Tribunal Criminal Tribunal for the Former Yugoslavia

Page 138

 1                           Wednesday, 12 March 2008

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.16 p.m.

 6             JUDGE PROST:  Good afternoon, everyone.  Madam Registrar, could

 7     you call the case, please.

 8             THE REGISTRAR:  Good afternoon, Your Honour.  This is case number

 9     IT-05-88/2-PT, the Prosecutor versus Zdravko Tolimir.

10             JUDGE PROST:  Thank you very much.  Good afternoon everyone

11     again.

12             Mr. Tolimir, I'd like to confirm that you are receiving

13     interpretation into a language that you understand.  I see that you are

14     nodding.  And should you have any difficulties -- if you have any

15     difficulties with the -- that, please let me know as we're proceeding.

16             May I have -- well, I note the appearances for the Prosecution,

17     Mr. McCloskey, Mr. Vanderpuye.

18             MR. McCLOSKEY:  And Chris Mitchell.

19             JUDGE PROST:  And Mr. Mitchell.  Thank you.

20             And Mr. Tolimir I note is here, and I understand as well,

21     Mr. Tolimir, you have with you today your case manager.

22             Sir, could you introduce yourself please for the record.

23             MR. SEKULIC:  Assisting Mr. Tolimir in court today, Vuk Sekulic

24     attorney-at-law from Belgrade and case manager for General Tolimir.

25             JUDGE PROST:  Thank you very much and welcome, sir.

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 1             All right.  This is the third Status Conference for -- for this

 2     case, and pursuant to Rule 65 bis (A), the purpose is of course to have,

 3     exchanges between the parties to ensure an expeditious preparation of the

 4     trial and also to review the status of the case and to deal with any

 5     issues including issues relating to the circumstances of the accused.

 6             I have essentially two items only for today's proceedings.  I am

 7     aware, Mr. Tolimir, of your filing which I received on the 19th of

 8     February.  You filed it on the 13th.  And I will, of course, also ask the

 9     Prosecutor if they have any matters to raise, and then there are the

10     regular matters we'll deal with at the end.

11             It is my understanding we only have a very limited amount of time

12     today because it's a busy day for Status Conferences, so I would ask

13     everyone if we can keep our submissions short and focused so that we can

14     complete things within the scheduled time.

15             I'm going to deal first of all with -- with the issue of the

16     confidentiality order, Mr. Tolimir, that I issued on the 28th of

17     February.

18             Now, normally issues of this nature relating to disclosure,

19     confidential materials are matters that are dealt with as between counsel

20     for the Prosecution and counsel for the Defence, but obviously in a case

21     such as this of a self-represented accused, that is not possible and that

22     is the reason for the intervention of the Pre-Trial Judge in this

23     instance.

24             On the 28th of February I issued an order for the protection of

25     confidentiality of disclosed materials and because of the importance of

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 1     this issue, Mr. Tolimir, and in particular in light of my obligation

 2     under Article 20 of the Statute to always have due regard to the

 3     protection of victims and witnesses, I want to review the nature and

 4     content of this order with you this afternoon to make sure that you

 5     understand it.

 6             Amongst the material the Prosecution may disclose to you or you

 7     may otherwise receive will be statements, testimony given by individuals

 8     who have been accorded protective measures by this Tribunal.  These kinds

 9     of measures can take different forms.  For example, the name of the

10     person might be protected from public disclosure and he or she may be

11     assigned a pseudonym, and in court even we go to the -- we use on

12     occasion measures of preventing the public from seeing or hearing the

13     witness in their normal voice or normal appearance.  And in addition

14     sometimes evidence is taken in a private or a closed session, which means

15     it cannot be disclosed to the public.

16             So in those cases, Mr. Tolimir, when you receive material of this

17     nature, you are precluded from disclosing such information to anyone

18     other than, of course, members of your legal team which will have access

19     to that material but are similarly bound not to disclose or disseminate

20     the identifying information about a witness or about what was said in

21     closed or private session.  To do so, of course, would violate the

22     protective order issued by the Tribunal.

23             In addition, Mr. Tolimir, you may receive material which is

24     marked as confidential.  For example, the Prosecution might have been

25     provided with documentation by a country, by an individual, but on a

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 1     condition that it not be disclosed publicly.  And here again, that

 2     material must be kept confidential by you and your legal team.  The same

 3     is true of motions that may be filed confidentially or even decisions

 4     issued by the Tribunal confidentially.

 5             This order that I issued on the 28th obligates you to keep all of

 6     that kind of material confidential.

 7             If an issue arises, of course, as to the basis upon which perhaps

 8     the Prosecution is alleging that material is confidential and you

 9     challenge that, you can certainly bring that to the attention of the

10     Trial Chamber.  But insofar as and in the absence of a ruling to the

11     contrary, if the material is marked as confidential, then it must be

12     treated and respected as such.

13             Do you understand this, Mr. Tolimir?  Have I -- have I made this

14     clear?

15             THE ACCUSED: [Interpretation] Yes, Your Honour.  I would like to

16     greet you and the gentlemen, and I would like to bring this trial to an

17     end with faith in God and as -- and God's will may be served, and now let

18     us pay respect to the late Nebojsa Mrksic who represented me in this case

19     for five months.  He died 12 days ago and he's a member of the lawyer's

20     Chamber of this court so I would like to pay respect by one minute of

21     silence.  Thank you.

22             JUDGE PROST:  Thank you, Mr. Tolimir.  We were aware of the very

23     sad death of Mr. Mrksic and the Trial Chamber in the Popovic et al. Trial

24     has offered our condolences to his family.  So thank you for that.

25             And I take it from your comments you do understand the

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 1     explanation that I have provided regarding the confidentiality of

 2     material.  Is that correct, Mr. Tolimir?  Could you confirm that for me

 3     please, on the record.

 4             THE ACCUSED: [Interpretation] Thank you.  I will answer your

 5     question now before I move on to the issues that I would like to raise.

