Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 22 October 2009

 2                           [Status Conference]

 3                           [Open session]

 4                           --- Upon commencing at 8.59 a.m.

 5             JUDGE PROST:  Good morning to everyone.

 6             Mr. Registrar, could you call the case, please.

 7             THE REGISTRAR:  Yes, Your Honour.

 8             Good morning, Your Honour.  Good morning, everyone in and around

 9     the courtroom.

10             This is case number IT-05-88/2-PT, the Prosecutor versus

11     Zdravko Tolimir.  Thank you, Your Honour.

12             JUDGE PROST:  Thank you.

13             Mr. Tolimir, I'd just like to confirm -- oh, we have problems.

14     We'll try new headphones there.

15             Mr. Tolimir, can you hear me now?  Okay.  Just please let me know

16     at any point in time if you're not receiving the translation or

17     interpretation of the proceedings.

18             The appearances.  I note Mr. McCloskey, Mr. Vanderpuye --

19             Sorry, Mr. Tolimir, is there a problem?

20             THE ACCUSED: [Interpretation] There is a channel problem.

21             JUDGE PROST:  Okay.  Do you have the proper channel now?

22             THE ACCUSED: [Interpretation] Thank you.  Now it's all right.

23             JUDGE PROST:  Thank you.

24             Mr. McCloskey; Mr. Vanderpuye; Mr. Mitchell, behind the pillar

25     there; Ms. Stewart; for the Prosecution.  Mr. Tolimir representing

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 1     himself, but I note that Mr. Gajic, his legal adviser, is present with us

 2     this morning.  Good morning.

 3             This is the ninth status conference in the Tolimir matter, the

 4     last one having been held on the 25th of June.  I believe that all the

 5     parties -- I'm sorry, Mr. Tolimir.  If you wouldn't mind -- Mr. Tolimir.

 6     If you wouldn't mind turning -- yes, thank you.

 7             I'm sure all the parties are very familiar with the purposes of

 8     the conference, to organise exchanges on the proceedings and to review

 9     the status of the case.  I anticipate that this will be the last status

10     conference, so hopefully today we can deal with any matters that need to

11     be addressed before the pre-trial conference.

12             Let me begin, then, with trial preparation matters.  As you're

13     all aware, there has been a change in the Pre-Trial Bench, with

14     Judge Kwon and Judge Agius no longer part of the bench, and Judge Flugge

15     and Judge Mindua are now on the Pre-Trial Bench.  In regard to this

16     issue, I do want to make reference, in particular, Mr. Tolimir, to your

17     submission on the 19th of October and the concerns you've raised about

18     the new composition of the Bench or the fact that there has been a new

19     Bench composed at this stage, but let me reassure everyone that all of

20     the concerns about timing and preparations of this case, along with other

21     general considerations, were taken into account in the decisions on the

22     composition of the Bench, and I can assure both parties that arrangements

23     have been made such that this will not interfere or affect the pre-trial

24     work in this case.

25             With respect to the pending motions, all the filings are in, as

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 1     you know, and the Trial Chamber expects to deliver decisions on those

 2     pending motions prior to the commencement of the trial, and we will be

 3     issuing some of those decisions shortly and others in due course.  But be

 4     assured, Mr. Tolimir in particular, that the Chamber will give all the

 5     careful and necessary attention to the motions filed and the submissions

 6     made before rendering those decisions, but we are in a position to do

 7     that in short order.  So I don't think there need be any concern about

 8     that.

 9             Now, let me raise with you the start of the trial, itself.  I

10     asked that Mr. Cubbon communicate with you earlier, the original

11     proposed -- original proposed date of the 10th of December, because I

12     wanted the parties to be aware as soon as we were aware of what the

13     situation was for the start.  However, because of a number of

14     trial-scheduling issues, including the newly-composed Bench, we are

15     anticipating a slight delay in that start date.  We are now expecting the

16     pre-trial conference to be scheduled for the 16th of December, with the

17     opening statement from the Prosecution on the 17th of December, and, if

18     necessary, we can use the 18th, but I'll discuss that shortly with

19     Mr. McCloskey.

20             Mr. Tolimir, as you may be aware, it is open to you as well to

21     make an opening statement if you choose to do so, which is obviously not

22     a matter you need to decide today, but it would follow after the

23     Prosecution's opening statement.  However, what I wanted to make clear to

24     you was, in light of your filing on the 19th, if you do elect to make an

25     opening statement, either as a party or the individual opening statement

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 1     permitted, and you don't consider yourself ready to do so on the 17th,

 2     then the Trial Chamber would give favourable consideration to allowing

 3     you to defer your opening statement to when the trial phase continues in

 4     January.

 5             And in addition, let me reassure the parties that all that is

 6     contemplated for these dates in December is what I have described; the

 7     pre-trial conference, the opening statement for the Prosecution.

 8             The holidays, Mr. Tolimir, that you have raised, the religious

 9     holidays, will be taken into account by the Trial Chamber, in terms of

10     any scheduling.  And in terms of the actual evidentiary phase, because of

11     the number of cases running at the moment, I don't anticipate commencing

12     much before the middle to the end of January, in any event, with the

13     evidentiary phase.  So the date would be quite close, Mr. Tolimir, to

14     what you had suggested in terms of the calling of evidence.  So in those

15     circumstances, I don't believe, Mr. Tolimir, that there are any

16     particular issues that you have to be concerned about, in terms of

17     timing.  I think there will be an appropriate amount of time prior to the

18     commencement of the evidentiary phase.

