Tribunal Criminal Tribunal for the Former Yugoslavia

Page 232

 1                           Friday, 27 February 2009

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.25 p.m.

 6             JUDGE PROST:  Good afternoon, everyone.  Madam Registrar, can you

 7     call the case, please.

 8             THE REGISTRAR:  Good afternoon, good afternoon, everyone in and

 9     around the courtroom.  This is case number IT-05-88/2-PT, the Prosecutor

10     versus Zdravko Tolimir.

11             JUDGE PROST:  Thank you.

12             Mr. Tolimir, as usual, if you have any problems with

13     interpretation or hearing the proceedings in the language you understand,

14     please stop me and let me know.

15             The appearances, I note Mr. McCloskey, Mr. Thayer, Ms. Stewart

16     and a new face, Mr. McCloskey.

17             MR. McCLOSKEY:  Yes, we have -- well, relatively new lawyer,

18     Caitlin Chittenden.

19             JUDGE PROST:  Thank you.  Welcome, Ms. Chittenden.

20             Mr. Tolimir, I note Mr. Gajic is present as legal advisor, good

21     afternoon to you, and Mr. Tolimir, of course, is self-represented.

22             This is the 7th Status Conference in this case and the last one

23     was on the 31st of October.  I think we're well familiar with the reasons

24     for the conferences by this time.

25             I have a few matters on the agenda from my perspective this

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 1     afternoon and then, of course, I'll call upon the parties as to any other

 2     matters they wish to raise.

 3             I wanted to begin with the discussion of the filings that have

 4     been made which follow upon the orders I issued at the last Status

 5     Conference.

 6             Mr. McCloskey, I know that the -- all of the filings are either

 7     under seal or confidential but from my perspective, that's in relation to

 8     specific contents so that I don't see any difficulty with the matters I

 9     want to address in dealing with that in open session unless you do.

10             MR. McCLOSKEY:  That's correct, it's just the material inside.

11             JUDGE PROST:  Okay.  Thank you.  If I could begin, then, in

12     noting that the Prosecution, Mr. Tolimir, has filed the pre-trial brief

13     as well as two motions for the admission of written evidence pursuant to

14     Rule 92 bis and a motion for judicial notice of adjudicated facts.

15             Now, I'm well aware, Mr. Tolimir, that you have yet to receive

16     any of these filings in a translated form because they are still being

17     translated, they're quite voluminous.  So while those translations are

18     pending, obviously I'm not going to set any further dates that flow from

19     the filing of those materials, nor will any of the dates with respect to

20     your responses on the motions run until such time as you receive the

21     translated versions of the material.

22             However, there is one point that I did want to try and raise with

23     you this afternoon, Mr. Tolimir, and that's in relation to the pre-trial

24     brief which the Prosecution has filed.  In that brief, they have

25     requested a lengthening or a permission to exceed the word limit for a

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 1     pre-trial brief.  Now, the word limit is normally 15.000 words and the

 2     Prosecution's brief is over 55.000 words, 55.879.

 3             Now, obviously that is a decision for the Trial Chamber as to

 4     whether or not to extend the length of the pre-trial brief, but the

 5     reasons given by the Prosecution are that this much more detailed brief

 6     in relation to this case, which is quite a complex one, is of benefit to

 7     the Trial Chamber in hearing more detail on the Prosecution's position,

 8     and I would say as well that drawing from that, they are indicating it

 9     would also be of benefit to you to have more detail in the pre-trial

10     brief than less.

11             So what I wanted to discuss with you was whether you are prepared

12     to agree to that increase in the word count and if so, we can dispose of

13     the matter today, and if not, we'll take a different route.  But may I

14     hear from you, Mr. Tolimir, firstly on that issue as to whether you would

15     agree to the Prosecution's request for an extension of the pre-trial

16     brief.

17             Mr. Tolimir, if you did want to discuss that with Mr. Gajic, I

18     would allow that, if you wanted to just have a moment to discuss that

19     with him because that might facilitate things.

20             I see both of you nodding, so perhaps, Mr. Gajic, you could speak

21     with Mr. Tolimir.

