1 Monday, 5 December 2011
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.02 a.m.
6 JUDGE FLUEGGE: Good morning to everybody in the courtroom and to
7 those listening to these proceedings.
8 Mr. Registrar, could you please call the case.
9 THE REGISTRAR: Your Honours, this is IT-05-88/2-T, the
10 Prosecutor versus Zdravko Tolimir.
11 Thank you, Your Honours.
12 JUDGE FLUEGGE: Since we haven't seen each other for quite a long
13 time, I would like to introduce the case in a more formalistic way than
14 we did in the past.
15 Therefore, I would like to ask you, Mr. Tolimir, to confirm that
16 you are receiving interpretation and that you can understand the
17 proceedings. Should you encounter any difficulties in that regard at any
18 time, please let's know.
19 I would kindly ask the parties for the appearances.
20 MR. McCLOSKEY: Good morning, Mr. President, Your Honours.
21 Peter McCloskey and Janet Stewart.
22 JUDGE FLUEGGE: Thank you.
23 Mr. Tolimir, for the Defence.
24 THE ACCUSED: [Interpretation] Thank you, Mr. President. I would
25 like to greet all the attendants. May God's peace reign in this house
1 and may God's will be done in these proceedings. The Defence is
2 represented by myself, Mr. Tolimir, and Mr. Aleksandar Gajic.
3 Thank you.
4 JUDGE FLUEGGE: Thank you very much.
5 Pursuant to Rule 65 bis, the purpose of a Status Conference is,
6 generally, to review the status of the case and to allow the accused the
7 opportunity to raise issues in relation thereto, including any issues in
8 relations to his mental or physical condition and the conditions in the
9 Detention Unit. Given that some time has passed since the last session,
10 and the fact that we will soon break for the winter recess, the Chamber
11 considered it appropriate to have this hearing today.
12 On the 1st of December, 2011, the Chamber received the Defence
13 65 ter submission and a notice of two expert reports, as requested by
14 order of the 20th of September, 2011. The Defence will be calling four
15 witnesses. It is the estimation of the Chamber on the basis of the
16 approximately 36 hours for examination-in-chief required by the Defence
17 that the Defence case, including cross-examination by the Prosecution,
18 will come to an end around the begin of March 2012, of course, depending
19 on the length of cross-examination.
20 The Chamber will also take this opportunity to tie loose ends
21 with respect to a number of exhibits and other pending matters.
22 The Chamber would firstly like to address the Prosecution
23 submission filed on the 11th of October, 2011, whereby the Prosecution
24 submits that no evidence has been adduced in support of the allegations
25 at paragraph 21.4.1 and part of paragraph 49 of the indictment, relating
1 to the executions of approximately 15 prisoners at Sandici meadow on the
2 13th of July, 1995. The Chamber acknowledges this submission and advises
3 the Defence that, as a result, they will not need to address this
4 allegation during the Defence case.
5 A second pending matter relating to the Prosecution case is the
6 status of Mr. Pecanac. As of now, he remains a witness on the
7 Prosecution's Rule 65 ter list. At the hearing of this case on the
8 10th of October, 2011, Mr. Pecanac expressed his refusal to testify,
9 stating, and I quote:
10 "I shall make my decision whether to testify after those medical
11 examinations and after consulting Tomislav Visnjic."
12 This is at transcript page 17964, and the name of Tomislav was
13 Tomislav Visnjic.
14 The Prosecution requested the Chamber whether, with respect to
15 the possible testimony of Mr. Pecanac, the proceedings would be adjourned
16 sine die or there would be a specific date for another hearing. The
17 Chamber advised that it was in the hands of the parties to file a motion
18 on this matter. This is at transcript pages 17968 and there to 17969.
19 The Chamber seeks clarification from the Prosecution as to its position
20 with respect to this witness.
21 Mr. McCloskey, are you in a position to address the Chamber?
22 MR. McCLOSKEY: Yes, Mr. President. Regarding Mr. Pecanac, we
23 have really have not discussed thoroughly what our options are, though it
24 appears he is not willing to testify, and I think that probably ends the
25 matter for the Prosecution. And though I'm not -- I'm not exactly sure
1 what other options are open. I have not spoken to Mr. Dieckmann since
2 the end of the last hearing and so I am not exactly sure where he and
3 Mr. Pecanac are come from, though I hope to have spoken to him this week,
4 but I don't really see much options for the Prosecution aside -- given
5 the position that has been taken thus far.