19             Now, just before I discuss the opening statement, do either of

20     you wish to comment on those dates at this stage?

21             Mr. McCloskey?

22             MR. McCLOSKEY:  No, Madam President.

23             Good morning.  We're ready to go.

24             JUDGE PROST:  Thank you.

25             Mr. Tolimir, do you have any general comments on what I've just

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 1     related regarding the opening of the trial phase?

 2             THE ACCUSED: [Interpretation] I would like to greet everyone.

 3     God bless you all.  Good morning, Madam President.

 4             I have presented my views in writing, in my submission before

 5     this status conference.  I believe that the dynamics that you have just

 6     presented fit into what I asked for, and I believe that, therefore, you

 7     would meet my request.  I believe that the Office of the Prosecutor would

 8     not be opposed to that, either.

 9             That is what I wish to say.  I hope that my request will be met.

10     Thank you.

11             JUDGE PROST:  Thank you, Mr. Tolimir.  I think that's fairly

12     clear, then, for all the parties.

13             Mr. McCloskey, I know it may be difficult to assess at this

14     stage, whether you can communicate an approximate length for your opening

15     statement, whether you are able to do that at this stage.  If you are,

16     that would be helpful for trial scheduling purposes, but if you're not, I

17     would simply ask you, as we get closer to the date, to communicate that

18     to Mr. Cubbon and to Mr. Tolimir, and we can go on that basis.  But if

19     you were in a position, then perhaps you could mention that this morning.

20             MR. McCLOSKEY:  Yes, I can mention that.  Mr. Thayer will be

21     giving the opening statement.  He's working on that and other things as

22     we speak.  So it certainly won't be more than a day.  I can't imagine --

23     though it's always hard to speak for other counsel.  And I had spoken to

24     Mr. Ruez, who was ready to be next, but since that week is no longer a

25     week of evidence, then he'll be ready to go in January as the first

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 1     witness, just for everyone's knowledge.

 2             JUDGE PROST:  Thank you.  That's very helpful, Mr. McCloskey.

 3     And as I say, if you get a more precise indication from Mr. Thayer, then

 4     you can simply communicate that to Mr. Cubbon.  But I think that knowing

 5     that it won't go beyond one day's session is helpful at this stage.

 6             All right.  We can move, then, to some other matters related to

 7     the preparations for the trial.

 8             I will raise this -- this will be for the last time, but I wonder

 9     if there's been any progress at all on the issue of any agreed facts.

10     We've discussed this at several status conferences, and obviously it's

11     not a matter of compelling such agreement, but I had been trying to

12     encourage that, but I don't know if we've had any success in that regard.

13             Mr. McCloskey.

14             MR. McCLOSKEY:  No, we haven't.  We haven't heard any more

15     response to our initial offers.  We can tell you that we do know that the

16     Defence has filed a detailed pre-trial brief, but we can't get it from

17     Registry until it's in the official language.  General Tolimir has been

18     able to provide us with a courtesy copy in Cyrillic which we are -- I got

19     last -- yesterday afternoon, which we will be looking at, and I'm sure

20     there are many factual differences set out in that.  Mr. Gajic tells me

21     that it is very heavy in facts.  So I see factual differences, of course,

22     but I can't tell you we've reached any accommodation, though as soon as

23     we begin reading the Cyrillic, we will have a better idea.

24             JUDGE PROST:  Okay.  Thank you for that, Mr. McCloskey.

25             I have information from the Registry that they're anticipating

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 1     the translation of both the brief and the notice by the end of the month,

 2     if not slightly before, so that would be sometime next week.  So that

 3     will hopefully assist as well, in terms of the process.  And what I would

 4     simply do is encourage you, once you have had an opportunity, as I'm sure

 5     you're thinking of, of reviewing the pre-trial brief, to then again

 6     engage in some discussions about facts that you do find in there which

 7     there may be room for some agreement.  And if it is a factually heavy

 8     brief, then perhaps there will be some opportunity for that, but I will

 9     leave that in the hands of the parties, and obviously you can report, by

10     way of a filing or informally, if you wish, on that matter.

11             So if there's no other comments on the agreed facts at this

12     stage, I will simply move to the issue of disclosure.

13             Mr. Tolimir, you raised the issue in your filing, which was

14     helpful, of the disclosure of the confidential material from other cases,

15     and the fact that you have received only limited material, I believe

16     material that was particularly helpful for the preparation of your

17     pre-trial brief from the Popovic case, but you are awaiting confidential

18     materials from the Krstic, and Blagojevic and Jokic, as well as Popovic

19     case.  I have discussed the matter with the Registry, and of course there

20     is quite a volume of material that they're dealing with, and the Trial

21     Chamber did impose -- the Trial Chambers did impose significant

22     conditions that require quite an intensive review of the material, which

23     takes some time.  So they are working on it.  I'm satisfied they're

24     working very quickly on that matter, and hopefully you will begin to

25     receive portions of that.

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 1             Mr. McCloskey, I know that the Prosecution indicated they would

 2     assist the Registry in terms of identifying confidential material or

 3     private material, particularly in the Krstic and Blagojevic and Jokic,

 4     given that the cases are completed, and obviously as well in Popovic.