22                           [The accused and Mr. Gajic confer]

23             JUDGE PROST:  Mr. Tolimir.

24             THE ACCUSED:  [No interpretation]

25             JUDGE PROST:  I'm sorry, Mr. Tolimir, I'm not hearing you.  I'm

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 1     not receiving translation.  I think there might be a problem with your

 2     microphone.  Just a minute, please.

 3             THE ACCUSED: [Interpretation] Let me repeat.  May God help

 4     everyone in the courtroom and everyone involved in the work of -- in this

 5     case and all cases before the Tribunal, all trials and everybody who is

 6     following the trials and may all the trials here end in accordance with

 7     his will and may we all be enlightened by his endless wisdom and may we

 8     all understand the word of God.

 9             Glory be to God for everything that he has given us and he will

10     give us.

11             Madam Judge, I can give you the following answer:  I did not

12     receive the pre-trial brief.  My legal advisor has not received it yet.

13     I think that it is a large number of words.  It's three or four times

14     greater than the number of words that has been set, 15.000 words, and the

15     Pre-trial Judge has to weigh all this when deciding, but I think that

16     this is a really large number of words and we should be given the right

17     to exceed the number of words in our response to their brief.

18             Well, this is my opinion.  I can't tell you anything more than

19     that, because I haven't seen the brief and I don't know, I am not

20     familiar with the contents.  Thank you very much.

21             JUDGE PROST:  Thank you, Mr. Tolimir.  Well, what I will do,

22     since that's not a clear agreement, is I will wait until you've received

23     the translation of the pre-trial brief as filed and I will allow you

24     seven days -- I'm sorry.  Now we appear to have a problem with

25     Mr. Tolimir not receiving interpretation.  Could someone check on this,

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 1     please.

 2             I'll try speaking again to see if you're hearing.  Mr. Tolimir,

 3     are you receiving -- let's try that again.  Are you now receiving

 4     interpretation in your language?  Thank you.  Thank you, Mr. Tolimir.

 5             In light of your comments, I will wait until you've received the

 6     translation of the pre-trial brief.  I hear what you say about your

 7     response, your pre-trial brief.  So I will wait until you have received

 8     that and you will have seven days from the receipt of that, and this will

 9     be confirmed in a written order, to provide me with any comments,

10     specific comments on the request of the Prosecution for an extension

11     after having seen the document and after that, I will make a decision on

12     the Prosecution's request.

13             If we could move, then, to -- and I'll just confirm that with

14     reference with the other filings those have been done in accordance with

15     the order that set the time for the Prosecution and I am advised,

16     Mr. Tolimir, that the translations of the pre-trial brief, the two

17     motions, will be done in fairly short order so that you will have all

18     that material within the -- I hope within a month.

19             All right.  So I want to move then to a matter which we discussed

20     at the last Status Conference and I wanted to see if we've made any

21     progress, and that was on the question of agreed facts.

22             So perhaps, Mr. McCloskey, you could provide me with any update

23     on that particular issue.

24             MR. McCLOSKEY:  Yes, Madam President, we some time ago, came up

25     with -- well, I asked the team to get together a very short, maybe a page

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 1     and a half, this was on the 8th of February, to provide to

 2     General Tolimir to see if -- if as a kind of a test the waters, some very

 3     basic facts out of the indictment, and we have been informed by Mr. Gajic

 4     that the General would like to be able to understand our pre-trial brief

 5     so he can put these facts in context before making his decision which

 6     seemed fair enough to us and we have -- we have been seeing with CLSS

 7     when the translations may occur and I know they're working on it but

 8     that's all we know.

 9             JUDGE PROST:  Thank you for that, Mr. McCloskey.  Well, that

10     seems like a very reasonable request on the part of you, Mr. Tolimir, so

11     as I say, I am informed that we're looking at a few weeks but -- for the

12     completion of all of that material, the pre-trial brief and the two

13     motions so we're all aware of the heavy burden that CLSS faces so I have

14     been asking questions about the matter as well, the matter of

15     translation.

16             We will then leave the matter but I'm encouraged to hear that at

17     least there have been discussions and progress and, again, I would urge

18     you to continue, particularly once the pre-trial brief is translated, to

19     have -- initiate those discussions again for the reasons that I explained

20     last time.