6 JUDGE FLUEGGE: When can we expect any submission by the
7 Prosecution in this respect?
8 MR. McCLOSKEY: Certainly within the next few days to try to see
9 really, what, if anything, there is for the Prosecution to do aside from
10 just letting you know that there is nothing we have to do.
11 JUDGE FLUEGGE: If you don't want to call him again in this
12 trial, then, indeed, you should withdraw him as a witness from the
13 witness list.
14 MR. McCLOSKEY: Yes, I will speak to Mr. Dieckmann and see if
15 there is any change or any situation there and do, well, the practical
16 thing. So give me that chance and I'll get something back to you on that
17 very soon.
18 JUDGE FLUEGGE: Can we receive something by Wednesday this week?
19 MR. McCLOSKEY: Certainly.
20 JUDGE FLUEGGE: Thank you very much.
21 The Chamber will now turn to pending issues related to exhibits
22 in this case. It understands that the Prosecution will be addressing the
23 Chamber on that point.
24 Is that correct, Mr. McCloskey?
25 MR. McCLOSKEY: Yes, Mr. President.
1 JUDGE FLUEGGE: You have the floor.
2 MR. McCLOSKEY: Yes, I would refer everyone to the e-mail we --
3 Janet Stewart sent out just listing a few items. We started with P01596,
4 which is the Zvornik Brigade. We call them vehicle logs. We have listed
5 them as the transportation records for July 1995. These contain, you may
6 recall, some of the key records of vehicles involved in the various
7 incidents in the indictment. And we noted that they had -- this had been
8 admitted through Srecko Acimovic but had been changed by the
9 Trial Chamber, we believe, as part of an associated exhibits with another
10 witness, PW-051, and that it should, actually, stay with the -- within
11 the evidence as it came in through Srecko Acimovic, and Ms. Stewart
12 points out the details of that in the e-mail. And I think there is no
13 need to make a ruling immediately if -- if that needs to be studied a
14 bit, but I think she's got that correct.
15 JUDGE FLUEGGE: I take it, Mr. McCloskey, that this exhibit,
16 P1596 was previously admitted, then later on marked for identification?
17 MR. McCLOSKEY: That's correct.
18 JUDGE FLUEGGE: And now you are tendering it again; is that
20 MR. McCLOSKEY: That's correct.
21 JUDGE FLUEGGE: It will be received.
22 MR. McCLOSKEY: And the next point was Exhibit 1241 and 1242, and
23 we now have 1242 as the English translation of Exhibit 1241, and they
24 were just requesting that we -- 1241 is admitted.
25 JUDGE FLUEGGE: 1241, including the English translation.
1 Therefore, Exhibit P1242 will be vacated. Is that a correct
3 [Trial Chamber and Legal Officer confer]
4 JUDGE FLUEGGE: Is it a correct understanding that P1241 will
5 have attached to it the English translation which was previously assigned
6 with P1242, and your intention is to combine both; is that correct?
7 MR. McCLOSKEY: Whatever is easiest. They are now two exhibits,
8 1241 and 1242, and English and B/C/S separately, so whatever is easiest.
9 JUDGE FLUEGGE: Mr. Gajic.
10 MR. GAJIC: [Interpretation] Mr. President, greetings to all.
11 Our practice so far has been that the translation accompanies the
12 original of the document and that they are both covered by one P number,
13 one P exhibit number. I don't see any reason that P1241, as a
14 translation of P1242, has a different exhibit number from the original.
15 It has not been our practice so far.
16 JUDGE FLUEGGE: If I am not mistaken, it's just the other away
17 around. However, you should combine both, the original B/C/S version
18 with the English translation, and they are admitted under P1241.
19 And I would like to add, as I indicated earlier, P1242 is
21 MR. McCLOSKEY: Thank you.
22 So the next, number three, we have two exhibits for the
23 transcript of testimony Milanko Jovicic, and, as we have noted, there
24 were procedural matters that were really not necessary or appropriate to
25 be in the transcript that was originally entered. And so since there no
1 closed or private session in the witness's testimony, there is no need to
2 have an under seal version, so -- which is P1700, so we don't -- we don't
3 need the 1700 any further because there is no under seal version, is my
4 understanding. I'm sorry, I reverse that, we don't need 1701.
5 JUDGE FLUEGGE: In fact, you withdraw P1701 and you only want to
6 have P1700?
