Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 16 December 2009

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.22 p.m.

 6             JUDGE PROST:  Good afternoon, everyone in the courtroom.

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

 8             THE REGISTRAR:  Thank you, and good afternoon, Your Honour.  This

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

10             JUDGE PROST:  Thank you.

11             Mr. Tolimir, may I confirm that you're receiving interpretation,

12     and you can understand the proceedings?  And as usual, should you have

13     any problems with that, just let me know.  Thank you.

14             Appearances.  Mr. McCloskey, you have a full team today.

15             MR. McCLOSKEY:  Yes, good afternoon, Madam President.

16             JUDGE PROST:  Good afternoon.

17             MR. McCLOSKEY:  With me today is Janet Stewart, Nelson Thayer,

18     Kweku Vanderpuye, and Caitlin Chittenden.

19             JUDGE PROST:  Thank you, Mr. McCloskey.

20             And, Mr. Tolimir, self-represented.  I note Mr. Gajic is present

21     in the courtroom, one of his legal advisors.

22             We have a two-fold purpose for today's hearing, and I'll deal

23     first with the further appearance, which has been necessitated as a

24     result of the granting of the Prosecution's motion to amend the second

25     indictment.

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 1             Just briefly by way of history, on the 4th of November, the

 2     Prosecution filed their motion to amend the indictment; and on the 9th of

 3     December, the Chamber granted the motion in a decision, with reasons to

 4     follow, and ordered that the third amended indictment be the operative

 5     indictment.  The reasons for that decision were filed today.

 6             The Trial Chamber has concluded that two of the amendments which

 7     were granted involve new charges, for which pleas are required, and

 8     specifically that is paragraph 21.15.2, which alleges the execution on or

 9     about the 23rd of July, 1995, of approximately 39 Muslim men in Bisina

10     and paragraph 23.1 which alleges the execution and burial on or about

11     27th July 1995, of three Bosnian leaders from Zepa.

12             As a result, the Trial Chamber is of the opinion that these new

13     charges are relevant to Counts 1, 3, 4, 5, 6, and 7 of the indictment,

14     and, therefore, I will be proceeding to enter pleas with respect to these

15     new charges.

16             Mr. Tolimir, can I confirm that you have received the third

17     amended indictment in your own language which includes these new charges?

18     Can you confirm that for me, please.

19             THE ACCUSED: [Interpretation] God help us all, everybody in the

20     courtroom, to you, the Presiding Judge, and everybody else, and may God's

21     will be done during this trial.  I have received the third amended

22     indictment.  I received it on the 15th.  Thank you, your health.

23             JUDGE PROST:  Thank you then, Mr. Tolimir.  I will read out for

24     the record the factual allegations amounting to these new charges unless

25     you are satisfied that you've reviewed the two paragraphs and you waive

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 1     the reading of those allegations.  It's up to you as to whether I should

 2     review those here now or whether you will waive the reading of the new

 3     charges.

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

 5     I have received it, I've understood it, and I have responded to all the

 6     indictments in written form.  You have received all my responses, and I

 7     don't think I need say more now.  Thank you.

 8             JUDGE PROST:  But would you like me to read the substance of the

 9     new charges before I take pleas regarding them, or are you waiving that

10     requirement?

11             THE ACCUSED: [Interpretation] I'm waiving that requirement.  As I

12     say, I've already responded to all such cumulative charges in writing.

13             JUDGE PROST:  Thank you.  Then I note that you have waived the

14     requirement for those allegations to be read to you, and, therefore, I

15     would ask you to stand at this point, Mr. Tolimir, and to enter pleas

16     regarding these new charges.

17             THE ACCUSED: [Interpretation] Well, I can say that I'm not guilty

18     for what you are charging me with in those new counts.  Thank you.

19             JUDGE PROST:  Mr. Tolimir, if -- I will just put this to you.  In

20     relation to the new charges applicable to Counts 1, 3, 4, 5, 6, and 7,

21     how do you plead, guilty or not guilty?

22             THE ACCUSED: [Interpretation] I have already said that I'm not

23     guilty.  Thank you.

24             JUDGE PROST:  Thank you.  We can enter -- pleas of not guilty

25     have been entered with respect to the relevant counts to the new charges.

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 1     We note that on the record.

 2             That will -- I simply want to remind you, Mr. Tolimir, by virtue

 3     of the Rules, of course, it is always open to you at any time to indicate

 4     that you wish to enter a change of plea.  But you have clearly indicated

 5     today your pleas of not guilty.  And I wish to remind you that in

 6     accordance with the decision which the Chamber has issued, the 30-day

 7     limit under Rule 50(C) to file preliminary motions pursuant to Rule 72 in

 8     respect of the new charges and that time-period began to run on the 10th

 9     of December.  So you have that 30-day period to bring preliminary motions

10     in respect of the amended indictment.

