  We have to

15     find courtrooms.  Not always all courtrooms are fit to have all cases.

16     Therefore, it is -- we expect to come up with a June and July schedule

17     still this week.  And unfortunately, I can't tell you anything more at

18     this moment, but the -- one of the first things I did this morning is

19     asked my staff whether we had already the schedule, because I'm fully

20     aware what problems it may cause you.  I hope that there will be more

21     clarity within a couple of days.

22             If there's anything about explanations requested by the Registry,

23     the Registry knows that the Chamber - and I as a Presiding Judge of this

24     Chamber am always available to give additional information and

25     explanation and information on matters that bothers them - and I would

Page 1394

 1     not mind if there's any further problem, not to say that you are not in a

 2     position that you have to respond to their questions, but you may quote

 3     this line of the transcript if matters remain unresolved.  This is not a

 4     promise that I can resolve every issue, but I will do my utmost best to

 5     see whether matters can be arranged in an acceptable way for all parties,

 6     the Chamber, and the Registry.

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

 8             JUDGE ORIE:  Moving on from the scheduling issue to the next item

 9     on my agenda, which is about list of documents to be used with witness

10     testimony.  The parties are encouraged to agree on how much time in

11     advance the list of documents the parties intend to use during the

12     examination of the witnesses should be provided to the other party and to

13     the Chamber.  In this respect the, especially in view of the

14     cross-examining party's obligations, that is, when, at what specific

15     moment to provide the party that has called the witness with the exhibits

16     it intend to use, I'd like to -- the Chamber would like to draw the --

17     your attention to the extensive case law on this subject.  And if you'd

18     like to have an overview, the parties might, for example, consult a

19     decision which was given in the case against Gotovina et al., a decision

20     on the 5th of December, 2008.

21             The Chamber received a copy -- a copy of a proposal for an

22     agreement between the parties which was sent by the Prosecution to the

23     Defence today.  First of all, receiving this copy leads me to make two

24     short comments.  The first comment is that the Chamber does not want to

25     get involved in ongoing negotiations.  Sending a copy of a proposal may

Page 1395

 1     be understood as, Look how reasonable we are, and that's of course

 2     exactly what should not be dealt with in court.  The Chamber should stay

 3     out of that unless there is a moment where the parties say, We've tried

 4     our best.  We cannot reach an agreement.  Could the Chamber either rule

 5     on the matter or could the Chamber further assist the parties in reaching

 6     an agreement.  That's one.

 7             Second, I think that the Chamber invited the parties on the 12th

 8     of May to agree on the matter, and then to see that - at least I've not

 9     read it - but a first proposal to be sent on the 2nd of June is not a

10     sign of great expediency in dealing with the matter.  These are two

11     comments on the Chamber receiving it.  Of course the Chamber would like

12     to be informed about any progress made in reaching an agreement, but not

13     by reading all the proposals, counter-proposals, et cetera, because that

14     should not be within our sight.

15             When I said they haven't read it, that's true.  The -- one of the

16     Legal Officers of the Chamber has read it and told me that in the

17     proposals no attention was paid to when the cross-examining party - and

18     that's what I just talked about - at what point in time the

19     cross-examining party would have to disclose to the party that calls the

20     witness the exhibits it intends to use during cross-examination.  The

21     Chamber would like to receive information about results rather than about

22     proposals as soon as possible.

23             Is there any way that we could limit the time -- of course I

24     can't say when to reach an agreement, but of course the Chamber would

25     like to know, well, let's say, one week from now whether substantial

Page 1396

 1     progress has been made or whether an agreement has been reached; and if

 2     an agreement has been reached, what the agreement is.  Because I think as

 3     I said before, agreement of the parties is important, but of course the

 4     Chamber will also have to accept what the parties agreed upon because

 5     it's still the Chamber which is responsible for the conduct of the trial

 6     et al.

 7             Mr. Groome.

 8             MR. GROOME:  Your Honour, if I might ask what form the Chamber

 9     would wish to have.  If there is agreement, and I expect there will be

10     agreement on a number of matters, what form the Chamber would like that

11     in, in an official filing or simply a letter or --

12             JUDGE ORIE:  I think, finally, an official filing would be good,

13     but, as I said before, if you agree.  It could be that the Chamber

14     considers that paragraph 7(A) is unsatisfactory for the Chamber.  So what

15     I would suggest to the parties that if there is an agreement, that the

16     parties would informally send a copy of the written agreement to the

17     Chamber, the Chamber will then have a look at it, see whether there's any

18     reason to not adopt the whole or part of the agreement.  And it's all

19     finalised to have it then officially filed and have it on the record.