7 MR. McCLOSKEY: Yes, that's correct.
8 JUDGE FLUEGGE: Mr. Gajic, is there any objection to that?
9 MR. GAJIC: [Interpretation] No, Mr. President. No.
10 JUDGE FLUEGGE: Thank you very much. Then P1700 is the only
11 version of this document.
12 MR. McCLOSKEY: And the fourth item, P1685, the second page was
13 missing from both English and the B/C/S documents. They have now been
14 uploaded so that should be admitted in the new format.
15 JUDGE FLUEGGE: It was already admitted and we acknowledge this
17 MR. McCLOSKEY: Thank you. And number five is the same thing,
18 for 1686.
19 JUDGE FLUEGGE: Indeed.
20 MR. McCLOSKEY: And we have -- at number six, we now, as per the
21 order of the Trial Chamber, redacted 65 ter 07564 and 65 ter 07565, which
22 was the transcript of the testimony PW-006.
23 JUDGE FLUEGGE: Okay. Thank you very much for this information.
24 Please go ahead.
25 MR. McCLOSKEY: And number seven has to do with 65 ter 07563,
1 what we have referred to as the updated Srebrenica trial video, and that
2 we have prepared those matters pursuant to the Trial Chamber's order of
3 20 September this year. And the new trial video comprises four videos,
4 which we've noted are: V000-9014-V000-9014 is the first one; the second
5 is V000-9035-V000-9035 -- is the second; the third is the
6 V000-9016-V000-9016; and then V000-9067-V000-9067; and the accompanying
7 transcript for the last video mentioned, it's V000-9067 to V000-9067,
8 it's also been revised and placed in this record. And at this point we
9 request permission to replace the last 46 pages of the transcript, which
10 amounts from page 110 onwards in e-court with the revised transcripts,
11 and this was all part of that e-mail from 29 November, the request.
12 JUDGE FLUEGGE: Thank you.
13 Mr. Gajic.
14 MR. GAJIC: [Interpretation] Your Honours, I believe we have a
15 little problem here, or we might have just a little problem. It's not
16 just the transcript or the video. It's the old transcript was used in
17 the examination of different witnesses. We all remember that the video
18 footage Mr. McCloskey is referring to has been used with many witnesses
19 under many different circumstances, and if we changed anything in that
20 transcript then we would lose a clear transcript, quiet simply. We would
21 have to search for which part of the transcript or which part of the
22 video footage had been presented to a particular witness. Perhaps these
23 revised versions could receive new exhibit numbers or be admitted as
24 separate exhibits.
25 JUDGE FLUEGGE: Mr. McCloskey.
1 MR. McCLOSKEY: That is an interesting point. It makes some
2 sense. If we could just connect on that we will be able to sort that
3 out, the best way to do that.
4 JUDGE FLUEGGE: At the moment it would be, perhaps, the best to
5 mark the new one for identification, and then we will see how you deal
6 with these matters among the parties. And then perhaps to have two trial
7 videos, the old version, the new version, but you should consult on that.
8 MR. McCLOSKEY: I think that's, as I think about it, probably a
9 good idea, but we will get back to you very soon on that. That shouldn't
10 be a problem.
11 [Trial Chamber confers]
12 JUDGE FLUEGGE: Not only the Prosecution, but the Chamber, sees
13 some merit in that comment of Mr. Gajic, and, therefore, indeed we should
14 have both versions in evidence so that we can use it further during the
15 trial and for the judgement, if necessary. Therefore, the Chamber will
16 now issue the following oral decision.
17 Are you still considering the situation, Mr. McCloskey?
18 MR. McCLOSKEY: One second, Mr. President.
19 JUDGE FLUEGGE: Yes, please.
20 [Prosecution and Case Manager confer]
21 MR. McCLOSKEY: I think we're okay to go. We agree with
22 Mr. Gajic and the Court that we need both in evidence so that the --
23 what's in the record is clear.
24 JUDGE FLUEGGE: Therefore, as there is an agreement how to
25 proceed, we can briefly -- there is no need to go into details again.
1 The old trial video shall remain an exhibit, including the transcript in
2 this case with the previous exhibit number, and the new trial video,
3 including the exhibit, shall be a new exhibit, and I will ask the
4 Registrar to assign exhibit numbers.
5 THE REGISTRAR: Your Honours, the 65 ter document 7563 shall be
6 assigned Exhibit P2798. And the new updated version of Srebrenica trial
7 video shall be assigned Exhibit P2799. Thank you, Your Honours.
