Tribunal Criminal Tribunal for the Former Yugoslavia

Page 154

1 Tuesday, 21 September 2004

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.50 p.m.

6 JUDGE CANIVELL: Good afternoon, ladies and gentlemen. Can you

7 call the case, Madam.

8 THE REGISTRAR: Case Number IT-95-11-PT, the Prosecutor versus

9 Milan Martic.

10 JUDGE CANIVELL: Thank you, Madam Registrar.

11 May I have the appearances, please, for the Prosecution.

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

13 Prosecution Hildegard Uertz-Retzlaff accompanied by Case Manager

14 Lakshmie Walpita.

15 JUDGE CANIVELL: Thank you.

16 And for the Defence, please. Didn't you get the translation?

17 MR. MILOVANCEVIC: We have some problems. [Interpretation]

18 Everything is fine. Thank you. Good afternoon, Your Honour. I am

19 Defence counsel for the accused Martic. I am Predrag Milovancevic from

20 Belgrade. Together with me is attorney Vuk Sekulic, also from Belgrade,

21 my assistant.

22 JUDGE CANIVELL: [Previous translation continues]... the right

23 channel. 4 would be all right? Okay. I hope 4 is the right one. I

24 wasn't on the right one. Excuse me for that.

25 Mr. Martic, please, can you hear me in a language that you

Page 155

1 understand?

2 THE ACCUSED: [Interpretation] Yes. Yes, I can.

3 JUDGE CANIVELL: Thank you very much.

4 Well, we are here now for the -- another occasion of the Status

5 Conference. I had heard about how is the situation of the case. I'm glad

6 that the disclosure is working, not without some problems but with a good

7 pace. I am very glad of all that the Defence now can go through the

8 materials that have been passed over by the Prosecution. It seems that

9 you have some problems with indexes but I am confident and I believe that

10 you will be on the way to make a resolution for this problem.

11 Another aspect that has been very, let's say, rejoicing for me

12 even is that on the agreement of the facts if I have well understood, I

13 have seen that the Defence has made known to the Prosecution that there

14 are quite a lot of agreement on some of the facts but very few exceptions.

15 So I am very glad about that and I hope that that will be some aspect that

16 could -- that remains more expeditious and a fair solution of the case.

17 I have heard about some problems about the pre-trial brief of the

18 Defence, especially on the aspects of the translation of these for the use

19 of the accused. Above all, I have to remark just for the information of

20 the counsels for the Defence that the translation of the -- in the

21 pre-trial stage of the Prosecutor brief is not considered like a normal

22 course of action. Let me remind you what has been said not so much time

23 ago and is still valid nowadays in the case of Prosecutor versus

24 Pasko Ljubicic. It has been said in the decision adopted on the 20th of

25 November, 2002, that:

Page 156

1 "Pursuant to the Statute and the Rules, and based on the

2 mainstream of the existing judicial practice as referred to above," and

3 they had made a reference before, "the current general standard regarding

4 translation of documents during the pre-trial stage of the proceedings

5 requires that the following material be submitted to the Accused in a

6 language he understands:

7 "a copy of the indictment according to Article 21, paragraph 1 and

8 paragraph 4(a) of the Statute and Rule 53 bis (B) in combination with Rule

9 47 (G) of the Rules;

10 "a copy of the supporting material which accompanied the

11 indictment against the Accused and all prior statements obtained by the

12 Prosecutor from the Accused, irrespective of whether these items will be

13 offered at trial, in accordance with Rule 66(A)i of the Rules."

14 Thirdly, "statements of all witnesses (either in hard copy or in

15 audio format) whom the Prosecutor intends to call to testify at trial

16 along with all written statements taken in accordance with Rule 92 bis,

17 and statements of additional Prosecution witnesses when a decision is made

18 to call those witnesses --

19 THE INTERPRETER: Could you please slow down, Your Honour, when

20 reading. Thank you.

21 JUDGE CANIVELL: Yes, yes, I apologise. Excuse me. Should I

22 repeat or -- no, it's okay.

23 Fourthly, "discovery material which appeared in a language

24 understood by the Accused at the time it came under the Prosecution's

25 custody or control, pursuant to Rule 66(B) of the Rules."

Page 157

1 Fifthly, "exculpatory material disclosed by the Prosecutor

2 according to Article 68 of the Rules; and..."