20     But I don't think that there is great use in filing the first version at

21     the 1st of September, the second on the 15th of September, the third on

22     the 30th of September, that seems not to be a very practical way of

23     proceeding.  So let's, in a rather informal way, inform the Chamber about

24     the results.  And once the Chamber has adopted the agreement as a

25     workable one for this trial, then to have everything formally be filed.

Page 1397

 1             Mr. Knoops.

 2             MR. KNOOPS:  Your Honour, if the Court pleases, may we ask the

 3     Court for one clarification in this regard?

 4             JUDGE ORIE:  Yes.

 5             MR. KNOOPS:  Your Honours just pointed out to the Prosecution

 6     that it's actually bound by its decision on the allocation of hours for

 7     witnesses and the number of witnesses, the decision issued by the

 8     previous Bench in this case.  Now, we have before us a decision on the

 9     6th of May, 2008, rendered by the Chamber in this case on provisions of

10     documents and scheduling of witnesses.  And on page 2 the Presiding Judge

11     at that time, Justice Robinson, set out certain criteria for the filing

12     of documents, the number of documents, the time limitations to disclose

13     documents including Prosecution and Defence position.  Is it the Court's

14     opinion that this decision is no longer valid in terms of binding the

15     parties?  Are the parties therefore at liberty to go beyond or within the

16     limitations the Presiding Judge did set in that order?  And if I may just

17     give a short example.

18             The Presiding Judge in that decision introduced a different

19     criteria than in the Perisic case, whereby the number of documents were

20     hundreds, while in this decision the number of pages of hundreds is the

21     criterion for number of hours which should be given to the Prosecution or

22     Defence to disclose it.  In other words, is it the Court's opinion that

23     the agreement the parties are able to make can deviate from this previous

24     decision of the 6th of May, 2008?

25             JUDGE ORIE:  As I said before in relation to the number of

Page 1398

 1     witnesses and the total time for case presentation, I said that decision

 2     stands, therefore we expect a new witness list, but we also see that you

 3     asked for another witness to be added to that list.  And I said if

 4     there's any reason why you consider that it should be 133 instead of 130,

 5     we'd like to hear from you.  These decisions stand but are not carved in

 6     stone, which means that if both parties would feel comfortable with a

 7     regime which is different, then the mere fact that there is such a

 8     decision should not keep you off from informing the Chamber that there is

 9     such a decision should not keep you off from informing the Chamber that

10     there is an agreement on a preferred way of proceeding.  And as I said

11     before, the Chamber will then consider whether or not we'll adopt or

12     whether we find reasons not to adopt that decision.  But I think that

13     decision stands as long, as there's no new one.  And from -- what I

14     expect from the parties is to consider that.  And if the parties find

15     that there is a better way of proceeding, and a better way which does not

16     in any way -- makes it more difficult for the Chamber to conduct this

17     trial, then of course we'll seriously consider that.

18             Is that an answer to your question, Mr. Knoops?

19             MR. KNOOPS:  It is, Your Honour.  Thank you very much.

20             JUDGE ORIE:  Thank you.

21             Is there -- yes.  The finalising of an agreement, the Chamber

22     would really like to receive within a week from now whether any progress

23     has been made and of course preferably what your agreed conclusions were.

24             Any other matter on lists of documents.

25             Then disclosure and translation matters.  Are there any matters

Page 1399

 1     in this respect which need attention?  Mr. Knoops, the Chamber has

 2     received a copy of a letter you've sent to the Prosecution, and the

 3     Prosecution has indicated in an e-mail to the Defence that it would

 4     respond to it.  I find some elements in that letter which apparently deal

 5     with translation issues.  Perhaps it would be a very practical disclosure

 6     and translation matters if you would not mind to go through this letter

 7     which has not been formally filed, or was it filed?  I'm -- no, it's not

 8     filed, and it should not be filed because it's correspondence between the

 9     parties, but it may be very practical at this moment.  First of all,

10     there is the Rule 70 material, Milosevic letter.  If you prefer to give

11     your response in writing to Mr. Knoops, fine.  If you could inform the

12     Chamber and respond now, we would listen to you.

13             MR. GROOME:  Just generally with respect to the entire letter,

14     Your Honour, I met with Mr. Knoops before today's hearing, and all of the

15     matters other than the Rule 70 matter, the Milosevic matter, are

16     resolved.  I told him I would be memorialised that in a letter later

17     today, and he should have that.  I am prepared to address both Mr. Knoops

18     and the Chamber on the Rule 70 matter.  But I would ask that if the

19     Chamber wishes to hear that, that we move into private session for that

20     purpose.

21             JUDGE ORIE:  Before we do then I just briefly mention so that

22     this is on the record that the other matters addressed in this letter

23     were partial disclosure of translations for both Rule 65 ter and Rule 66

24     material.  Mr. Knoops experienced some confusion where translations would

25     be partial translations.  That apparently has been resolved.