8 JUDGE FLUEGGE: Thank you very much.
9 No, there is some doubt. Mr. McCloskey, can you help us?
10 Mr. McCloskey.
11 MR. McCLOSKEY: So our understanding, the trial video and the
12 transcripts are one exhibit, the old one, so we may just need one exhibit
13 for the new one, I believe.
14 JUDGE FLUEGGE: If I am not mistaken, we have two 65 ter numbers.
15 This is 65 ter 07563, the updated Prosecution trial video and transcript,
16 and we have 65 ter 07460, the updated trial video still book; is that
18 MR. McCLOSKEY: Yes. I hadn't gotten to the stills book, you'd
19 gotten ahead of me with this. It's the same problem, same issue, so
20 that's perfect.
21 JUDGE FLUEGGE: And I would kindly ask the Registrar to confirm
22 that on the record, that 65 ter 07563 is P2798; is that correct?
23 THE REGISTRAR: That is correct, Your Honours. Thank you.
24 JUDGE FLUEGGE: And 65 ter 07460 shall be P2799. This is the
25 video stills book.
1 THE REGISTRAR: That is correct, Your Honours. Thank you.
2 JUDGE FLUEGGE: Now, we have resolved this problem, too.
3 Mr. McCloskey, please proceed.
4 MR. McCLOSKEY: Thank you, Mr. President. Yes, you and
5 Ms. Stewart are right on the same page, and thank you for that. And we
6 also have the hard copies of the revised still book for you, if the
7 parties would -- if everyone would like to have copies. Ms. Stewart has
8 those here.
9 JUDGE FLUEGGE: Yes, thank you, with the assistance of the usher.
10 Perhaps not at the moment but at the end of today's session we can do
12 MR. McCLOSKEY: And we, of course, had been reviewing some of the
13 filings by the Defence, including the -- some bar table motions, so I
14 don't think we will have any problems with -- with bar table motions.
15 We've been discussing this with Mr. Gajic. We may I have a document or
16 two of our own, if the Court would allow us to put in a document or two
17 related to the last witness, but we have been discussing that also with
18 Mr. Gajic and it should all go forward well.
19 JUDGE FLUEGGE: You say the last witness. You are referring to
20 Mr. Pecanac; is that correct?
21 MR. McCLOSKEY: No, the last witness that actually testified. It
22 was Mr. Dumanjic, the imam.
23 JUDGE FLUEGGE: Thank you. The Chamber has found that there are
24 some duplicate exhibits. The Prosecution indicated them, and I hope
25 there is an agreement which one should be the right exhibit with a D
1 number or P number, and I would kindly ask you to provide us with the
2 relevant numbers.
3 I can put that on the record, but it's up to you to decide. For
4 instance, I start with D21 is the same as P987.
5 Mr. McCloskey.
6 MR. McCLOSKEY: Thank you, Mr. President. That is not something
7 we prepared for in detail. It's probably just easy to pick numbers, but
8 perhaps we should take a bit of time to see if one version is better than
9 the other, just so we have the best possible -- sometimes, you know,
10 there's versions that are not quite identical that may have the same
11 number. I am not sure. I don't recall discussing this with Ms. Stewart
12 recently, so perhaps we should take just a little bit of time to check
13 this out and get back to you.
14 JUDGE FLUEGGE: In that case, since the parties are not prepared
15 for this part of the Status Conference, I just want to indicate that we
16 are dealing with eight different exhibits with two different exhibit
17 numbers. That should be resolved by informal communications, I think,
18 between the parties and the Chamber staff.
19 MR. McCLOSKEY: Thank you, Mr. President. Otherwise, the
20 Prosecution has nothing else to add at this time.
21 JUDGE FLUEGGE: Thank you very much.
22 Mr. Gajic.
23 MR. GAJIC: [Interpretation] Mr. President, the Defence has a
24 request for the Chamber, not because the Defence is not ready but because
25 of the witnesses.
1 In January, from the 9th to the 20th January, abounds in
2 Christian holidays in the Republic of Serbia, Republika Srpska, and our
3 four witnesses are not really willing to come during that period of time
4 because it is a celebration period. It is the end of Christmas on the
5 6th and on the 7th, and the Serbian new year on the 13th and on the 14th,
6 and the every two or three days there is a Saint's day, including on the
7 9th, when we are supposed to start. As far as myself and Mr. Tolimir are
8 concerned, we don't have a problem at all. The only request we had was
9 not to sit on the 20th because that is Mr. Tolimir's big celebration.