3 Sixth and finally, "written decisions and orders tendered by the

4 Tribunal."

5 I have read that exactly as it was pronounced in this decision in

6 the Ljubicic case because I want to emphasise and to make sure that you

7 understand that the Prosecution brief is not included among the documents

8 that has to be translated for the accused. If any problem could be

9 determined by this, not habit or not custom or not translated in that, I

10 would say that it would be clearly taken out of the picture because I know

11 that not only is that given in English but also that Mr. Sekulic is

12 absolutely proficient in the knowledge of English, so that he can conduct

13 to the accused the content of the brief presented by the Prosecution.

14 On the other side I have to remind you that this Chamber has

15 allowed to the Defence extra time to give an answer to present its brief

16 that was supposed to be handed in in September. And now has time extended

17 until, I believe, the 1st of November. I would also insist on the case of

18 this brief that it's not a document in which it has to be very much

19 involved as a contributor the accused himself, because he's weighted more

20 with legal problems that -- legal issues more than with the factual

21 aspects of the case. So it's more for the counsel of the accused than for

22 the accused himself to take care of the content of this brief.

23 If you may allow me, I'm going to refer to Rule 65 ter F in which

24 it is said what should be the content of this Defence brief. It would

25 refer as is said first to, "in general terms, the nature of the accused's

Page 158

1 defence;"

2 Secondly, "the matters with which the accused takes issue in the

3 Prosecutor's pre-trial brief." That means that is also a legal aspect

4 which is being made reference to here.

5 And thirdly, "in the case of each such matter," and referring

6 to the previous requirement, "the reason why the accused takes issues with

7 it."

8 So as you see, and of course you know, but I wanted to emphasis

9 this aspect. It's more legal aspects that are involved in the production

10 of this Defence brief than a reference to the facts that of course had

11 been gathered before in the case and are going to be presented as a matter

12 of proof during the hearing of the case. So as far as I know the matters

13 in which I can, well, communicate with the parties so as to increase and

14 to impose your communication so as to -- make quick events in dealing

15 with the case.

16 Now I have to refer especially to Mr. Martic. Please, Mr. Martic,

17 would you tell me your situation, your medical and health situation is in

18 good condition or do you have any trouble or any problem that you would

19 like to inform me about?

20 THE ACCUSED: [Interpretation] Thank you. I naturally have some

21 problems but not concerning my stay here. Everything is fine concerning

22 my detention. However, I have problems with my defence and let me be

23 clear about it. I am happy with my Defence counsel, but I'm not happy

24 with the treatment because this looks like a discrimination. I don't know

25 what other term I could use except for discrimination. Let me clarify

Page 159

1 this. The Prosecution alleges that I held the highest positions in the

2 country, prime minister and so on, and when it comes to registry's

3 position to my defence then they treat me as a reserve policeman. Even

4 had I been a reserve policeman, the allegations in the indictment are much

5 broader. I am a lawyer myself and I have to tell you that this boils down

6 to discrimination. I'm denied all my human rights and all other rights.

7 On the other hand, Your Honour, those who expelled my people from

8 Croatia are still in highest public offices. Thousands of civilians were

9 killed under the protection of the United Nations and no investigations

10 have been launched until this day against those people. It seems as

11 though no indictments will ever be raised against them. The chief

12 Prosecutor meets with those people, sees them here as the most honourable

13 guests, all the way up to ministers in the government, vice-presidents of

14 the government, and so on. So those are the people who were involved in

15 these crimes before the international protection forces came and

16 afterwards. And how did they protect my people? We all know because my

17 people were ethnically cleansed.

18 In addition to that there are all these problems about my defence

19 rights being denied to me. And when we take all of that into account,

20 what is happening here and what is happening back there, then we can see

21 very clearly that this is a case of pure discrimination. So this is what

22 troubles me. Other than that, my health and detention conditions are

23 satisfactory, as I've stated in the beginning.

24 JUDGE CANIVELL: You may sit down but I'm going to answer you in a

25 different way. First, I'm going to answer you about your second problem

Page 160

1 you initiated. It's not for me to take a decision about what cases and

2 what facts to be prosecuted. You may get in relation with the Prosecution

3 office, and then perhaps take or accept what you have to say about these

4 facts. You believe under the command of the United Nations -- believe

5 have been committed as delinquency acts.

