Tribunal Criminal Tribunal for the Former Yugoslavia

Page 124

1 Thursday, 20 May 2004

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.07 p.m.

6 JUDGE MARTIN-CANIVELL: Good afternoon, ladies and gentlemen. We

7 are here for another Status Conference in the case of Mr. Martic.

8 Could you please, Madam Registrar, call the case.

9 THE REGISTRAR: Case number IT-95-11-PT, the Prosecutor versus

10 Milan Martic.

11 JUDGE MARTIN-CANIVELL: Shall we have the appearances, please.

12 MS. UERTZ-RETZLAFF: Good afternoon, Your Honour. For the

13 Prosecution, Mark McKeon, and I, Hildegard Uertz-Retzlaff, trial

14 attorneys, and with us is Ms. Lakshmie Walpita.

15 JUDGE MARTIN-CANIVELL: Thank you very much. I'm getting the

16 translation in French. It would be better to follow that in English.

17 And for the Defence, please.

18 MR. MILOVANCEVIC: [Interpretation] Good day, Your Honour. I am

19 Predrag Milovancevic, attorney-at-law, Defence counsel for the accused,

20 Mr. Milan Martic, and my junior colleague and assistant, attorney Vuk

21 Sekulic from Belgrade.

22 JUDGE MARTIN-CANIVELL: Sekulic. I agree. Thank you.

23 Mr. Martic, please, do you understand what is being said here in a

24 language you can completely understand?

25 THE ACCUSED: [Interpretation] Yes.

Page 125

1 JUDGE MARTIN-CANIVELL: Okay. You may sit down, please.

2 Well, ladies and gentlemen, we have a few problems this time to be

3 tackled with. First of all, since the OTP was already committed its

4 pre-trial brief and even in due time, May the 7th, we had passed over to

5 fix a moment for the presentation of the pre-trial brief by the Defence.

6 So I suppose, Mr. Milovancevic, that you have already made -- taken your

7 message through to be in due time when your pre-trial brief would be

8 required.

9 I should say that it would be more than three weeks later than the

10 previous one, but I should like to hear what could you have to suggest?

11 In principle, I would like to have your pre-trial brief ready for the

12 first half of September, next September. So I take it into consideration

13 that you have had some problems in getting some documents from the

14 Croatian government and from other sources. Would you please tell me what

15 is your stand on the facts, on those facts, please.

16 MR. MILOVANCEVIC: [Interpretation] I understand your question,

17 Your Honour, and I will reply as briefly as I can. The standpoint of the

18 Defence with respect to its readiness to submit a definite version of its

19 pre-trial brief in accordance with Rule 65 ter is defined by the Rules of

20 Procedure and Evidence and the Statute. The response of the Defence in

21 connection with the deadlines that we have to speak about is connected

22 with three essential points which I will set out very briefly by

23 Your Honour's leave.

24 The first of these points has to do with the application of Rule

25 21 of the Statute, which provides for minimum guarantees of the accused's

Page 126

1 right to defence with respect to time and the means necessary for the

2 preparation of a defence. For the reasons that I have already mentioned

3 at the Status Conference in January and which I will only briefly

4 reiterate now, the Registry is persisting in keeping Mr. Martic's case at

5 the second level.

6 Mr. Martic is accused of participation in a joint criminal

7 enterprise, and the Prosecution, in its indictment, states that he had

8 positions of leadership over a five-year period, and the Prosecution in

9 the indictment alleges that his activity took place on the territory of

10 two countries of -- or, rather, two former socialist republics of the

11 former Yugoslavia, that is Croatian, Bosnia and Herzegovina. And bearing

12 in mind the allegation in the indictment that Mr. Martic's activity was

13 connected with the activities of a significant number of other

14 participants in the joint criminal enterprise, bearing in mind also

15 Mr. Milosevic and the extent of his case is well known to the Defence, and

16 also bearing in mind that the indictment against Mr. Martic accuses him of

17 joint activity with at least 11 other co-accused who have been indicted

18 before this Tribunal, bearing all this in mind the Defence fails to see

19 the reasoning for the Registry that this case in its complexity

20 corresponds to the second level.

21 A direct consequence of this, Your Honours is that the Defence has

22 received information from the Registry that by February, or that is as of

23 February, the members of the team, some members of the team no longer have

24 the means to carry on their work, and the others no longer have these

25 means as of March. For the further work of this Defence team in preparing

Page 127

1 the response to the Prosecution's pre-trial brief as well as further

2 investigations which are or which were carried out up to now by

3 Mr. Martic's Defence team, the first issue to be resolved is the issue of

4 the level of this case.

5 In view of the fact that the Defence team has done its very best

6 and has exhausted all means addressing the Registry, on the 29th of April,

7 the Defence team submitted a urgent motion to the Trial Chamber asking

8 that this issue of the level of the case be resolved. A case of this

9 extent and this complexity in the nature of things belongs to the third

10 level. That is how it appears to the Defence, Your Honour. That is the

11 first issue. And the Defence hopes that the Trial Chamber will understand

12 Mr. Martic's need for his Defence team to continue its work based on the

13 normal expectation that the Trial Chamber will permit the Defence team to

14 continue its work by ordering the Registry to classify this case as a

15 third-level case.

