Tribunal Criminal Tribunal for the Former Yugoslavia

Page 64

1 Wednesday, 12 October 2005

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 8.07 a.m.

5 [The accused entered court]

6 JUDGE ANTONETTI: [Interpretation] Good morning, Mr. Registrar.

7 Would you please call the case.

8 THE REGISTRAR: [Interpretation] Good morning, Your Honour. Case

9 IT-98-29/1-PT, the Prosecutor versus Dragomir Milosevic.

10 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

11 I would like to have the appearances starting with the

12 Prosecution.

13 MR. STAMP: Good morning, Your Honour. May it please you, I am

14 Chester Stamp and with me is Manoj Sachdeva for the Prosecution, along

15 with Ms. Biljana Blazevic, our case manager. Thank you very much.

16 MR. TAPUSKOVIC: [Interpretation] Good morning, Your Honour. I'm

17 Branislav Tapuskovic, attorney-at-law in Belgrade, and I appear on behalf

18 of the accused. Thank you.

19 JUDGE ANTONETTI: [Interpretation] Very well. Thank you. Good

20 morning, everybody.

21 I'm turning to General Dragomir Milosevic. Are you able to follow

22 the proceedings in a language you understand? Can you hear well?

23 THE ACCUSED: [Interpretation] Yes, I can hear, and I can

24 understand everything perfectly.

25 JUDGE ANTONETTI: [Interpretation] Fine, thank you. Please sit

Page 65

1 down.

2 As I said, good morning to all the people in the courtroom. As

3 you know, this hearing is convened as a Status Conference, and I have to

4 remind you of a few procedural aspects.

5 This accused was transferred to the Tribunal on the 3rd of

6 December, 2004. The initial appearance took place on the 7th of December,

7 2004, and as you know, pursuant to Rule 65 bis, we are to hold a Status

8 Conference within the 120 days of the initial appearance and thereafter

9 every 120 days. The latest Status Conference was held on the 21st of

10 June, 2005. Therefore, we're now meeting today pursuant to the Rules.

11 Let us tackle the issue of requests and applications. The

12 Prosecution filed a request -- a Rule 11 bis request, and the relevant

13 Chamber issued a decision on the 18th of July, 2005, rejecting the 11 bis

14 application. In other words, this case will be tried by this Tribunal.

15 As to the application pursuant to Rule 70(A)(ii), the Prosecution

16 had filed a preliminary -- or the Defence had filed a preliminary motion

17 on 3rd of February, 2005 as to alleging defects in the form of the

18 indictment and we had a response by the Prosecution on the 17th of

19 February, and the Chamber issued a decision on the merits rejecting this

20 application. And the accused had applied on the 26th of April, 2005 for

21 provisional release, but this was rejected on the 13th of July by the

22 Chamber.

23 Last but not least, another application had been filed in July

24 2005 by the Prosecution for the staying of non-necessary proceedings, and

25 by virtue of a decision of this Chamber on the 26th of July, 2005, we had

Page 66

1 turned down this request. In other words, all the requests and

2 applications were decided upon. We're up-to-date, and there is no pending

3 application. So in theory, the trial could start very soon, but I'll come

4 back to this later.

5 I want to first tackle the issue of disclosure pursuant to

6 Rule 66(A)(i) and under Rule 60(A)(ii).

7 Mr. Stamp, can you tell me whether disclosure was done pursuant to

8 the Rules and whether in this respect there is any problem?

9 MR. STAMP: Thank you very much, Your Honour.

10 As far as disclosure under Rule 66(A)(i) is concerned, the

11 Prosecution did complete that disclosure within the time limited by the

12 Rules some months ago. The next avenue of disclosure that we have, which

13 is ongoing, is Rule 68 disclosure and Rule 66(B) disclosure, which is

14 again ongoing.

15 We have today disclosed over 800 -- approximately 900 documents

16 under the provisions of those two Rules. Disclosure is ongoing by way of

17 the EDS system, that is Electronic Disclosure Suite, and we also delivered

18 documents to the Defence via CDs. We have had discussions with the

19 Defence in respect to their ability to access the material on the EDS to

20 do their own searches for Rule 68 material, and we have been informed that

21 those searches can be conducted by the Defence notwithstanding some --

22 some problems with the speed of the Internet connection.

23 So there are, as usual, obvious difficulties in respect of some

24 documents that fall under Rule 66 -- Rule 68(i) and that is documents

25 known to the Prosecution to be exculpatory which are also subject to

Page 67

1 Rule 70 in that we received them with restrictions. Where we have located

2 those documents, we have prepared and have issued to the various providing

3 authorities the relevant request for waivers or release of Rule 70

4 obligations so that we may disclose these documents to the Defence.

5 As Your Honour is aware, there have been other cases in the

6 Tribunal involving crimes alleged to have been committed in Sarajevo where

7 possible Rule 68 material was generated. We have done searches of these

8 cases. We have reviewed the material, and we have disclosed, where

9 appropriate, to the Defence.

10 The Defence -- we invited the Defence to provide to us some search

11 criteria that might assist us to focus our searches of the material which

12 is not on the general EDS which is accessible to the Defence. There are

13 security-related documents and Rule 70 documents which the Defence would

14 not be able to search themselves. So in searching these documents for

15 Rule 68 material, sometimes -- not sometimes, at all times it would be

16 helpful if we had guidance from the Defence.

17 The Defence has indicated that this guidance is forthcoming.

18 However, we have formulated our own search criteria to locate potential

19 Rule 68 documents, and the -- and we are conducting searches of this

20 material. We have, of course, as is usual, have serious limitations in

21 respect to resources, but as the search results are provided we review

22 them and disclose, as appropriate, to the Defence.