6 That's one point. But, on the other, I am very surprised because

7 if I had well understood you, you mean that all your human rights have

8 been de-negated to you. That seems to me very peculiar and besides when

9 you say you have been treated in a discriminatory way, I am wondering by

10 whom. You say that you are not happy with your defence, does that mean

11 that you are not -- I mean that that you are discriminated against by your

12 own defence? I don't think so. No? Please speak up. It's -- my being

13 here is exactly -- one of the reasons of my being here is to hear you

14 about whatever complaints you may have and try to right up the situation.

15 Your own defence against you, is discriminating you. I couldn't believe

16 that in principle. But tell me if you have any special complaint.

17 I see that you laugh and I see that Mr. Milovancevic also was

18 laughing at that possibility, so it makes me believe that nothing of the

19 kind exists. Tell me, please. Don't laugh and tell me -- it's a very

20 serious issue.

21 THE ACCUSED: [Interpretation] I'm laughing because this is the

22 third time you've put the same question to me. You asked me whether I'm

23 content and happy. I'm more than happy and content because these people

24 are defending me properly. But I wanted to point out to you this

25 disproportion between the Prosecution on the one hand who has piled up a

Page 161

1 lot of allegations in the indictment as to the positions I had. So that's

2 one hand, and then on the other hand we have the registry who is denying

3 me my full right to defend myself. They are not providing me everything I

4 am entitled to. I want to put out a proper defence but I am unable to.

5 And on the other hand you keep asking me whether I'm happy with how things

6 are going.

7 JUDGE CANIVELL: What you say is a very tremendous way of

8 informing me about the situation. First of all, the Prosecution is doing

9 its work in a normal conduct; I mean in a normal way, if I way say so. So

10 I don't understand why because you are accused by the Prosecution, you are

11 mistreated or discriminated against; that's not the case. I could expect

12 that in the way you are treated in the Detention Unit or by other persons

13 in this Tribunal, you may complain. But exactly the fact that I am asking

14 you and trying to know about what's the situation from you is clear proof

15 that you are treated like everybody else. You haven't been postponed to

16 have this Status Conference, to be heard whenever it has been necessary.

17 So I don't understand exactly. If you can be more precise about what

18 rights you have been attacked and has been damaged by whenever -- whoever

19 has been the author of that, I may begin to think about that. So please

20 tell me.

21 THE ACCUSED: [Interpretation] Let me clarify once again. The

22 rights that have been denied to me, the funds, the funds to finance the

23 work. So far my Defence has worked pro bono. They have not been paid for

24 months now. As for the Prosecution, now that you've raised that issue,

25 let me say that I served as president of the republic that doesn't exist

Page 162

1 anymore. That was the greatest example of ethnic cleansing in the 20th

2 century, what happened to my people there. And to this day, nobody has

3 complained about that. Carla Del Ponte's delighted with the cooperation

4 she has established with Stipan Mesic and others who were involved and who

5 issued orders for crimes to be committed against civilians while the UN

6 was there. And of course I'm not happy with that. Nobody else has raised

7 the issue but me. Those people are gone. They were either killed or they

8 immigrated to other continents. So how can I be happy. There have been

9 no indictments concerning Miljevac Plateau, concerning Malenica

10 [phoen], Operation Flesh, where hundreds and hundreds of civilians were

11 killed mercilessly, and nobody seems to care. And the more dead Serbs,

12 the better. That seems to be the position they've taken. So what does

13 that amount to if not discrimination? And here I am standing trial here

14 for command responsibility, but I'll let the Prosecution prove their

15 charges. I will have to prove my innocence, but so far I have been denied

16 the resources to do so.

17 JUDGE CANIVELL: I have let you speak but I have to oppose very

18 much what you have said. I'm not going into a contradiction with you, but

19 just realise that what you have said about being discriminated by the

20 Prosecution has really nothing to do with the behaviour of the

21 Prosecution. The Prosecution is treating you like everybody else that has

22 been brought under the jurisdiction of this court. Your ideas or your

23 beliefs about who has to be subjected to the jurisdiction of this Tribunal

24 is something very, very different and very separated on whatever -- and I

25 would say that I wouldn't tolerate that the Prosecution could be accused

Page 163

1 of discrimination because of this kind of view of the situation. You are

2 not treated, as far as I know, unless you give me other special reason

3 that you are treated in a different or worse way that other accused in --

4 under this Tribunal. So unless you offer to me some case of

5 discrimination the views that you maintain about who has to be accused or

6 not, they have nothing to do with the behaviour of the Prosecution to be

7 considered as a form of discrimination. So, perhaps you have different

8 views but I am to be neutral and I try to be neutral and I hope I'm going

9 to be neutral so as not to upset some particular views which I understand

10 that you may maintain in your situation but I -- cannot be accepted by the

11 Tribunal.

12 Well, unless the parties have another question to raise and

13 perhaps Mr. Milovancevic intended to speak, I could finish the -- so you

14 want to speak. Please tell me -- tell us, Mr. Milovancevic.