16 This whole situation is linked to a circumstance that is well

17 known to this Chamber and to you yourself, Your Honour, and that is that

18 the Defence has agreed to do a large amount of work in processing

19 unselected material instead of the Prosecution; that the Defence has spent

20 ten months doing this; and, that by exerting enormous efforts in ten

21 months they have done a job which, according to the Prosecution, would

22 have taken two or three years for the Prosecution to do. In this case,

23 the Defence cannot even consider the proposition that it has wasted its

24 energy and the means at its disposal that it has acted irrationally or

25 that it has in any way failed in its obligation to conduct its work in the

Page 128

1 best possible manner. Therefore, the Defence team expects that with

2 respect to the issue of category, it will obtain the support of the Trial

3 Chamber. And that was the first issue I wished to raise, Your Honour.

4 The second issue is linked to the time needed by the Defence to

5 give a definite rely to the Prosecution pre-trial brief, and this has to

6 do with the fact that the Defence received the entire brief on the 14th of

7 May of this year. The brief has 47 pages of text and three annexes.

8 Annex A dealing with issues which are not in dispute, this is three pages

9 long. Annex B, which contains a lot of witnesses to be called by the

10 Prosecution, and this annex has a total of 122 pages. And Annex C

11 containing a list of exhibits that the Prosecution intends to present

12 during its case. This annex is 219 pages long. So that actually,

13 Your Honour, there are 391 pages altogether, not counting the appendix

14 with the list of sources attached to the pre-trial brief of the

15 Prosecution, and this has 13 pages.

16 Another important fact should be stressed, Your Honour. The

17 Prosecution disclosed to us a large number of CDs along with its pre-trial

18 brief. These CDs contain documents that the Prosecution wishes to

19 present, so that the final pre-trial brief, in accordance with Rule 65 ter

20 (E), contains 1.640 pages of material which are completely new under

21 Rule 66(A)(ii). In this list of material, it says 12.335 pages of

22 material in the shape of written documents that the Prosecution wishes to

23 tender during its case. So the total amount is 13.900 pages of written

24 text that has not yet been disclosed to the Defence, which the Defence has

25 not yet read and which the Defence is duty-bound to familiarise itself to

Page 129

1 be able to respond in accordance with Rule 65 ter (F). This Rule provides

2 that the Defence has to respond to all of this material in the pre-trial

3 brief of the Prosecution.

4 It must be borne in mind that the complete pre-trial brief of the

5 Prosecution has also additional 13 video CDs. The Defence must also view

6 this material, and simply to read this newly disclosed material according

7 to the criteria recognised by the Registry, a total of 1.300 hours is

8 required if they say that 60 documents can be analysed per hour.

9 The next point that should help us to define the time needed by

10 the Defence for -- to prepare its pre-trial brief is linked to disclosure

11 by the Croatian government. In January we raised this issue at the Status

12 Conference, and we had a meeting on this topic with the senior legal

13 officer and the Prosecution this year. The Defence accepted Your Honour's

14 advice, and after a brief pause, after a brief time to allow the newly

15 elected Croatian government to start its work, the Defence addressed a

16 fourth letter to the Croatian government which received in the second half

17 of February this year, indicating that the government is duty-bound under

18 the Tribunal's rules to supply materials to the sides before this Trial

19 Chamber and reminded them again of all materials sought prior to that date

20 and asking for some additional material.

21 Your Honour, we have received no reply to date. The work of the

22 Defence in a case of this category and with that kind of indictment, and

23 the indictment is for participation in a joint criminal enterprise, the

24 Defence is unable to prepare for this unless it receives the material

25 required from the Croatian government.

Page 130

1 The third and last issue I wish to raise, which affects the time

2 when the Defence will be ready to fulfil its obligation is connected to

3 disclosure under Rule 68 by the Prosecution. This disclosure has been

4 carried out so far according to the criteria that the OTP itself set up in

5 connection with Mr. Milosevic a year ago.

6 Your Honour, we told you that the Prosecution disclosed to us a

7 enormous amount of material according to these criteria. This is over

8 4.000 pages, but no selection of these materials was carried out. The

9 Defence undertook to go through this material, and we have done so as

10 Your Honour has been informed, and this disclosure has been continuous and

11 is still ongoing.

12 In order to understand the position of the Defence, it is very

13 important to understand the following, Your Honour: After making a

14 selection of the material disclosed under Rule 68, and after the Defence

15 established what there is in this material and what is of importance to

16 us, the Defence has continuously, at the same rate as it went through this

17 unselected material, sent requests to the Croatian government for delivery

18 of those materials not supplied by the Prosecution under Rule 68 and which

19 were suggested by the Prosecution itself in its letter of May last year.