10 But due to the witnesses' request and wishing to enable the witnesses to
11 spend that time with their families, we would kindly ask the
12 Trial Chamber to delay the beginning of our case.
13 JUDGE FLUEGGE: Mr. Gajic, this is a big problem. We have had,
14 really, a lengthy break since the end of the Prosecution cases. To have
15 a further detail would really create additional problems. This would be
16 very serious, and that January is a month for the Orthodox church with
17 some specific holidays, this is not new. That should have been noted
19 Mr. Gajic, if you remember correctly, when you provided us with
20 our intention how to proceed with the Defence case, there was one
21 discussion, if we can start with it in December, and then you requested
22 start at the 9th of January just after the winter recess. A further
23 delay of at least two weeks will create, really, problems for the whole
24 case, and we are bound by the Rules and the Statute to have not only a
25 fair but also an expeditious trial.
1 Do you want to make a further comment?
2 MR. GAJIC: [Interpretation] Mr. President, I fully appreciate the
3 situation. When we were preparing for our Defence case and when we
4 considered everything that we needed to do and how much time we needed,
5 we did not take into account any holidays because, so far, the Defence
6 has not had any holidays. The request upon the Trial Chamber is not for
7 the Defence's sake, not because the Defence is not ready, it is for the
8 sake of the witnesses.
9 I have already discussed this issue with Mr. McCloskey. Our
10 discussion took place 15 days ago, and he agreed with me that it would be
11 very difficult to bring in Orthodox believers from the Republic of Serbia
12 and Republika Srpska during that period of time. Obviously, we will
13 comply with any decision of the Trial Chamber.
14 I did not discuss the exact timing with the witnesses, but I gave
15 them a general idea of the period when they should appear. Each of them,
16 to the last, mentioned the possibility and asked me if their testimony
17 could be delayed by just a little, should they be requested to appear in
18 the month of January. And obviously my discussion with the witnesses
19 I -- I tried to see which of the witnesses could be the first to appear,
20 on the 9th, that is, and none of them were really willing and happy to
21 oblige because of the holiday period.
22 The Defence is ready and there are a few little things that
23 remain to be prepared, but we are absolutely sure that we will be ready
24 by the 9th of January.
25 JUDGE FLUEGGE: Thank you, Mr. Gajic, and I appreciate that you
1 informed us about the difficulties with the witnesses. On the other
2 hand, just to make it clear, on the 9th we wanted to have a
3 Pre-Defence Conference on the afternoon. On the 10th, there is scheduled
4 a possible opening statement by the Defence, and immediately thereafter
5 the testimony of the first witness.
6 Mr. Gajic.
7 MR. GAJIC: [Interpretation] Mr. President, your last comment has
8 just reminded me that I forgot to mention one thing. The Defence will
9 not have an opening statement. Immediately after the opening conference,
10 we will proceed with the testimony of our first witness.
11 JUDGE FLUEGGE: Thank you.
12 [Trial Chamber confers]
13 JUDGE FLUEGGE: The Chamber will postpone its decision on this
14 request. However, I just want to put on the record that in this Tribunal
15 we have had many cases dealing with witnesses with the testimony of
16 Orthodox believers, and I never came across that this creates any problem
17 in the past years in other cases. We will consider this request further
18 and come back to the parties as soon as possible by informal
19 communication. At the moment, the Chamber has no reason to reschedule
20 the hearings for January, but we will consider this request by the
21 Defence. In fact, request by the witnesses conveyed by the Defence.
22 At this stage, the Chamber would like to give the accused the
23 opportunity to address any health issues or conditions of detention.
24 Mr. Tolimir, is there anything you want to tell the Chamber in
25 that respect?
1 THE ACCUSED: [Interpretation] Thank you, Mr. President. I am not
2 on any medication, and I don't want to discuss my health condition
3 because I leave it in God's hands to deal with any problems that I might
4 have in keeping with his great idea. Thank you.
5 JUDGE FLUEGGE: Thank you very much.
6 For sure, Mr. Gajic, the request not to sit on the
7 20th of January is granted, in any case, because we intend to sit again,
8 like during the Prosecution case, four days a week, without Friday. The
9 20th of January is a Friday and therefore there is no concern with that
11 We have noted that there will be no closing -- no pre-defence
12 statement by the accused, therefore we adjourn to assume on the 9th of
13 January for the Pre-Defence Conference in Courtroom III at 2.15 p.m. We
15 --- Whereupon the Status Conference adjourned at
16 9.47 a.m., to be reconvened on Monday, the
17 9th day of January, 2012, at 2.15 p.m.