15 MR. MILOVANCEVIC: [Interpretation] With your permission,

16 Your Honour, yes. I would just like to clarify a certain point. The

17 complaints made by Mr. Martic today, his objections, relate to a problem

18 that is not directly concerned with the work of the Prosecution. And

19 perhaps Mr. Martic drew a parallel there which seemed to him to be

20 logical. What he referred to was the fact that the Defence at the last

21 Status Conference and before you, too, raised a problem and that was the

22 absence of funds, the absence of resources, which has led to a

23 situation -- and I think that that's what Mr. Martic had in mind when he

24 raised the question --

25 JUDGE CANIVELL: Excuse me, Mr. Milovancevic, before you go on on

Page 164

1 this subject, I have to tell you and to remind you that the position that

2 may be taken by this Chamber and by myself on this matter is not at the

3 time possible. You know that you have placed an appeal and the decision

4 is now at the level of the Appeals Chamber who are going to give you the

5 answer that you are looking for. Besides, I know that you have repeatedly

6 complained about the lack of funds, but I have some date of my own and I

7 had found that all in all and so far until perhaps March or until the last

8 few weeks you have received $277.000 plus. To go with that I wondered if

9 with this which is a tremendous amount of money you haven't been able to

10 go too far away, but I think it's really very important amount of money.

11 On the other aspect, you I think had said -- brought about in the

12 previous 65 ter meeting you had had this morning the possibility of

13 getting some people to help you. And I think that even the Prosecution

14 has told you that perhaps you may engage somebody, a student, that would

15 be capable enough to go through the huge amount of documents that you have

16 to deal with now and perhaps that is a good suggestion. But I am sorry.

17 I would have heard you if I could give you an explanation or a solution to

18 your problem. Unfortunately it's not the case for me. You have to apply

19 and you have already applied and you have to wait for the decision of the

20 Appeals Chamber.

21 Do you think there is something else I can help you, please tell

22 me, but not about this. Please.

23 MR. MILOVANCEVIC: [Interpretation] The facts and figures as to the

24 money spent has provided -- later on that has been provided by the

25 registry and it is for two Defence teams dating from the time that

Page 165

1 Mr. Martic is in detention. The first Defence team -- as I say there are

2 two Defence teams. We inherited the first Defence team and the first team

3 spent most of the money so that we have had 50 per cent of the resources

4 allotted to us. Now it is the secretariat which decides how the work of

5 the Defence counsel will be paid and the level of the case. And depending

6 on the complexity of the case, all the other matters are decided. So I

7 don't think that the conduct on the part of the registry is correct and

8 proper because it draws attention from the real problems.

9 If I may be allowed to say one more thing, Your Honour, I am not

10 dealing with my complaints but you were informed that we received a new

11 deadline by the 1st of November and you have told us what it says in the

12 rules. The Defence did not ask a deferral of the deadline because from

13 May to September it didn't have enough time to work, to get through its

14 work. Now the extended deadline by the Trial Chamber, given the

15 explanation that the Prosecution brief is so long that the Defence will

16 have to have to have enough time to study it, and the Defence is now faced

17 with the question of resources. Because since March it has had no funds

18 for work. So the situation is quite a drastic one in view of all these

19 problems, but I won't dwell on that anymore. The report provided by the

20 registry is -- could be said to be a proper one, if the -- but it is not

21 in keeping with the rules. And we should look at how much each Defence

22 team costs and then we can go into the figures. But this is for two and a

23 half years, 30 months which means 30 months makes it $9000 a month for

24 four Defence counsels, four attorneys working on a case of this caliber.