23 As I indicated, in total almost a thousand, 900 documents has been

24 disclosed, and the Prosecution will continue to do so according to the

25 Rules. There are no deadlines current that the Prosecution has not met,

Page 68

1 and all disclosure which is not -- which does not involve a deadline we

2 continue to do so within the strictures of available resources.

3 May it please you. Thank you very much, Your Honour.

4 JUDGE ANTONETTI: [Interpretation] Very well. Thank you,

5 Mr. Stamp. You've answered regarding the 66 and Rule 68 material, and you

6 even spoke about the documents you might have under Rule 70.

7 These are very relevant matters. I'd like to know what the

8 Defence wants to say. Has they received these thousand documents? Do

9 they still have problems? You have the floor.

10 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour. I can

11 indeed confirm that several months ago, that is to say, more or less prior

12 to the last Status Conference, we started getting materials that my

13 honourable colleague, Mr. Stamp, has referred to, and I believe that this

14 sort of cooperation within this framework between us and the Prosecution

15 has been proceeding all right so far, but I have to make a couple of

16 points.

17 Yesterday, I received a comprehensive document, that is to say,

18 several CDs, and I looked at them, and I realised that they contained very

19 important matters. But it is a fact that as a Defence lawyer I have so

20 far been receiving materials relating to other cases - Milosevic, Galic,

21 and Halilovic - and the only new additional aspect is that I have indeed

22 received ten documents according to Rule 70. I don't know whether that

23 refers to the other cases or not, but I did receive that.

24 As you know, the indictment was confirmed back in 1998. My client

25 has been in prison for a year already. But I must stress that so far,

Page 69

1 until this very moment we have not, strictly speaking, received a single

2 document on the basis of Rule 62(A).

3 So yes, indeed, we have received a great deal of material as the

4 Prosecution has said according to Rule 66(B) and Rule 68, but of course we

5 are conducting searches on the EDS, but this is an enormous amount of

6 material, and things are not going as we would have expected because we

7 would need a whole team of people who might then have enough time on their

8 hands and be able to discover what might be useful. But we believe we

9 should get everything according to Rule 62(A), and also the indications as

10 to what witnesses are going to be providing evidence according to Rule 92

11 bis. And that would be indispensable in order for us to prepare for the

12 trial properly. And I think that in this respect the Chamber might help

13 us along in our communication in order to be able to prepare for the

14 actual trial as swiftly as possible, because it will be easier if, for

15 example, the Chamber were able to set a deadline by which the Prosecution

16 should act in line with 66(A)(ii).

17 At this stage, this is all I have to say, Your Honour.

18 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Tapuskovic.

19 You mentioned something that I wanted to come to later on, but

20 let's deal with it straight away.

21 You have just said that the Prosecution had failed to disclose

22 Rule 66(A)(ii) documents. So the copies of statements taken by all the

23 witnesses the Prosecution wants to call, as well as statements under

24 Rule 92 bis.

25 As to this very precise part, if I remember well, when the

Page 70

1 indictment was confirmed I was not the Confirming Judge, but there was

2 bound to be -- I'm going to explain to you as things are done at the

3 confirming stage.

4 The Prosecution will file a request for confirmation of the

5 indictment, and enclosed are a series of documents. Sometimes there are

6 hundreds, even thousands of documents. And if I remember well, most of

7 the time the witness statements, the prior statements, are included, even

8 statements by the accused if he or she has been interviewed.

9 So here I am a bit surprised to hear from you that close to one

10 year after General Milosevic has been transferred you still have no copies

11 of such statements.

12 Mr. Stamp, why? Why were these witness statements not disclosed

13 to the Defence?

14 MR. STAMP: May it please you, Your Honour, if I might just

15 clarify what I think my learned colleague is saying and respond directly

16 to the question.

17 I think my learned colleague is saying that he has not received

18 statements, strictly speaking, pursuant to the terms of Rule 66(A)(ii).

19 That is, witness statements that -- or statements of witnesses that are on

20 the Prosecution's witness list provided within a time frame set by the

21 Judge, the Presiding Judge.

22 There are statements of witnesses which are compilated with the

23 indictment when it was sent for confirmation. All of those statements

24 were disclosed to my friend within 30 days. There are 64 other statements

25 of witnesses which have been disclosed to the Defence as well.

Page 71

1 Most, probably of those statements will -- may I repeat myself.

2 Most or probably all of those witnesses will be persons that the

3 Prosecution intend to call to testify. However, we have not disclosed,

4 strictly speaking, pursuant to Rule 66(A)(ii) because we had not reached

5 the stage in proceedings as yet with the 11 bis proceedings and the other

6 motions which were before the Court. We had not reached the stage yet

7 where the deadlines were set. Notwithstanding that, we disclose these --

8 I think there are 64 statements disclosed, plus another ten of

9 international witnesses that we intended to call.

10 There will, of course, and I think perhaps I might address at this

11 stage, there will of course be difficulties in terms of the time period

12 for the Prosecution to -- to complete a full witness list, because as has

13 been indicated, the matter -- the indictment was confirmed in 1998, and it

14 has taken a significant degree of time between that time and the time when

15 the accused came before the court, and we need to put together significant

16 investigative resources to locate these witnesses, many of whom are

17 international figures, many of whom will have moved. Some might not be

18 with us anymore. But we need to contact many of these persons, and it

19 will of course take significant resources to do so.

20 But insofar as their statements exist and are in the possession of

21 the Prosecution, we have delivered them to the Defence.