 5     And I assume that's being done, that you are assisting?

 6             MR. McCLOSKEY:  Yes, Ms. Stewart has been communicating with

 7     them, helping them identify the confidential materials.  And, frankly, we

 8     have told them, from our perspective, there's really not much that he

 9     can't see.  But, of course, with the prior rulings, then, it's important

10     that the Registry do their work.  So, yeah, we work very well with them

11     and helping out wherever we can.

12             JUDGE PROST:  Okay.  So hopefully, Mr. Tolimir, you will have

13     that material very shortly.

14             Is there anything else that you wanted to raise on that

15     particular matter, Mr. Tolimir, in terms of the disclosure of the

16     material?  As I say, hopefully it will be with you shortly.

17             THE ACCUSED: [Interpretation] Thank you.  I have nothing more to

18     add.  I only wish to have the materials submitted to me in a language

19     that I understand, because I am in a situation in which I cannot pay

20     advisers, associates, with the funds allotted to me, so I cannot pay for

21     any translators either.  So, please, whatever is translated, may it

22     please be submitted to me in the translated version.  Thank you.

23             JUDGE PROST:  Certainly I'll endorse that message to the

24     Registry.  Whatever is in translated form should certainly be submitted

25     to you in translated form.  There will also be audio material available

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 1     to you that may assist in that process as well, but certainly that can be

 2     arranged, anything that is already translated, which should be given to

 3     you in that translated form.  And so hopefully that will proceed as well,

 4     and should there be any difficulties, there will be other opportunities,

 5     obviously, to raise the issue with the Pre-Trial Chamber.

 6             I don't believe, so far as I'm aware, that there are any

 7     outstanding issues on disclosure generally in the case, other than, of

 8     course -- and Mr. McCloskey, you're well aware of the continuing

 9     obligation under Rule 68, and I'm sure you're keeping that in mind as

10     matters proceed.  But is there any other issue on general disclosure that

11     you wanted to raise?

12             MR. McCLOSKEY:  Just to let you know, as we have told Mr. Gajic,

13     we have been finishing up the last of the Popovic record.  We have been

14     endeavouring, as you know, to try to provide them with the entire record

15     of that case, both for Rule 68 purposes and for, of course, general

16     relevancy purposes, and there have also been some recent searches made of

17     various individuals, and that material is being provided within the next

18     week or so.  But as for anything outstanding, witness statements, things

19     like that, we are pretty close to being finished, though there's always

20     something out there that we need to get over, and we'll continue to work

21     on that.

22             JUDGE PROST:  Okay.  Thank you for that.  And, yes, it is, to

23     some degree, a continuing process, but as long as there are no particular

24     issues.

25             And I take it, Mr. Tolimir, there's nothing particular that you

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 1     wanted to raise on general disclosure; that you are receiving the

 2     material, as the Prosecution indicated.

 3             THE ACCUSED: [Interpretation] Thank you, Madam President.

 4             I have been receiving what had been submitted to me in the

 5     language I understand.  That's why I'm asking to have materials submitted

 6     to me in a language I understand, not in English.  I have a limited

 7     number of hours that I can spend with my legal adviser, and therefore I

 8     need to do a lot of reading on my own, without a translator.

 9             Thank you.

10             JUDGE PROST:  Okay, thank you, Mr. Tolimir.  And as I indicated

11     previously, we'll continue the process as is.  And if there are

12     particular issues, then we will revert to them as they arise.

13             Mr. McCloskey.

14             MR. McCLOSKEY:  Yes.  Madam President, just because of perhaps

15     the nature of the unrepresented situation, I can offer General Tolimir,

16     if he will alert us to any particular English documents, if we have

17     that -- an interest and an understanding in his view of the relevance, we

18     can help -- join in a request to have things translated.  Now, to the

19     degree that this is a strategy issue, I understand, but material --

20     UNPROFOR reports, or NIOD records, this sort of thing, we can help get to

21     the -- hopefully the front of the huge line for translation, though most

22     of these -- as you know, most of the materials are in Serbian.  But we

23     can help assist in any particular materials to try to bump the queue a

24     bit.

25             JUDGE PROST:  Well, thank you for that, Mr. McCloskey, and I

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 1     would encourage you, Mr. Tolimir, and Mr. Gajic to engage in discussions

 2     with the Prosecution.  Obviously, strategy is an issue and a concern, but

 3     it may be very helpful if there are some key documents that you would

 4     like the assistance of the Prosecution in getting prioritized in that

 5     regard.  So I would encourage you to raise those with the Prosecution,

 6     and they can hopefully help and assist in that process.

 7             All right.  Before I proceed on to other matters which are not

 8     directly related to trial preparations, is there any other matter?  I

 9     understand there may be another matter relevant to trial preparations

10     that at least the Prosecution wishes to raise at this stage.

11             MR. McCLOSKEY:  Yes, Madam President.

12             I didn't want to get into it really in any detail.  We've all

13     seen the e-mail which I drafted with Mr. Thayer, which describes our

14     upcoming -- which we hope early next week to provide an upcoming motion

15     to amend the indictment.  That's always done at this late stage,

16     regretfully, but part of it, as you're aware, is to help make the

17     indictment more clear, as a result of some of the concerns in Popovic and

18     other items that were mentioned.  But I -- since we have been talking

19     with the Defence about that, I did want to alert you to it as well, of

20     course.  And we will, of course, file it and see what happens.