25 Now, if we deal in arithmetic, and of course that is not the

Page 166

1 crucial point on which the Defence relies, the Defence is nonetheless in a

2 very difficult position now, Your Honour, because we have to respond to

3 the pre-trial brief in the best possible way, top quality --

4 JUDGE CANIVELL: Mr. Milovancevic, excuse me again, I have to

5 interrupt you. I am really sorry for you but I cannot give you any relief

6 on this matter. I know you have been working only since December of 2002,

7 which makes less than 2 years. And perhaps you received a limited amount

8 of the money that was attributed for the case. But also remember that the

9 registry gives you an extra money for the level of the case. On the other

10 side I have to commend the way in which you are behaving with the case and

11 you are working, and that is something to be recognised and I feel very

12 happy about that. But I'm sorry I cannot give you a solution for the

13 other problem. So please let's stop here about that. Even it doesn't

14 mean that I don't appreciate the effort that you and your team are doing

15 for the expeditiousness and the fairness of the case.

16 Some other aspect?

17 MR. MILOVANCEVIC: [Interpretation] Your Honour, I'm grateful to

18 you for those words. The Defence merely wished to inform the

19 Trial Chamber of the fact that we are in a situation in which we have been

20 left without funds since March. And in June we had two highly productive

21 meetings, one with Madam Prosecutor, that is to say Ms. Uertz-Retzlaff,

22 where we dealt with key questions so that the Defence is working in the

23 best possible way, in the only way possible for it to organise itself to

24 help the Trial Chamber and the Prosecution and first and foremost the

25 accused, of course. But what is troubling the Defence at this point in

Page 167

1 time, Your Honour, is the fact that we now have a lot of talk about money

2 of the Defence. It is money that the accused should have for the purposes

3 of his Defence counsel. So once again, this is a drastic situation. We

4 have not received funds for six months. We are going to inform the

5 embassy of Yugoslav and the UN Secretary-General as well as the lawyers or

6 the bar association of Europe and the government of the country whose

7 citizen Mr. Martic is. Because it is a question of paramount importance,

8 the kind which merits this move. It is of great interest to the accused

9 and it involves the registry, of course, as well. It is a violation of

10 the rights and so the Defence counsel cannot bypass the ethics of lawyers

11 at the bar. So we do wish to write the best quality response to the

12 pre-trial brief. But as I say, we have been left out resources to carry

13 out investigations. It is a very lengthy pre-trial brief to which we have

14 to respond, whereas our funds have been cut off. The Prosecution is

15 continuing its work and in a case of this complexity, that is quite

16 normal, the fact that they are continuing their work. We are not asking

17 for a decision from you but we'd like you to understand the difficult we

18 find ourselves in. We merely wish to inform you of them and there are

19 matters that the Defence cannot consciously undertake and have it be at

20 the detriment of the client whom we represent. Thank you, Your Honour.

21 JUDGE CANIVELL: I do understand what you have conveyed to me and

22 I realise there are problems you have to go through, of course. But I

23 commend you to take these views you have expressed so far to me to the

24 Appeals Chamber so in a way to find a solution that would be in your

25 interests.

Page 168

1 May I ask the Prosecution if they have any special matter that it

2 wants to be raise here, now?

3 MS. UERTZ-RETZLAFF: Your Honour, as Mr. Harhoff obviously has

4 informed you about what was said in the 65 ter Conference, I do not need

5 to repeat anything. The only additional thing that I could say is in

6 relation to the agreed facts.

7 The Defence had actually today handed us their proposals. And as

8 I looked through them we have actually already reached agreement on 29

9 important facts and three more are forthcoming. Actually we are only

10 discussing at the moment one more fact. And otherwise we have actually

11 found a very good agreement and I think in the very near future we will

12 pass a joint motion to you with these agreed facts.

13 JUDGE CANIVELL: Thank you very much to the representative of the

14 Prosecution because it's a great advancement for the position of the case

15 that you announced to the Chamber. So I am very grateful and very glad

16 that that has been achieved by both parties in the way of the solution for

17 the case.

18 Would you have any other suggestions to make now before we end

19 this Status Conference? If it is not the case, I have to announce that a

20 new Status Conference would be held in 120 days' time which makes us to

21 think about January of the next year. I hope that in the meantime the

22 Defence would be able to present the brief that it is required to present

23 in due time, and that perhaps we'll be -- I mean the case in the pre-trial

24 stage could be finished by January, but if not you know that in this

25 moment we will meet again. So the meeting is adjourned. I thank you all

Page 169

1 for your presence and above all to the interpreters also as well. Thank

2 you.

3 ---Whereupon the Status Conference adjourned at

4 4.26 p.m.