22 Thank you very much, Your Honour.

23 JUDGE ANTONETTI: [Interpretation] So you answered as to the point

24 of law, and you said that you had already disclosed a large number of

25 witness statements, but there are some still that you have not yet

Page 72

1 disclosed because you are waiting under Rule 65 ter (E) from the Chamber

2 an order as to the witness list.

3 So this brings me to other equally important problems. I want

4 first to tell the parties how things are going with the Chamber. You know

5 that this case was assigned to Chamber II. I'm part of Chamber II, Trial

6 Chamber II. It is composed of Judge Agius, Judge Parker, and myself.

7 Some days ago the Security Council adopted a Resolution whereby it has

8 been decided that an ad Litem judge who has been elected permanent Judge

9 will start early as such because a trial started this week, and the said

10 Judge has been assigned to Trial Chamber II.

11 So to date there are now four permanent Judges in Trial

12 Chamber II, whereas by Statute we should only have three, which means that

13 one of the four permanent Judges will have to swap Trial Chambers, go to

14 another Trial Chamber. It may be me or Judge Agius or Judge Parker or

15 this new Judge who has been recently appointed. But it is rather likely

16 that I might be the one, inasmuch as Judge Parker is the -- and Judge

17 Agius and this new female Judge are in trial, which is not my case,

18 hearing cases.

19 There will be another event which will have a major impact on the

20 life of this Tribunal. On the 7th of November, the Judges are meeting in

21 order to elect their new president and their new vice-president.

22 Depending on the outcome of this election, there may be changes

23 accordingly.

24 Anyway, this case assigned to Trial Chamber II might, in theory,

25 might be given to another Trial Chamber if need be. Things might even get

Page 73

1 more complicated if the Tribunal notes that some cases are sort of lagging

2 behind in the schedules. A working group has been set up under the

3 presence of Judge Bonomy, and this working group has issued a report to

4 the Plenary meeting of the Tribunal, and it is recommended in this report

5 that the Pre-Trial Judge should get more involved in the pre-trial phase

6 of the cases in order to speed up the proceedings. Therefore, the

7 Pre-Trial Judge will have to exert more pressure on the parties,

8 especially when it comes to disclosure of material.

9 On the other hand, I observe that with regard to this case,

10 everything is just about ready, trial ready. Pursuant to Rule 66 ter, I

11 am now under the obligation to make a decision with regard to the

12 Prosecution.

13 I'm going to read to you 66 ter (E) which tells you how things are

14 going to go.

15 Once they are settled, once all the preliminary motions are

16 settled under Rule 72, which is the case, the Pre-Trial Judge, following a

17 report by a senior legal officer, will tell the Prosecutor to file within

18 a deadline assigned by the Judge and at the latest six weeks before the

19 Pre-Trial Conference under the relevant article will have to have a final

20 pre-trial brief, the witness list, so the list of witnesses that the

21 Prosecution intend to call with names and pseudonyms of each of the

22 witnesses, a summary of the facts testified to, the summary of the points

23 mentioned in the testimony, the overall amount of witnesses as well as the

24 number of witnesses who are going to testify to specific counts of the

25 indictment, and then the likely duration of the testimony of each and

Page 74

1 every witness as well as the likely duration of the Prosecution evidence.

2 Thirdly, and I'll come back to that later on, you need to have a

3 list of exhibits, and I see today that the accused is here in The Hague

4 and has been in The Hague, in a few weeks' time, for nearly a year, and of

5 course the accused is entitled to a speedy trial, a trial that is going to

6 take place as quickly as possible, and on the other hand I see that the

7 case is trial ready.

8 Therefore, I'm turning to the Prosecution. Can you tell me when

9 in your view you will be able to give -- to file the pre-trial brief;

10 secondly, the witness list; and thirdly, the list of exhibits?

11 Just a while ago, the Prosecution said that they had problems

12 because the indictment was issued in 1998. So nearly seven years ago.

13 And in the schedules of the indictment, there are maybe witnesses that are

14 no more with us, that you have to find. I can understand that within a

15 span of seven years the Prosecution must have been able to get prepared

16 for the trial.

17 So if you need to look for witnesses, you have to tell me which

18 one you're looking for, because as far as I can see there are necessary

19 witnesses. You mentioned 64 of them, but they are the ones whose names

20 are mentioned in the indictment. They were wounded, and they're able to

21 testify here as victims. So of course, normally speaking, you must know

22 where these people are. And if among them there are people who are no

23 longer with us, well, you can't find them anyway. And then you also have

24 expert witnesses, and it shouldn't be too difficult to know which of them

25 are coming to testify. I'll come back to at that later on too.

Page 75












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Page 76

1 And as to the exhibit list, you have already disclosed a number of

2 exhibits and now you should finalise your list.

3 So, Mr. Stamp, taking into account your difficulties and problems,

4 when do you think you will be able to meet the provisions of 65 ter?

5 MR. STAMP: Thank you, Your Honour.

6 The problems that Your Honour referred to are problems that will

7 take significant amounts of resources to gather together to deal with.

8 The problems of witness re-contact is not a simple one. The problems of

9 replacing witnesses where they are no longer available will take a

10 significant period of investigative effort.

11 As Your Honour is aware, the Prosecution did at one stage ask that

12 all non-essential proceedings in this matter be postponed pending the

13 Rule 11 bis hearing. It is subsequent to that and at this present time

14 that we are now engaged and the work continues in getting together the

15 material to satisfy the requirements.