11             I will now proceed into the second phase of today's hearing,

12     which is the Status Conference itself.  This will be the tenth

13     Status Conference.  We had anticipated the last one to have been on the

14     22nd of October, but as indicated, events have overtaken with the

15     granting of the Prosecution's motion.  I believe after the previous

16     Status Conferences everyone is well familiar with our purpose here, and

17     as the matter was to start for trial this week, there is little left in

18     terms of any preparation matters to deal with.  However, I did want to

19     raise a couple of matters.  In particular, I note that the Prosecution

20     today -- or I received it today has filed a motion relating to protective

21     measures and requesting amendment to the witness list.

22             Mr. McCloskey, I wonder if you could advise if you have any

23     particular remarks to make as a result of that motion with respect to the

24     proposed timing of the trial, if you -- if there's anything in particular

25     you wanted to say regarding the time estimates.  If not, it's not a

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 1     difficulty, but I wondered if you had any updated information you wanted

 2     to provide for the purposes of trial scheduling?

 3             MR. McCLOSKEY:  At this time we don't anticipate these additions

 4     to take any significantly more time than what we've already talked about

 5     and the amendments to the -- or the addition to the 65 ter list is our

 6     ongoing effort to identify the most relevant documents that may be used

 7     at trial, and we will be providing all of these -- these documents have

 8     all been provided to the Defence, but we are engaged in making an index

 9     where they are all in together by subject matter, by date.  So all these

10     most-relevant documents of the last trial and this trial are clearly

11     accessible and to try to reduce the entry of new or unknown documents

12     into the trial.  So I think we're getting very close to that at this

13     point.

14             JUDGE PROST:  Okay.  Thank you for that.

15             Mr. Tolimir, did you have any matters that you wished to raise

16     regarding trial preparations.  I believe that the topic has been

17     exhaustively considered in the previous Status Conferences, but if

18     there's any matter you wish to raise at this point regarding trial

19     preparations, please do so.

20             THE ACCUSED: [Interpretation] Thank you.  I would like to kindly

21     ask you once again, when it comes to the materials from Popovic, Krstic,

22     Blagojevic, to disclose them to me in a timely manner because even though

23     I have asked this long time ago, the OTP hasn't disclosed them yet.  So

24     could you please assist us in ensuring that this motion that we submitted

25     long time ago, in a timely fashion, is abided by.

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 1             The second thing I would like to ask you is to tell us when we

 2     can expect the ruling of the Chamber pursuant to the OTP motion under

 3     Rule 92 bis.  Thank you.  That's all I have, for the secretariat to

 4     disclose the aforementioned material and for the ruling of the

 5     Trial Chamber to be handed down.  That's all I have concerning the

 6     preparations.

 7             And another matter I want to ask you is to see whether my legal

 8     assistants could be granted the appropriate hours of work they need in

 9     order to work on a pre-trial brief.  Because now as it stands they need

10     to do everything in one month's time, and they need to be paid for their

11     work, not to work pro bono.  We filed a motion, and I expect that you can

12     assist as the Presiding Judge.

13             JUDGE PROST:  Thank you, Mr. Tolimir.  I'll address those points.

14             To begin with, yes, I did -- do recall the issue you raised

15     previously regarding the disclosure of the confidential materials from

16     the trial proceedings in Popovic, Krstic, Blagojevic, and Jokic.  I have

17     followed up on that matter, and because of the conditions which were

18     imposed regarding personal information and Rule 70 material, that has

19     been the source of the delay in the disclosure.  I am advised, however,

20     that the -- particularly with the Popovic material, it is almost ready to

21     go.  We're awaiting, I believe, information from one Defence team.  So

22     that should be disclosed to you shortly.  And the Registry is, I know,

23     doing their very best with respect to Blagojevic, Jokic, and Krstic

24     material, which they have to review on their own, in light of the fact

25     that the proceedings have been completed.  But I'm assured that they have

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 1     amassed the material, and you should have access to that as well very

 2     shortly.  So I'm anticipating quite shortly you will have access to all

 3     of those materials.  As I say, the delay relates to the conditions upon

 4     which the confidential material is being released.