21             Okay.  I don't think, unless there's any comment on that issue

22     from you, Mr. Tolimir, I'll move on.  Yes, go ahead.

23             THE ACCUSED: [Interpretation] I have no comments to make.  The

24     Prosecutor represented what happened between him and my legal advisor

25     correctly.  I just wanted to say something about the paper where I am

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 1     asked to confirm the eight counts in the indictment and I consider this

 2     to be less than serious exercise because that would mean that I am

 3     proving what the Prosecutor has to prove and I would also be denying what

 4     I said under oath here, and that is that I'm not guilty.  And I am almost

 5     asked to accept what the others accepted through various plea agreements

 6     and so on and this is unacceptable to me.

 7             I cannot agree to us accepting things that have not been

 8     considered and areas that I haven't been able to explore through

 9     examining the witnesses, and that's it.  Thank you.

10             JUDGE PROST:  Well, Mr. Tolimir, I think what we'll do, because

11     we're working a bit in the abstract on this, the Prosecution has put

12     forward potential areas for agreement.  You want to review the pre-trial

13     brief first.  So let's leave the matter until you've had the opportunity

14     to see the pre-trial brief and review it and then look again at what the

15     Prosecution is proposing.

16             I emphasise again that the areas of agreed facts --

17             THE ACCUSED: [Interpretation] I'm not hearing you at all.

18             JUDGE PROST:  I'm sorry, Mr. Tolimir.  We appear to be challenged

19     by technology this afternoon.

20             I'll try that again.  Are you receiving any interpretation?  Is

21     there a problem in the booth?

22             Mr. Tolimir, are you receiving interpretation now?  Are you

23     hearing me now?  I think that part of the problem may be when you do go

24     to turn the microphone on, be careful to watch the channels because you

25     may be switching the channel at the same time to the English, but you're

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 1     saying no.  You're saying that it's just the microphone button.

 2             THE ACCUSED: [Interpretation] I only press the button that the

 3     gentleman just pressed and the only thing I get then is the French

 4     interpretation.  I don't hear the Serbian.

 5             JUDGE PROST:  All right.  Well, hopefully it's just a glitch that

 6     will cease.

 7             I was simply explaining, Mr. Tolimir, I heard your comments but

 8     let's leave the matter because I think it's premature to discuss what the

 9     Prosecution has put forward in terms of agreed facts, given that you

10     would prefer, understandably, to look at the pre-trial brief before we go

11     any further.

12             So we'll leave the matter of proposed agreed facts for now but I

13     would -- as I say, I'm simply encouraging you, once you've had a chance

14     to review the pre-trial brief, that you'll then have further discussions

15     with the Prosecution on this issue.  But we'll leave it there for this

16     afternoon.

17             I did want to discuss basically some trial preparations here.  I

18     am aiming to have this matter ready for trial by -- certainly by the

19     summer.  Whether it can proceed at that time or not is a different issue

20     because of -- there's a number of complex questions, as you all know,

21     that go into the setting of the trial date but in terms of trial

22     preparations, that is my aim.

23             To that end, Mr. Tolimir, I wanted to make sure this afternoon,

24     because once you receive the pre-trial brief in translated form, I am

25     then going to set and it will be before the next Status Conference, I am

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 1     going to set deadlines that flow from that with respect to material that

 2     you are required to file, in particular with respect to any defence of

 3     alibi or special defences and your pre-trial brief.

 4             So, what I needed to know from you this afternoon is if there are

 5     any particular issues in terms of your trial preparations that you want

 6     to raise with me, and I'll begin that subject by dealing with a filing

 7     that you made on the 10th of February which related to storage space in

 8     the UNDU and your access to it, which I appreciate was an important issue

 9     for you in terms of trial preparations.  You may have seen, although I'm

10     not sure a translation was received, but the Prosecution filed, on the

11     24th of February, a response to that indicating that they understood your

12     concerns and thought that the matter should be addressed.

13             In the meantime, from inquiries that I made, because I had seen

14     your filing, I am given to understand that this issue may have been

15     resolved by the detention unit and the officials there such that you are

16     now getting the necessary access to your space.  I just wanted to make

17     sure and confirm with you that that is the case.