 6     I would like to inform you that I am not aware of anything.  Nothing has

 7     been disclosed to me, not even the enlarged indictment, amended

 8     indictment.  So I cannot commit any breaches on confidentiality, and I

 9     would also like to inform you that nothing is being disclosed to me in a

10     language that I understand with regard to the submissions and motions by

11     the Chamber.  So there's nothing I can disclose to the public.

12             I would also like to tell you that I am not able to read the

13     electronic mail.  I don't have a computer.  So there's nothing I can

14     disclose to the public.

15             And thirdly, thank you very much --

16             JUDGE PROST:  Thank you, Mr. Tolimir.  We will come to the issues

17     that you've raised, because the next issue I'm going to deal with is in

18     direct response to the issues that you have just noted.  I simply wanted

19     to confirm, and I am satisfied by your response that you understand the

20     nature of the confidentiality order, and I'm assuming that you will

21     respect it.  So I'm satisfied that you are now aware, whether you've

22     received it in writing or not, you are aware from the oral comments I

23     have made that that order is in place and of the obligations under the

24     Statute generally.

25             Now, I'm going to move to my second issue which, Mr. Tolimir,

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 1     will also deal with a number of the issues that you have indicated you

 2     wished to discuss today.

 3             It seems evident to me, Mr. Tolimir, from looking at your filings

 4     and from hearing your submissions that there is some clarification needed

 5     here as to the court process.  Not just the court process here but it is

 6     a general process in most courts that I am aware of.

 7             While you have the right, Mr. Tolimir, albeit not an unqualified

 8     one, to elect self-representation, you do not have the right to elect the

 9     procedure that will be followed in this Tribunal.  As I explained to you

10     when we met previously and you indicated your intent to represent

11     yourself, you are responsible to present your case in accordance with the

12     procedure as defined by the Statute, the Rules, and the jurisprudence.

13             Now, in accordance with that procedure, both parties, both you

14     and the Prosecution, are entitled to bring issues before me and before

15     the Trial Chamber.  And provided those are matters properly before us,

16     once they are raised both parties are given an opportunity to address the

17     issues, orally in some instances but in many instances in writing as

18     well, and within specified time limits.

19             On occasion as well, we may ask for or the Registrar may make

20     submissions on those issues.

21             After this, after the submissions are made, I as the Pre-Trial

22     Judge or the Trial Chamber will render a decision.  Once that decision is

23     made, Mr. Tolimir, once it is rendered and issued, that is the end of the

24     matter.  It is not open to the parties, to either party, to continually

25     reargue the issue, to continue to make submissions which are directly

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 1     contrary to the decision or to continually return to the same point.

 2             You can, of course, seek clarification of a decision if something

 3     is not clear, or in a very, very exceptional circumstance you might

 4     formally seek reconsideration but this would be a rare occasion and you

 5     would have to do it formally in writing.

 6             In essence, the principle, Mr. Tolimir, which applies in all

 7     courts and legal systems, once a decision is made it is final and the

 8     issue ends there.

 9             The exception, of course, is if you wish to appeal my decision or

10     a decision of the Trial Chamber.  In most instances in this Tribunal that

11     will require the certification of the decision by the Trial Chamber.  But

12     if that is given, then you may bring the matter to the Appeals Chamber,

13     and you may reargue it before the Appeals Chamber.

14             Such requests and appeals, however, are to be brought within

15     specified time limits as well.  And even in that circumstance where you

16     bring a matter to the Appeals Chamber, until and unless the

17     Appeals Chamber issues a decision to the contrary, overturns the position

18     taken by the Trial Chamber or by me, our rulings stand and there is no

19     opportunity to rearguing the same issue either in writing or orally.

20             In -- in this case one of the issues, and I'll touch on two

21     others that you've raised today, but one of the issues which you continue

22     to raise, Mr. Tolimir, and you have again today, is the language of

23     communication.  Now, as you know, on December 11th of 2007 I issued a

24     ruling on that matter.  You requested on the 17th of December

25     certification of my decision, and on the 15th of January, the

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 1     Trial Chamber granted you certification and that matter you have now

 2     brought before the Appeals Chamber and it is pending there.

 3             And I would also note, Mr. Tolimir, because this is apparently

 4     not clear to you, on the same day, the 15th of January, the Trial Chamber

 5     rendered another decision on your written submission of 7th December on

 6     the same issue, the language issue, and we denied your motion but we also

 7     granted you certification of that written decision so you could raise it

 8     in conjunction with the appeal of the oral decision.

 9             However, as I say, that's where the matter stands.  The matter is

10     pending before the Appeals Chamber, and we are not going to deal with the

11     language issue further, neither here nor in terms of written material

12     that you may file.

13             So I am aware of your filings of the 25th of January, submitted

14     on the 23rd; of the 5th of February submitted by you on the 31st of

15     January; and a second one on the 5th of February which was submitted by

16     you on the 1st of February, but they will not be addressed by the

17     Trial Chamber nor by me, and it is in fact within the discretion of the

18     Registrar to refuse in future to accept filings on this subject because

19     they are not properly before the Tribunal.

20             All of this, I emphasise, is subject to, of course, the

21     Appeals Chamber's decision.  If they take a decision to the contrary,

22     then we're going to have to review a number of matters, but we will only

23     revisit it if and when that becomes necessary as a result of an Appeals

24     Chamber ruling.

25             So I hope that is clear to you Mr. Tolimir.  In addition, when I

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 1     look at the agenda items you put forward for today, most of them are

 2     subject to the same difficulty in that they relate to matters already

 3     decided by the Trial Chamber.

 4             I'll take each one in turn, but you need to understand I'm not

 5     entertaining submissions on issues already decided by me or by the

 6     Trial Chamber.

 7             So I turn to the matters you have raised, the four issues.  I

 8     begin with the last one which I need say no more on.  It's a question of

 9     the language of communication.  As indicated, that matter has been ruled

10     on and we will discuss it no further.

11             The first agenda item you have proposed is a discussion related

12     to your alleged kidnapping and the resolution of related issues of

13     status.  That issue, Mr. Tolimir, has been raised by you previously,

14     argued by you on a couple of occasions orally, and you also made written

15     submissions to the Trial Chamber in your Rule 72 motion filed on the 7th

16     of November, 2007.  You chose to do so.

