Tribunal Criminal Tribunal for the Former Yugoslavia

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 2                           Monday, 30 June 2008

 3                           [Status Conference]

 4                           [Open session]

 5                           [The accused entered court]

 6                           --- Upon commencing at 3.01 p.m.

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

 8     you call the case, please.

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

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

11             JUDGE PROST:  Thank you.  Mr. Tolimir, I take it you are

12     receiving interpretation and can understand the proceedings.  Should you

13     encounter any difficulties with that at any time, please let me know.

14             Now, the appearances, I see Mr. McCloskey, Mr. Vanderpuye.  I

15     don't think there is anyone else there behind the column.  Ms. Stewart,

16     of course.  For Mr. Tolimir, of course, he is representing himself, but I

17     understand one of his legal advisers is present today.  Mr. Gajic, is

18     that the case?  Could you introduce yourself, please?

19             MR. GAJIC: [Interpretation] Yes, Your Honour.  I'm Aleksandar

20     Gajic.  I am assistant professor at the Faculty of Law, Belgrade

21     University, and I'm attending the hearing in the capacity of a legal

22     adviser of the accused Zdravko Tolimir, and I would like to thank you for

23     allowing me to be present at this Status Conference.

24             JUDGE PROST:  Thank you, and welcome.

25             This is the fourth Status Conference in this case.  Under Rule 65

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 1     bis A, generally, usually, there are three purposes for a Status

 2     Conference:  Organising exchanges between the parties to ensure

 3     preparation for trial, reviewing the status of the case, and hearing from

 4     the accused on issues particularly related to any issues of condition or

 5     detention.

 6             Now, I used the qualification "generally" because today this

 7     particular Status Conference has a singular purpose.  While, Mr. Tolimir,

 8     I will allow you at the end to address any issues relating to your

 9     detention or health, aside from that - and this is for both you and the

10     Prosecution - there is one item on the agenda today, and only one; and

11     that, Mr. Tolimir, is to address your continuous refusal to abide by the

12     rulings of this Tribunal and accept service of the critical documents in

13     this case, which are essential to the preparation of your Defence.

14             So let me begin by briefly reviewing the history of the

15     proceedings that have led us to, unfortunately, this particular point.

16             On the 10th of August of 2007, Mr. Tolimir, you elected to

17     represent yourself in this case.  On several occasions, I have reminded

18     you that in so electing you have the responsibility to conduct your case

19     in accordance with the Statute, the rules, and the jurisprudence of this

20     Tribunal.  That remains your obligation today.

21             From very early on, however, since basically July of 2007, you

22     have refused to accept documentation served upon you.  Initially, your

23     refusal stemmed from an issue relating to the appointment of counsel; but

24     subsequently and most predominantly, you have refused because the

25     documents provided to you were not in the Cyrillic script.  As time went

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 1     on, you expanded your language objections to include the fact that the

 2     language used is B/C/S and not purely Serbian.  You've even refused to

 3     accept audio material and access to electronic material on the same

 4     basis.

 5             You have premised your objection on a claim that you do not read

 6     or understand the Latin script, and apparently you have similar

 7     complaints with B/C/S.  You have been given the opportunity to make

 8     extensive arguments, orally and in writing, on this issue.  After

 9     according you much leniency, Mr. Tolimir, in terms of repetitive

10     submissions, inconsistent submissions on some occasions, on the 11th of

11     December of last year, I ruled on your request to have documents

12     translated into Serbian and the Cyrillic script.  And let me remind you

13     what I said at that time.  Yes, there is a right to receive material in a

14     language you can understand, but this does not equate - and the Appeals

15     Chamber has echoed this - into a right to be able to come before the

16     Tribunal regardless of your background and education and ask for

17     production of documents in any language or script that you choose.  As I

18     explained previously, the right centres on understanding, not on

19     preference; and at that time in December, I found that I don't doubt and

20     rather I'm positively satisfied that you're able to read and understand

21     the material being provided to you in B/C/S in the Latin script, and that

22     has not changed.