21             JUDGE PROST:  Thank you, Mr. McCloskey.

22             Yes, the Trial Chamber is appreciative of the notice, and we will

23     obviously simply await the filing of the motion for the amendment of the

24     indictment.  As you say, it is always difficult at the later stages, but

25     we will see what the motion brings and the response, obviously, from

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 1     Mr. Tolimir.

 2             Mr. Tolimir, you can certainly -- if you have anything to say,

 3     I'll certainly give you the floor, but I believe at this stage we simply

 4     will await the filing of the Prosecution's motion and proceed with the

 5     matter in the normal course of motion and response.  But is there any

 6     particular comment you wish to make on the issue of the proposed

 7     amendments to the indictment which are forecasted by the Prosecution?

 8             THE ACCUSED: [Interpretation] Thank you, Madam President.

 9             I would just like to have this submitted to me in a language that

10     I understand, and that I be given a time-period that is in accordance

11     with the procedure involved so that I may respond to that.  Thank you.

12             JUDGE PROST:  Okay, thank you.

13             Mr. Tolimir, I'm presuming, since the original indictment has

14     been translated, that we can certainly arrange for translation of the

15     proposed amendments as well.  I mean, it will be filed in English, and

16     then we will have to ask the Registry to proceed as quickly as possible

17     with the translation of those portions that are proposed for amendment.

18             Mr. McCloskey.

19             MR. McCLOSKEY:  Yes, and particularly the indictment is something

20     that we're trying to get a jump on because it's -- it just is an

21     adaptation to some -- you know, to additional facts.  So we may be able

22     to get a jump on the indictment so it comes out relatively soon.

23             JUDGE PROST:  Okay, thank you.

24             Are there any other issues relating to trial preparations from

25     either of the parties?

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 1             Mr. McCloskey.

 2             MR. McCLOSKEY:  As I consider your -- what you said earlier and I

 3     look at my calender, it would be very helpful if we had a -- and I would

 4     request or offer the date of Monday, 25 January, as a starting date.

 5     That would give us a week to get back from the holiday and then a week to

 6     really gear up our forces, our witnesses, to be able to start on that

 7     Monday.  That would be past the holidays.  It would give us a reasonable

 8     holiday after the fourth year of being in trial.  And that would solve

 9     any issues, I think, with General Tolimir, and it would give me a date to

10     help plan everything to begin.  So if that could be a consideration.

11             JUDGE PROST:  Thank you.  We'll certainly take that submission

12     into account, in consideration, Mr. McCloskey.  And as I said, given the

13     trial situation, I think that may well be a realistic aim point, but

14     we'll have to discuss that, and we'll revert on that.

15             Mr. Tolimir, any other -- I'm going to move to a different topic

16     which is related directly to you and the conditions of detention issues.

17     But before I do, is there any other matter you wanted to raise that

18     relates to trial preparations?  Now would be a good opportunity for that.

19             THE ACCUSED: [Interpretation] Thank you, Madam President.

20             I would like to point out to you that I've already asked the

21     Registry for additional funds to finance my Defence team.  I have already

22     done so, and I shall do so, and I would kindly ask you to help.  Although

23     we have only been paying two legal advisers -- I mean, I haven't even

24     been paying investigators - I, from this cell, cannot investigate on the

25     ground - I wanted to have a legal adviser and a case manager, at least,

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 1     to be able to follow the entire proceedings with me.  So I kindly ask you

 2     to indicate to the Registry the problem involved.  And I know that you

 3     are fully aware of the volume and the complexity of the matter.  I know

 4     that you were involved in the Popovic et al case, and I hope that the

 5     Registrar can see what our needs are, in view of the situation.  Thank

 6     you.

 7             JUDGE PROST:  Yes.  Thank you, Mr. Tolimir.  I have been made

 8     aware of that particular issue.  You asked that the matter be brought to

 9     my attention, so I have received the documentation related to it.  It is

10     obviously, as is the procedure, the matter rests at the moment in the

11     hands of the Registry and the Legal Defence Division, and I'm going to

12     wait and see what action is taken.  I will certainly continue to monitor

13     the situation, and I will certainly convey that it is an urgent matter

14     that has to be given attention.  And we'll see, as matters proceed, how

15     that develops, but I am aware of the issue, and I am, yes, well aware of

16     the nature of the case that is involved here.  So I will keep that matter

17     in mind, Mr. Tolimir, and we can discuss it further as it progresses, and

18     hopefully we can reach an appropriate agreement on how to proceed in that

19     respect.

20             All right.  If there's nothing else relating to trial

21     preparations, and I don't see any indication that there is, let me move

22     to important issues related to the conditions of your detention,

23     Mr. Tolimir.

24             As is normal, I offer the opportunity to go into private session,

25     but I think I know well enough, from our previous status conferences,

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 1     that it is your preference that all these matters be discussed in public

 2     session, so I will proceed on that basis unless you advise me otherwise.