17             The Trial Chamber has ruled on that matter, Mr. Tolimir, in its

18     decision on preliminary motions on the indictment pursuant to Rule 72

19     issued on the 14th of December.  I don't know if you've read that

20     decision, but I can assure you that within that decision the

21     Trial Chamber dealt with your arguments as well as the submissions of the

22     Prosecution and ruled on the question of your circumstances of arrest and

23     its impact or not on your -- on the jurisdiction.

24             As the matter has been decided, I will not hear further

25     submissions on it today.

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 1             The only caveat to that, Mr. Tolimir, because this is a

 2     particularly sensitive issue, is if, and I stress if, you have obtained

 3     new evidence.  Not information, not rumours, not simply that you have new

 4     arguments to take.  If you have new evidence that fundamentally changes

 5     the factual basis for the Trial Chamber's ruling then you may bring that

 6     to our attention for consideration, but it must be done so in writing,

 7     and it must include the actual evidence that you're referring to.  But

 8     otherwise, we will discuss the matter no further today.

 9             And finally, as for the second issue that you raised, this is the

10     failure, as you titled it, the failure of the Prosecution to disclose

11     under Rule 66(A)(i).  This again is a matter that has been concluded.

12             Based on the information before me on July 3rd of 2007, I found

13     the Prosecution had met its disclosure obligations.  However, at that

14     time, the time limits for your Rule 72 motions normally would have run.

15     I, however, stayed them at that time.  I did not require you in July to

16     file your preliminary motions because there was still an issue of the

17     appointment of counsel.  Once you decided that you were going to

18     represent yourself, I then, as we discussed and I did this at a

19     Status Conference, I set filing deadlines for the Rule 72 motion, and I

20     explained to you what those motions were and that they needed to be

21     filed, and in fact you filed a Rule 72 motion on the 7th of November as

22     we've just discussed.

23             Therefore, in terms of Rule 66(A)(i), and this is distinct

24     from 66(A)(ii) where there is still ongoing disclosure matters, that is a

25     closed issue as is the preliminary motion under Rule 72.

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 1             So therefore the issue that we are left with, Mr. Tolimir, for

 2     this afternoon amongst the issues that you have raised is that relating

 3     to the appointment of your -- as I take it an individual you would like

 4     appointed as a legal advisor on international law.  It is the third issue

 5     that you have raised.  In raising that point you have also highlighted

 6     some issues you're having with the Registrar about communications and

 7     faxes and things of that nature.

 8             I don't think we need to discuss that issue today, Mr. Tolimir,

 9     because from reading the material from you and from the Registrar, it's

10     apparent to me that's just a procedural matter and that there is no issue

11     there that requires intervention from the Trial Chamber.  However, I have

12     looked very carefully, Mr. Tolimir, at the issue you've identified

13     relating to Mr. Gajic, and I have reviewed that as well as the

14     Registrar's response, but I will give you an opportunity now to speak to

15     that issue.  I am concerned about the point you have raised, Mr. Tolimir,

16     and you can take it for granted I have read the submissions, but I invite

17     you at this point if you wish to make any further submissions on that

18     question, the appointment of Mr. Gajic, if you could do that at this

19     time, please, Mr. Tolimir.

20             THE ACCUSED: [Interpretation] Thank you, Your Honour.  I think

21     that you want me not to raise the issues that are supposed to resolve the

22     further procedure here and the pre-trial stage of this trial, and if you

23     don't want me to speak about them, then I don't want to speak about them,

24     but I would like to warn you that this is similar situation to two people

25     playing chess, one of them not being aware of the rules and the other one

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 1     being a good player.

 2             I can't play chess with you because I can't play, and you on the

 3     other hand are good chess players.  I haven't received anything not even

 4     the amended indictment.  But if you don't want me to speak, I won't

 5     speak.  But I would like to offer you a solution to the problem and I

 6     would like to state for the record that I have not received anything save

 7     for the indictment that was brought to me to my hospital bed after the

 8     arrest.

 9             I have not received the amended indictment or any material and

10     you know it.  And you issued a ruling, although we told you at the Status

11     Conference that nothing has been disclosed to me.  You were told that by

12     the Prosecutor and by myself.  If you made your decision fully aware that

13     no disclosure has taken place, I'm sure that you can change your ruling

14     or that you can find a solution that would not block the work of the

15     Prosecution.

16             You are not preventing me for -- from representing myself but you

17     are blocking the work of the Prosecution.  If you want to transfer my

18     rights onto the Prosecution, I won't prevent you in doing that.  I don't

19     want you to impose a language that I'm going to use upon me.  This is not

20     an issue that I'm going to talk about that but this is not a criterion

21     that leads to a just and --

22             JUDGE PROST:  Mr. Tolimir.  Mr. Tolimir, I think I've made myself

23     very clear.  It's not a question of the substance of the issue.  That

24     issue is before the Appeals Chamber at the moment.  So -- but what I am

25     offering you an opportunity to do, you have raised an issue that I take

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 1     it -- you've raised it very clearly that I take it is of concern to you

 2     which is the appointment of Mr. Gajic.  And I would like to hear from you

 3     because I take it as a very serious matter, the composition of the team

 4     that will assist you with your defence.  So I would like to hear from you

 5     right now is on that, if you have anything further.  I have taken your

 6     comments into account and I find them quite persuasive, Mr. Tolimir, on

 7     the issue of his appointment.  So please could you address me on that

 8     issue.  I'm interested in hearing from you on that point.

 9             THE ACCUSED: [Interpretation] Thank you very much.  I just wanted

10     to offer two remarks on the things that you already shared with us

11     because I was the one who called this Status Conference and I would

12     kindly ask you to allow me to offer these two remarks.  Don't forbid me

13     to do that.  I would just like to state for the record that you are

14     forbidding me to talk about the problems and issues that would lead to a

15     fair trial.

16             I would just like to say that you are preventing me from talking

17     about my kidnapping and my remark on that ban of yours is this:  The

18     document you are talking about and here that you discussed and that you

19     used to resolve the problem of kidnapping, I never received that.  And

20     you said it yourself at the last Status Conference, if the accused does

21     not receive a document in a language that he can understand, it will be

22     construed as the document has not been received.