18             THE ACCUSED: [Interpretation] Thank you.  The detention unit met

19     my request expressed in my submission.  I just want to inform you and

20     this Court that I was forced to request this because I was not even

21     allowed to file my documents.  And I thought it inappropriate that my

22     activities be made secondary to those of the people who are outside of

23     this trial and that I'm not able to work on my preparation because for a

24     period of time, I had no access to my own archives.  I was only allowed

25     to go in and go out.

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 1             I want a fair solution; namely, that I have access whenever I'm

 2     free.

 3             JUDGE PROST:  And I'm understanding from your comments that that

 4     has now been resolved with the detention unit and that that access is

 5     available to you; is that correct?

 6             Do you need me to repeat that?

 7             I'm understanding from your comments that that has now ...

 8             Perhaps you'll have to remain for a moment or two.  I'm

 9     understanding from your comments that that has now been resolved with the

10     detention unit and that access is available to you; is that correct?

11             THE ACCUSED: [Interpretation] Yes, right.  Thank you.  Correct.

12     Thank you.

13             JUDGE PROST:  Thank you, Mr. Tolimir.

14             So then in terms of trial preparations, Mr. Tolimir, as I say,

15     you will be receiving a Scheduling Order that's going to set deadlines

16     for you in terms of your filings, and I just want to make sure that

17     there's no other issues you want to raise at this time about your trial

18     preparations.

19             THE ACCUSED: [Interpretation] Thank you.  I have to raise an

20     issue that you are already aware of.  I'm really in a very unfavourable

21     position because every half hour, I am awakened and checked on, like

22     before, which exhausts me psychologically and mentally because I don't

23     get any uninterrupted sleep longer than 30 minutes.

24             I must ask you to deal with this.  I can't believe that you have

25     no way of influencing this because I'll be completely exhausted by the

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 1     time trial starts.  I won't be able to participate.  I have to satisfy my

 2     bodily need for sleep.  That's one issue.

 3             The second issue.  I'm not allowed to use the teas that I had

 4     used before and that I need and I've written about this in my submission.

 5     The doctor who visited me in the detention unit even claims it's

 6     forbidden, banned in Holland, in detention because by rules of

 7     establishment, we get English tea here.  Why wouldn't I be able to have

 8     tea from Serbia?  Please deal with this issue because that only goes to

 9     my detriment.  I've been here for two years without any inspection or

10     medicine.  This is commercially-available tea that you can buy over the

11     counter.  It's issued -- it's available from infirmaries, although it's

12     alternative medicine, admittedly.

13             JUDGE PROST:  Thank you, Mr. Tolimir.

14             On the first issue that you raise, certainly after the last

15     Status Conference it was a matter of concern to me and I understood the

16     point that you were making.  Since then, I've had discussions with the

17     Registrar, with the UNDU on this issue, and I am very hopeful that we are

18     very close to a technological solution to this problem.  I understand

19     that that is the situation.

20             The registry is unable to confirm to me yet that the situation

21     will change or has changed, but I understand that they are working on it.

22     They, too, have taken the matter seriously and are working on it and I

23     would encourage you to discuss the matter again with the head of the

24     detention unit, and I will continue to monitor the situation, because as

25     I understand -- I understand that we are going to see a change shortly in

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 1     that respect.

 2             So I do understand the concerns you have raised on this issue.  I

 3     understand that the detention unit is doing their very best to ensure

 4     that the checks that are going on at the moment are not disturbing you,

 5     but as I say, in the long term, we're hoping that there's another

 6     solution for this problem.  So, I would ask you to again, when you go

 7     back to the detention unit, to discuss this matter with the authorities

 8     at the detention unit and hopefully very soon, we hope to have a

 9     resolution of the problem.

10             With reference to the tea.  Mr. Tolimir, I do believe it's

11     important.  I understand the concerns you've raised about it but I do

12     believe we need to move to the very significant issues that you have to

13     face in terms of preparing for trial.  So I'm simply communicating, once

14     again, to the Registry that I really want to see a solution to this

15     problem and I don't want to hear this again at the next Status

16     Conference.  That's a message going to both parties.  I am sure that

17     there is a way to solve this problem and I would ask the Registrar to

18     convey my concerns back to the UNDU, and I'm hoping that this is the last

19     time we have to discuss that question.  And again, please raise this

20     again with the detention unit and I'm hoping, as I say, that this is the

21     last time that particular issue -- I have had discussions on that issue

22     as well and I'm hoping that the matter can simply end here.