23             On the 15th of January, a month later, the Trial Chamber as a

24     whole issued a similar decision on your written motion on this issue.

25     Basically, Mr. Tolimir, you have entirely ignored those decisions by

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 1     myself and by the Trial Chamber.  You continue to advance repeated

 2     written and oral submissions on the issue and refuse the service of any

 3     documents not in the particular script.  You requested certification of

 4     the decision, and that was granted by the Trial Chamber, and you filed an

 5     appeal.  However, I note, as I explained to you last time in great

 6     detail, that should not have in any way affected your obligation to

 7     comply with the order as it stood.  But not only did you not comply, you

 8     have compounded the problem by instructing your legal assistants also not

 9     to accept service of documents.

10             On the 28th of March, 2008, the Appeals Chamber upheld my

11     December 11th ruling.  You were not prepared to accept that decision,

12     either.  You requested a reconsideration on the 16th of April and

13     continued to make your submissions and to refuse documents as if the

14     Appeals Chamber had not spoken to the issue.  Your reconsideration was

15     dismissed on the 18th of June, and still I see from the filings that you

16     continue to refuse to accept the documents.

17             The result, what that brings us to, Mr. Tolimir, is we are over a

18     year since your arrest and detention.  You have a full legal team - I'm

19     sure a very competent and excellent team - provided to assist you, and

20     yet we've made little if any progress in the preparation of this case for

21     trial.  And that is solely because of your steadfast refusal to accept

22     service of documents and related material in this case.

23             The situation at this stage, Mr. Tolimir, is intolerable and it

24     cannot continue.

25             As I told you on previous occasions, the right to self

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 1     representation recognised by the Statute and the jurisprudence of this

 2     Tribunal is not an absolute one.  The Appeals Chamber has recognised that

 3     the right may be curtailed in appropriate circumstances, particularly

 4     where a defendant's self-representation is substantially and persistently

 5     obstructing the proper and expeditious conduct of the trial.

 6             At this point, I speak for the Trial Chamber.  Your continuing

 7     refusal to accept documents and other material in this case for almost a

 8     full year, despite the decisions of the Tribunal, as well as disallowing

 9     your legal team to do so, amounts to substantial and persistent

10     obstruction.  Your behaviour is impeding the expeditious advancement of

11     the case.  That's obvious.  But much more importantly, Mr. Tolimir, it

12     makes it impossible for any real preparations of your defence to take

13     place, and that is of course essential for a fair trial.

14             Further, the Trial Chamber is of the opinion that this pre-trial

15     behaviour when considered as a whole provides not only a strong

16     indication but it establishes that continued self-representation would

17     substantially and persistently obstruct the proper and expeditious

18     conduct of the trial.  The Trial Chamber has reached this conclusion with

19     the requisite high certainty noting that it will be impossible to conduct

20     a trial fairly and expeditiously in the face of a refusal by the accused

21     of the key documents in the case, which, in your instance, includes the

22     indictment, witness statements, and essential documents.

23             Due to the fundamental nature of this right, which is obviously

24     given a great deal of respect, the Appeals Chamber requires that an

25     accused be duly warned before any restrictions are imposed, that you're

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 1     fully and fairly informed and given the opportunity to change the

 2     disruptive circumstances.

 3             In my view, you have been warned previously, Mr. Tolimir, and

 4     have had a multitude of occasions to correct the conduct, but I want to

 5     give you a final chance and to make the point clear beyond any question,

 6     and that's the reason we are here today.  This is the final warning,

 7     Mr. Tolimir.

 8             I have described in detail the nature of your obstructive

 9     conduct.  In light of that, you have until the close of business Friday,

10     July the 4th, to advise the registrar in writing that you are prepared to

11     accept material which is served on you in B/C/S, whether it is in the

12     Latin or Cyrillic script, and that applies to material which has already

13     been attempted to be served upon you or future materials as well.