20 Your Honour, the Defence, on four occasions, in August of last

21 year, the 20th of August, to be precise, the 8th of October, the 25th of

22 December, and now in late February, asked for a certain number of very

23 important documents from the Croatian government important for the

24 Defence, but we have not received any reply. However, from the contacts

25 we have had in the meantime with a view to -- on the part of the

Page 131

1 Prosecution to assist us in obtaining this material - I'm referring to a

2 meeting, a 65 ter meeting in April of this year - the Defence established

3 that the Prosecution in fact does possess some of these materials which

4 are of crucial importance to us but that it cannot disclose those

5 materials to us either because it feels that these materials are not

6 relevant to us or because they consider that some of these materials were

7 obtained in a confidential way or because some investigations having to do

8 with these materials are ongoing and they feel that disclosing this

9 material would influence and pre-judge the course of these investigations.

10 The final reason presented by the Prosecution for the

11 non-disclosure of these documents which they evidently have is a written

12 statement that this is a vast amount of materials scattered throughout the

13 collections of the Prosecution and. According to the Prosecution's

14 letter, this would be a monumental task for the Prosecution to carry out.

15 None of these reasons stated by the Prosecution in its letter of the 27th

16 of April of this year, Your Honours, is a reason recognised by the Rules

17 for the Prosecution to fail to comply with Rule 68. If some of these

18 materials are more important for the work of the Prosecution in other

19 cases, the Prosecution can request measures from the Trial Chamber in

20 order to comply with the Rules.

21 In any case, there is another point I wish to make. In January,

22 the Defence told the Prosecution that all the materials supporting the

23 case against Generals Gotovina, Markac, and Cermak. Markac and Cermak

24 were accused of a joint criminal enterprise on the Croatian side in order

25 to forcibly expel the Serb population from the territory of the Krajina as

Page 132

1 was carried out by perpetrating the crimes listed in the indictment by the

2 expulsion of several of hundreds of thousands of Serbs. All the

3 supporting materials for this indictment in the nature of things, in view

4 of the fact that they refer to the territory of Croatia and the areas in

5 which according to the Prosecution Mr. Martic was active, and in view of

6 the fact that they refer to the period of time in which Martic was active,

7 all these materials, in the view of the Defence, are exculpatory materials

8 under Rule 68, without a doubt.

9 The Prosecution, in paragraph 11 of the indictment against

10 Generals Gotovina, Markac, and Cermak, states that this is a joint

11 criminal enterprise in which the former president of the Republic of

12 Croatia Franjo Tudjman participated, and the top leadership of Croatia.

13 And not only does it speak of the Operation Storm which took part from the

14 4th of August to, according to the Prosecution, mid-November, but in

15 paragraph 50, 51, and 52 of the same indictment, Your Honours, they say

16 that the Croatian leadership planned this before 1992, since before 1992,

17 that the UNPAs and the pink zones connected to the Vance plan should be

18 taken by them through armed operations, which was done. And in paragraph

19 52 of this indictment the Prosecution states that this was done by

20 operations Miljevacki Plateau in 1992, Maslenica in 1993, in January,

21 Medacki Dzep, in September 1993 Operation Flash in May 1995, which is

22 directly linked to our indictment, and Operation Storm.

23 Not only that, the Prosecution raised -- issued another indictment

24 against Jadranko Prlic and Alis [as interpreted], Croats from Bosnia who

25 are charged with acting with the complete Croatian leadership including

Page 133

1 Franjo Tudjman; Minister of Defence, Mr. Susak; Chief of Staff, Janko

2 Bobetko; and other unnamed individuals with the objective of creating a

3 greater Croatia. This activity took place allegedly from at least the

4 18th of November, 1991, until April, 1994, or even later.

5 Despite its greatest efforts to understand the position of the

6 Prosecution that this material is not relevant to the Defence under Rule

7 68 and with all due respect for the position of my learned friends from

8 the Prosecution, the Defence finds that what happened in the territory of

9 Croatia and Bosnia at the same time, in the same period with the only

10 difference that participants involved were not the same, but the

11 activities took place in the same period that is relevant for Mr. Martic,

12 and still they don't recognise that it could be exculpatory material under

13 68(A). But at the same time that it could be material which could help

14 the Defence rebut the basic stand of the Prosecution that it is a joint

15 criminal enterprise.

16 For this reason, the Defence believes that disclosure of this

17 material cannot be avoided by the Prosecution and that in not disclosing

18 it the Prosecution violated its obligations.

19 Since we pointed out this problem as far back as several months

20 ago, the Defence believes it is now upon the Trial Chamber to issue an

21 order to the Prosecution to disclose all the relevant material which is

22 relevant under the very criteria determined by the Prosecution, and

23 especially the supporting material for these two indictments against

24 Jadranko Prlic and the Croatian generals, Gotovina, Markac and Cermak,

25 because this material is not any longer unselected and unsearched. This

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13 English transcripts.













Page 135

1 is the supporting material resulting from the investigations already

2 conducted by the Prosecution.

3 And let me add one more thing at this point. The Prosecution

4 notified through the media that it conducted investigations against

5 Mr. Tudjman and Mr. Izetbegovic. The relevant criteria are included in

6 the list of possible material to be disclosed to this Defence suggested by

7 the Prosecution themselves. However, we did not receive any of it.