16 While I would not at this stage be able to give Your Honour a

17 precise date as to when the Prosecution might be able to do so, I -- and

18 while I recognise that the accused has been in custody for -- since

19 December last year, the Prosecution points out that the Court ought to

20 take into consideration the scheduling arrangements in respect to the

21 three mega-trials which are expected to start in the coming year. That

22 is, the three trials involving multiple accused. And therefore, the

23 Prosecution would have to shift resource or at least allocate resources in

24 respect of these matters.

25 JUDGE ANTONETTI: [Interpretation] Well, Mr. Stamp, I understand

Page 77

1 perfectly what your problems are, but there's one thing I'd like to know

2 first of all. You represent Madam Prosecutor. In this case, how many of

3 you are there? I can see two of you here, but altogether how many

4 attorneys are there? How many members are there in your Prosecution? You

5 are the head of the team, but how many of you are there altogether?

6 MR. STAMP: In the entire OTP or in respect of this case? I'm not

7 sure what Your Honour is asking.

8 JUDGE ANTONETTI: [Interpretation] In this case, only for this

9 case. Only two, three, or four? How many of you together on this case?

10 MR. STAMP: On this case we have limited resources, but without

11 disclosing precisely what the personnel resources are, we are putting

12 together a full team. There are presently two lawyers dedicated to this

13 case full time. We will need substantially more than that. The resources

14 that we will deploy in particular cases I would not want to go into

15 details on that, but just to let Your Honour have an understanding of the

16 limitations there are in respect to resources, and I think these matters

17 ought to be considered. The schedules of forthcoming trials for the

18 Tribunal that we have to dedicate resources to have to be put in the

19 balance in respect of setting these deadlines. And the Prosecution is no

20 doubt aware that the accused has been in custody since December, and we

21 respect his right to a fair trial, and we will do everything possible

22 within a reasonable time set by the Court to ensure that the filings, the

23 lists and all the requirements of Rule 65 ter are met.

24 As to a precise timing, I could not supply one, but it will, in my

25 estimation, take several months before we have contacted all of these

Page 78

1 witnesses, determined who is able to come, who we need to do 92 bis

2 declarations in respect to, who we need to replace and therefore we need

3 to search and find other witnesses and take statements from them, who

4 needs protective measures and therefore we need to apply to the Court for

5 protective measures. There are huge undertakings that we need to

6 discharge before we would be in a position to provide a final list of

7 witnesses. And of course the pre-trial brief would to a great extent

8 depend on this final list.

9 So I ask Your Honour to take all of those matters into

10 consideration.

11 JUDGE ANTONETTI: [Interpretation] So if I understand you properly,

12 you are telling me that you are currently with two lawyers, but lawyers

13 work with investigating teams, with investigators. Presently do you have

14 investigators available to you, and can they, for instance, if they have

15 addresses, witnesses' addresses, can they look them up or do you have to

16 go through legal cooperation, district cooperation with

17 Bosnia-Herzegovina? Can you enlighten me on this? Do you have an

18 investigating team at your disposal today?

19 MR. STAMP: Today we are engaging an investigative team. It is

20 not fully composed. It is not fully manned as yet. But I would not again

21 wish to get into details in matters which -- which are in a flux, which at

22 present we are organising, because my answers will not have the precision

23 that I want to give to the Court.

24 Contacting witnesses, in some cases it might well be a simple

25 matter of the normal cooperation between states. However, the experience

Page 79

1 has been that in respect to these states where there were these wars in

2 the 1990s, many of the witnesses have moved to a variety of places. They

3 are scattered all over the world. International witnesses do not

4 necessarily work where they -- where they originally were working, and

5 many of them we will have to contact the organisations to obtain waivers

6 in respect to whether or not they can give further statements or

7 information if we need to interview new international witnesses.

8 And I don't wish to belabour the point as if I'm giving the Court

9 an inventory of problems. There will be problems, and we will undertake

10 to overcome these problems and we will do so in a reasonable time.

11 However, I just ask the Court to bear in mind in deciding, as the Court

12 must do, in setting a time framework for us to comply with these

13 obligations. It is -- I repeat, it would be matter of several months

14 before the Prosecution would be in a position to adequately fulfil these

15 obligations. And it would not prejudice the accused, because having

16 regard to the scheduling of cases in the forthcoming here, it is unlikely

17 that this case will get off then, and the Prosecution resources will have

18 to, of course, take those cases into consideration.

19 Thank you very much, Your Honour.

20 JUDGE ANTONETTI: [Interpretation] All right, then. If my

21 understanding is correct, you're telling me that you need several months.

22 Right. This is the Prosecution's position.

23 I have to stick by the Rules. As a Pre-Trial Judge, I'm

24 obliged - legally and morally obliged - to make sure that the accused

25 present here does not stay in prison without trial for months or years.

Page 80

1 This is an essential right of every accused to be able to have a swift

2 trial. This applies to all countries in the world and all the more so to

3 international justice.

4 You are telling me that three important trials are going to

5 mobilise the resources of the Prosecution. We are well aware of the fact

6 that there will be trials where there will be joinders of cases, and I

7 myself am supposed to be the Presiding Judge on one of those trials as

8 well. But all this was predictable. It does not come out of the blue

9 from one day to the next. It was predictable that there would be a

10 joinder of cases and that such trials would commence, and there are people

11 who are being temporarily detained and they are awaiting trial. Some

12 people have been professionally released as well whilst awaiting trial,

13 and as far as I can see, there is a problem of resources.