14             You must also follow through on that undertaking that you file on

15     Friday, I hope you will file on Friday, and subsequently accept the

16     packages of material that I'm sure the registrar will then serve.  If you

17     fail to make that filing or you fail to accept material, the Trial

18     Chamber will issue an order for the appointment of counsel to represent

19     you.

20             That ends the matter, Mr. Tolimir.  I'm not taking any

21     submissions on the issue.  You've argued the points at length, and there

22     have been decisions which are final from the Appeals Chamber.

23             I will hear no further submissions, therefore, from you on the

24     point.  I'm going to leave matters at that.  As I said on a previous

25     occasion, the decision is entirely yours.

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 1             Now, as I mentioned at the start, this is all we are going to

 2     address today.  I appreciate, Mr. Tolimir, you can be assured I've been

 3     reading the material that you have filed.  I know that you have several

 4     issues that you want to address, and in due course all of those issues

 5     will be fully discussed and addressed, but there is no point in

 6     attempting to deal with them today.  It would be in essence a waste of

 7     our time and resources to deal with those issues before resolving the

 8     question of the service of these key documents one way or another.

 9             So those other matters, we can convene another status conference

10     and we can do so well within the time frames to discuss other issues, but

11     for today, we are not going to deal with those matters.

12             That having been said, however, I do consider it important,

13     essential, as the Pre-Trial Judge to hear from you on anything that

14     concerns the conditions of your detention at the UNDU or your health.

15     We've discussed some matters previously that you've brought to my

16     attention, and I'm hoping those were resolved.  So I'm going to give you

17     an opportunity, Mr. Tolimir, to address that question, and that question

18     only, which is if you have anything you want to raise with me regarding

19     your conditions of detention or your health; and if you wish, you simply

20     have to indicate it and we will go into private session to do that, but

21     in the past you have not chosen to do so.  But we can do that.

22             But, Mr. Tolimir, please, I'm asking you on that one subject for

23     today and should you stray into other areas, I'm going to assume that you

24     have nothing to raise on those points, and we'll soon be coming to a

25     conclusion.  So I will give you an opportunity right now, then,

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 1     Mr. Tolimir.  Is there anything you want to raise with me regarding your

 2     conditions of detention or regarding your health?

 3             THE ACCUSED: [Interpretation] God help you, Madam Presiding Judge

 4     and ladies and gentlemen.  We are praying to God to have this case

 5     concluded in accordance with the God's will, and may God help everyone in

 6     this case, including myself.

 7             First of all, I wish to say that I am being forbidden to speak

 8     here, and I came to the status conference which is supposed to bring some

 9     harmonisation.  If that is the case, Madam Presiding Judge, may it be put

10     on the record that the accused is being forbidden from saying anything

11     about the case which has been in process so far and about the problem of

12     disclosure and communication between the Court and the Prosecution on the

13     one hand and the accused on the other hand.

14             If you should allow me, then please do so, but if you do not

15     allow me, let me say that I'm not ignoring the rulings of the Court, and

16     may it be put on the record that I have not ignored them so far either

17     but have rather, on the contrary, acted in accordance with Rule 3 of

18     Rules of Procedure and Evidence where it says that the accused has the

19     right to speak in his native language and another rule which says that

20     he's entitled to the services of the interpreter should they be

21     necessary.

22             They are not attempting to disclose to me the documents in my

23     native language.  They are not addressing me in my native language, and I

24     want this to be put on the record.  I accept that you put me on trial

25     without bringing me to the Court, and that is your right.  You're

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 1     entitled to that, but may this be entered into the record, please.

 2             JUDGE PROST:  Mr. Tolimir, your submissions on that point are on

 3     the record a multitude of times, and as I stressed there are decisions

 4     including a final decision from the Appeals Chamber on this point.  So we

 5     are not reverting to the question of language.