Page 1400

 1             Mr. Knoops very much wished to be informed if any exhibits would

 2     be dropped from the Rule 65 ter list or if there were any other changes

 3     to the Rule 65 ter list.  Apparently that matter has been resolved as

 4     well.

 5             There was a matter about missing material.  Seven documents

 6     related to witnesses that would still require translation, and around ten

 7     exhibits also waiting for translation.  But apparently that matter has

 8     been resolved as well --

 9             MR. GROOME:  Well, Your Honour, so the record is clear,

10     Mr. Knoops has agreed to identify those documents to me today, and we'll

11     make our best efforts to resolve all of them before the end of the week.

12             JUDGE ORIE:  Yes.

13             Then we move into private session.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 1401











11 Pages 1401-1404 redacted. Private session.















Page 1405

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12                           [Open session]

13             THE REGISTRAR:  We are in open session.  My apologies for this.

14             JUDGE ORIE:  I think you did not do anything wrong, so the

15     apologies are accepted, but at the same time ...

16             The Chamber would like to deliver an oral decision on the ninth

17     and the tenth Prosecution motion for leave to amend its Rule 65 ter

18     exhibit list.  This is the Chamber's decision on the ninth and tenth

19     Prosecution motions for leave to amend its Rule 65 ter exhibit list.

20             On the 29th of April, 2009, the Prosecution filed its ninth

21     Prosecution motion for leave to amend its Rule 65 ter exhibit list

22     seeking leave to add to its exhibit list a notebook which the Prosecutor

23     suspects belongs to Ratko Mladic.  On the 7th of May, 2009, the

24     Prosecution filed its tenth Prosecution motion for leave to amend its

25     Rule 65 ter exhibit list seeking leave to add ten additional documents.

Page 1406

 1     According to the Prosecution, the documents listed in this motion include

 2     a combat report, a military map, and a transcript of intercepted

 3     conversation.  The Prosecution submits that these documents are highly

 4     relevant, providing necessary linkage and crime base evidence.

 5             On the 13th of May, 2009, the Simatovic Defence responded to the

 6     Prosecution's ninth Rule 65 ter motion, opposing the addition.  In

 7     support of its objection, it submitted that, considering the present

 8     stage of the case, the addition of the notebook would not allow the

 9     Defence adequate time and conditions for preparing its defence and stated

10     that the notebook does not meet the requirements of prima facie relevance

11     and probative value.

12             On the 14th of May, 2009, the Stanisic Defence responded to both

13     the ninth and the tenth Rule 65 ter motions.  In support of its

14     objection, the Stanisic Defence submitted that the volume and frequency

15     of the proposed additions make the commissioning of new investigations an

16     impossible burden.  It also pointed out that the attempt to amend the

17     Rule 65 ter exhibit list is made at a late stage of proceedings.

18             On the 15th of May, the Prosecution sought leave to reply to the

19     Defence responses.  On the 21st of May, the Chamber decided to deny this

20     request and informed the parties accordingly through an informal

21     communication.

22             The Chamber has discretionary powers to grant a motion to amend

23     the exhibit list if it is satisfied that to do so would be in the

24     interests of justice.  In exercising this discretion the Chamber must

25     balance the Prosecution's duty to present the available evidence to prove

Page 1407

 1     its case with the rights of the accused to a fair and expeditious trial

 2     and the right to have adequate time and facilities for the preparation of

 3     their defence.

 4             The Chamber must take into consideration whether the documents

 5     sought to be added are prima facie relevant and probative.  The Chamber

 6     will also consider whether good cause for amending the exhibit list has

 7     been shown.  Moreover, the Chamber will consider the extent to which the

 8     new documents create an additional burden on the Defence.

 9             The notebook referred to in the ninth Rule 65 ter motion relates

10     to the accused Stanisic's role in military operations of the

11     Yugoslav Army and the Bosnian Serb army in Bosnia-Herzegovina in 1995 and

12     paramilitary units from Erdut and Djeletovci.  The Chamber is satisfied

13     that the notebook is prima facie relevant and of probative value.  The

14     various types of documents listed in the tenth Rule 65 ter motion relate

15     to a variety of elements such as the alleged persecution and deportation

16     of non-Serbs from Bosnia and Herzegovina; the role of the accused or the

17     Serbian Ministry of Interior in the conflict in Bosnia and Herzegovina;

18     and other related factors.  The Chamber also finds that these documents

19     are prima facie relevant and of probative value.  The Chamber will

20     further consider the relevance and probative value of the documents and

21     the arguments raised by the Defence when and if the Prosecution tenders

22     these documents into evidence.