 3             I want to deal, first of all, with an issue that, of course, has

 4     been of concern to the Trial Chamber, and I know it's been a significant

 5     concern for you, Mr. Tolimir, and that is the question of sleep

 6     interruption, disturbance of your sleep.  We discussed this at the last

 7     status conference.  You have also filed submissions on the issue on the

 8     16th of July, followed by a specific annex which you filed on the 12th of

 9     August, which annex was a specialist physician's report on your medical

10     condition and which made recommendations that the continued monitoring in

11     the night was unnecessary.

12             The Registry responded to that submission on the 18th of August,

13     maintaining the position of the medical authorities at the UNDU as to the

14     need for those nightly checks, and as a result of those somewhat

15     conflicting positions, I, after discussions with the Chamber, I had a

16     meeting with the Registrar and the Deputy Registrar to discuss the

17     situation, because it is a situation of great concern to the

18     Trial Chamber, and has been all along.  And as a result of that, I sought

19     an additional independent medical report, the Trial Chamber did, which

20     was filed on the 9th of October, and I have been advised that you have

21     received the medical report from Dr. Vermeulen.  And in that report --

22     and he is a specialist, a neurologist, and his report concluded basically

23     with recommendations that you should take the medication which has been

24     prescribed for you, that there should be a weekly control of your blood

25     pressure, but that overall, from an examination of all the circumstances,

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 1     if those factors were met, the blood pressure and the medication, then

 2     the doctor would recommend a normal system of observation which would not

 3     include nightly checks.  That was the result of the third doctor's

 4     report.

 5             So the Trial Chamber has reviewed, Mr. Tolimir, all of the

 6     medical reports very carefully, and we've paid particular attention to

 7     this last report prepared by a specialist, a third party in the matter,

 8     who had an opportunity, I believe, to examine all of the material and, I

 9     believe, met with you.  And on the basis of these reports, in particular

10     that last one, the Trial Chamber is going to place this matter

11     essentially in your hands, Mr. Tolimir.  If you are prepared to cooperate

12     with the UNDU medical staff, and very specifically to allow them to check

13     your blood pressure once a week, and take the medication that has been

14     prescribed by all the medical authorities that have looked at your case,

15     as described in Dr. Vermeulen's report, then the Trial Chamber will

16     request the Registry to put in place a normal system of observation which

17     will not involve the nightly checks.  If, however, you are not prepared

18     to cooperate in those specific matters that I've just described, then the

19     Trial Chamber will leave it to the UNDU, in particular the medical

20     authorities, to employ what appropriate observation measures they

21     consider to be applicable in those circumstances, which may include the

22     continuation of the half-hour observations at night.  It will have to be

23     based on their assessment of the medical situation.

24             I want to stress to you, Mr. Tolimir, that the Trial Chamber

25     remains very concerned at all times about your health and your medical

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 1     condition.  We've looked at the medical reports, though, and we feel as

 2     well that you should be guided similarly by those medical recommendations

 3     and that you should accept the advice that has been provided by the

 4     medical doctors for you, and we're recommending, therefore, that you

 5     cooperate in the medical treatment, and as a result we would then be

 6     prepared to intervene in terms of the observations.  But as I said at the

 7     beginning, at the end of the day the matter is now in your hands,

 8     Mr. Tolimir.  You can choose to cooperate, with the resulting changes to

 9     the observation process, or if you don't wish to, then the matter will be

10     left with the UNDU.

11             Do you wish to add any comments on this particular issue,

12     Mr. Tolimir?

13             THE ACCUSED: [Interpretation] Thank you.

14             I would like this to be in open session because I always like

15     discussing these matters in open session.  So if we're in private session

16     now, could you please issue instructions that we be in open session.

17     Thank you.

18             JUDGE PROST:  No, we've remained in open session.  I understand

19     your preference for that, so I have not gone into private session.

20             THE ACCUSED: [Interpretation] Secondly, with respect to what

21     you've just told me, I want to say for the record the following:

22             Under Article 2 of the International Criminal Court for the

23     former Yugoslavia -- International Criminal Tribunal, by which we are

24     being tried, it is prescribed that persons be prosecuted who have

25     violated Article 2 of the Geneva Conventions, of the Statute.  And the

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 1     Statute also states that it is because of having inflicted grave bodily

 2     harm.  And you can find all that in the Statute on page 4.  That's where

 3     all that is set out.

 4             Now, I'd like to caution you, as the President in these

 5     proceedings, and also I'd like to warn this International Tribunal and

 6     this pre-trial conference, that as of the 30th of May, 2007, until the

 7     present day, the 22nd of October, 2009, inhumane conduct is being

 8     applied, as far as I'm concerned, in my case.  The European Conventions

 9     forbid that, the European Conventions on Human Rights, and that is if

10     serious mental suffering is inflicted on the individual.  And this

11     Tribunal has been cautioned of that several times by me and by the

12     neurologist which the Defence put forward as an expert witness, and

13     indeed the neurologist appointed by the Registrar, in view of his written

14     report.  And in that report, he notes that medical supervision and

15     interruption of sleep, waking me up every 30 minutes, is not necessary.

16             When I was brought to the Detention Unit, I was put in a cell,

17     and the guards monitor my cell every 30 minutes, or 48 times within

18     24 hours.  They open the window of my cell door and do other things so

19     that my body, whether I'm awake or asleep, reacts to these interruptions,

20     whether they be by sound or light, which the guards use to establish

21     whether I'm alive or not.  And the purpose of the medical examination and

22     this deprivation of sleep is to see whether I'm alive.