 5             I'm not in a position to give a precise date as to when the

 6     Trial Chamber will deliver the rulings on any of the outstanding motions,

 7     including 92 bis, but you can be assured that the Chamber is working very

 8     diligently to deliver those decisions as soon as possible, and

 9     appreciating the impact they have on the trial proceedings.  So they will

10     be delivered -- all of the outstanding motions will be decided in due

11     course, but I'm not in a position to set a dead-line, if you will, as to

12     when that will occur.  But you can be assured that those decisions will

13     be forthcoming shortly.

14             And with reference to the issue regarding the compensation for

15     your legal advisors, I emphasise again, Mr. Tolimir, that it is your

16     election to be self-represented, and that of course has an impact on the

17     scale and on the nature of the legal advisors that you can engage and the

18     scale range for them.  But most significantly, that is a matter which

19     rests in the hands of the Registrar; and I understand that they have been

20     in discussion with you on those compensation issues and have been

21     demonstrating flexibility from their guide-lines.  And the Trial Chamber

22     will only intervene if there is a particular decision of the Registrar

23     that is brought to our attention.  We will of course consider any motions

24     that you file in that respect, but the primary, the first, stop with

25     regard to those issues is with the Registry.  And I encourage you to

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 1     continue your dialogue with them regarding the compensation issues.  And

 2     as I say, the Trial Chamber will maintain its oversight responsibilities

 3     and your -- you can certainly bring to our attention, as you have, any

 4     particular issues you wish us to consider.  So that will be the position

 5     of the Trial Chamber with regard to that matter.

 6             So if that then covers, I believe, the issues related to trial

 7     preparations, the other matter, Mr. Tolimir, that I want to raise in

 8     accordance with the Rules is the issue of whether you have any questions

 9     or issues that you wish to bring to my attention, to the Chamber's

10     attention, regarding your health or your treatment at the UNDU.  As has

11     been the practice per your request, we will stay in open session for any

12     of those issues unless you advise me otherwise.  But are there any

13     matters you wish to bring to my attention, Mr. Tolimir?

14             THE ACCUSED: [Interpretation] Thank you.  I apologise for going

15     back to the previous question by your leave.  I am not asking that my

16     legal assistants receive anything that they are not entitled to.  I want

17     them to be compensated because the pre-trial stage has been extended in

18     relation to the initial ones.  I have already sent my motion to the

19     Registry, and in that sense I ask for your assistance in order to explain

20     the Registrar that the pre-trial period was extended because the OTP

21     filed additional material.  And as for the remainder of the session, I

22     want to remain in open session, as always.

23             If I may continue.  As you know, I have not received any

24     treatment with medication since my arrival here.  I mostly treat myself

25     with food and with various teas, and I think that you're quite aware of

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 1     that.  I think that doctors, experts of the Defence and experts of the

 2     Registry, have already given their opinion, whereby they said that given

 3     my current condition it's not necessary for me to be disturbed every half

 4     an hour and to be waken up to given treatment.  Now, if it's not

 5     sufficient for the Trial Chamber that these two experts engaged by me and

 6     engaged by Registrar saying that I do not need to be disturbed and I'm

 7     still disturbed at night, I wonder whether that is done pursuant to the

 8     order of the Chamber.  I don't think that that needs to be done.  Perhaps

 9     I need to be examined every six months, that should be enough.  They

10     measure my blood pressure.  They saw that my blood pressure was 130 over

11     80, and I don't see any reason why I should be disturbed every 30

12     minutes.  I think you would not like it if somebody opened your office,

13     opened your window, or did something similar that that would disturb you

14     that would cause you to lose concentration and so on.  So I think you can

15     understand how I feel when they do that to me.  Thank you.

16             JUDGE PROST:  Thank you, Mr. Tolimir.  Yes, reverting to the

17     issue -- I understand your point regarding the extension of the pre-trial

18     period, and I'm confident that the matter will be taken into

19     consideration by the Registrar.  And it's now noted on the record, so I'm

20     sure that will be the case.

21             Now, regarding the issue of sleep disturbance, which as you know,

22     Mr. Tolimir, I and the Chamber have taken very seriously since you have

23     raised this issue.  As I made clear, though, at the last

24     Status Conference, based on the medical reports that the Trial Chamber

25     will rely on, the position was that provided you were prepared to

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 1     co-operate both in terms of having your blood pressure checked and in

 2     terms of medication, only in those circumstances as recommended by the

 3     medical experts would the Trial Chamber intervene specifically with the

 4     Registrar.  Now, you have expressed your position very clearly that you

 5     do not wish to take the medication which has been recommended by all of

 6     the medical experts that have examined you and your records; and

 7     obviously that is your choice.  But in those circumstances, the Chamber

 8     leaves the matter in the hands of the UNDU and the medical staff there to

 9     determine, based on all the material that's been provided to them, as to

10     the necessity for the nightly checks on you.