14 Now, what about resources? Is it staff? And in that case, what

15 staff? The investigators or people present here, case managers,

16 et cetera? I can see that the Defence team consists of one person only,

17 and I would like to ask them whether they will continue to act that way --

18 in that way or will there be another lawyer present. And you have two

19 people at the moment.

20 So now I have to set a certain number of deadlines. I will very

21 soon make a decision on a deadline in order to sort all this out. I

22 suppose there might be problems.

23 But if I refer to annex 3 of the indictment, for example, if you

24 take a look at annex 3 of the indictment, you can see that it is a list of

25 persons who have been wounded or killed. Top of the list is a woman who

Page 81

1 is 43 years old, who sustained a thigh injury in other right thigh as she

2 was riding on a tram. And then there was somebody else who -- she would

3 now have about -- she would now be 53 years of age. So either she's still

4 in Sarajevo or else she has left. But if you contact the local

5 authorities, you will be able to find out this woman's address pretty

6 swiftly in order to call her as a witness.

7 The second one, a young man, 16 years old, who was killed, but

8 this young boy probably had parents. So if you wish to establish his

9 family situation, you can always call his parents.

10 On the 8th of November, a 59-year-old woman who sustained a hand

11 injury. It shouldn't be too difficult to find her, and so on and so

12 forth.

13 So if we go through the list, what you have to do is contact the

14 local authorities, submit the list, and ask for these people's addresses.

15 In annex 4, there is what we call bombings or the shellings. The

16 first shelling refers to a shell which landed on the 30th of October on a

17 group of civilians waiting for a bus. It was a 120-millimetre shell.

18 Perhaps you could invite a witness. The witness could come and tell us

19 about these events. Since there was a group of civilians, we can imagine

20 that there would be hearings for those witnesses, et cetera, and so on and

21 so forth.

22 What I'm trying to say is that this is not so difficult. You have

23 referred to international witnesses that need to be found because they may

24 have switched jobs and moved to another place, et cetera. It is indeed

25 true. There are indeed witnesses that may have switched jobs, but

Page 82

1 initially we have this list, and if you encounter difficulties in getting

2 the witnesses to come, the Trial Chamber can help you out. It is not an

3 impossible task, after all. It is not something which is beyond the

4 capacity of a Prosecution team.

5 And now I'm looking at the Defence, and I would like to know what

6 your point of view is, because you will have heard that the Prosecution

7 would like to be granted several months to complete the job.

8 Now, I give the floor to the Defence because I would like to know

9 what their point of view on this matter is.

10 MR. TAPUSKOVIC: [Interpretation] Thank you very much, Your Honour.

11 My point of view as the Defence counsel of Dragomir Milosevic is

12 very clear. The Statute, the Rules, and the entire procedure must take

13 account of the fact that the trial must take place as swiftly as possible,

14 and it must be a fair and a just trial, and that of course means that we

15 must get evidence as soon as possible, the evidence that is the basis of

16 the indictment, because I cannot but repeat your own words, and this has

17 been my conviction from the very start.

18 The indictment was first issued in 1998, and I can't help myself.

19 I just have to say this: I simply can't believe that the Prosecution is

20 still wandering around looking for evidence. And this basic evidence that

21 is the basis of the indictment, not just the accompanying facts and the

22 facts that have been submitted when the indictment was confirmed, but

23 everything else on the basis of which the responsibility of Dragomir

24 Milosevic is to be established. Well, of course the suffering of the

25 victims is the one thing. This is not arguable. But fundamental issues

Page 83

1 having to do with his responsibility are quite another matter. And of

2 course we have to be able to have an insight into what the basis of their

3 evidence is.

4 I mean, I'm deeply convinced that this is the way in which these

5 things should be done. We should know as soon as possible what these

6 matters are, quite apart from any difficulties having to do with the Trial

7 Chambers available or other logistical issues that Chambers and their

8 make-up, et cetera. Quite apart from that, at any given moment we must

9 make sure that the Judges get the opportunity to prepare properly and

10 thoroughly as soon as possible.

11 And then of course we have the technical issues, Trial Chambers

12 and so on and so forth. That is quite another matter. But we must deal

13 with these things with the assumption that the trial is going to start

14 very soon. That's my basic attitude as Defence counsel. There is nothing

15 else I can say.

16 I am in touch with the Prosecution, and on a number of occasions I

17 have insisted on this. And I must say that we had fairly good

18 cooperation. We understand -- we sometimes don't speak the same language.

19 That might be a problem. But I'm going to make an effort myself and have

20 as much understanding as possible for the situation of the Prosecution,

21 but I must assume that the trial will start as soon as possible.

22 JUDGE ANTONETTI: [Interpretation] I wanted to put a question to

23 you. I see that you are alone as Defence counsel for General Milosevic.

24 Are you going to remain the only one throughout the trial or are you going

25 to ask for a co-counsel? The reason I'm telling you this is that in a

Page 84

1 case that is very close to this one, the Galic case, there were two

2 lawyers in the Defence team. Are you going to remain alone or are you

3 going to have somebody with you?

4 MR. TAPUSKOVIC: [Interpretation] Your Honour, of course it's

5 impossible to do this completely by myself, and I am availing myself of

6 all the possibilities under the Rules. At this point in time I do have a

7 co-counsel. That is a lawyer from Paris, Branislava Isailovic. She is

8 originally from Serbia but has been practising law in Paris for the past

9 15 years. So she will be my co-counsel.

10 Of course I already have my own legal assistant in Belgrade, and I

11 also have an investigator. We have just been granted the funds to engage

12 another investigator. But other than that, of course I will have to rely

13 on other colleagues.