23             Now, my cells are fine, my body is working properly, but the

24     Registrar wants to know when I'm going to die, and that is in the hands

25     of God.  It is only God who knows when I'm going to die and can order my

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 1     death.

 2             So this kind of medical supervision is detrimental to my health

 3     and is a form or torture for me, this deprivation of sleep.  And you've

 4     just confirmed, with the statement you made, that you're going to

 5     continue with that behaviour.  This is sanctioned by the United Nations

 6     Convention on Torture, and deprivation of sleep is one of those things,

 7     and it must not last more than 11 days, whereas in my case it has lasted

 8     for two and a half years.  And Article 4 of the Convention on Torture

 9     states that acts of torture and demeaning behavior and punishment is

10     considered a violation of international human rights, and Article 16 of

11     the Convention makes it incumbent on the signatories that throughout the

12     territory under their control and authority, they should forbid and

13     prohibit all demeaning acts which inflict mental and physical suffering.

14     And Holland, the Netherlands, comes under that territory, and so they

15     should apply the Articles of that Convention.

16             It's not a method of treatment.  It just leads to a deterioration

17     of my health.  And I have stress-related difficulties, and this was seen

18     by the physician who examined me.

19             I would like to ask this Tribunal to look at the standards

20     prescribed, when it comes to brutal treatment and inflicting mental and

21     bodily harm, and look at the international standards which are formulated

22     in all the international instruments.  They are to be found in the

23     universal Declaration on Human Rights, on human rights, the European

24     Convention on the Protection of Human Rights.  So any violations against

25     a person's dignity and any conduct that is demeaning for the individual

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 1     will be punished, and if it is in contravention of Article 3(C) and (D)

 2     of the Geneva convention.

 3             So I ask you here and now that instruct your services to prepare

 4     a detailed report on that, because I don't want to come into conflict

 5     with you and have that kind of inhumane behaviour be prolonged in my

 6     case.  So I'm alive for as long as I react.

 7             Now if you want to try me here under the conditions that I have

 8     been suffering for two and a half years, I'm not going to be able do

 9     that.  You can do what you like, but I just ask you to study the

10     standards of international conventions and declarations that give me my

11     human rights.

12             I never forbid anybody to take my blood pressure.  That's wrong

13     in your report.  I always allowed everybody who wanted to take my blood

14     pressure.  Now, instead of medicaments, I drink various teas, herbal

15     teas, and I use prayers, too.  And now you wish to impose something else

16     on me.  Well, they can take my blood pressure and establish whether I

17     need to take any medicines or not, but I'll have my tea and I'll take one

18     of the medicines they're prescribing, and you'll see what is more

19     beneficial.

20             And God does not want to see you implement any inhumane behavior

21     towards me, so I'd like you to study this all again.  I don't want to

22     have to take this to another court, to another tribunal.  I am in this

23     Tribunal, and it is up to the Tribunal to apply by the conventions that

24     have been subscribed to.

25             Thank you.

Page 291

 1             JUDGE PROST:  Thank you, Mr. Tolimir, and let me just deal with

 2     it in this manner:  The Trial Chamber is certainly aware of all the

 3     matters that you have raised.  I'm very encouraged to hear that you are

 4     prepared -- and if there's a mistake in communicating that information,

 5     I'm pleased that you are prepared to cooperate in the taking of the blood

 6     pressure, as has been recommended by the doctors.  And insofar as the

 7     medication issue is concerned, I will ask the Registry to give serious

 8     consideration to the fact that you -- to discuss the matter again with

 9     you to see if we can come to some form of agreement.  And as I've said,

10     if you are cooperating with the authorities, in terms of the treatment

11     that has been recommended by the doctors, I'm going to ask the Registry

12     to take a careful look at the report, the most recent report, as well as

13     the report you submitted, and on that basis I'm going to encourage them

14     to look at those recommendations and to implement the recommendation of

15     the independent expert's report, which called for a normal observation

16     process that will not involve the nightly checks.  So I will encourage

17     that, as the result, but on your part I would simply ask for what I take

18     it you're indicating you will do, which is to discuss the matter further

19     with the medical authorities.  And I'm confident, Mr. Tolimir, if we

20     approach it from that perspective, we can come to a resolution here which

21     will allow for the normal observation process without the nightly

22     interruptions that you have found so disturbing.  So I will take the

23     matter up again with the Registry.  As indicated, it will require

24     cooperation on your part, which I take from your comments you're prepared

25     to give, and hopefully by the time the matter -- we meet again, the

Page 292

 1     matter will have been resolved.  But I emphasise I do understand your

 2     concern about it.  The Trial Chamber is very conscious of it, and our

 3     intent here, based on the medical reports, is to come to an agreeable

 4     situation where the conditions will be improved from your perspective.

 5             Yes, Mr. Tolimir.

 6             THE ACCUSED: [Interpretation] Madam President, I apologise, but I

 7     have to stress that I always cooperated with the doctors, and I have an

 8     agreement with the Detention Unit allowing them to have teas brought in

 9     to me from my country, and I do drink those teas instead of the

10     medicaments.  And I never refused having my blood pressure taken.  So I'm

11     always transparent when speaking about my health condition.