23             Also, if a document is sent by the accused, is sent to the

24     Pre-Trial Chamber it will be considered as not received if it hasn't been

25     translated into the language that the Trial Chamber understands.

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 1             I'm just trying to share with you those things that I find

 2     important with regard to the kidnapping which would be a new fact for

 3     you.  If you want to render a new ruling, please allow me to say

 4     something.  If not, then I will obviously comply with your ruling, but

 5     please allow me the right that I am supposed to have.  If you allow me, I

 6     will offer just one fact about the kidnapping.  If you don't allow me to

 7     do that then I will comply with your decision obviously.

 8             JUDGE PROST:  Mr. Tolimir --

 9             THE ACCUSED: [Interpretation] Thank you.

10             JUDGE PROST:  Thank you.  Mr. Tolimir, as I indicated, if you

11     have new evidence relating to the kidnapping, then I would suggest that

12     you bring that forward to me.  You're quite capable of making

13     submissions, so I would suggest that you bring that forward in writing,

14     because it would have to be a sufficiently important factual matter that

15     the Trial Chamber would want to see it in writing in order to reconsider

16     a decision that it has taken.

17             So I gave you the caveat with respect to a decision that's

18     already been made that if you have new factual information, I am inviting

19     you by way of a submission to make that apparent to the Trial Chamber for

20     the Trial Chamber's consideration.  But in the case of a reconsideration,

21     it's not something that you're simply going to be allowed to reargue

22     orally without us knowing whether or not there is any basis for us to

23     reconsider.  So that's the reason why.

24             If you have new factual evidence related to that issue, because

25     it is an issue we have already determined, then please bring it forward

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 1     in writing to the Trial Chamber so we can assess if there is any basis

 2     for reconsideration and solely because of the jurisdictional nature of

 3     that issue.

 4             So I'd like to leave that issue for today, but again, and I'll

 5     try one more time, otherwise I'm simply going to have to base it on what

 6     you have said in your written submissions which are, as I say, quite

 7     persuasive but I would like you to address the appointment of your legal

 8     advisor or second legal advisor.

 9             THE ACCUSED: [Interpretation] Thank you.  After just one sentence

10     related to this note that I made that I have not been made aware of any

11     of your decisions.  I just want to note that at one Status Conference you

12     gave the Prosecutor the mandate to investigate the kidnapping.  I'm not

13     going to go into this in any detail, but the Prosecution never informed

14     me of the results of the investigation, and the Trial Chamber has not

15     informed me about that.

16             You have to inform me about that either in writing in a language

17     that I understand or orally, but let me just share one fact with you.

18             In the course of the investigation the Prosecution could do

19     something, and if you want to allow me to say just one sentence, then

20     please do so unless you think that the building will fall down about our

21     ears if I do so.  So do you allow me to say just one sentence?

22             JUDGE PROST:  Mr. Tolimir, my point is we're not going to spend

23     time today revisiting issues that have already been decided by the

24     Trial Chamber or by myself as a Pre-Trial Judge.  So this is an issue

25     which has already been decided.  I have given you an opportunity in terms

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 1     of submitting written material which is -- which is exceptional, I stress

 2     that, it's exceptional that I would even allow you to make the

 3     submissions on an issue that's already been decided by the entire

 4     Trial Chamber.  So, no, we're not going to discuss that issue today.  I

 5     have made my position clear.  But again, could we move, please, to the

 6     issue of the appointment of your legal advisor, and I will hear you on

 7     that.  It is an issue that I have not -- has not been dealt with by the

 8     Pre-Trial Judge or by the Chamber.

 9             So please, could we move to the issue of the appointment of the

10     legal advisor and any additional points you wanted to make to me on that

11     issue.

12             THE ACCUSED: [Interpretation] Thank you.  Let me just tell you

13     that I don't want to discuss the kidnapping but I'm just letting you know

14     that I have taken measures outside of this court because you're not

15     allowing me to do so within the court to institute criminal proceedings

16     against Boris Tadic, the president of the present Tribunal Mr. Pocar,

17     Chief Prosecutor Carla Del Ponte, and Mr. McCloskey who is in charge of

18     this investigation before this court.  I will file a legal suit before

19     the International Court of Justice, because they are covering up the fact

20     that I was kidnapped in Serbia and transferred to Bosnia and Herzegovina,

21     and because this Tribunal wants to refer my case to Sarajevo, and this is

22     why I'm forced to use B/C/S, the language that was invented after the

23     war.  And I will, I will pursue with this legal suit because I have

24     evidence for that.

25             JUDGE PROST:  Mr. Tolimir, do you wish to say anything to me

Page 154

 1     regarding the appointment of your legal advisor?  And I'm taking it from

 2     your refusal to do so that you have nothing further to add on this issue;

 3     is that correct?  On the issue of the appointment of your legal advisor,

 4     you have nothing further other than what you submitted to me in your

 5     submission; is that correct?

 6             THE ACCUSED: [Interpretation] No, that is not correct.  I have

 7     several things to tell you.

 8             The pre-trial period lasts for ten months and my legal advisors

 9     have yet to be appointed.  I have filed a request for the appointment of

10     three legal advisors and only one legal advisor has been appointed so

11     far.  The other persons are appointed to some other positions in

12     accordance with the wishes of the Prosecution, and I don't like that.  I

13     informed you about that when I wrote a submission regarding

14     Aleksandar Gajic, my advisor for international law and at the moment when

15     I need him most for my legal suit regarding the illegal kidnapping.  So I

16     would like you to issue a decision appointing Mr. Gajic since he is an

17     associate member of the bar association here at the Tribunal, and he

18     meets all the requirements, although he doesn't have to because I

19     selected him and he's my advisor, not your advisor.  He represents me.

20             And I would just like to add something on the issue of the

21     appointment of my legal advisors.  You have to assist me because I asked

22     for your assistance in this.  You have to exert pressure for my legal

23     advisors to be appointed and for my legal team to be established because

24     the legal advisors that I select are being rejected, and they're being

25     appointed to some other positions, and my authentic desires are not being

Page 155

 1     complied with.