14 However, electronic searches are a lot of work. It's very

15 difficult to deal with that and to search for documents through millions

16 of documents in order to find something that would be relevant to this

17 case. This is something that we will try our best to do, but this will

18 pose a major problem, and this is something that we might have to discuss

19 with you later at Status Conferences.

20 I will not be alone, however. I am alone today because there was

21 no need also in the past Status Conferences to have somebody here with me

22 present, but of course they are helping me, and the time will come when

23 they will come also to the courtroom to assist me. That is certain.

24 JUDGE ANTONETTI: [Interpretation] Thank you very much.

25 As I stated earlier on, I am going to issue an order to set

Page 85

1 deadlines for the disclosure of exhibits pursuant to this subrule (E).

2 Another thing that I wanted to mention in this Status Conference,

3 because that's the purpose of such a conference, the other elements

4 relevant to the trial proceedings.

5 There is a major question in any proceedings. It is the way in

6 which the Prosecution are going to present their evidence. Sometimes

7 there is a certain degree of confusion. One doesn't understand why such a

8 witness will appear rather than another one. So sometimes, you know, you

9 are a bit lost as a Judge. And I think it is essential for a case to be

10 clear and for the Judges to be well-informed, for the Defence to be able

11 to cross-examine usefully.

12 Whenever the Prosecution are going to adduce evidence, they should

13 do so in keeping with the chronology or the logics of the indictment. You

14 just have to follow the indictment in doing so, because you have a general

15 framework, the context or background in the indictment. So you'll have

16 witnesses who will appear as to the background. Thereafter, come the

17 issues of liability, individual liability under 7(1) or 7(3) of the

18 Statute. And then you come to the facts of the case which are the various

19 counts in the indictment. And in this case, it is the terror that was

20 spread and the issue of sniper fire directed at civilians, as well as the

21 issue of the shellings. So there is quite some consistency or logics to

22 be followed.

23 As far as I'm concerned, I will be following very closely the

24 filings by the Prosecution regarding the witness list. I want to see in

25 which order the witnesses will appear so that the trial can be conducted

Page 86

1 in the best way possible.

2 Also, in trial the issue of the admissibility of evidence is bound

3 to arise. In an initial stage, when the Prosecution examine their

4 witnesses in chief they will introduce exhibits, and of course the

5 Defence, when cross-examining the witness or witnesses, can ask for

6 evidence to be adduced.

7 The admissibility of evidence sometimes raises problems, and this

8 will cause a trial to be delayed or to last longer because there's an

9 objection. The Defence will say that this or that item or exhibit is not

10 relevant. So in this matter, I am planning to give this to the

11 Prosecution but also to the Defence because of course the Defence will be

12 in a position in the Defence case to introduce evidence. I am planning,

13 as I said, to take up what Judge Agius stated in various decisions and

14 orders as to the admissibility of evidence.

15 I believe that a piece -- an exhibit should be admitted if it is

16 relevant as to the facts and if it is reliable. Of course if the Defence

17 would believe that an exhibit is forged or irrelevant, they have the time

18 to challenge it. But if you challenge an exhibit at the beginning of

19 trial proceedings whilst you don't have all the ins and outs, at that

20 stage of the proceedings that may cause problems.

21 I am permanently in favour of this: When the Defence write their

22 exhibit lists as under 65 ter (E)(iii), so the Prosecution intends to say

23 how many exhibits they intend to seek to adduce, and in this list there

24 should be explicit references, clear references to the witnesses about to

25 testify with the said exhibits, and in this overall list the exhibits

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Page 88

1 should be mentioned also with regard to the pre-trial brief and to the

2 indictment. In this way, when the Prosecution seeks to adduce an exhibit

3 during testimony it will be clearly identified by both the Trial Chamber

4 and the Defence.

5 This is far from being complicated. It can be done easily,

6 without any problem. So you will have a written decision on this matter

7 from me.

8 There is something else I wanted to raise ex officio. It is the

9 issue of expert witnesses. Both Prosecution and Defence will call expert

10 witnesses. If I cast my mind back to the Galic trial, there were 15, 15

11 of them. I don't know what the Prosecution's intentions are as to expert

12 witnesses, but there are some categories that seem to me necessary ones.

13 There will be at least one military expert witness who will have to come

14 to explain the structure of the VRS and its command. So this is a typical

15 military expert witness. But there are also issues connected with

16 shellings, with technical issues, as to the type, the calibre of shells,

17 their velocity, their trajectory, the angle and so on. So I believe it

18 will be necessary to have an expert witness to testify on this. Of

19 course, it is up to the Prosecution to decide whether they want to have

20 further expert witnesses.

21 I'm talking about these expert witnesses because an expert witness

22 is useful to answer the questions you will put to them. It's important

23 for the Prosecution. But for the Defence expert witnesses, we also have a

24 very important issue which is the report that they are supposed to draw up

25 and they will seek to admit, because if a witness is called and their

Page 89

1 report is not admitted, it's a waste of time for everybody. So it's

2 important to choose the right expert witness.

3 Something else that I will now mention. I saw in other trial

4 proceedings that there is a practice which I personally find to be

5 prohibited. It's the issue of the witness who is going to testify. I'm

6 talking now, for example, about a Prosecution witness. The Defence team

7 will hear that Mr. So-and-so will come as a Prosecution witness, and just

8 before that person testifies or the night before the Defence will meet

9 with the witness. That's something that I don't find normal. Personally,

10 I believe that a part -- a witness called by a party should only be

11 interviewed by the calling party. If the other party wishes to put

12 questions to that witness, they should do so publicly, in a public

13 hearing, during cross-examination of the said witness.