12             And the medical treatment that you're talking about does not

13     improve someone's health.  On the contrary, it leads to stress situations

14     and mental disturbances because I feel as if I'm in some show, some

15     reality show, Big Brother reality show.  Can you imagine you being in a

16     situation like that?  And so with your conclusion that you're going to

17     prolong this whole proceeding, you're not going to help me in prolonging

18     my agony.  And I have reached an agreement with the Detention Unit and

19     with the physicians on the manner of treatment for my condition, and that

20     is teas.  Whenever they came in to take my blood pressure, I never

21     refused, so I don't know where you get that from, and I have to mention

22     that.

23             So you're just prolonging my statement of agony by continuing

24     this procedure, but I don't need anything else.  I've received everything

25     that I need, and it took me two years for me to be accorded the right to

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 1     be able to drink those teas and get them into the Detention Unit.  So

 2     this is an alternative form of medicine.  I don't know why you don't

 3     accept this and why you give greater importance on tablets than you do on

 4     herbal teas.

 5             And, of course, I believe in God, and if you believe, you will be

 6     healed.  So please take that on board.  Don't deny my faith, and I'm sure

 7     that God will help heal me, and I will live as long as God wishes, not a

 8     day longer, not a day less.  So if I want to live and if God wants me to

 9     live, then I will.  If I have greater faith in medicines than I do in

10     God, then I would take them, but I have more faith in God, so please

11     don't deny me my religion and my faith and my convictions, and Article 4

12     of the instructions for the Detention Unit allow for that.  I don't know

13     why the doctors are trying to negate that Article 4, where religious

14     freedom is accorded.

15             So before the start of trial, I need to have a good night's rest

16     for at least a month and not for you to seek compromise solutions.  I

17     don't need compromised solutions, just sleep.

18             Thank you.

19             JUDGE PROST:  Thank you, Mr. Tolimir.

20             Well, I think the positions are very clear, and I hope I've made

21     myself clear on behalf of the Trial Chamber.  I will discuss the matter

22     again with the Registry, but I emphasise again, Mr. Tolimir, we have to

23     be guided as well by the medical experts and the medical advice that's

24     been provided, and that's what we're going to do.  So I will discuss the

25     matter again with the Registry, and, as I say, I'm glad to hear you have

Page 294

 1     been cooperating and that may just have been a miscommunication.

 2             As to the medicament issue, however, I reiterate the

 3     Trial Chamber is going to be guided by the medical advice we receive from

 4     medical experts.  And so I will seek to achieve a solution, but it will

 5     require some cooperation on your part as well.

 6             I'm going to leave that matter, then, Mr. Tolimir, and I'm going

 7     to move to one final issue in this regard.

 8             I'm sorry, Mr. Tolimir, go ahead.

 9             THE ACCUSED: [Interpretation] I'd just like to ask you to respect

10     the conventions and international standards on my rights, because you're

11     the Court here, you make decisions, but don't make decisions on the basis

12     of somebody else's opinion if you're not going to take on board my

13     opinions about my own health situation.  Thank you.

14             JUDGE PROST:  Thank you, Mr. Tolimir, and let me be clear.  We

15     look at all of the medical information that we have, and certainly we've

16     always considered and the Trial Chamber will continue to consider what

17     you have put forward in your written submissions and here orally as well.

18     But we have to be guided as well by the medical information.  But

19     certainly we are taking into consideration what you have said, your

20     position regarding the -- as you know, we've spent considerable time

21     discussing the issue of your request for the herbal teas, so certainly

22     your position on the matter is also a factor that we take into account.

23     So we'll certainly do that.

24             I will then move to the final issue in this area, unless you have

25     other particular matters, Mr. Tolimir, that you want to deal with.  But

Page 295

 1     I think we can leave that particular matter for the moment.  This is the

 2     question of a notice which you filed on the 30th of July regarding the

 3     use of physical force for identification of -- for the purpose of

 4     identification measures being taken from you.

 5             On the 5th of August, 2009, the Registry filed a submission in

 6     response to your notice in which you complained regarding the manner

 7     used -- the physical force used to obtain finger-prints and a photograph.

 8     The Registry response noted the procedure required by Rules 80(B) and

 9     80(1) of the Rules of Detention which requires a report of such matters

10     initially to the commanding officer and then a subsequent review process

11     through the Registry and the President.  The Registry's submission also

12     makes reference to the Seselj Appeals Chamber decision in which it was

13     confirmed that the processes -- the remedies available must be exhausted

14     before the matter should be considered by a Trial Chamber.

15             You filed a response to that -- to the Registry's submission on

16     the 25th of August, arguing for a different interpretation of the

17     application of Rules 80(B) and 80(1).

18             The Trial Chamber has considered all of the submissions, your

19     response included.  We have reviewed as well the Rules, and have

20     determined that the Rules are very clear as to the procedure to be

21     followed in the case of complaints about treatment, and that those

22     complaints must be directed initially to the commanding officer and, from

23     there, through the Registry, to the President.