8 Therefore, I kindly ask of you, Your Honour, to acknowledge my apology for

9 taking so much time in this introduction, but the only reason for taking

10 so long is that the problems the Defence is facing now are so serious.

11 The response of the Defence to the final pre-trial brief of the

12 Prosecution should be filed at the moment when nine years after issuing

13 the indictment against Mr. Martic for the shelling of Zagreb and one year

14 after the amended indictment against Mr. Martic for participating in a

15 joint criminal enterprise, the Prosecution is now in May filing its final

16 pre-trial brief under Rule 65 ter (E). If at this moment the Defence is

17 still lacking the material that I referred to, the question arises how and

18 in what time frame we can receive this material and only then will we be

19 able to inform the Trial Chamber about the time within which we can file

20 our pre-trial brief in a realistic manner. If the Prosecution took so

21 long to prepare their case, it is certain that with the resources it has,

22 the Defence is already in a difficult position, and without this material

23 it is unable to do the -- its job because of the complexity of the

24 situation it finds itself in.

25 Thank you, Your Honour.

Page 136

1 JUDGE MARTIN-CANIVELL: Thank you, Mr. Milovancevic. I think you

2 have put to me a lot, to me and to the Prosecution also, a lot of problems

3 altogether. Let's arrange your words, if I may say so, and start by one

4 thing, and then we'll follow the other. Let's for the moment -- for the

5 time being, let's have aside the problem of the delaying of the case.

6 That is something I will tell you about later on. But now the problem,

7 the substantial problem we have now is to know when you will be ready with

8 your pre-trial brief.

9 You had mentioned many aspects that I would like also to hear the

10 Prosecutor about, but be aware, and I have to insist on that, that my task

11 is to try to make an expeditious disposition of this case. Although it

12 would never be unfair, it has to be very expeditious in the solution. And

13 let's say that the expeditiousness in many ways is at the same time a part

14 of the fairness for the accused who deserves to be judged in a shorter --

15 in the shortest time possible.

16 I will hear, before making a solution, about what the Prosecutor

17 believes about that, but let me tell you that you haven't taken advantage

18 of the possibilities of asking the -- from the Prosecutor a lot of

19 documents that maybe have not been provided to you by the Croatian

20 authorities, but perhaps you don't need to go there since you are being

21 offered by the Prosecutor to get some of these documents.

22 Let me remind you also that the provision made in the Rule 67(C)

23 has previously disappeared, because this Rule that provided for the

24 reciprocal disclosure in case you asked for some disclosure of some

25 material will oblige you to discover also these other materials to the

Page 137

1 Prosecution. This is not any more or anything that can be operated like

2 that because this provision has already been repealed. So don't hesitate

3 now to ask the Prosecution for whatever you need in the way of documents

4 you may require. And don't try to insist, if it is not necessary,

5 absolutely necessary, to get those documents from the Croatian government.

6 So that's something I say to begin with. I will stand myself on

7 these matters after I have heard the Prosecutor about them, and so thus

8 only to begin.

9 Please may I ask the Prosecutor to know which are their beliefs

10 and their opinions about what has been suggested about the time that has

11 been required for introducing his pre-trial brief by the Defence.

12 MS. UERTZ-RETZLAFF: Your Honour, in answer to your question, I

13 just want to refer to what is actually expected by the Defence. The

14 Defence, at this point in time, is supposed to provide a pre-trial brief

15 in which it only in general terms explains the nature of its defence, the

16 matters that it will take issue with from the pre-trial brief of the

17 Prosecution and give also reason why it takes issue. It is not expected

18 at this point in time from the Defence to know all the details of all the

19 evidence as possible that will be provided during trial. There is no need

20 for them to go into any details of this evidence. It's not necessary to

21 discuss all the details of the events that happened. All what is needed

22 is to get an idea of the general nature of the Defence, and that, I think,

23 can be done until, as you proposed, the first half of September.

24 And the course the Defence needs to have the means and needs to

25 have a big enough Defence team to deal with the documents that were now

Page 138

1 provided and at least can read it and study it and then make their

2 position, make up their position.

3 This is the first thing I wanted to stress.

4 Secondly, the Defence has said, "We can't, we can't possibly make

5 our Defence brief before we not get all these additional materials dealing

6 with the actions of the opposing forces," that is the Croatian -- the

7 Croatian forces and the Bosnian Croat forces.

8 The Prosecution has in discussions and also in writing explained

9 that that is not relevant. What is relevant is to see what actually are

10 the charges, what is this accused charged with, and not what the Croats

11 did. That's a different case. That's the case against Mr. Gotovina.

12 That's the case against the other gentlemen that Defence counsel

13 mentioned. There is a profound error when the Defence feels that the fact

14 that the Croatian forces committed crimes elsewhere and at different

15 times, that this would be exculpatory for the actions he did. He is

16 charged with ethnic cleansing in certain territories at certain times, but

17 he comes up telling us, "I can only defend myself when I have the material

18 that relates to actions of the Croat forces in 1993, 1995," totally

19 unrelated to the charges here in the indictment we are dealing with. And

20 this is what we try to stress. We have looked at the materials of these

21 so-called flip-side cases, and we have provided limited Rule 68 materials

22 because we do not believe, and it's not our position that whatever these

23 other perpetrators did during Operation Storm, during operation flash,

24 exculpates this accused. This is why we do not provide such materials.