14 I know that this has been admitted in other Trial Chambers. I am

15 against it personally.

16 Another point that I should bring to the attention of the

17 Prosecution. In some trials we do see that the Prosecution continues

18 inquiring, investigating during the trial proceedings. Let me take an

19 example, the Galic case. Following the actual trial proceedings, after

20 the trial proceedings as such, the Prosecution sought to admit new

21 exhibits whilst the trial was over. The proceedings were over, and

22 exhibits were added, and that's not normal in my view.

23 If the investigation continues during the trial proceedings, in my

24 view the Trial Chamber should be informed of it, and it should not be a

25 fait accompli for the Trial Chamber. If there is an application or motion

Page 90

1 to reopen the case, the Prosecution case, because in the meantime the

2 Prosecution would have hold of -- of exhibits, it would like to call new

3 witnesses, whilst the Trial Chamber has not even been informed of such

4 intention.

5 Personally speaking once again, I am not in favour of this type of

6 sort of ongoing investigation, when to me when trial proceedings commence

7 the investigation is over but for exceptional circumstances. If, for

8 example, the Prosecution were to receive exhibits from some authority,

9 some likely piece of evidence. But for that sort of cases.

10 Some investigations started as early as ten years ago. If

11 Prosecution investigations continue even ten years later, there could be

12 real problems if that were to be the case. And I think the decisions were

13 issued by Trial Chambers in this respect. They turned down Prosecution

14 applications for the production of new evidence because the due diligence

15 had failed to be applied.

16 Mr. Stamp, earlier on you mentioned protective measures. It can

17 be indeed that some witnesses would seek protective measures. It is the

18 very fundamental right of any witness to obtain such protective measures.

19 There are two ways to go about them. There is the usual way which is an

20 application by the Prosecution for protective measures, and this of course

21 takes a lot of time. You have to write submissions, argue the case in

22 court, and then there is a written decision by the Trial Chamber.

23 But there is also another way of proceeding which myself and other

24 colleagues used in another case. It is a procedure whereby there is no

25 initial written submission, but just before the hearing or before the

Page 91

1 testimony the -- or before the hearing the Prosecution or the party tells

2 the senior legal officer whether the witness is seeking protective

3 measures and what kind of protective measures. Then when everybody's in

4 court the blinds are pulled down and there is a discussion. The Trial

5 Chamber seeks to know from the calling party what the objective grounds

6 are for such protective measures.

7 I think it is very practical as a way of proceeding. It really

8 enables us to save a lot of time.

9 Some witnesses may have already been granted protective measures.

10 And so I ask the Prosecution to really be very careful and check that such

11 witnesses -- or whether they were already protected witnesses before,

12 because I've noted already that there are witnesses who are called to

13 testify while they have been under protective measures in another case and

14 the Prosecution didn't know about it. It's unbelievable, but it can

15 happen. So now that we've got all this sort of electronic system, we

16 should know whether a given person was granted protect measures in another

17 case previously.

18 There is also the issue of video-conferences. You may have old

19 people, people who are ill or unable to come to The Hague. So they can't

20 come. Therefore, it may be necessary to organise video-conferences.

21 It is, of course, up to the Prosecution for the Prosecution

22 witnesses and to the Defence for Defence witnesses to let the Trial

23 Chamber know in time, because it is quite a heavy operation. It requires

24 the Registry to be quite active, and we need ample time to organise such

25 video-conferences. So you must let us know in time so as to organise such

Page 92

1 video-conferences.

2 There is also another point. It is about possible agreements

3 between the two parties as to facts that are not going to be

4 controversial. So some things are not challenged by the Defence. Of

5 course, the agreed facts are mentioned by the Rules. It is then incumbent

6 on the Prosecution to address and approach the Defence and say, These are

7 the facts that I would like to put to the Trial Chamber with your

8 agreement as facts which will not have to be discussed in court because

9 they're not challenged by the Defence.

10 Experience shows that in some cases there are lists of facts that

11 are not disputed, and in some other cases nothing is agreed upon. It is a

12 complete failure, then, in this respect. But the Prosecution will look

13 into this because this matter is quite a relevant one in trial

14 proceedings.

15 Something else now. First I'll ask to move to closed session for

16 this.

17 THE INTERPRETER: Private session, interpreter's correction.

18 [Private session]

19 (redacted)

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20 [Open session]

21 THE REGISTRAR: We're back in open session, Your Honour.

22 JUDGE ANTONETTI: [Interpretation] So we're back in open session.

23 And I have a list of items which can be looked into in the next

24 Status Conferences so as to have the best trial proceedings possible.

25 So as to what I have just said, do you have any observations,

Page 95

1 Mr. Stamp? Do you have any comments? Then I'll give the floor to the

2 Defence.

3 MR. STAMP: No, Your Honour, no comments in respect to the last

4 comments made by the Court.

5 JUDGE ANTONETTI: [Interpretation] Do you have any comments or

6 questions, Mr. Tapuskovic?

7 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour. I do

8 not. I don't know if we're coming to the close of the Status Conference,

9 because I'm wondering whether you be giving the floor to the accused.

10 JUDGE ANTONETTI: [Interpretation] Not yet. Not yet. We're not at

11 the end of it yet because I have to turn to the accused.