23             As for good cause to amend the exhibit list, the Chamber finds

24     that there exists good cause for amending, since the notebook only came

25     into the Prosecution's possession on the 25th of February, 2009.

Page 1408

 1     However, the Prosecution in its tenth Rule 65 ter motion failed to

 2     provide detailed justification to support the proposed amendment.  While

 3     the Prosecution provided information on when the documents were or would

 4     be disclosed, there are only sporadic indications of when it came into

 5     possession of these documents.  The Chamber will consider whether it's

 6     nevertheless in the interest of justice to grant leave to add these

 7     documents to the Prosecution's exhibit list.

 8             An important consideration for the Chamber is the extent to which

 9     the addition will create an additional burden on the Defence.  The

10     documents listed in the tenth Rule 65 ter motion are relatively concise.

11     Most of them only consist of a couple of pages.  The volume of the

12     notebook in the ninth Rule 65 ter motion amounts to more than 300 pages.

13     However, the Chamber considers that this trial has not yet commenced and

14     that therefore the Defence has still time to assess all the new

15     documents.  In this vein, the Chamber finds that by allowing the Defence

16     reasonable amount of time to review the materials before their actual

17     submission, it is possible to fully accommodate the Defence.  In line

18     with the rationale of Rule 65 ter (E)(iii), which provides that the

19     Provence is obliged to present its Rule 65 ter exhibit list to the

20     Defence not later than six weeks before the Pre-Trial Conference, the

21     Chamber considers that the Prosecution should not use the sought material

22     for evidentiary purposes until after six weeks after rendering of the

23     present decision.  Or if there are still some pending translations due,

24     after six weeks from receiving such translations by the Defence.

25             Balancing the Prosecution's duty to present the available

Page 1409

 1     evidence to prove its case with the right of the accused to a fair and

 2     expeditious trial and the right to have adequate time and facilities for

 3     the preparation of the defence, the Trial Chamber concludes that it is in

 4     the interests of justice to add the material sought by the Prosecution in

 5     its ninth and tenth Rule 65 ter motions to the Prosecution's Rule 65 ter

 6     exhibit list.

 7             And this concludes the Chamber's decision on the ninth and tenth

 8     Prosecution motions for leave to amend its Rule 65 ter exhibit list.

 9             I have at this moment nothing else on my agenda.  Looking at the

10     clock, I establish that this would be the time to have a break after

11     approximately one hour and a half.  The last item always is any matter to

12     be raised by the parties.  If there is nothing, or if it could be dealt

13     with in one or two minutes, I would like to invite the parties to raise

14     whatever they wish to raise.  If, however, it would take more time, then

15     we would first have a break.

16             Mr. Groome, need for a break?

17             MR. GROOME:  I have two matters, Your Honour, that I believe I

18     can take care of in less than a minute.  There is just matters to bring

19     to your attention.

20             JUDGE ORIE:  Of course I would like to hear from the Defence

21     whether there are more matters that take more time.

22             MR. KNOOPS:  No matters.

23             JUDGE ORIE:  No matters.

24             Mr. Jovanovic?

25             MR. JOVANOVIC: [Interpretation] No, Your Honour.  Thank you.

Page 1410

 1             JUDGE ORIE:  Then, proof of the pudding is in the eating,

 2     Mr. Groome, you said two matters of one minute.  I'm looking at the

 3     clock.  Please proceed.

 4             MR. GROOME:  Your Honour, with respect to 92 ter, prior to the

 5     start of trial last spring, the Prosecution filed all of its applications

 6     for admission of written evidence in lieu of live testimony.  At that

 7     time we provided the Defence with copies of all the statements or

 8     testimony we requested admission of under Rules 92 bis and ter.  There

 9     was something that Your Honour said at the last Status Conference that

10     made me believe that maybe that wasn't clear for the Chamber, so I just

11     wanted to clarify that.

12             And my remaining 30 seconds, I am happy to report that there has

13     been some progress on agreed facts.  Mr. Jovanovic has forwarded an

14     e-mail this morning notifying us of some facts that he will agree to.

15     Obviously an agreed fact has limited utility unless there is agreement

16     between all three parties.  To that end, Mr. Knoops has agreed to

17     consider Mr. Jovanovic's e-mail prior to Friday and let us know whether

18     he will also agree to those facts.

19             Thank you, Your Honour.

20             JUDGE ORIE:  Thank you, Mr. Groome, also for staying within the

21     time-limits.  The Chamber will always be delighted if progress is made,

22     but the real moment will be whether the progress has resulted in an

23     agreement.  If there's nothing else to be raised at this moment, the

24     Chamber adjourns sine die.

25                           --- Whereupon the Pre-Trial Conference

Page 1411

 1                           adjourned at 3.57 p.m. sine die