24             We've also had regard to the decision of the Appeals Chamber in

25     the Seselj matter in which they affirmed that it was necessary for all

Page 296

 1     available remedies to be pursued prior to any intervention from the

 2     Trial Chamber.  And, therefore, on that basis, the notice which you

 3     filed, which the Chamber is classifying, in essence, as a motion, will be

 4     dismissed, as it is for you to pursue the remedies accorded under the

 5     Rules which would begin with a complaint initially to the commanding

 6     officer, and then the review process set out therein.  So on that basis,

 7     the Trial Chamber will not intervene in this matter at this time, and you

 8     may pursue the other remedies which are available.

 9             Those were all of the matters that I wished to raise today.  Do

10     any of the parties have any other matters that they wish to deal with?

11             Mr. Tolimir, do you have any additional matters that you wanted

12     to raise?

13             THE ACCUSED: [Interpretation] Thank you, Madam President.

14             I want you to hear my opinion on this issue.  You have stated

15     your views.

16             JUDGE PROST:  No, Mr. --

17             THE ACCUSED: [Interpretation] I reached an agreement with the

18     former --

19             JUDGE PROST:  I'm sorry, Mr. Tolimir, but the previous issue was

20     based on a submission you had made.  I've had responses from the

21     Registry, and the Trial Chamber has given a ruling.  You did make your

22     position very clear in the submissions that you made, so I would suggest

23     you bring the matter to the commanding officer's attention, Mr. Tolimir.

24     But we're not going to revisit the decision at this time.  But you can

25     pursue the matter with the commanding officer.

Page 297

 1             THE ACCUSED: [Interpretation] I want to state my opinions on your

 2     assessment of the matter.  You're now assessing the matter.  You've

 3     said -- had your say, but I want to give my opinion about all of that,

 4     what you've just said.  I have the right to do so because I am not

 5     satisfied with the way in which --

 6             MR. McCLOSKEY:  We're going to be objecting at this point.  I

 7     don't think we can run a trial where each side comments on the ruling of

 8     the Court afterward.  And I just hate to get involved, but we'd be here

 9     forever if that occurs.

10             JUDGE PROST:  Thank you, Mr. McCloskey, but -- I appreciate the

11     comments, but on this matter, Mr. Tolimir, that is the case.  This is a

12     ruling by the Trial Chamber on a notice that you submitted, and it is not

13     the case that you have an opportunity to subsequently express your

14     opinion regarding a matter.  You filed a notice, the Registry responded,

15     which was the appropriate party in these circumstances.  In other cases,

16     it may be the Prosecution.  You responded to that Registry submission.

17     We gave you a full opportunity to be heard, therefore, and the

18     Trial Chamber has ruled, so I will not hear your opinions on the

19     Trial Chamber's ruling.  That's the case in this instance, and it will be

20     the case as this trial proceeds.  So once the Trial Chamber has ruled,

21     and we've had this issue before, that's the end of the matter.  If you

22     wish to take a review process, you are certainly entitled to do so, in

23     accordance with the Rules.  In this case, your first avenue on this

24     matter is the commanding officer of the UNDU, and after that you may take

25     the review process through the Registry to the President.  That's it on

Page 298

 1     that matter, Mr. Tolimir.  Thank you.

 2             If there are no other distinct matters from either of the

 3     parties, that was all I wished to raise.

 4             Mr. McCloskey, do you have any additional matters?

 5             MR. McCLOSKEY:  No, Madam President.

 6             JUDGE PROST:  Thank you.

 7             And, Mr. Tolimir, unless you have a different matter to raise.

 8     I'm taking it you have no additional matters to raise today.

 9             THE ACCUSED: [Interpretation] Yes, I do.  I do.  I have not

10     received the decision that you are telling me about, I haven't received

11     it, and I wanted us to resolve it in this discussion.  Now, if you wish

12     to adhere to procedure, may I have your decision in writing, your ruling

13     in writing, and I will take a review process, because the measures

14     applied to me are outside the legal frameworks of the proceedings.

15             JUDGE PROST:  Mr. Tolimir, I'll take that request under

16     consideration.  You have the oral ruling.  If you're referencing the

17     Seselj decision, then Mr. Gajic I'm sure can provide you with a copy of

18     that decision.  It's in the Registry's submissions.

19             So as there are no additional matters, I will be -- we will bring

20     this status conference to a conclusion, and I would anticipate the next

21     appearance -- Mr. Tolimir.

22             THE ACCUSED: [Interpretation] If you consider this to be an oral

23     decision and you are not going to allow me to say anything, well, you

24     have to provide a written submission -- a written decision so that I can

25     respond in written form, and not to respond to what was written --

Page 299

 1             JUDGE PROST:  Mr. Tolimir, I take that request under

 2     consideration, and that is the end of that particular matter.  Thank you.

 3     You've been advised on the situation.  That's the end of the matter.

 4             And no further matters being raised by the parties --

 5     Mr. Tolimir.

 6             THE ACCUSED: [Interpretation] There's something else.

 7             I want you to tell me in the decision, in that decision of yours,

 8     whether somebody has the right to take biometric information from me if I

 9     don't agree.

10             JUDGE PROST:  The procedure here is clear.  If you have a matter,

11     you must raise it in accordance with the Rules.  You can discuss the

12     matter with your legal adviser.

13             That's the end of matters for today.  This status conference is

14     adjourned, and I anticipate the next appearance will be the pre-trial

15     conference on the 16th of December.

16             Thank you, everyone.  Good morning.

17                           --- Whereupon the Status Conference adjourned

18                           at 9.56 a.m.