12 General --

13 MR. TAPUSKOVIC: [Interpretation] Excuse me, Your Honour. I wasn't

14 expecting you to allow the accused to speak right now, but I do have a

15 request that I would like to address to the Court so that the accused,

16 General Milosevic, will not have to explain it.

17 In the month of June, he received a very good computer from his

18 family, which in the light of the way we will proceed with this trial is

19 essential to him in order to prepare his defence. It seems, though, that

20 this is a very advanced capacity computer and has more than it is supposed

21 to have as far as its capacities, and regardless of a number

22 interventions, the Registry has still not made it possible for him to

23 actually use the computer.

24 General Milosevic has agreed for this computer to be downgraded so

25 that he could finally get it and start using it to work with it. So I

Page 96

1 would just like to request the Trial Chamber to perhaps exert some

2 influence on the Registry so that this matter could be resolved as soon as

3 possible so that he could start using this computer in order to prepare

4 for his defence.

5 Thank you.

6 JUDGE ANTONETTI: [Interpretation] So if my understanding is

7 correct, he received a computer from his family but he can't use it yet

8 because the Registry has not given him the computer. Is that how things

9 stand?

10 MR. TAPUSKOVIC: [Interpretation] Yes. That is it exactly, Your

11 Honour, because they believe that this computer has wireless capacity and

12 it is then essential to remove some components of the computer, which he

13 agrees with, so that he could actually have it to use it in order to be

14 able to proceed with his Defence.

15 JUDGE ANTONETTI: [Interpretation] Very well. Well, I'll talk to

16 the registry about it. I'll send a memo on the issue so as to be

17 informed.

18 MR. TAPUSKOVIC: [Interpretation] Thank you.

19 JUDGE ANTONETTI: [Interpretation] And as soon as I have a reply, a

20 response from the Registry, I'll forward it to you and to the Prosecution.

21 It should be settled very quickly. It's all but normal for an accused to

22 be able to use a computer, precisely to be able to access his file. I

23 mean, we are now in the era of electronics, and the rights of the accused

24 must be respected in that framework, and at the very least he or she

25 should have a computer. So I'll look into this straight after this

Page 97

1 hearing is over.

2 General, I have two questions for you regarding detention

3 conditions. Is everything going okay? Do you receive visits? Do you

4 have special requests? I'm not talking now about the computer because

5 that's been dealt with, but are you satisfied with the detention

6 conditions or do you have remarks or comments? You have the floor.

7 THE ACCUSED: [Interpretation] Your Honour, thank you for the

8 opportunity to speak and to respond to your questions.

9 All I can say is that there are no problems of the kind that you

10 are asking me about. My detention is proceeding in the usual way.

11 Everything is in accordance with the rules, and I do not have any

12 particular questions or anything particular to say about this.

13 Despite this problem with the computer, the laptop being dealt

14 with, I would still like to say that something was not quite right there.

15 However, I will be very happy were you to request that this question be

16 resolved as soon as possible. Of course we cannot force anything. It has

17 to be all the way it's supposed to be. But I don't have anything else

18 more to say on this matter.

19 JUDGE ANTONETTI: [Interpretation] Thank you very much for your

20 answer.

21 The second question I have to put to you concerns your health. Do

22 you have any problems? Do you have regular visits by the Detention Unit

23 doctor? Anything to say in this respect?

24 THE ACCUSED: [Interpretation] I don't have anything in particular

25 to state on that matter. All I can say is that everything is fine on the

Page 98

1 whole. I didn't even intend to say anything about it because I know last

2 time when I mentioned how quick the intervention was and how fast my

3 operation was organised, and I said this with the best of intentions, but

4 the media had a different approach to that. So I was a little surprised.

5 However, everything is all right, and I'm hoping that what I state here

6 will be conveyed in the spirit that it was made.

7 Again, I thank you for the opportunity to speak, and I repeat that

8 I have no problems.

9 JUDGE ANTONETTI: [Interpretation] Do you want to mention something

10 else? Do you have questions to put to me? I'm here to meet all your

11 concerns. Do you have any special questions to me?

12 THE ACCUSED: [Interpretation] The key matter is the one that was

13 discussed just now. All that has to do with that, of course, interests me

14 specifically, but I think that today I received a lot of information which

15 indicates to me how the proceedings will continue.

16 As for my expectations, if they are not met in the context of what

17 was discussed today, then I will mention that if that time should come.

18 JUDGE ANTONETTI: [Interpretation] Thank you very much, General.

19 Please sit down.

20 We are coming to a close. I shall ask both parties if they have

21 other questions.

22 Mr. Stamp, you have the floor.

23 MR. STAMP: Nothing to add. Thank you very much, Your Honour.

24 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Tapuskovic?

25 MR. TAPUSKOVIC: [Interpretation] Your Honour, the Defence has

Page 99

1 nothing to add at this time. Thank you.

2 JUDGE ANTONETTI: [Interpretation] Very well. As I said, before

3 coming to a close, I am going to issue a Scheduling Order related to

4 65 ter (E).

5 I shall see you again very soon. I'm not going to wait 120 days

6 to do so. I think I should be seeing you within a month, or a month and a

7 staff, so that we can really take stock of the situation and to see how

8 ready this case is. So in December there should be a new Status

9 Conference.

10 I want to be really involved personally in this preparation, even

11 though I may not be the Presiding Judge later on or even be in this

12 Chamber, but I want to ensure that those who are going to hear the case

13 have available a file which is prepared perfectly and makes it possible to

14 have the best possible trial proceedings.

15 In the meantime, of course, I do invite the Defence to keep

16 meeting with Mr. Stamp, because such meetings often make it possible to

17 solve problems, are really useful for everybody and are also in the

18 interests of justice.

19 Thank you very much. See you very soon.

20 --- Whereupon the Status Conference adjourned

21 at 9.32 a.m.