23             So those are the -- that's the situation with respect to those

24     two ongoing concerns, Mr. Tolimir.

25             I take it, then, from your comments that there's no other

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 1     particular points.  I wanted to simply point out to you that, as I say,

 2     you are now going to be receiving specific filing deadlines and we're

 3     coming to a critical time, Mr. Tolimir.  I know you don't want to hear

 4     this again but I'm going to say it again.  You're now at a point where

 5     you're going to have to work with a large amount of material and try and

 6     start putting some of it into form, for example, in terms of your

 7     pre-trial brief, by virtue of your election of self-representation,

 8     particularly because you are not a lawyer by training, you are depriving

 9     yourself of the full assistance that counsel could give you in that

10     process.

11             I appreciate you have legal advisors.  Their role is much, much

12     more limited than full counsel.

13             So I'm not going to discuss the issue with you, I know your

14     position on it.  I simply wanted to reiterate that especially now when

15     you're going to have a very short period before I'm going to say in

16     essence to the relevant individuals that this case is ready for trial, I

17     ask you again to think your situation vis-a-vis counsel.

18             But unless, Mr. McCloskey, you have anything to say on pre-trial

19     preparations or materials, I think that's all I wanted to mention on that

20     issue.

21             MR. McCLOSKEY:  It may be an issue you were going to ask us about

22     but I know the team that is working on the -- well, what we know are the

23     abbreviated witness testimonies under Rule 92 ter, the unavailable or

24     dead witnesses under 92 quater and the expert reports under 94 bis.  We

25     hope to have all that -- those motions filed within the next two weeks.

Page 245

 1             JUDGE PROST:  Thank you for that, Mr. McCloskey.  It was indeed

 2     another issue that I was just going to check on so I'm happy to hear that

 3     that material will be forthcoming as well, because obviously that's

 4     important for the pre-trial preparations as well.

 5             MR. McCLOSKEY:  And we were able to give Mr. Gajic today CDs of

 6     the index of our 65 ter lists that are hyperlinked to the documents so

 7     that should be a very convenient thing for them to have and we are

 8     assembling some documents for a motion to add to our 65 ter list, as we

 9     will be doing throughout, but the vast majority of them are on those CDs

10     and they are hyperlinked to the original, many times Serbian, documents.

11             JUDGE PROST:  Thank you for that.  If I could just add, I

12     understand on this, the provision of material issue, that the annexes to

13     the 65 ter list, the specific witness lists, the exhibit lists, those

14     have been translated and are about to be provided so that those will be

15     of assistance to you in the preparation process, so my understanding is

16     that material will be available very shortly.

17             Okay.  Mr. Tolimir, any other comments on the -- just on the

18     issue of any pre-trial -- your preparations for the trial process?

19             THE ACCUSED: [Interpretation] Thank you.  Yes, I have something

20     to say.  I think it is wrongly understood that I want time given to me

21     for preparation, time which I ask by being able to have uninterrupted

22     sleep.  You say talk to the doctors.  The doctors say the Registrar wants

23     to know when you are going to die.  I think that's morbid.  Only God

24     knows when I will die.  I think this is frivolous.

25             My room is equipped with cameras, stereo sound equipment and they

Page 246

 1     still continue to wake me up every 30 minutes.  This is physically and

 2     mentally exhausting.  I think you should view that from the viewpoint of

 3     enabling me to work.  I don't know why they are checking on me.  Until I

 4     am found guilty, I am presumed innocent.  I don't know why you look at it

 5     that way.  To achieve something, I get up -- I go to bed at 12.30, after

 6     midnight, and wake up at 5.30.  Whenever I manage to have a nap during

 7     the day, I take the opportunity but you have to give me uninterrupted

 8     sleep time because this is really exhausting.  I don't know why they are

 9     mistreating me in this way, both in terms of sleep and deprivation of my

10     tea.

11             I want to be fully alert.  I want to read all the materials and I

12     want to know everything that pertains to me and the Prosecution's case

13     against me.  I really want you to create conditions for me to be able to

14     work and to defend myself.  Thank you.