25 And we do not need it according to the Rules. We do not need to search

Page 139

1 for irrelevant materials.

2 But my colleague Mr. McKeon may add -- want to add to this.

3 Another point -- what else was stressed? No, these are actually

4 the two points what I want to make. That is what is now at the moment

5 whatever requested they can perform in the time limit given by the Judges,

6 of course when they have the Defence team and the means to pay for the

7 Defence team. That's a different issue, and it's on the agenda, and I

8 will only speak about this when we come to this point.

9 JUDGE MARTIN-CANIVELL: Would you like to intervene also now?

10 MR. McKEON: I'd like to speak on the point when we get to it of

11 the production of the materials from the Croatian government, but I think

12 I can hold my remarks until --

13 JUDGE MARTIN-CANIVELL: I believe this is the correct moment for

14 doing that.

15 MR. McKEON: The only other point that I'd like to add to what

16 Ms. Uertz-Retzlaff has said is that the Defence has now available to it

17 the electronic disclosure suite of documents which has a large volume of

18 materials on it; it will by the end of the year have an even larger

19 volume. This material is searchable through web access that is available

20 to the Defence counsel. In addition, I understand that it is possible for

21 all documents that have been disclosed by the Prosecution to the Defence

22 to also be put on this disclosure suite so that they can then search

23 through all documents that we have already given them and do their own

24 searches to find the documents that they believe may have some relevance.

25 So there will -- there's now the ability to find many of these documents

Page 140

1 themselves through that electronic disclosure suite.

2 JUDGE MARTIN-CANIVELL: I would like also to know from you - you

3 may sit down, please - whoever of you can answer me, if I have understood

4 well, the counsel for the Defence suggests that you haven't complied with

5 the disclosure that was necessary for this other party with the material.

6 Is that correct? You still have not disclosed whatever is necessary for

7 the Defence, or what is your answer to this claim of the Defence?

8 MS. UERTZ-RETZLAFF: Your Honour, according to our records, we

9 have actually complied with our obligations. We have made Rule 68

10 searches, and what came up so far in these searches was disclosed.


12 MS. UERTZ-RETZLAFF: But there is this disagreement between the

13 parties that the Defence feels that whatever the Croats did in what -- at

14 whatever location, at whatever time is relevant for them, which would mean

15 a huge amount of documentation which we say is not relevant. And the fact

16 that the Prosecution alleges a joint criminal enterprise on the Croat side

17 in relation to certain time periods, that does not anything for this

18 accused. That's an issue for the other case, not here.

19 JUDGE MARTIN-CANIVELL: Thank you very much.

20 Yes, please.

21 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour. With

22 regard to what my learned friend Mrs. Uertz-Retzlaff has just said

23 concerning the necessary content of the Defence trial brief, of course I

24 agree. There is nothing controversial about this. The Rule 65 ter (F)

25 clearly defines what the Defence is supposed to include in the pre-trial

Page 141

1 brief. What is important, however, is that the Defence and the

2 Prosecution do not agree about one important matter, and the Prosecution

3 views this as a fundamental error of the Defence, namely that the Defence

4 proceeds from the position that whatever the Croatian or any other side

5 did in terms of crimes is exculpatory for Mr. Martic.

6 This is not a position that we have ever taken, Your Honour. Our

7 position is something different.

8 The Prosecution in their very pre-trial brief state that the

9 incidents, and I'm quoting: "The incidents charged Skabrnja, Lipovaca,

10 Bacin, and many other places enumerated in the indictment. All these

11 places are not all for which Mr. Martic is charged. They're only the most

12 typical, only some of the incidents. The Prosecution does not charge Mr.

13 Martic for the direct perpetration of any crime. The responsibility, the

14 liability of Mr. Martic is defined by the indictment in a joint criminal

15 enterprise, and in order to understand, establish, and verify whether this

16 joint criminal enterprise existed, we have to establish what actually

17 happened on the ground in the territory of Croatia and in the territory of

18 Bosnia and Herzegovina in the years of war.

19 It is not that we are saying that these indictments against

20 Markac, Cermak, Jadranko Prlic and others from Herceg-Bosna concerning

21 1995 are relevant for our case, but the matter is that on the same

22 territory for which Mr. Martic is charged, large parts of Croatia and

23 large parts of Bosnia at the same time, which is relevant for Mr. Martic,

24 there was a different activity with totally opposite objectives. I am not

25 talking about the crimes from other indictments. I'm not saying that it

Page 142

1 is a Croatian joint criminal enterprise, and I don't agree, as the Defence

2 counsel for Mr. Martic, with the position of the Prosecution. I will try

3 to show the opposite, the opposite of their case, which is that there was

4 a joint criminal enterprise involving Mr. Martic.

5 I'm not going into the merits of the case, but I have to explain

6 what the essence is. If we are dealing with the same events at the same

7 time in one territory, we must have all the facts.