 2             And I would also like to inform you that I'm not allowed to

 3     contact even this member of my team, Mr. Vuk Sekulic.  So I have only

 4     private contacts with him, and I don't think it's proper.  And the

 5     Registry wants to be in contact with him and to send documents to him.

 6             So I would just like to inform you, and I would like that to be

 7     reflected in the record.  All the documents that are served on any

 8     members of my Defence team are considered to be not valid and not

 9     received by me, because I never received them.  And the Registry cannot

10     serve my documents to my team and my legal advisors and then they are

11     supposed to give me advice on something that I myself have not read.

12     This is impossible, untenable.

13             So I would like to urge you to consider the time frame for the

14     appointment of members of my legal team in this case.  I'm not talking

15     about what you've already decided upon, but the Registry has decided that

16     my legal advisors may work only 100 hours a month and the rate is 25

17     euros.  And this has put me at a disadvantage in relation to other

18     accused before this Tribunal, because the other accused in this Tribunal

19     have four times as much time for their defence in the pre-trial period,

20     and the rate is four times as high, and this is a clear violation of

21     Rules 20 and 21 on the equality of arms before this Tribunal.  And in

22     some cases, and you have the jurisprudence at your disposal, I don't

23     because it has not been given to me despite my demands to have it, in

24     cases that are at a low level -- lower level than mine, 3 million euros

25     were spent in the pre-trial period, and I am given 80.000 euros for the

Page 156

 1     pre-trial period.  Ten months have passed and I have yet to see a single

 2     document in the pre-trial stage.  So how can I be at an equal footing?  I

 3     am at a disadvantage.  I'm prejudiced here.  And I have to now waive my

 4     rights to have documents in my mother tongue.

 5             And I can only defend myself in a language that is part of my

 6     genetic inheritance.  Yes, please go ahead.

 7             JUDGE PROST:  I'll stop you there because you're reverting to an

 8     issue that we're not going to cover today but you have focused, thank

 9     you, on the issue that I wished to hear from you on which is, in

10     particular, the appointment of your third team member.

11             Now, let me make one preliminary comment just in relation to the

12     last comments you were making.  You will recall, Mr. Tolimir, because we

13     went through this very carefully, by virtue of your election to represent

14     yourself and by virtue of the jurisprudence of this Tribunal, in

15     particular the Appeals Chamber decision in Krajisnik there will be

16     differences indeed for the amount of time and the amount of payment

17     available, because what you have in place are a team of individuals of

18     different capacities who will assist you in representing yourself.  What

19     other accused have in place in many instances is Defence counsel who are

20     defending them.  So it's not useful for us to go through comparisons on

21     that point today nor, as I say, do we need to discuss the communication

22     issue because from reading the Registrar's submissions there is no issue

23     there.  It's clearly just a procedural matter.

24             However, I have taken on board the comments you have made

25     regarding Mr. Gajic.  In particular, what you are saying is that you wish

Page 157

 1     him to be one of the four members of your team who would be paid for out

 2     of the funds here, and you would like him to have the role as an advisor

 3     on international law.  And I understand that wish on your part, and I

 4     find your comments that he should be appointed in the capacity as a legal

 5     advisor in that context to be quite persuasive.

 6             So what I'm going to do, Mr. Tolimir -- now, you have already in

 7     place, as we can tell today, your case manager, and you also have

 8     Mr. Milovancevic in place as a legal advisor.  So we are certainly making

 9     progress in terms of the appointment of your team.

10             I am going to invite the Registry to reconsider and revisit the

11     issue of the appointment of Mr. Gajic.  I'm going to ask them and

12     encourage them to find a solution.  I understand that they're concerned

13     about the application of a policy in a neutral way in terms of all

14     accused representing themselves.  I understand the various concerns they

15     have to balance, but I'm going to invite them and encourage them to find

16     a solution that will allow him to be appointed pursuant to your wishes as

17     a -- in a legal capacity which is the role that you wish him to fulfil.

18             So I have indicated that on the record, and it will be

19     communicated to the Registrar.  And what I would say is I would ask them

20     to do so in a timely fashion, as urgently as possible to look at the

21     issue, and if you could continue to discuss the matter with them.  And if

22     within a reasonable period of time the issue still remains outstanding

23     and has not been dealt with, then you can bring the matter back to me and

24     at that time the Trial Chamber will look at it in terms of making an

25     actual ruling.

Page 158

 1             So hopefully, Mr. Tolimir, that will assist you with that

 2     particular issue of the constitution of your Defence team.

 3             I want to move on, then, to --

 4             THE ACCUSED:  Your Honour, we actually have a comment on --

 5             JUDGE PROST:  Yes, Mr. Tolimir, but, as I say, only on the issues

 6     I have identified.

 7             THE INTERPRETER:  Microphone, please, for the accused.

 8     Microphone --


10             JUDGE PROST:  Sir, you have to turn your microphone on, please.

11             THE ACCUSED: [Interpretation] The last sentence in what you've

12     just said.

13             JUDGE PROST:  You'd like me to repeat that?

14             THE ACCUSED: [Interpretation] No, I would like to ask you

15     something in relation to this sentence.

16             JUDGE PROST:  Fine.

17             THE ACCUSED: [Interpretation] Thank you.  Your Honour, I don't

18     know to what extent the Registry is competent or not in light of the fact

19     I've been left without my legal advisors for the ten months of the

20     pre-trial proceedings.  The legal assistance that I am entitled to under

21     Article 21, 4, D of the Statute, and I want to know whether it is in line

22     with the principle of beyond reasonable -- of proving beyond reasonable

23     doubt for me to be left without a legal team for the ten months of the

24     pre-trial proceedings, whether it is up to the standard of reasonable

25     doubt, because I am greatly prejudiced by this.  I cannot take certain

Page 159

 1     procedural measures and actions by dint of the fact that I don't have a

 2     legal team, and I actually don't have the pre-trial stage to do those

 3     things.  So could you please deal with that, because I don't know what

 4     the competencies are of the Registry or of the Court.  If I am to be

 5     tried by the Registry, I have to also say that I feel like a prisoner of

 6     war because I was kidnapped.  I would like you to transfer me to the

 7     jurisdiction of the military court of NATO, because I never received any

 8     paper, not even the amended indictment.