15             JUDGE PROST:  Thank you, Mr. Tolimir.  Let me be very clear here.

16     I do understand the point that you have been raising with regard to your

17     sleep.  I did take it very seriously.  I do take it very seriously.  But

18     the reality is that the officials at the UNDU are the ones who have the

19     hands-on responsibility for your welfare, along with the medical staff,

20     and they are of the opinion, an opinion which I, from a distance, am not

21     prepared to interfere with, as to what steps they must take in order for

22     your welfare.

23             So everyone is well aware of the issue and certainly I understand

24     the point you've raised.  What I'm saying to you is not that I'm just

25     ignoring the issue.  What I'm saying to you is that I've had discussions.

Page 247

 1     I'm being assured that they're working on an arrangement that will be

 2     more suitable for you in terms of interruption of sleep.  So I'm simply

 3     asking that you give this a bit more time and I'm confident that we're

 4     going to resolve the issue.  So it's not that I -- that I don't

 5     understand the effect on your health or why that's a trial preparation

 6     issue.  I do, certainly.

 7             So for today, all I'm saying is I think we're very close to

 8     finding a solution to this problem.  I am interested in the problem and I

 9     will continue to review it with the Registrar should I not see any

10     movement on the point.

11             So, having dealt then with those issues, and I hope you will take

12     away my words about representation, Mr. Tolimir, I had -- I don't believe

13     I had any other issues to raise this afternoon other than -- which is

14     always my final question to you on health issues.

15             But before I do that, Mr. McCloskey, was there anything else that

16     you wanted to raise this afternoon?

17             MR. McCLOSKEY:  No, Madam President.

18             JUDGE PROST:  Thank you.

19             Mr. Tolimir, is there anything else that you wanted to raise and

20     in particular, we've just discussed conditions at the detention unit so I

21     don't think we need to go further on that but if there's anything, any

22     other issues you wanted to raise or anything relating to your health

23     aside from -- we've fully discussed the sleep issue.  Anything else you

24     wanted to raise?

25             THE ACCUSED: [Interpretation] Thank you.  I want to add something

Page 248

 1     and please do not close the Status Conference yet.  There is no reason to

 2     adjourn.  I want to say just a few sentences.

 3             I am in good health and perfectly able and I have lived here for

 4     two years without any medicine.  In that respect, I am in better health

 5     than all those who are taking medication.  I just can't understand why I

 6     am not able to use health food and tea because I treat myself with

 7     prayer.  Please understand that.  I don't want to be punished by all

 8     sorts of censorship and interruption of sleep.  Please enable me to have

 9     that because I am free here until I am convicted.  Please do not impose

10     limitations on me as upon a convict.  I am free in every sense except not

11     being able to walk out of the detention unit, but I am free to choose

12     what I'm going to eat or drink.

13             The doctor tells me tea is not allowed in Holland.  I'm

14     surprised.  If this is a royal country and it bans all the other

15     countries allowed, it's an oddity.  I can't understand that we are able

16     to receive tea from England or from other countries, I can't understand

17     why I'm not allowed to get tea from Serbia that I have been drinking for

18     30 years.

19             However, despite all this, I am feeling great.  And every time

20     they keep controlling me, look at the log-book of the guards, they check

21     on me every 30 minutes.  I never get up later than 6.30.  I spend all my

22     time working on the case.  I want to prepare a serious defence.  I am in

23     great health, otherwise.  Just please don't impose those limitations on

24     me and I don't want to be subjected to any exhausting procedures that

25     disable me.  All I want is to prepare and work on this case.

Page 249

 1             JUDGE PROST:  Thank you, Mr. Tolimir.  I think your -- you've

 2     made your position on this very clear and as I say, the Registry, the

 3     UNDU and I am well aware of the situation so let's hope that we can

 4     resolve these issues shortly.

 5             Unless anyone has any other matters to raise, which I'm not

 6     seeing any indication of, I believe we can conclude the Status Conference

 7     at this time.  Okay.  Thank you, everyone.  Have a good afternoon.  We

 8     are adjourned.

 9                           --- Whereupon the Status Conference adjourned at

10                           3.05 p.m.