8 JUDGE MARTIN-CANIVELL: Mr. Milovancevic, let me tell you

9 something from the very beginning. It is that we are not just now making

10 the adjudication of the case. That will come later in a real moment of

11 hearing the case. All these points could be, of course, completely

12 irrelevant. Don't forget that now you are only supposed to answer and to

13 say with which issues you take issue that have been mentioned and brought

14 about by the Prosecution. So that is the point now, to make this

15 pre-trial brief of you. That would help us to have a pre-trial meeting

16 that will make -- start the case. That is the moment in which you will

17 need all that. And I would say that the aspect that you insist so much

18 about the participation of your defendant in a joint criminal enterprise

19 is some point that has not to be proven. It is just for the Prosecution

20 to prove. If it has been proven beyond a possibly doubt by the

21 Prosecution, you don't have to exert a lot of effort in this way.

22 So let's come back again to try to point out aspects that has to

23 be discussed so as to try to expedite the solution of this case.

24 First of all, you are trying to insist on asking to the -- for

25 the -- from the Croatian authorities a lot of documents. That couldn't be

Page 143

1 useful if you allow me to tell that unless you before tried to get them

2 from other sources, and one source which has been offered to you

3 repeatedly is that the Office of the Prosecution can provide you with some

4 of these documents you seem to be looking for from the Croatian

5 authorities, the Croatian government. So that is one point.

6 So then try to revise aspects that are absolutely for your

7 defence, for defence of your client, and limit yourself to those and not

8 try to cover yourself with a lot of work to be done because you are

9 getting too many documents, many of which are not relevant to the position

10 you have and couldn't really be taken into consideration by the Chamber

11 whenever they have to decide. So that's something important.

12 Secondly, it seems to me that the disclosure by the Prosecution

13 has been completed, and in case some new documents appear, you will be

14 given notice, information about them. So don't make things so complicated

15 and try to ease the situation, because that could be helpful for you and

16 for the work of this Chamber.

17 Another point I would like to mention, perhaps you haven't brought

18 it about before, is the agreement on facts. You have made an answer on

19 some of the facts that has been submitted to you by the Prosecution, and I

20 find that some of them, why are you not agreeing with that? That's, for

21 example, would you -- this is included on number 10 on the proposal of

22 agreements made to you already one year ago in May the 5th, 2003, by the

23 Prosecution.

24 This point, for instance, just picking up some of these points, on

25 21st December, 1990, Serbs in Knin announced the creation of the Serbian

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1 autonomous district of Krajina and declared their independence for

2 Croatia. Why didn't you agree with that? That's a point that wouldn't be

3 so difficult or so compromising for your client to be agreed on. So

4 that's just an example of what can be done so as to reduce your work, the

5 burden of your task, which unless you resort to this sort of procedures,

6 you are going to, of course, find it absolutely unbearable. Please try to

7 limit yourself to what is really interesting, important. I don't want to

8 limit your freedom to add in the way you believe you have to, but try to

9 be more concise and that would allow you to give you the possibility of

10 presenting to us the pre-trial brief in the four months. You say that you

11 haven't been given notice of the Prosecutor's pre-trial brief until May

12 the 14th. Well, let's make it four months exactly unless the -- and let's

13 have your pre-trial brief no later than September the 15th.

14 So I believe if you resort to some of these means and these ways

15 of operating, you will reduce very much your task and you will be able to

16 have this at this moment.

17 Another point which has been mentioned by you is the Defence

18 motion about the upgrading of the case. We are getting information about

19 that, and the most I can say just now is that we are going to have pretty

20 soon an answer, I mean the Chamber is going to give you an answer about

21 that. So most probably, most probably I would say that you're going to

22 get your motion accepted. It doesn't seem, even if it looks for you, and

23 I'm very glad in many ways. You find it a complicated case, but not so

24 much so as to be upgraded to level three. But let's give time for you to

25 get the answer for that.

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Page 146

1 So I would insist again in the points I had mentioned to you

2 before so as to shorten the possibilities for you to have your pre-trial

3 brief at the date I mentioned and I'm establishing. You see that the

4 Prosecutor has made this in a far briefer period of time, so please try to

5 abide by this according which the Rules I had already had mentioned to

6 you. In the sense that I -- my task is to make you to meet, both parties,

7 the Prosecutor and the counsel for the Defence, to brief -- to shorten the

8 time, the delay, that would be required for completion of your task.

9 And besides that, I will always be reachable to you if you have an

10 extra problem, but I believe if you are accepting, which I am pointing out

11 like the delay for presenting your pre-trial brief, the four months, you

12 will have time enough to prepare it.

13 I wonder if you would like to point out some other problem at this

14 very moment before we keep proceeding.

15 MS. UERTZ-RETZLAFF: Your Honour, only according to the agenda do

16 I see that we are actually asked to respond to the Defence motion in

17 relation to the upgrading of the case.