 9             JUDGE PROST:  Mr. Tolimir, as I think I have you've explained to

10     you on previous occasions, the Registrar has the primary responsibility

11     for matters relating to the appointment of your assistants, your team,

12     for your defence.  I would note that this is being done on the basis of

13     funding by the Tribunal, which is the reason that the Registrar has the

14     role that it does with respect to these appointments, and they have a

15     responsibility when they're dealing with the public funds to ensure that

16     it is done properly and in accordance with the proper procedure and that

17     it reflects an appropriate scenario for the appointment, publicly funded

18     appointment, of the members of your team.

19             I am quite confident that the Registrar from all the materials

20     filed has been doing a very diligent job in trying to arrange for the

21     appointment of your Defence team.

22             So we're going to leave the matter in the hands, the very

23     competent hands of the Registrar.  You are certainly open to continue to

24     discuss the matter with him.  The Chamber is not issuing any ruling at

25     this stage as I've said but I have made my hope very clear to the

Page 160

 1     Registrar that there will be an early resolution of the issue of the

 2     appointment of Mr. Gajic.

 3             So we're going to leave that matter for today.  You've made your

 4     comments clear on the record.  And as we have very little time left we're

 5     going to proceed to a couple of other issues that we have to cover before

 6     the conclusion of today's Status Conference.  But the matter has been

 7     addressed and I'm sure you will here from the Registrar on it.

 8             Now, I would like to turn -- Mr. McCloskey, I would assume that

 9     you did not have any comments on the particular issue of the appointment

10     of the legal advisor.  Would that be correct?

11             MR. McCLOSKEY:  That's correct.

12             THE INTERPRETER:  Microphone, please.

13             JUDGE PROST:  He's having trouble turning his microphone on.

14     I've turned my off.

15             MR. McCLOSKEY:  Yes, that is correct.

16             JUDGE PROST:  Thank you.

17             Now, Mr. McCloskey, if we could turn to the issue of disclosure

18     under -- and I stress, Mr. Tolimir, I'm now speaking to the Prosecution

19     regarding disclosure under Rule 66(A)(ii), (ii), not the initial

20     disclosure which triggers certain other responsibilities.

21             But at the last occasion, the last Status Conference,

22     Mr. McCloskey, we discussed the progress of that disclosure.  Perhaps you

23     could provide me with an update at this stage on that.

24             MR. McCLOSKEY:  Certainly.  We have now been to -- well, we have

25     attempted to provide Mr. Tolimir with the witness list and the witness

Page 161

 1     statements as provided by the Rule.  Everything we have provided in hard

 2     copy has been returned, and we have been able to send material to his

 3     assistants, and the vast majority is now available to him via the EDS.

 4     They have passwords.  They have the ability to do that.

 5             The -- one thing that is not yet available in terms of witness

 6     statements, as you know, there's additional statements coming out of the

 7     Popovic trial, and the only practical way of doing that is to provide

 8     audio, and the audiovisual people are doing that right now for the

 9     Popovic trial.  They will be finished by the end of March they tell me,

10     but we do have CDs and DVDs of the Krstic trial and the Blagojevic trial

11     that are in a box that have gone back and forth at least once, and we --

12     there are a couple of other audio files of witnesses related to testimony

13     in -- in other cases that we are tracking down but just a few.

14             So we have met our obligation under that Rule except for those

15     audio statements of the Popovic witnesses and, as you can imagine, most

16     of those witnesses are on the witness list.  Our witness list that we

17     provided is 189 witnesses.  Four of those are 92 quater witnesses,

18     witnesses that have died that we will be providing under written

19     statements.

20             In the vast majority the rest of those witnesses will be

21     provided -- offered under 92 bis for Mr. Tolimir.  They will be

22     provided -- or offered as written statements from their testimonies

23     mostly.  We have not made that final decision yet.  But as for the

24     requirements under Rule 66, we are almost there.  The vast majority of

25     the material is available to him through his team or we have the physical

Page 162

 1     materials that we have any time they will be accepted.  However, we have

 2     learned that his team does not have the authority to accept material, so

 3     we have not bothered them with that though we have provided them with all

 4     the e-mail information for EDS and we know that they -- Mr. Sekulic has

 5     worked here, is experienced, and has indicated to us that he knows all

 6     about how to use that and has a good reputation in the ICTY from what I

 7     gather.

 8             So it's available there, but how far it's gone beyond that I

 9     don't know.

10             JUDGE PROST:  Thank you, Mr. McCloskey.

11             Mr. Tolimir, I don't, as I think I've made very clear, wish to

12     return to the language issue or the service issue.  However, what the

13     Prosecution is outlining and information I have as well from the

14     Registrar is that in addition to written material, you are being offered

15     audiotapes, and there is also as well electronic material which can be

16     played by your team if there's any issues regarding your ability to use

17     the systems, in an electronic manner.

18             So I am asking you to consider your acceptance of that material.

19     I'm asking you to explain to me why you are not prepared to accept audio

20     material which can be listened to, electronic material which can be

21     viewed, particularly now that you have in place, as the Prosecution has

22     just noted, a very competent case manager and as well you have a legal

23     advisor, and hopefully you will have a team soon.  So you do have a team

24     to assist you and I fail to understand given the amount of material

25     involved in this case, it is important to be able to use the electronic

Page 163

 1     disclosure systems that are available.

 2             So if you have any particular comments you wish to make on that,

 3     on that specific issue of audio and electronic material, please, you can

 4     make those comments.

 5             THE ACCUSED: [Interpretation] Thank you very much.  I carefully

 6     listened to what you and Mr. McCloskey had to say, and I would like you

 7     to consider what I am about to say and that it be recorded for the

 8     record.

 9             All the materials that Mr. McCloskey mentioned that are disclosed

10     to my Defence team or to the case managers in my team are considered to

11     be not valid and not received by me, and my Defence team has been

12     informed about that, and Mr. McCloskey told you quite rightly that my

13     team does not have the authority to receive those materials.