11             I understand that Dr. Folke has been in discussion with you about

12     this.  I requested that a second review be given to the matter after the

13     last Status Conference, that he take a look at all the material that's

14     been filed, and I understand that he is working with you to perhaps try

15     and reduce those checks.  And I and the Chamber will leave that matter in

16     the hands of the UNDU unless we are advised that you have agreed to both

17     the conditions set by the medical experts, in which case then we will ask

18     the appropriate authorities at the UNDU to cease the checks.  But I think

19     that position is very clear from what I stated at the last conference,

20     and I'm clarifying it again.  I understand your difficulties with the

21     checks, but the Chamber must be guided by the medical information that we

22     have before us, and we will continue to be guided.  We will, however,

23     continue to monitor the situation, and as I say, I have raised it with

24     the Registrar and Dr. Folke has followed up on the questions that I put

25     forward.  So that's where the situation stands.  It is again, though,

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 1     Mr. Tolimir, in your hands in terms of your decisions as to medical

 2     treatment.

 3             If there is nothing further that you wish to raise,

 4     Mr. Tolimir -- yes, go ahead.

 5             THE ACCUSED: [Interpretation] Thank you.  I think that the

 6     opinion of the doctor, the specialist, engaged by the Registrar was not

 7     presented appropriately, accurately.  He said in his report that given my

 8     current condition there is no need to conduct these checks on Tolimir and

 9     that Tolimir is only recommended one medication, aspirin, by Bayer.  It

10     is a medication produced in Serbia.  He said that -- he did not say that

11     I have to take any medication.  If you wish to conduct checks on me, of

12     course you can do that, but I wish to inform you as the Presiding Judge

13     that I cannot work normally with all these disturbances.  If somebody

14     disturbs your work every half an hour, you couldn't work either.  Not a

15     single expert or doctor said that I am under these checks because I

16     refused to take medication.  I treat myself with various herbal teas.  So

17     it's not that I am without treatment.  I can either choose to treat

18     myself with medication or with herbs, which is what I'm doing.  And I

19     don't see why they are blackmailing me.  They are blackmailing he me so

20     that I will take medication.  What I request is that I be left to work

21     without any disturbances and that I -- that these checks be discontinued.

22     I want to be told what results were achieved as a result of this

23     treatment that has lasted for two years.  If you wish me to undergo this

24     further, then it's all right, I will.  But please make a ruling so that I

25     can ask for certification to appeal that ruling.  My current medical

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 1     condition is not such that -- as to require such checks.  Therefore, I

 2     don't know who else I can turn to.  I can turn to you, I can turn to the

 3     Appeals Chamber.  Therefore, I ask for you to review once again the

 4     entire situation with all the facts that I've presented to you and to

 5     make a final ruling.  Thank you.

 6             JUDGE PROST:  Thank you, Mr. Tolimir.  I think you've made your

 7     position on this very clear, and I believe the Chamber's position on this

 8     is very clear as well.  I will once again, however, discuss the matter

 9     with the Registry, as I do.  And we will keep the matter on -- within our

10     agenda, but I don't believe we can advance further with it today.  So I

11     understand your perspective.  I will take on board the comments that you

12     have made, and I will continue to keep the matter under consideration.

13             I believe that those were all of the matters that I had on the

14     agenda for today.  Are there any additional matters, because the next

15     meeting will be obviously at the start of the trial.  I perhaps can

16     provide just a bit more information in that regard.  As you know from the

17     decision of the Chamber, the trial has been delayed from the date of the

18     decision for at least a two-month period.  So we're looking at

19     mid-February for -- at the earliest for a start date.  Because there are

20     many variables that fit into the question of the actual start date, I'm

21     not in a position to provide any more specific information on that today.

22     Obviously the motions and other matters will have to be considered with

23     respect to that, but the Trial Chamber will be issuing a Scheduling Order

24     as soon as is feasible in light of the new circumstances.  So that's the

25     best of the information I can provide for today.  But I would anticipate

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 1     that the next gathering will be for the Pre-Trial Conference.

 2             Anything further, Mr. McCloskey?

 3             MR. McCLOSKEY:  No, Madam President.

 4             JUDGE PROST:  Thank you.

 5             Mr. Tolimir, anything further?

 6             THE ACCUSED: [Interpretation] Thank you.  I have nothing further.

 7             JUDGE PROST:  Thank you very much.

 8             Then I wish everyone a good afternoon and the Status Conference

 9     is adjourned.  Thank you.

10                           --- Whereupon the Status Conference

11                           adjourned at 2.49 p.m.