 6             And I have given you the opportunity to speak on your conditions

 7     of detention and your health.  And I would ask you, if you want to

 8     comment on those, I'm quite happy to receive any submissions you have on

 9     that, but I have explained the other circumstances very clearly, why we

10     are not dealing with other issues today and the decision that you have to

11     make.  So please, I'll give you one more chance, but if you stray into

12     other areas, then we are going to be done here very quickly.  So, please,

13     Mr. Tolimir, address me on anything you want to bring to my attention

14     about your conditions of detention or your health.

15             THE ACCUSED: [Interpretation] I ask you that you allow me to

16     speak about what you raised during this Status Conference.  You said that

17     I have been ignoring something, and I am stating for the record that I am

18     not ignoring anything and that I accept every ruling as long as it is on

19     the record and that it is acknowledged as a ruling.  I am really not

20     interested in how you're going to proceed with this.  You can convict me

21     without a trial.  You can execute me.  That's fine.  I accept all rulings

22     including your rulings, Madam Presiding Judge.  You can forbid me to do

23     anything you want to forbid me.  All I'm saying is that I have never

24     received from you any explanation as to why I am denied the right to use

25     my native language in accordance with Rule 3.  And why am I denied the

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 1     services of an interpreter as stated in Rule 21?  And this has been

 2     denied to me from the very beginning.  Please allow me to express this.

 3     I see these status conferences as something where we are supposed to work

 4     on harmonising the issues.  In the previous status conference, you told

 5     me that you would ban me from talking about kidnapping until some new

 6     facts emerged that would shed new light on this, and I submitted new

 7     facts.  The main -- the chief Prosecutor -

 8             JUDGE PROST:  Mr. Tolimir, I hope -- I hope that -- Mr. Tolimir,

 9     I hope that what you've just submitted you will think about over the next

10     few days.  If you are of the view that you wish to comply with the

11     rulings of the Tribunal, then you will comply with the ruling, the final

12     rulings, which have been made on the language issue and you will accept

13     the service of documents.  But until such time as you decide on that

14     question, there are no further matters for us to deal with.  You will be

15     given an opportunity to raise all of the other issues you wish to, but

16     today is not the day.  Today we are going to resolve this issue once and

17     for all on the question of language.  If you are prepared to comply with

18     the rulings of this Tribunal, then on Friday or before then you will file

19     with the registrar a notice indicating your willingness to accept the

20     documentation in this case, and you will then accept the documents, and

21     the next time we meet we can consider all of the issues that you wish to

22     discuss.  So the matter rests in your hands, Mr. Tolimir, but I take it

23     from -- I've given you two opportunities.  You have continued to venture

24     into the issues that I've said we are not dealing with today, so I'm not

25     giving you another opportunity to address questions of your health or

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 1     detention.  I'm assuming that you have no problems to bring to my

 2     attention, and I would ask you to think very seriously about the question

 3     and to have regard to what I've told you today.  The choice is yours.

 4     Accept the documentation, accept the rulings of the Tribunal on the

 5     language issue, or the Trial Chamber will take the steps that I

 6     indicated.  But for today, we are not dealing with other matters because

 7     there is no point until this essential issue is determined.

 8             And on that, Mr. Tolimir, these proceedings are adjourned.  We

 9     are adjourned.

10             THE ACCUSED: [Interpretation] Thank you, Madam Presiding Judge,

11     for your understanding.

12             MR. GAJIC: [Interpretation] If I can speak?

13             JUDGE PROST:  No, Mr. Gajic.  There is no right of audience;

14     proceedings are adjourned unless you're about to tell me he's going to

15     accept the documentation.

16             MR. GAJIC: [Interpretation] That's just -- please just open the

17     conference.

18             JUDGE PROST:  Well, Mr. Gajic, I suggest you --

19             MR. GAJIC:  [Microphone not activated]

20             JUDGE PROST:  I suggest you discuss the matter with Mr. Tolimir

21     --

22             MR. GAJIC:  I discussed already.

23             JUDGE PROST:  -- and there is a very easy way to solve the

24     situation.  You file the documentation with the registrar.  We are

25     adjourned.

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 1               --- Whereupon the Status Conference adjourned at 3.23 p.m.