14             So the first reason why I consider that I have not received the

15     materials is because I do not understand the electronic form in which

16     these documents are being served on me.

17             Secondly, I want all the documents to be printed out in a

18     language that I understand.  I cannot, I cannot accept documents that are

19     written in a language that I don't understand, and I cannot accept

20     disclosure, written statements of the Prosecution witnesses and other

21     materials, in a language that I don't understand because I cannot read

22     those documents and I cannot question witnesses on something that I have

23     not read.

24             And I would like you to understand that my legal advisors cannot

25     advise me about something that I have not read.  How am I to say whether

Page 164

 1     their advice is sound or unsound if I myself have not read the relevant

 2     documents?  So I don't want you to put my Defence team in an unenviable

 3     position because they're not the team of the Registry or of the Chambers.

 4     They are my team.

 5             So I would like you to consider the issue of my communication

 6     with my team, with my legal advisors.  I'm not allowed to communicate

 7     with my Defence team and my legal advisors.  I am not allowed to do so by

 8     the Registry and I'm not allowed to send any written instructions to

 9     them.  Yet Mr. McCloskey is sending tonnes of materials to them.  It's an

10     absurd situation and they're my legal advisors, my Defence team.  So I

11     would like this to be reflected in the record and you as a Judge to

12     consider this issue whether the relevant jurisdictions of the Chambers

13     and of the Registry and of the Prosecution as such, that they can contact

14     my legal advisors, yet I cannot communicate with them.

15             I asked the UN detention unit to allow me to give instructions to

16     my legal team by phone.  On the 4th of March I got approval to use this

17     dedicated phone line, but with the proviso that I cannot give any written

18     documents to my advisors and that they in turn receive all the documents

19     for me from the Registry.  They're not part of the Registry and of the

20     Tribunal.  They are only to be in contact with me.

21             So I don't want to see this type of undermining of my Defence

22     team, and I would like not to find myself in a situation where I cannot

23     appoint people to posts that I want to appoint them to.

24             I wanted to appoint Mr. Sekulic as my legal advisor yet the

25     Registry appointed him the case manager so that he is the in-box for all

Page 165

 1     the documents that are coming in.  I want him to be my legal advisor as

 2     are Mr. Gajic and Mr. Milovancevic and yet this is not honoured.  I would

 3     like you to bear that in mind and to deal with this and I would like this

 4     statement to be on the record.

 5             I hereby state for the record that I will be writing an appeal to

 6     the Tribunal's President against the decision of the Appeals Chamber

 7     should this decision dismiss my appeal and that the deadline for the

 8     appeal shall run from the date when I receive the decision of the

 9     Appeals Chamber in a language that I understand.

10             I would like this to be reflected in the record given that --

11             JUDGE PROST:  Mr. Tolimir --

12             THE ACCUSED: [Interpretation] The microphone is not on.

13             JUDGE PROST:  Mr. Tolimir, thank you.  Your statements are

14     recorded on the record, but they are not responsive to the issue that I

15     raised with you.

16             As I mentioned, the issue of your communication and your ability

17     to communicate with your legal team, with your team in general, is a

18     matter that the Registrar has addressed very clearly in the submissions

19     that they filed, and you can continue to discuss that matter with the

20     Registry.  I'm satisfied that the Registry is proceeding in accordance

21     within appropriate procedure and at this stage there is nothing with

22     respect to the communication issue that merits the intervention of the

23     Trial Chamber or of me as the Pre-Trial Judge.  So on the communication

24     point that is a matter within the jurisdiction of the Registrar and at

25     the moment there is not an issue for the Trial Chamber to consider.

Page 166

 1             Now, secondly, as to the issue of the receipt of materials, you

 2     have not provided me with a satisfactory explanation as to why you are

 3     refusing to accept audio material which you could play and listen to

 4     yourself, nor in addition why you are not prepared to work with your own

 5     team in order to be able to benefit from the electronic materials that

 6     are being disclosed when you have a team that is competent in reviewing

 7     them and in discussing them with you.

 8             So what I'm going to do is I'm not going to take any decisions on

 9     this today.  I'm going to ask you over the period -- the next period to

10     consider your position in this regard, to consider whether you are

11     prepared to work with the team that's been appointed to assist you in

12     order that you can manage the massive amounts of material that have to be

13     disclosed and considered in your case and some of which is coming to you

14     in audio and electronic form which does not involve the language issue

15     which is pending before the Appeals Chamber.

16             So I'm going to ask you to consider that matter, and when we next

17     meet we can see if matters have progressed at all in terms of your

18     willingness to work with your team to -- in order to look at that

19     material or listen to that material.

20             So I'm going to leave that matter on that point today, and we

21     will revisit the question of disclosure and the formats on another day.

22             I'm going to proceed because we only have -- Mr. Tolimir, very

23     briefly.  We only have very few minutes left and there are some mandatory

24     issues that we have to finish before we close.  So very briefly.

25             THE ACCUSED: [Interpretation] Your Honour, the most important

Page 167

 1     thing in my view is to provide me with an ability to contact my legal

 2     team when I wanted and how I wanted.  I inform you as a Pre-Trial Judge

 3     that I am being taken away even the submissions that I write in my own

 4     handwriting with an explanation that the detention unit cannot make any

 5     photocopies, and it is only at my specific request that I can receive

 6     these materials.

 7             I'm not raising any objections to your procedure.  I just wanted

 8     to make it clear for the record that I don't even have the right to

 9     review the -- my own submissions.  Sometimes when I write a submission to

10     you, know, I don't know what was in it when I write my second submission.