19 MS. UERTZ-RETZLAFF: It's not up -- it's up to the Registrar and

20 the Trial Chamber to classify the level, but what can be said, and we

21 concur here with the Defence, it is a complex case covering events in

22 Croatia and Bosnia over an extended period of time, but of course it's not

23 the whole war, not everything what happened in the war, only a very

24 limited territory that we are concerned here with. But nevertheless, it

25 is a complex case with complicated legal issues of command responsibility

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1 and culpability for actions of other members of the joint criminal

2 enterprise, and there are a lot of complicated factual issues. Therefore,

3 I think it can be said that it is a complicated case that needs a lot of

4 work.

5 JUDGE MARTIN-CANIVELL: You mean that you are mentioning that it

6 could be upgraded to level three?

7 MS. UERTZ-RETZLAFF: It's not up to us to say what makes something

8 level 3. What is the big distinction between level 2 and level 3. That's

9 for the Registrar to have an opinion on. All I can say is that it is a

10 complicated case that is actually definitely within the higher ranks of

11 the cases here in the Tribunal. It's not compare -- comparable to the

12 Milosevic case but definitely to cases like generals and other local

13 leaders.

14 JUDGE MARTIN-CANIVELL: Thank you very much for your help.

15 Is there anything else, Mr. Milovancevic, you would like to raise

16 now, another question that you feel that could be needed to be solved at

17 this moment?

18 MR. MILOVANCEVIC: [Interpretation] I understood your suggestions,

19 Your Honour, quite accurately regarding my pre-trial position, and I

20 understand that I should not go into the merits. I bear that in mind all

21 the time, and I always will. I only wanted to say one more thing to avoid

22 a false impression regarding the course of our cooperation in agreeing on

23 points, on various facts.

24 You chose, Your Honour, number 10 out of all the points, and you

25 asked me why we find it hard to agree with the propositions of the

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1 Prosecution. I will reply that we gave the Prosecution a response which

2 was based on the Statute and the legal enactment adopted at the time.

3 Unlike the Prosecution, I will not go into commenting the contents of that

4 legal enactment, but we quoted verbatim the decision envisaging Serb

5 autonomy within the framework of Croatia. To my mind, in my reading, that

6 is something different from proclaiming independence. What it actually

7 means will be discussed at trial. However, we approached the process of

8 negotiation in good faith, and we found it possible to agree on certain

9 points. We made suggestions regarding the Operation Storm and the Vance

10 plan, and the Prosecution found it impossible to agree. However, we found

11 it nowadays, the same text that we proposed, we find nowadays in the

12 Croatian indictments.

13 I only want Your Honour to bear in mind that all the factual and

14 legal issues are viewed by us as extremely important because they define

15 the existence or non-existence of things the Prosecution claims, and we

16 are very delicate in our approach. Every time we try to quote verbatim

17 the documents referred to by the Prosecution, but the Prosecution takes it

18 upon themselves to interpret them. Unlike them, we always use direct

19 quotations. The Prosecution did not accept many of our responses and even

20 erased them as points that could be agreed.

21 I had to say this because you -- otherwise you might get a false

22 impression about our cooperativeness. Our job and our intention is to

23 help the accused and to cooperate fully, with that in mind, with our

24 learned friends from the Prosecution.

25 Let me add one more thing. I am thankful to my colleague from the

Page 149

1 Prosecution for saying what I understood as support to the request of the

2 Defence for upgrading the case. Indeed the issues are very complex, and

3 we can see that from the fact that on the date of the previous Status

4 Conference in January we received 21.000 pages of new material, and by now

5 we have received another 14.000 pages. If we view this in the light of

6 the 14 September deadline, we have to bear in mind these indicators of the

7 complexity of the case.

8 I am just trying to explain the problems that we are facing in our

9 attempts to assist the accused in the way we consider the best for him.

10 And let me say one more thing before I conclude. The Prosecution

11 mentioned that as far as the other indictments are concerned, the

12 supporting material is not relevant for us, and they did not even wish to

13 search it. However, I have to disagree. For the preparation of our

14 defence, this material is crucial because it has a qualifying importance

15 for the acts of the accused in this case. We are not trying to stand in

16 the way of an expeditious trial. With the resources it receives

17 eventually and with the material available to us at this stage, the

18 Defence with make every effort to perform its duty.

19 However, with all due respect to your efforts to help both

20 parties, I must reiterate that the issue of disclosure in this case is of

21 vital importance and will determine our ability to prepare our defence.

22 Thank you.

23 JUDGE MARTIN-CANIVELL: Thank you again, Mr. Milovancevic. I am

24 sure, and I am very glad to have heard you to say that, you are proceeding

25 in the best good faith. That is very important. You may consider that

Page 150

1 also from the part of the Prosecution you don't -- you cannot expect a

2 trick to be played on you and your client. So I am very happy that you

3 maintain this idea, and I completely trust you in this way, because I have

4 to, and besides, I am sure of your goodwill in this case.

5 So please try to abide by the time limits we are going to -- I

6 mean, we are setting to you, and don't hesitate in coming to us whenever

7 it would be necessary, when you feel it is necessary for you in extra

8 help. As far as I am concerned, I am at your disposal for that, and that

9 is my task also.