11             And as to your question, let me put it this way:  In order for me

12     to receive any video material I have to know what I am receiving and they

13     are being disclosed to me in a language that I don't understand so I

14     don't know what I am being disclosed.  I would like to alert your

15     attention to the fact that you should make a ruling for the detention

16     unit to provide me with a room where there will be a fax machine, a

17     telephone, a typewriter, a photocopier, and to be provided all this

18     material because this material also falls under the fund, under the Rule

19     21(4)(b)[as interpreted] as minimal technical aid.  All I have is a

20     pencil.  I don't have my own submissions.  And I have live under such

21     conditions for ten months, for the whole duration for the trial -- the

22     pre-trial procedure.  This is a game that both of us have been dragged

23     into.  You don't know that I have only a pencil.  You are telling me that

24     I have something else.  I'm not a competent person to decide on that;

25     somebody else is competent.  I can bear that pressure but you just tell

Page 168

 1     me this is in keeping with the rule of law with a fair trial or maybe

 2     this is a violation of all the rules of fair trial before this Tribunal.

 3     This is all I wanted to say and thank you very much for listening to me.

 4             JUDGE PROST:  Thank you.  Mr. Tolimir, you raised a number of

 5     these points in the submission that you made to me and I was cognisant of

 6     them, and the Registrar has filed a response submission addressing the

 7     points relating to communication.  Now, you have chosen not to read that

 8     response.

 9             However, what I'm going to do is I'm going to ask the Registrar

10     to go over with you again, as they have done, the circumstances

11     surrounding your communications, because the information from the

12     Registrar is certainly not that you are not entitled to have discussions

13     with your team members.  You are entitled with certain conditions to

14     privileged discussions.  You are entitled to access to communication

15     equipment, et cetera.  So that is a matter, however, what I have said,

16     that falls within the Registrar's purview.  It is the Registrar's primary

17     area.

18             We're going to close the discussion, Mr. Tolimir, but I am asking

19     the Registrar to outline to you as they did in the written submission

20     that they filed before the Trial Chamber the circumstances under which

21     you can communicate and the issues that you have raised regarding your

22     communications.  And again if we reach a point where there is a

23     particular issue at hand, then you can bring that matter back, but this

24     is not a matter which the Trial Chamber or the Pre-Trial Judge is going

25     to intervene in at this stage.  You need to have this discussion again

Page 169

 1     with the Registrar, and I'm asking the Registrar to go over those

 2     procedures with you again but we're going to have to close the subject

 3     for today.

 4             So we're going to move on at this time, Mr. Tolimir, just to the

 5     final point, which is -- we've already discussed the circumstances at the

 6     UNDU in terms of the conditions and the requests you're making regarding

 7     your work and those will be discussed with you by the Registrar, but are

 8     there any questions or issues you wish to bring to my attention

 9     regarding -- regarding your health, Mr. Tolimir?  I will hear you,

10     Mr. Tolimir, but not a continuation of the same debate over

11     communications.  As I say, that's matter you're going to have to take up

12     with the Registrar, but go ahead if you have a question or issue you want

13     to raise about your health or living conditions.

14             THE ACCUSED: [Interpretation] Thank you.  Your Honour, I would

15     just like to say that I have a written document that was read to me by

16     the interpreter in the detention unit forbidding me to communicate with

17     my legal advisor and forbidding me to photocopy my submissions with the

18     remark that they are part of the case file.

19             If you don't have that, I will make a copy of that and submit it

20     to you.  I don't have any communication with the Registry.  You are the

21     ones who should provide for that communication because the Registry

22     writes in a language that I do not understand.  Have you ever read any of

23     my original submissions in the original language --

24             JUDGE PROST:  Mr. Tolimir, if you have such a document, if you

25     have a copy of that document that was read to you and you want to provide

Page 170

 1     it to me, please do so.  You may submit it and it will be brought to my

 2     attention.  Okay?  And I will look at that.

 3             I take it you have nothing in particular.  Again, as always, I

 4     would give you the opportunity if you wish to go into private session but

 5     I take it you have nothing to raise regarding health issues at this time.

 6     Mr. Tolimir?

 7             THE ACCUSED: [Interpretation] Thank you for giving me an

 8     opportunity to talk about my health.  In the detention unit they took my

 9     blood pressure and they established the higher blood pressure is 120.

10     The upper blood pressure HG and the lower is 75 HD, which means that it

11     is even better than it is appropriate for my age.  But I am being

12     restricted in taking my teas.  They don't allow me to drink tea.  I am

13     74.  I was operated for a kidney stone, and they don't allow me to drink

14     Juva tea which I'm supposed to drink in order to excrete kidney stones.

15     So could you please make sure I'm able to drink teas you can obtain in

16     any shop or maybe the Registry should order the detention unit to either

17     buy or order from a supply in Serbia or anywhere else this tea that I

18     need to use.  It doesn't really make sense for me not to be able to drink

19     this very ordinary tea.  Otherwise my health is good and I thank God for

20     that and thank you for listening to me.

21             JUDGE PROST:  Thank you, Mr. Tolimir.  Well, that -- that request

22     will be related to the Registry and hopefully that situation can be

23     resolved as well.  Thank you very much then.

24             Mr. McCloskey, we have very limited time.  Were there any other

25     matters that the Prosecution wished to raise at this time?

Page 171

 1             MR. McCLOSKEY:  No, Madam President.

 2             JUDGE PROST:  Thank you very much.  Well, I think then,

 3     Mr. Tolimir, that we're going to close the session for today.  I would

 4     like you to think about the issues that we have talked about and about

 5     the disclosure matters, but our time is up for today, and therefore we

 6     will be adjourning the proceedings.

 7             I wish you a good afternoon to you and to everyone.  Literally,

 8     Mr. Tolimir, we have one --

 9             THE ACCUSED: [Interpretation] Just one sentence, please.

10             JUDGE PROST:  Fine.

11             THE ACCUSED: [Interpretation] I would kindly ask you to call a

12     Status Conference where you will give me more time to raise issues that

13     are still pending in this case, the issues that you as the Pre-Trial

14     Judge can deal with, because you're the one who deals with all the issues

15     in dispute between the parties to the case.  Nothing has been resolved,

16     and it remains unresolved, and I wish to be treated as a prisoner of war

17     and to be tried either by the Registry or a military court.  Thank you.

18             JUDGE PROST:  Your comments are noted, Mr. Tolimir.  Thank you.

19             We stand adjourned.

20                           --- Whereupon the Status Conference adjourned

21                           at 3.23 p.m.