10 Well, if nothing else has to be mentioned now on other issues, I'm

11 going to ask Mr. Martic how does he feel, how -- do you have to present us

12 with some problem in relation with your -- I am speaking to you,

13 Mr. Martic. Are you having any problems with your health, mental or

14 physical, and would you like to raise them here to the Tribunal?

15 THE ACCUSED: [Interpretation] Thank you, Your Honour. As for the

16 conditions in the Detention Unit, I have no objections. By your leave, I

17 would like to say something very briefly about my defence. I would like

18 to say that I am extremely satisfied with the work of my Defence counsel,

19 but I appeal to you as a neutral party to exert your influence to ensure

20 that there is equality of arms between my Defence and the Prosecution. It

21 seems to me that this is not really correct behaviour on the part of the

22 Prosecution. At one point, it seemed to me that they were Defence counsel

23 for Croatia.

24 I ask Your Honour to make it possible for my counsel to defend me

25 in the best possible way.

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1 My legal advisor on the team was not allowed to visit me in the

2 defence unit the last time he was here, and this was repeated again. I'm

3 sure that the legal advisor can also be useful.

4 This is just a banal example. However, as far as I am concerned,

5 I can hardly wait for the trial. I feel that I am innocent, but please

6 make it possible for me to put up a good defence. Only you can do that,

7 Your Honour. Thank you.

8 JUDGE MARTIN-CANIVELL: You may be completely sure that the

9 neutrality of this Chamber and that it will take care that the position of

10 your defence is at the same level of capacities than that of the

11 Prosecutor.

12 I have an extra question to ask you. You have problems meeting

13 with your -- your counsel or you have all the conveniences and the moments

14 and the time required for preparing well your defence?

15 THE ACCUSED: [Interpretation] I just told you, Your Honour, a

16 specific example. We asked for more time to work here -- to work

17 together. This means a lot to us. But he was not granted a sufficient

18 number of hours here, and the legal advisor was not allowed to come in. I

19 don't see where the problem is.

20 JUDGE MARTIN-CANIVELL: You mean he hasn't time enough to confer

21 with you and to -- I mean, to speak up about the case as much as you feel

22 is required? I mean, you are not given in the Detention Unit time enough

23 to confer with your counsel?

24 THE ACCUSED: [Interpretation] The problem is probably that there

25 are so many of us in the Detention Unit and we are unable to get rooms to

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1 work in. So our time is limited. We would have a lot to time but the

2 time is limited because, simply, there are no facilities, no rooms for us

3 to work in.

4 JUDGE MARTIN-CANIVELL: Well, you could ask for extra time,

5 perhaps, in the Detention Unit or you haven't required this extra time?

6 Exactly what would you like to be done in --

7 THE ACCUSED: [Interpretation] Well, it seems that the matter is

8 getting complicated now. My Defence counsel asked for more time to confer

9 with me. He was unable to obtain this because there were many visits.

10 The Detention Unit was crowded, and no rooms were available for us to work

11 in. It's not complicated.

12 JUDGE MARTIN-CANIVELL: Even if the Detention Unit, as you say, is

13 crowded, I suppose in the occasions and the places for conferring

14 lawyers -- I mean, counsel -- counsels and accused persons, you have to

15 ask for the required time, and I have to be sure that you get it. So I

16 will try to see about that and find out what is, because you need and you

17 deserve to have all the time required for that. Of course, I am speaking

18 in the normal behaviour nothing, not really would be in our views, and I

19 grant on you for that.

20 Well, I think we have to have another Status Conference in a

21 matter of one -- not less than 120 days, which is approximately the time

22 at which I am expecting to get the pre-trial - you may sit down, please -

23 the pre-trial brief.

24 THE ACCUSED: [Interpretation] Thank you.

25 JUDGE MARTIN-CANIVELL: And if nothing else is to be brought about

Page 153

1 here, I think we are going to adjourn the case. Oh, no. Go ahead,

2 Mr. Milovancevic, please.

3 MR. MILOVANCEVIC: [Interpretation] Excuse me, Your Honour, but in

4 connection with what the accused just said, my client Mr. Martic, with

5 respect to visiting hours in the Detention Unit, there really are

6 technical problems because there are many inmates in the Detention Unit,

7 and there are insufficient -- there's insufficient room on the premises.

8 But this, however, is not a complaint. I wish to say something else in

9 view of the volume of brief which the Prosecution has sent to the Defence,

10 which is 390-something pages, and we have two, three, four hours at the

11 most to confer with our defendee, I ask that this material be translated

12 as soon as possible into the language of the accused so that he can

13 familiarise himself fully with the case against him and the evidence that

14 is to be presented against him. Objectively, a long time would be needed

15 for me as his counsel to translate this material for him which he cannot

16 understand, and I would not like to bring him into a position as his

17 counsel for him -- his understanding of these documents to depend on my

18 translation. There are professional services which should do this.

19 JUDGE MARTIN-CANIVELL: We will try to see about that, and thank

20 you for telling me about this problem.

21 So the session is adjourned.

22 --- Whereupon the Status Conference adjourned

23 at 4.18 p.m.